Maboudi v Fergus William Parry t/as Ideal Designs
[2010] NSWWCCPD 19
•26 February 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Maboudi v Fergus William Parry t/as Ideal Designs [2010] NSWWCCPD 19 | ||||
| APPELLANT: | Saied Maboudi | ||||
| RESPONDENT: | Fergus William Parry t/as Ideal Designs | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBERS: | A1-004558/09 & A2-004558/09 | ||||
| ARBITRATOR: | Mr J Wynyard | ||||
| DATE OF ARBITRATOR’S DECISION: | 25 September 2009 | ||||
| DATE OF APPEAL DECISION: | 26 February 2010 | ||||
| SUBJECT MATTER OF DECISION: | Section 40 of the Workers Compensation Act 1987; ability to earn; probable earnings. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | In person | |||
| Respondent: | Hicksons Lawyers | ||||
| ORDERS MADE ON APPEAL: | Paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Arbitrator’s determination dated 25 September 2009 are revoked and the following decision made in its place: 1. The name of the respondent is to be amended by deleting the word “Ferguson” and substituting that word with the name “Fergus”. 2. Award for the applicant at the rate of $500.00 per week from 27 November 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987. Paragraph 9 of the Arbitrator’s determination dated 25 September 2009 is confirmed. For the reasons stated in this determination the employer’s appeal fails and is accordingly dismissed. The employer is to pay the worker’s costs of both the appeal brought by it and that brought by the worker. | ||||
BACKGROUND TO THE APPEALS
Saied Maboudi (‘the worker’), who is 44 years of age, commenced employment as a painter with Fergus William Parry (‘the employer’) who traded as Ideal Designs in October 1997. On 1 April 1998 whilst in the course of that employment he received injury when the flooring of a balcony upon which he had stepped collapsed. It seems that the worker ceased work immediately and sought medical treatment. By reason of his injuries, which involved his right shoulder and arm and his lower right leg, it is alleged that he has been unable to resume work as a painter since.
The evidence suggests that the worker encountered difficulty identifying his employer’s Workers Compensation Insurer. It seems that notice of injury had been given to the insurer following which a dispute arose concerning entitlement. Proceedings were commenced by the worker in the Workers Compensation Commission (‘the Commission’) being matter number 14286 of 2003. That claim was settled and an agreement with respect to lump sum entitlement was registered with the Commission pursuant to section 66A of Workers Compensation Act 1987 (‘the 1987 Act’). That agreement made provision for payment of $5,600.00 in respect of 8% loss of use of the right leg below the knee, $6,400.00 in respect of 8% loss of use of the right arm above the elbow and the sum of $5,500.00 in respect of pain and suffering. That agreement was registered on a date in February 2004.
It appears that a dispute arose during the year 2004 concerning the worker’s entitlement to further compensation benefits. Proceedings were commenced being matter number 15594 of 2004 which were, again, settled by agreement. A Certificate of Determination issued on 27 June 2005 which provided for payment to the worker in the sum of $2,350.00 in respect of a 5% impairment of sexual organs, payment of $2,650.00 in respect of additional compensation pursuant to section 67 of the 1987 Act and weekly compensation at the rate of $500.00 per week pursuant to section 36 of that Act from 18 November 1998 to 2 December 1998. Documents filed with the Commission at the time of settlement of those proceedings included a document headed “Agreed Facts” dated 24 June 2005. That document contained the following two paragraphs:
“1.The Applicant has no economic incapacity after 2 December 1998 causally related to any injury sustained during or aggravated by the Applicant’s employment with the Respondent.
2.The Applicant is not entitled to any further weekly payment of compensation.”
The worker, who migrated to this country from his native Iran in February 1996 has, since his arrival, mastered the English language and has furthered his education. Following the subject injury he enrolled and successfully completed schooling to Higher School Certificate level. He then embarked upon a degree course in civil engineering and completed his Masters Degree successfully in 2007. He has worked intermittently since the date of his injury both as an employee and as proprietor of a business. His employment over those years included work as a Civil Engineer during the course of 2008 with three different employers. He last worked in that capacity on 26 November 2008. Additional evidence of his circumstances in recent times was admitted by consent at the hearing of this appeal. Those matters are noted below.
A further claim for compensation benefits was made by the worker, which was declined by the insurer in October 2008. A notice was issued by the insurer to the worker pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) on 23 October 2008 which included the following stated reasons for refusing the claim:
“1.You no longer suffer from an incapacity for work as a result of any injury: see section 33 of the Workers Compensation Act 1987 (the 1987 Act),
2. You are able to currently earn equal to or greater than what you would have been earning had you not sustained the injury and remained in your pre-injury occupation: see section 40 of the 1987 Act.
We are of the opinion based on the medical and financial records available that you are capable of working in a wide range of occupations that would pay in excess of your pre-injury Injury [sic] employment. We also note that in Workers Compensation Commission Proceedings 15594-2004 and [sic] Award respondent was granted for the claim for weekly benefits compensation for the period after 2 December 1998.”
An Application to Resolve a Dispute (‘the Application’) was filed on behalf of the worker on 15 June 2009. Part 4 of that Application particularised the injury as follows:
“Neck, right arm at or above the elbow, left arm at or above the elbow, back, left leg at or above the knee, right leg at or above the knee, right ankle, loss of sexual organs, loss of bowel function, severe bodily disfigurement (scarring), anxiety and depression.”
At Part 5 of the Application the worker particularised a claim in respect of weekly compensation in the sum of $1,200.00 per week from 19 August 2008 to date and continuing. The dispute came before an arbitrator for conciliation/arbitration on 10 August 2009. The matter proceeded to arbitration however the proceedings did not conclude on that day and the mater was listed for further hearing on 14 September 2009. Each party was legally represented at the hearing. A recording of the proceedings was taken and a transcript is available (‘T’), copies of which have been provided to each party. The Arbitrator reserved his decision following the second day of hearing and a ‘Certificate of Determination’ was issued on 28 September 2009. That Certificate was accompanied by a Statement of Reasons (‘Reasons’).
