Malaquin v Cargill Meat Processors Pty Ltd
[2006] NSWWCCPD 156
•19 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Malaquin v Cargill Meat Processors Pty Ltd [2006] NSWWCCPD 156
APPELLANT: Andrew Robert Malaquin
RESPONDENT: Cargill Meat Processors Pty Ltd
INSURER:Allianz Australia Services Pty Ltd
FILE NUMBER: WCC15550-04
DATE OF ARBITRATOR’S DECISION: 22 April 2005
DATE OF APPEAL DECISION: 19 July 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987 and weight of the evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Lee Same Egan, Solicitors
Respondent: Messrs Walkom Lawyers
ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s decision dated 22 April 2005 is revoked and the following orders are substituted:
1. (a) That Cargill Meat Processors Pty Ltd pay Andrew Robert Malaquin weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 from 3 May 2004 to 16 November 2004 at the rate of $446.90.
(b)Credit to be given to Cargill Meat Processors Pty Ltd for payments made in the period 3 May 2004 to 16 November 2004.
2. Paragraphs 2 and 3 of the Arbitrator’s decision dated 22 April 2005 are confirmed.
3. Cargill Meat Processors Pty Ltd to pay Mr Malaquin’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 May 2005 Andrew Robert Malaquin (‘Mr Malaquin’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 April 2005.
The Respondent to the Appeal is Cargill Meat Processors Pty Ltd (‘Cargill Meat’).
Mr Malaquin was born on 29 August 1971 at Tamworth. He is married and has four dependent daughters, the eldest being 13 years old.
After completing year 11 at school, Mr Malaquin began working as an apprentice panel beater. He didn’t complete the apprenticeship and after several other jobs, commenced employment at Cargill Meat in June 1999. Cargill Meat is an abattoir based in Tamworth and Mr Malaquin was employed as a meat labourer.
On 23 October 2003, whilst working in the fat testing area, Mr Malaquin injured his back. The job involved stamping carcasses and in order to do this Mr Malaquin was working on a stand which was approximately 5 foot off the ground. He twisted to ink the stamp and on turning back to stamp the carcass felt a sharp pain in his low back and down his right leg.
Mr Malaquin attended the First Aid centre and the next day, 24 October 2003, consulted his general practitioner Dr Campbell. He was then off work and in receipt of weekly payments of compensation until 13 November 2003. At this time he returned to restricted duties with Cargill Meat until 23 January 2004 when he went back onto normal duties.
On 18 February 2004 Mr Malaquin re-injured his back at work when he was holding a 20kg weight on a set of scales. Whilst holding the weight it slipped and fell to the ground pulling Mr Malaquin to the right. He attended the First Aid office and resigned his employment on the same day.
Again compensation was paid when Mr Malaquin went off work. In April/May 2004 he moved with his family to Coffs Harbour where he commenced employment with a local smash repairer as an apprentice spray painter and panel beater. Due to a downturn in business his job came to an end on 22 October 2004, however, he was able to obtain similar employment on 22 November 2004 where he remained employed at the time of the Arbitration hearing on 1 April 2005.
Weekly payments of compensation continued after Mr Malaquin commenced work on 3 May 2004, however, there was disagreement as to the amount and therefore Mr Malaquin commenced proceedings in the Commission claiming weekly compensation from 3 May 2004 to date and continuing. The insurer of Cargill Meat stopped paying compensation altogether on 26 December 2004.
At the Arbitration hearing on 1 April 2005 the central issue turned on problems that Mr Malaquin had with his back before the accident at Cargill Meat. He was involved in a motorbike accident in 1988 when he was 17 years old. Although he didn’t notice any back pain at the time, his back started to become a problem around 1997 before he started work with Cargill Meat.
Whilst working at Cargill Meat Mr Malaquin attended Dr Campbell on 26 February 2001. He told the doctor he had low back pain and that the pain was on and off for 4 years, but worse in the last 18 months. There was also pain in the right buttock to mid thigh with no paraesthesia. Mr Malaquin went back to Dr Campbell on 9 March 2001 and told the doctor the backache was better.