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 25 September 2009 records the Arbitrator’s orders as follows:
“The Commission determines: -
1.There will be an award in favour of the respondent for the claim for injury to the left arm at or above the elbow.
2.There will be an award in favour of the respondent in relation to the claim for injury to the neck.
3.There will be an award in favour of the respondent in relation to the claim for injury to the left leg at or above the knee.
4.There will be an award in favour of the respondent in relation to the claim for loss of sexual organs.
5.There will be an award in favour of the respondent in relation to the claim for severe bodily disfigurement (scarring).
6.There will be an award in favour of the respondent in relation to the claim for loss of bowel function.
7.There will be an award in favour of the respondent in relation to the claim for anxiety and depression.
8.The respondent will pay the applicant the following weekly payments: -
· $230.00 from 27 November 2008 to 8 April 2009 pursuant to s.40;
· $640.00 from 9 April 2009 to 24 May 2009 pursuant to s.36;
· $230.00 from 25 May 2009 to 14 September 2009 pursuant to s.40;
· $150.00 from 15 September 2009 to date and continuing pursuant to s.40.
9.The respondent will pay the applicant’s costs as agreed or assessed. In that regard: -
· On the applicant’s application, I order that the resolution regarding the conflict raised by the tender of exhibits 6 and 7 following the adjournment be treated as a separate resolution for the purposes of the calculation or assessment of costs, such an order being limited to $1,500.00.
· I certify the matter as being complex and order an uplift of 10%, applicable to both parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Each party has made Application for leave to appeal against the Arbitrator’s determination. Each such application was registered with the Commission on 28 October 2009 however the Commission’s records indicate that each application had been received in the Registry on a date earlier. It is to be noted that the worker is now unrepresented and appears in person.
ISSUES IN DISPUTE
The worker’s appeal
The Application seeking leave to appeal filed by the worker has a three-page document, attached to it which appears to be a summary of the worker’s challenge to the findings made by the Arbitrator. The document comprises a series of dot points each of which appear to refer to a particular paragraph of the Arbitrator’s Statement of Reasons. A preface appears before those dot points, which states, “I am not happy with the following points”. The points raised by the worker represent challenges to the factual findings made by the Arbitrator. In addition to such challenges the document also comprises what may be described as submissions with respect to the evidence as well as implied criticism of the manner in which the worker’s former legal representatives conducted the present proceedings and those which have been conducted before the Commission at earlier times.
It is clear, having regard to matters raised by the worker on the second page of the document that a direct challenge is made to the manner in which the Arbitrator approached the question of “comparable employment” in terms of section 40(2)(a) of the 1987 Act.
The worker refers to the evidence concerning his earnings as a “professional engineer” and the argument is advanced that his prospects of employment in that field of engineering for which he is now qualified has been reduced by reason of his ongoing physical incapacity which results from the subject injury. As may reasonably be expected, given that the worker is unrepresented, the precise issues raised for consideration have not been clearly identified. What is clear is that the worker challenges the Arbitrator’s approach to those matters raised for determination by the provisions of section 40, in particular the approach to determining the quantum of “probable earnings” and “ability to earn” as required by the terms of that section.
The worker makes reference to those findings made by the Arbitrator at [22] of Reasons where consideration was given to the question of incapacity and the relevance or otherwise of a psychiatric or psychological injury as alleged.
The employer’s Notice of Opposition to the worker’s appeal includes, at [2.6] of submissions in reply, a response to the matters raised by the worker. Those submissions include argument concerning the principles relevant to the question of admission of fresh or additional evidence. These matters are dealt with below.
With respect to the worker’s challenge of the Arbitrator’s determination concerning his probable earnings but for injury, the employer seeks to support the Arbitrator’s findings.
The employer raises one ground of appeal which challenges the Arbitrator’s findings concerning the worker’s post injury ability to earn.
Having regard to the submissions made on behalf of each party, it is clear that the fundamental dispute requiring determination on this appeal is the correctness or otherwise of the Arbitrator’s approach to the manner of determining probable earnings but for injury and the calculation of the worker’s ability to earn in his incapacitated state. It is also argued by the worker that the Arbitrator has erred in determining that an award should be entered in favour of the employer with respect to the claim alleging “anxiety and depression”.
HEARING
The worker has submitted that the appeal may, as permitted by section 354(6) of the 1998 Act, be decided solely on the basis of the written application and the employer’s Notice of Opposition without the need for a formal hearing.
The employer submits, given that the worker seeks leave to adduce fresh or additional evidence and that “substantial issues of credit” arise concerning the evidence of the worker, it would be appropriate that a formal hearing of the appeal be conducted.
Notwithstanding the worker’s willingness to proceed without the need for a hearing I was not satisfied that sufficient information had been supplied in connection with the proceedings to enable a hearing on the papers. In the circumstances a Direction was issued appointing a hearing date being 17 February 2010.
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.
As earlier noted each party has filed an Application seeking leave to appeal. It is asserted both by the worker and the employer that the requirement of section 352(4) that an appeal be made within 28 days of the Arbitrator’s decision had, in each case, been complied with. The Commission’s record concerning date of issue of the Certificate of Determination contains conflicting dates. Upon the assumption that the correct date of issue was, as earlier noted, 25 September 2009, compliance required that an Application seeking leave to appeal be lodged on or before 23 October 2009.
In the case of the worker’s application, the Commission’s record reveals that an incomplete application had been received and registered in the Registry by fax on 23 October 2009. Those records also indicate that a complete form of application was received by the Registry on 27 October 2009.
I conclude that lodgement by the worker of his application which was received on 23 October 2009 constituted adequate compliance with the Act and rules notwithstanding the incomplete form of that document. If I am wrong in so concluding I am of the opinion that the circumstances of this case are exceptional given the fact that the worker is unrepresented and the very short time which elapsed before lodgement of a complete application and that the Commission’s discretion to allow an extension of time pursuant to Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’) should be exercised in favour the worker.
With respect to the employer’s application concerning this appeal the Commission’s records indicate that relevant documentation was received by the Registry on 26 October 2009. No argument has been advanced by the worker concerning failure to comply with the time requirements of the 1998 Act. The employer’s application is three days out of time, however I have concluded, as in the case of the worker’s lodgement of a complete application, that exceptional circumstances exist and that the employer should be granted an extension of time for filing the application. Those circumstances include the fact that no objection is raised nor is any suggestion of prejudice made by the worker concerning the very short delay which has occurred. Furthermore, each party has brought an appeal, and determination of the arguments raised on the employer’s appeal are essentially identical to those matters which it raises in opposition to the worker’s appeal.
The amount of compensation at issue on each appeal meets the monetary threshold as prescribed by section 352(2).
In all the circumstances I grant leave to the worker to proceed with the appeal sought by him in his application lodged on 23 October 2009. I grant an extension of time to the 26 October 2009 to the employer for the lodging of its Application seeking leave to appeal. I order that such leave be granted.
FRESH EVIDENCE
The application filed by the worker concerning this appeal states at [2.4] that he seeks leave to rely on fresh evidence or evidence in addition to or in substitution for the evidence presented before the Arbitrator. Leave may be granted by the Commission pursuant to section 352(6) of the 1998 Act to rely upon fresh or additional evidence. That section, Rule 16.2(4)(c) and Practice Direction Number 6 require that a party seeking such leave provides a schedule of the relevant material, a copy of that material, an outline of the evidence and reasons why it had not been presented in evidence before the Arbitrator and submissions as to why the new or additional evidence should be admitted. The requirements of the section, the Rule and the Practice Direction have not been complied with by the worker.
The documents attached to the worker’s application are as follows:
1.Report of Dr McClure dated 5 August 2009;
2.Copy email dated 3 March 2009 from the worker to Whitworth;
3.Two undated documents which appear to be items of correspondence forwarded by the worker to the employer’s insurer;
4.Three reports of Dr Ivan Astori dated 16 April 2009, 23 April 2009 and 13 August 2009;
5.Two incomplete documents which appear to be medical reports each dated 5 August 2009 (author not identified);
6.Eight medical certificates the first dated 18 April 2008 and the last dated 27 August 2009;
7.A report of Ms Kylie Baldwin, physiotherapist, dated 29 September 2009;
8.A report from Dr Tardent dated 18 April 2008, and
9.Photocopies of cheques being seven in number the first dated 14 November 1997 and the last dated 7 April 1998. These cheques are drawn on accounts in the name of “104 Alice Street Pty Limited” or “Robert Steinberg”, the payee being the worker.
The employer in its submissions on this appeal opposes the worker’s application for leave to adduce the addition material, which is identified above.
At the hearing of the appeal the employer consented to the admission of the cheques noted in [29. (9)] above (marked ‘AB’). Submissions concerning the relevance of these cheques are addressed below. The report of Dr McClure and two of Dr Astori’s are in evidence. A ruling refusing leave to adduce the balance of the items noted above was made following argument.
EVIDENCE
The evidence adduced before the Arbitrator is summarised by him at [8] of Reasons. That summary is incomplete in that there is no notation that the employer had tendered a notice issued pursuant to section 74 of the 1998 Act dated 23 October 2008 which had been marked by the Arbitrator with the numeral “11”.
The worker’s evidence
The worker tendered three written statements made by him dated 9 June 2005, 11 June 2009 and 14 September 2009. He states that he is a married man with two dependent children and that he was born in Iran in 1969 where he completed his high school education to HSC level. He migrated to Australia via Turkey in February 1996. In his native Iran, following completion of schooling in 1986, he was employed in various roles including working as a developer and businessman. He was also occupied doing photographic work and states that before leaving Iran he completed a Bachelor Degree in Civil Engineering. Upon arrival in Australia the worker obtained casual employment in the building industry whilst he attended TAFE. The worker successfully completed his Higher School Certificate in 1997 following which he commenced work with the employer. He states that he was earning “about $1,100.00 gross per week, including some overtime on Saturdays”.
The worker states that his employer paid him by way of cheque. He states that at no time did he receive any group certificate from his employer.
The worker describes the injury, received on 1 April 1998, which caused pain and discomfort in his groin area, his right leg and ankle, pain in his right arm and shoulder, abrasions to and pain in his scrotum. He initially sought treatment from a Dr Mordecai. He later sought treatment from Dr Hamid and received prescriptions for medication to relieve pain. He later underwent physiotherapy treatment and a number of radiological investigations.
The worker alleges that as a result of his injuries he was unable to continue working for the employer. He arranged to resume his studies at the University of Technology Western Sydney. He completed a Degree in Civil Engineering in 2006 and in July 2006 he commenced a Postgraduate Masters Degree in Engineering Management, which he completed in November 2007. Between the years 1999 and November 2007 he performed part time work in conjunction with his university studies.
The worker states that in the year 2008 he obtained work as an engineer with three separate employers being Mirvac Constructions Proprietary Limited, thereafter Leighton Contractors where he worked as a Project Manager and then at Neumann Contractors. His services with the last of those employers, Neumann Contractors, was terminated on 26 November 2008. The worker has not been employed since that date.
The worker states his belief that, by reason of his injuries, he was not performing with those employers as well as expected by them. It was for that reason that his services were terminated. He found the more physical aspects of the work difficult by reason of pain in his arms [sic] and his right shoulder as well as experiencing difficulty walking on uneven ground, scaffolding and platforms at work sites. The last of his statements dated 14 September 2009 records that since ceasing work he has again pursued his studies and has had an enrolment confirmed for pursuit of a doctorate.