After the injury at Cargill Meat on 23 October 2003, Mr Malaquin attended the First Aid centre and asked for Metsal linament to be applied to his back. The records of the First Aid centre (occupational health records) were in evidence at the Arbitration hearing and records the following:-
“Presented to the health centre requesting Metsal applied to lower back - states NWRI as at the age of 17 years he fell off a motor bike and crushed two lower disks [sic]. He states also that he feels pain when not moving around - Metsal, Nurofen”.
The day after the injury, 24 October 2003, Mr Malaquin consulted Dr Campbell who recorded back pain in the clinical notes and noted that although Mr Malaquin was standing and reaching at work, there was no identifiable precipitant. Dr Campbell further noted “normally to drive ache after one hr”. The doctor also referred back to the consultation with Mr Malaquin on 26 February 2001 and referred to the comment there of 4 years. Dr Campbell issued a medical certificate on the day of this consultation where he diagnosed aggravation of back pain from February 2001.
One of the difficulties for the Arbitrator in this matter was that there were no medical reports from Mr Malaquin’s treating doctors. There were medical certificates and two pages of clinical notes in evidence from Dr Campbell together with treatment reports from the physiotherapist and a radiological report and CT lumbar spine report.
Mr Malaquin’s main medical support was from Dr Alan W Searle, who was consulted for the Arbitration hearing. When Mr Malaquin saw this doctor on 19 March 2005 he denied any problems with his back before the injury on 23 October 2003. Dr Searle did, however, have a copy of Dr Campbell’s clinical notes which I have referred to above. Dr Searle, without commenting on the incorrect history provided by Mr Malaquin, was of the opinion that the injuries at Cargill Meat on 23 October 2003 and 18 February 2004 aggravated the pre-existing lumbo-sacral abnormality.
Cargill Meat had Mr Malaquin examined by Dr Govind on 14 November 2003, just three weeks after the first accident at work. Mr Malaquin told this doctor that he had some back pain after a motorbike accident when 17 years old but had a complete recovery. He also told Dr Govind that on 23 October 2003: “He had been aware of an insidious onset of low back pain whilst undertaking normal duties”. Dr Govind was of the opinion that Mr Malaquin suffered a minor soft tissue sprain with no long-term consequences.
Mr Malaquin was also seen by a Clinical Psychologist, Debra Dunstan, for Cargill Meat. When he saw Ms Dunstan on 20 April 2004 he told her he has had no back pain since being off work [18 February 2004], although he does experience some “intermittent ache”.
On 17 November 2004 Mr Malaquin saw Dr Bodel for Cargill Meat and told the doctor he did have some trouble with his back in February 2001, but the pain settled. Dr Bodel was of the opinion that Mr Malaquin had suffered soft tissue aggravation of pre-existing pathology without causing any additional structural damage. He was of the opinion Mr Malaquin had recovered from this when seen by him on 17 November 2004.
Weighing up the evidence, which involved looking at the earlier back problems, the Arbitrator determined that any incapacity for work after 17 November 2004 (when seen by Dr Bodel) was not the result of either of Mr Malaquin’s injuries on 23 October 2003 or 18 February 2004.
At the Arbitration the parties had reached agreement that the claim for weekly compensation commenced from 3 May 2004 when Mr Malaquin started employment with the smash repairer at Coffs Harbour. They also agreed on the amount of compensation paid to 26 December 2004. The Arbitrator then determined the amount that should have been paid to 16 November 2004 and deducted from this sum the compensation in fact paid to 26 December 2004, resulting in a lump sum balance of monies owing to Mr Malaquin.