The worker gave oral evidence at the hearing before the Arbitrator on 14 September 2009 following a ruling that the employer be permitted to cross-examine him. That evidence has been transcribed and forms part of the transcript referred to in [7] above. Particular emphasis was placed by the employer’s counsel in cross-examination upon matters relating to the worker’s past earnings and the nature of the work performed by the worker since the subject injury. Detail of that evidence, where relevant, is referred to below.
In the course of his oral evidence the worker stated that the Masters Degree which he obtained following study in 2006 and 2007 was a “Master of Environmental Engineering Management” [T.68]. The worker also confirmed in the course of that evidence that he had been accepted for enrolment in his doctorate course of study. His evidence was that once he is officially enrolled he may work as a tutor at the university. That work would be for a few hours or perhaps several hours per week [T70]. In response to questions put by the employer’s counsel, the worker stated that he was not fit for the work of an engineer. The work for which he was training, it was stated in the course of his evidence, was traffic management, which work could be done using computers rather than working in the field.
The worker, when describing the symptoms which he experiences as a result of the subject injury, stated “I suffer pain nightly and disturbed sleep as I generally wake up some nights in pain due to stiffness. I also suffer from depression/anxiety and get frustrated due to the pain and my inability to perform general day-to-day tasks around the home”.
Expert medical evidence relied upon by the worker included a report from Dr Astori dated 23 April 2009. Dr Astori conducted a right ankle arthroscopy in April 2009 and it is stated in his report that “findings included quite significant antero-lateral synovitis which was debrided arthroscopically.” Dr Astori further noted scar tissue in the medial gutter which was debrided and removed during that procedure.
A report from Dr Kevin Huang, surgeon, contains reference to an MRI scan of the right shoulder which is said to show a possible mild supraspinatus tendinopathy but no evidence of bursitis and no evidence of a tear.
There are three short reports from Dr Hashim Saba, which were prepared by that practitioner in October and November 2007 for the purpose of referral of the worker to a psychologist. It is stated in those reports that the worker suffers chronic pain in his right shoulder and right ankle, and suffers with insomnia and mild anxiety/depression.
A report from Reshmi Pal, psychologist, dated 25 October 2007 addressed to Dr Saba is in evidence. That practitioner took a history that the worker had experienced depressed moods since being declared bankrupt. A history of the work injury was recorded and it is noted that the worker has difficulty coping with his pain. Further history is recorded that the worker’s main difficulties relate to his relationship issues with his partner, which causes him anxiety. The worker reported that his financial circumstances compounded his problems and that his injury had affected his life in an adverse way.
There is in evidence a very lengthy report from Dr Robert Hampshire, consultant psychiatrist, dated 6 May 2009. Dr Hampshire records a history of the subject injury and that the worker’s then current complaints included pain, which is “most prominent in his right ankle and also in his right shoulder”. It is recorded that the right ankle pain severely limits the worker’s mobility and his right shoulder pain severely limits his capacity to move and to play with his children. The worker also reported to Dr Hampshire that he suffered unbearable pain in his testicles, which seemed to come on if they are knocked or tapped. The worker reported relentless brooding about the fall experienced at work. The worker reported that he cried frequently and that he is constantly irritated and annoyed. He stated to Dr Hampshire that he had lost interest in other people and has a marked impairment in his concentration and decision-making. The worker reported feeling constantly tired, with a complex sleep disturbance, a loss of appetite and a slight reduction in libido. Dr Hampshire also recorded that the worker had experienced financial difficulties and had a “problematic relationship” with his wife. The worker reported panic attacks. These occurred daily and they were gastrointestinal in nature. Dr Hampshire records a number of other symptoms reported by the worker.
Dr Hampshire expressed his opinion that the worker “has a number of psychological diagnoses” which he considered were “primary to the fall but have emerged slowly over the decade following”. Dr Hampshire states that the worker has a pain disorder, which is both organic and psychological in origin, the psychological component to the aetiology of his pain disorder it is said to lie in his depression and anxiety. Dr Hampshire considers that the worker has comorbid panic attacks or periods of hyper anxiety, that is, they have been comorbid to his PTSD. Dr Hampshire reports that the worker’s PTSD has arisen gradually and that he fulfils “virtually all the criteria of DSM IV on the PTSD questionnaire”. Subject to some qualification as expressed at page 5 of his report. Dr Hampshire expressed the view that the worker had suffered 19% whole person impairment by reason of his psychiatric condition.
The worker relied on a number of medical reports in support of an allegation of ongoing incapacity. Those reports included one from Dr Cordato dated 11 May 2009. It was Dr Cordato’s opinion that the worker, as a result of the subject injury, had suffered a right ankle ligamentous injury with probable partial tear and also a right shoulder injury with evidence of tendinopathy of the supraspinatus tendon and associated bursitis. Dr Cordato stated his opinion that the worker had suffered a right shoulder rotator cuff injury. With respect to the worker’s capacity for work, Dr Cordato stated “it would appear that Mr Maboudi has been totally incapacitated as a result of his injury in the first few months following the accident. Thereafter he has been partially incapacitated for work. I am of the opinion that he has been partially incapacitated on the open labour market by reason of injury, age, training and work experience from the date of the accident to the present. However he has completed studies in Civil Engineering and is contemplating further higher degree studies. It may be possible for him to return back to full-time duties with suitable alternative type of work”.
The balance of the medical evidence relied upon by the worker includes a Medical Assessment Certificate (‘MAC’) issued by Dr John Beer, orthopaedic surgeon, dated 21 March 2005. Detail of this evidence is, where relevant, referred to below.
Copies of correspondence received by the worker from his engineering employers during the year 2008 concerning the termination of his employment with those companies are in evidence. The correspondence from Mirvac Constructions (Qld) Pty Ltd dated 8 April 2008 includes the statement “Further to our discussion yesterday, we wish to confirm we do not intend to extend your employment beyond the three months probation period”. The correspondence from Leighton Contractors dated 28 July 2008 includes the following statement “I confirm that you have not successfully completed the probationary period and as such the LBBJV will not be continuing your employment”. The correspondence from Neumann Contractors dated 26 November 2008 includes the statement “I am sorry to confirm that due to the current workload situation in the region we unfortunately have found ourselves in the position where we have to terminate your employment”.
A wages schedule prepared by the worker’s solicitors was in evidence. That schedule included an allegation that comparable/probable earnings from 27 November 2008 were $1,342.40 per week and from 1 July 2009 $1,358.50 per week.
A number of taxation returns and Taxation Assessment Notices relating to the worker’s income were in evidence. Relevant detail of these documents is referred to below.
Employer’s evidence
The employer relied upon the report of Dr John H Morris, orthopaedic surgeon, dated 7 October 2007. That report includes a history of the subject accident and “current symptomotology” was recorded as “pain over the lateral aspect of his shoulders”. The worker, when giving his history, related his right shoulder symptoms to the subject injury. Dr Morris did not accept that there was a relationship between the subject injury and his shoulder symptoms. Dr Morris noted that an MRI study taken in 2006 demonstrated “very mild tendonosis and no tears of the muscle”.
A report from Dr Pishyar, clinical psychologist, dated 6 May 2009 recorded history of physical pain, inability to perform occupational duties, financial difficulties and marital difficulties. Dr Pishyar accepted that the worker was suffering depression and experienced mood swings. The view is expressed that the worker’s marital conflict was one of the biggest problems present. A course of counselling and management of his depressive symptoms was recommended.
The employer relied on a report of Dr A P McClure, consultant psychiatrist, dated 5 August 2009. That practitioner recorded a history of the subject injury and subsequent physical symptoms. The worker’s psychological symptoms were described in that report. It was Dr McClure’s view that, from a psychiatric perspective, there was no reason why the worker could not resume full-time work as an engineer if such work was available. He diagnosed an Adjustment Disorder, which he characterised as a “secondary psychological injury as defined under current NSW Workers Compensation legislation.”
The employer relied upon documents attached to correspondence from M & A Investigations dated 4 August 2009. That investigation concerned circumstances surrounding the termination of the worker’s employment as a Civil Engineer with his various employers during the year 2008. Included was a signed statement by Mr Robert Lancaster, the Human Resources Manager, employed by Neumann Contractors Pty Ltd. Mr Lancaster stated that the worker’s work performance was satisfactory during his period of employment with that company. It was further stated the reason for his termination was a reduction in available work. He stated that 34 employees in all had been terminated for that reason between November 2008 and April 2009.
In evidence is a statement by Mr Paul Cunningham, Senior Project Manager employed by Mirvac Constructions (QLD) Pty Ltd which was made on 29 July 2009. That statement included the following “Mr Maboudi’s work performance was satisfactory during this period. However he was terminated for the sole reason that we restructured the project following the completion of some early stages. During this period several other employees of this company were also terminated for the same reason”.
The employer relied upon a number of documents, which included searches of ASIC records concerning businesses with which the worker had some association. Detail, where relevant, appears below.
Records of the employer’s insurer, GIO, were in evidence. These records concerned detail of compensation payments made and included copies of correspondence, which, where relevant, are referred to below.
The Reply filed on behalf of the employer included a schedule of wages at Part 4.1. It is to be noted that the “comparable/probable earnings” from November 2008 to date were stated as being $451.20 per week.
The employer relied upon the content of Earning Capacity Assessment, which was prepared by Mr David Brown, occupational psychologist. That report is dated 17 July 2009 and included a notation of functional limitations, which had been “indicated by the considered documents”. Mr Brown’s report also includes detail of the “Current National Average Gross Weekly Earnings for the worker’s pre-injury occupational category being a painter”. Gross weekly earnings were stated to be $861.00 for such occupation. With respect to the earnings of a Civil Engineer, Construction Project Manager and Civil Engineering Draftsperson the gross weekly wage was noted as ranging between $1,104.00 and $1,697.00.
Evidence of worker given at hearing of appeal
The employer consented to unsworn evidence being given by the worker at the hearing of this appeal. A recording of that evidence and the parties’ submissions was made at the hearing and a transcript (‘TA’) is available. The worker’s evidence appears at TA 30 – 35.
The evidence given by the worker concerns his personal circumstances, in particular with respect to his ongoing education, since the date of the arbitration. The worker’s enrolment concerning his doctorate remains in place, however he has lost the supervisor who had earlier been prepared to oversee his studies. Since the date of the arbitration the worker has enrolled in a correspondence course which, upon successful completion in perhaps four months, would result in his qualification as a “private certifier”. This is a diploma course concerning approval and certification with respect to council regulations and building codes.
The worker gave evidence that in November 2009, following appropriate study and examinations, he attained the status of Charted Engineer. A company has been incorporated being Bana Pty Limited and the worker has been advertising his services, through that company, as a consulting engineer. A copy of the worker’s business card was tendered in evidence and marked with the numeral “12”.
Preliminary matters
At the hearing of the appeal a number of matters were dealt with by consent. The following is a summary of those matters agreed between the parties:
1.The name of the employer is amended to delete “Ferguson” and substitute “Fergus”;
2.The determinations made in [4] and [7] in the Certificate of Determination dated 25 September 2009 should be revoked following amendment of the ARD, and
3.The Arbitrator’s entry of awards in favour of the employer as appear in [1], [2], [3], [5] and [6] should be revoked and that appropriate findings concerning those determinations are to be made on this appeal.
Orders giving effect to the matters set forth above are made on this appeal as noted hereunder. The circumstances giving rise to the need for the various consent orders are dealt with during the discussion which appears below.
DISCUSSION AND FINDINGS
As noted in [17] above the area of dispute raised on these appeals concerns the Arbitrator’s determination of the worker’s probable earnings but for injury and his calculation of the worker’s ability to earn in his incapacitated state. It is proposed to examine the Arbitrator’s reasoning with respect to each of these matters before addressing argument as raised by the parties.
The Arbitrator’s reasons
The Arbitrator identified the issues for determination that had been raised by the parties as being:
·Does the Applicant suffer from any incapacity?
·If so, is the Applicant’s ability to earn now greater than his earnings in his pre-injury occupation?
The Arbitrator stated at [23] of Reasons “I am satisfied that it was the physical condition of the Applicant that has caused him such incapacity as he now suffers”. That finding was made in the context of the Arbitrator excluding any such incapacity being a result of the worker’s psychological state as alleged and as addressed by the medical experts including Dr Hampshire. The Arbitrator proceeded to consider the medical evidence before him and between [25] and [37] stated his views of that evidence concerning the injury to the worker’s right ankle and right shoulder. That the Arbitrator accepted that those parts of the worker’s anatomy were injured in the subject accident and that the consequences of those injuries persist and are disabling may be found at [90] of Reasons where it was stated:
“The severity of these conditions upon the applicant’s capacity to earn depends upon as [sic, an] assessment of the applicant’s credit. For the above reasons I am satisfied that I may rely upon the applicant’s evidence, and find that he continues to suffer a reduction in his earning capacity as a result of both conditions.”
The Arbitrator addresses the question of the worker’s probable earnings but for injury under the heading “Comparable Employment” ([91] – [95]). The Arbitrator made reference to the evidence which indicated that in the financial year ending 30 June 1998 the worker had been assessed by the Australian Taxation Office as having a taxable income of $17,556.00. It appears the Arbitrator has found that the worker did not work “after 1 April 1998”. The Arbitrator proceeded to make what he perceived to be appropriate adjustment and concluded that pre-injury earnings would have been in the sum of $450.15 per week.
The Arbitrator noted the worker’s submission that had he “been still working in comparable employment and uninjured that his income would have been in the region of $1,200.00 per week”. I note in passing that the worker’s claim commences on a date in 2008. The Arbitrator proceeded, at [93] of Reasons, to note that the worker accepted the sum of $500.00 per week by way of weekly compensation when proceedings were settled concerning entitlement in 1998. The Arbitrator observed “I am satisfied that it is a powerful evidentiary admission, the effect of which has not been overcome by the applicant’s uncorroborated assertion some eleven and a half years after the accident, and some four years after that settlement was achieved”. It appears that the Arbitrator’s finding as to probable earnings but for injury is as was stated at [94]:
“I am prepared to accept that there has been an increase in that figure in the last eleven years has [sic] increased with the cost of living to $800 per week. I am not satisfied on the material before me that the applicant’s comparable earnings in the same or similar employment as a painter but for his injury would have been any higher than that.”
The Arbitrator’s reasoning concerning the question as to the level of the worker’s ability to earn in his injured state is addressed between [95] and [108]. The Arbitrator rejected the employer’s evidence and its submissions concerning this issue. Concerning the worker’s ability to work as a Civil Engineer as suggested in the evidence of Mr Brown who prepared the Earning Capacity Assessment the Arbitrator stated that “the chances of the [worker] obtaining any of those positions is remote indeed, as he had not managed to achieve over three months employment in any of the three jobs he tried, and was terminated from each employment”. The Arbitrator proceeded to express his acceptance of the opinion of the treating general practitioner Dr Kent as found in exhibit “Y” that “the [worker] should consider alternative duties other than those of a Site Engineer”. The Arbitrator’s ultimate conclusion concerning ability to earn was expressed at [109] where it was stated that, “He is able to earn in some employment such as a console operator in a service station, or in a clerical capacity in a business, or working in a shop a maximum sum of $15 per hour for 38 hours per week. This would result in an ability to earn of $570 per week”.
In calculating the worker’s entitlement to weekly compensation the Arbitrator proceeded to take into account the worker’s intention to proceed with his studies which activity, he found, would place a restriction on his availability for suitable work. In the circumstances the arithmetic difference of probable earnings and ability to earn was reduced by the sum of $80.00 per week in exercise of discretion pursuant to section 40 of the 1987 Act.
The parties’ submissions
It will be recalled that the worker’s evidence was that his earnings, before the subject injury, were $1,100.00 per week in his occupation as painter. That allegation has been addressed at length by the employer both before the Arbitrator and on this appeal. It must be said that the worker’s submissions before the Arbitrator concerning the question of comparable employment and ability to earn have given rise to a state of some confusion.
Notwithstanding the allegation of pre-injury earnings being at the level of $1.100.00 in 1998, it appears that the worker argued before the Arbitrator that probable earnings from the date of commencement of the claim, being a date in 2008, was $1.200.00. When dealing with the question of the worker’s earnings pre-injury the Arbitrator has relied upon the best evidence that being the contents of the worker’s tax return. The employer has argued that the calculation of the weekly amount as expressed by the Arbitrator is flawed having regard to the uncertainty, on the evidence, of the worker’s post-injury work history. This matter was expanded at the hearing of the appeal, that in the year ending 30 June 1998 the worker, as well as being employed during an uncertain period by the employer, had been conducting a business. Accordingly the figures which appear in the tax return indicate that gross business income was in the order of $1,300.00 or $1,400.00 per week. It was in the context of these facts that counsel argued that the cheques, being the additional evidence admitted by consent, lend weight to that argument concerning weekly earnings (gross) of the business.
The worker has, as noted above, received no group certificates from the employer. The employer has produced no evidence concerning wages paid. The evidence is imprecise as to the period during which the worker was employed by the employer. The tax records are such as to provide a very uncertain basis upon which to determine the truth of the worker’s assertion that he was earning $1,100.00 per week. It is to be noted that such allegation received little attention during the course of the worker’s submissions.
Having regard to the state of the evidence and the nature of the work performed by the worker in 1998 when engaged by the employer, I conclude that the Arbitrator’s determination that the worker’s pre-injury earnings would have been approximately $450.00 per week is correct. I reach that conclusion taking into account the worker’s statement in evidence that he worked some Saturday overtime. I acknowledge the employer’s submissions as to the uncertainty concerning the worker’s post injury work history, however I find that the method adopted by the Arbitrator was a practical and reasonable means of assessing the true position concerning the worker’s pre-injury earnings.
The worker’s primary submission before the Arbitrator was that he was “functionally unemployable at the moment even with his degree”. A supplementary submission was put that, should the primary submission be rejected, his ability to earn should be assessed as a tutor and earnings would be assessed at $300.00 per week. It had earlier been submitted that, given his lack of success in retaining positions as a civil engineer, his earnings in that occupation did not demonstrate his true ability to earn.
The employer both before the Arbitrator and on this appeal has advanced detailed submissions concerning “ability to earn” which are founded upon a detailed analysis of the taxation records concerning the worker’s earnings and those of the business conducted by him which are in evidence. Counsel has properly highlighted the substantial sums which appear in those tax records which represent, from time to time, the gross earnings of the worker’s business as found in those available tax records. The magnitude of income generated is perhaps best demonstrated by the figures which appear in the 2003 tax return (one of two returns bearing that date which, inexplicably, are in evidence) which demonstrates business income exceeding $158,000.00 and business expenses exceeding $160,000.00. That one illustration demonstrates the difficulty faced by the Commission in relying upon those financial records as some guide to determining the worker’s ability to earn in his incapacitated state. The Commission may be guided by the principles which were enunciated in the decision of the High Court of Australia in Cage Developments Pty Limited v Schubert (1983) 151 CLR 584. The difficulty confronting the Commission in the present case is that those guiding principles cannot be applied having regard to the paucity of evidence concerning the manner of conduct of the business and, in particular, the worker’s personal involvement in the activities of the business. The employer has fairly acknowledged in the course of submissions that the financial records demonstrate a significant decrease in earnings during years when, on the evidence, the worker was studying.
The facts of the present matter are unusual in that, to his considerable credit, the worker has advanced his education and qualifications in an effort to improve his employment prospects to enable support of his family and himself. Indeed it is the employer’s argument that his qualifications as a Civil Engineer, which qualification has been advanced to Chartered Engineer in recent times, represents the means of identifying with precision his ability to earn during the relevant periods. It must be remembered that the claim for weekly benefits commences on a date in 2008. It was in that year that the worker secured employment in his profession as engineer as noted in [37] above. As highlighted in the course of submissions by the employer that employment yielded, at its highest, a weekly income of $1923.00.
It is the worker’s argument on this appeal, as it was before the Arbitrator, that his injuries and resultant disabilities prevent him from carrying out the work of a Civil Engineer. It is at this point of analysis of the submissions that a complication arises by reasons of an argument advanced by the worker on the appeal.
That argument, which was not argued before the Arbitrator, is that the Commission would accept that the worker is incapacitated for the work of an engineer. It is put that the worker had advanced to that qualification since injury and that such advancement is relevant to a determination of probable earnings. The argument, advanced by the unrepresented worker, appears to reflect to an extent the reasoning expressed by Kirby P found in the decision of the Court of Appeal in Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 (‘Pantaleo’). Leaving aside the question as to whether the worker should be entitled to raise this argument on appeal in circumstance where it has not earlier been raised, I have concluded that on no view of the evidence as it stands can it be argued that there are relevant points of comparability between the occupation of a painter and that of a Civil Engineer. It follows that I reject the worker’s argument that the work of a Civil Engineer is “comparable employment” to that of a painter within the meaning of section 40(2)(a) of the 1987 Act. In so concluding I have had regard to the matters stated in the judgment of Glass JA (Samuels JA concurring) in Pantaleo.
It was argued before the Arbitrator that the worker’s probable earnings but for injury at relevant times would be $1,200.00 per week. This submission was put with apparent disregard of the worker’s assertion concerning the magnitude of his weekly earnings back in 1998. The Arbitrator rejected that submission and found that there had likely been an increase from the level of pre-injury earnings, as found by him, to the sum of $800.00 per week (at [94]).
It appears from the transcript (T 91) that the employer had abandoned the allegation concerning probable earnings as found in the Reply ($451.00 per week) and it is to be noted that the Earning Capacity Assessment reported by Mr Brown contains a notation that the current National Average Gross Weekly Earnings for the worker’s pre-injury occupational category, that being painter, was $861.00. That evidence adduced on behalf of the employer is, in my view, compelling and suggests that the Arbitrator’s assessment of probable earnings is, to an extent, overly conservative. I make this observation given that the uncontroverted evidence is that the worker performed the work of a painter including occasional Saturday overtime. In the circumstances I conclude that a proper assessment of the worker’s probable earnings but for injury in terms of section 40(2)(a) is $900.00 per week.
The worker’s ability to earn
The most contentious issue raised both before the Arbitrator and on appeal concerns the question as to the worker’s ability to earn since the date of commencement of this claim. There has been no argument advanced by the employer that the worker is capable of performing the work of a painter and I find on the medical evidence, in particular that of Dr Cordato and Dr Mastroianni, that by reason of his physical injuries and resultant disabilities, the worker is unable to perform the duties of a painter and has suffered such physical incapacity since the date of injury to date. The question as to whether in that injured state the worker is entitled to weekly compensation depends upon the Commission’s conclusion as to his ability to earn in terms of the legislation.
The employer has relied upon two aspects of the evidence in support of an argument that the worker’s ability to earn since the subject injury is greater than his probable earnings but for injury as a painter. The first argument is founded upon the tax records as I have attempted to briefly summarise at [79] above. Whilst the period during which a business was conducted by the worker does not correspond to a period in respect of which a claim is made for weekly benefits, the employer asserts that those records demonstrate a substantial ability to earn. One problem that confronts the employer in so arguing is that the records do not cover the entire period, and it was acknowledged during submissions that the absence of some records may be explained upon the basis that the worker was pursuing his studies. However the major difficulty confronting the employer is, as noted above, that there is no evidence as to the worker’s contribution in a physical sense or by way of management of conduct of the business. Notwithstanding the very careful analysis of the records and the force of argument as advanced by counsel on behalf of the employer I am not persuaded that those business records afford a basis upon which it may be established that the worker at any relevant time has had an ability to earn in excess of $900.00 per week.
The second argument advanced on behalf of the employer concerning ability to earn is founded upon those facts concerning his qualification and employment as a Civil Engineer. It is correct, as argued by the employer, that the worker has earned an income as a Civil Engineer with three separate employers at a weekly rate which is greatly in excess of the figure which I have found to be his probable earnings but for injury. The question remains as to whether those earnings represent a true measure of the worker’s earning capacity in his injured state. Notwithstanding the employer’s evidence concerning the circumstances of the worker’s termination from two of the positions held by him as a Civil Engineer, I am satisfied that the worker has, as described in his evidence, experienced real difficulty in performing work on site as a Civil Engineer. It is to the worker’s credit that he had attempted such employment not just on one occasion but with three separate employers over a relatively short period. Those efforts have led in each case to termination of his employment after a very short period of time. I accept the worker’s criticism (at T 35-36) of the evidence of Mr Lancaster and Mr Cunningham found in their statements attached to the report of M & A Investigations dated 4 August 2009. I have formed the view on the evidence generally that it is probable that the worker’s failure to retain the positions he had obtained as a Civil Engineer had been occasioned, in part at least, by reason of his physical disabilities. In all the circumstances I conclude that the earnings generated whilst in those positions does not represent a true measure of his ability to earn.
The Arbitrator addresses the question of the worker’s ability to earn between [95] and [109] of Reasons. I respectfully agree with the reasons and conclusions expressed by the Arbitrator in the course of his reasons, in particular his acceptance of the evidence of Dr Mastroianni which is noted at [108] of Reasons. It follows that I agree that, when employed, the worker would be able, if employed in suitable employment, to earn the sum of $570.00 per week. I respectfully differ with the Arbitrator in concluding that that figure represents his ability to earn in terms of section 40 of the 1987 Act. I take that view of the evidence given the undoubted difficulties that the worker would encounter competing in the open labour market for the type of work described by the Arbitrator in the course of his reasons. That disadvantage is a direct result of his ongoing physical disabilities. In the circumstances, it is probable that the worker would from time to time be unemployed. Making allowance for such breaks in continuity of employment I am of the opinion that a realistic assessment of his ability to earn in his injured state is in the sum of $400.00 per week.
The Arbitrator at [110] and [111] of Reasons has reduced the worker’s entitlement to compensation by the sum of $80.00 per week in the exercise of his discretion pursuant to section 40. That approach was founded upon the evidence concerning the worker’s intention to resume studies.
The evidence of the worker concerning his resumption of studies was amplified in the course of his unsworn evidence at the hearing of the appeal. The course which is to be undertaken in relation to the certification qualifications is a correspondence course and may be done in the worker’s own time. The doctorate studies which he intends to pursue have for many months been in a state of suspension because of the non availability of a supervisor. Having regard to that further evidence I conclude that there is no basis upon which the Commission’s discretion should be exercised to reduce the worker’s entitlement below that as calculated being the difference between his probable earnings but for injury and his ability to earn in his injured state. Accordingly his entitlement to weekly compensation is to be assessed having regard to the arithmetic difference of $500.00.
There is no issue raised concerning the dependency of the worker’s wife and two children. In those circumstances the worker is entitled to an award of weekly compensation at the rate of $500.00 per week, which is a sum less than the relevant statutory rate from the date of commencement of the claim being 27 November 2008 to date and continuing pursuant to section 40. In the circumstances the Arbitrator’s orders with respect to weekly compensation require revocation and substitution with the orders that appear below.
As noted above at [61] certain matters raised on appeal may be dealt with by consent in accordance with the agreement reached between the parties. The title of the respondent is to be amended to delete the word “Ferguson” and substitute with the word “Fergus”. Orders as noted hereunder provide for the revocation of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Arbitrator’s determination. As agreed at the hearing of the appeal I make formal findings that the evidence does not establish injury to the worker’s left arm, neck, left leg nor that he has suffered severe bodily disfigurement or loss of bowel function. Having regard to the worker’s recovery of lump sums in respect of loss of sexual organs as noted above, the parties agree that the application be amended to delete reference to such injury as appears in Part 4 of the ARD. That application is also, by consent, to be amended to delete reference to “anxiety and depression” as appears at Part 4. I therefore order by consent that the application be amended to delete the reference to both “sexual organs” and “anxiety and depression” as appear at Part 4.
DECISION
Paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the Arbitrator’s determination dated 25 September 2009 are revoked and the following decision made in its place:
“1.The name of the respondent is to be amended by deleting the word “Ferguson” and substituting that word with the name “Fergus”.
2.Award for the applicant at the rate of $500.00 per week from 27 November 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
3.Paragraph 9 of the Arbitrator’s determination dated 25 September 2009 is confirmed.”
The employer’s appeal
For the reasons stated in this determination the employer’s appeal fails and is accordingly dismissed.
COSTS
The employer is to pay the worker’s costs of both the appeal brought by it and that brought by the worker.
Kevin O’Grady
Deputy President
26 February 2010
I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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