Mr Malaquin has appealed against the Decision of the Arbitrator to the Commission constituted by a Presidential Member.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 22 April 2005, records the Arbitrator’s orders as follows:-
“(1)That the Respondent pay the Applicant weekly compensation for the period 3 May 2004 to 16 November 2004 in accordance with the Applicant’s Schedule of Earnings dated 31 March 2005, in the sum of $1,001.45.
(2)Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation from 17 November 2004.
(3) That the Respondent pay the Applicant’s costs as agreed or assessed.”
In paragraph 87 of the Decision the Arbitrator explained her reasoning in determining the amount of compensation awarded to Mr Malaquin:
“Payments have been made by the Respondent to the Applicant for the period 17 November 2004 to 26 December 2004. These payments will therefore be deducted from the amount owing to the Applicant for the earlier period.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)that the Arbitrator failed to properly consider the medical evidence of Dr Searle and provide adequate reasons for rejecting that evidence;
(2)whether the Arbitrator erred in entering an Award for the Respondent from 17 November 2004 when voluntary compensation had been paid to 26 December 2004;
(3)whether the Arbitrator erred in reducing Mr Malaquin’s entitlement by deducting voluntary compensation paid after 16 November 2004.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
With regard to Section 352(2) of the 1998 Act, Cargill Meat submit that Mr Malaquin’s appeal does not exceed the threshold test set out in the section.
Mr Malaquin’s appeal concerns the entitlement to payment of weekly compensation on a continuing basis and accordingly the decision clearly has the potential to put the amount of compensation claimed in issue (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3).
I find that the amount of compensation at issue on the appeal exceeds $5,000 and meets the threshold test in section 352(2) of the 1998 Act and accordingly grant leave to appeal.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence.
EVIDENCE AND SUBMISSIONS
Dr Searle’s Evidence
Dr Searle saw Mr Malaquin on one occasion only, 19 March 2005. He took a history of Mr Malaquin injuring his back on 23 October 2003 and again on 18 February 2004. The doctor then recorded that after resigning his job on 18 February 2004, Mr Malaquin had physiotherapy for a few months and this seemed to lessen the pain and he then began work in a panel-beating shop on 22 November 2004. In contrast to this history Mr Malaquin had told Debra Dunstan that two months after the injury that occurred on 18 February 2004, he had no back pain other than an intermittent ache. Further Mr Malaquin had commenced work with the panel beater on 3 May 2004.
Mr Malaquin, when asked about past history by Dr Searle, denied any symptoms or injury relevant to the low back region prior to the injury on 23 October 2003. He did tell the doctor about the motorbike accident at the age of 17, but stated he did not injure his back. He also mentioned an accident at the abattoirs on 28 August 2000 when he was knocked to the ground by a forklift but suffered no injury.
Dr Searle in his report recorded that he had access to the handwritten clinical notes of Dr Campbell. Dr Searle refers to the entry in those notes in February 2001 where Mr Malaquin complained of back ache and that he had this on and off for 4 years. The doctor then notes that in March 2001 the clinical notes record “back ache better”.
Dr Searle had access to a CT scan of the lumbar spine dated 29 October 2003. The doctor noted that this scan showed a left-sided protrusion of the L5-S1 disc while Mr Malaquin’s symptoms and signs were predominantly right-sided. In fact Mr Malaquin’s symptoms were wholly right-sided and when Dr Searle carried out a straight leg raising examination of Mr Malaquin, he noted it was 90 degrees on the left side and painless, whilst 80 degrees on the right side causing back pain.
Dr Searle was of the opinion that even though the radiological evidence is left-sided and Mr Malaquin’s symptoms are predominantly right-sided, the appearance at L5-S1 does indicate that there is an abnormality at that level. The doctor was of the opinion that the injuries at work on 23 October 2003 and 18 February 2004 aggravated the pre-existing lumbo-sacral abnormality and that the ongoing symptoms from these aggravations are persistent and permanent.
The issue for the Arbitrator was what weight should be given to Dr Searle’s opinion having regard to all the evidence. The doctor concluded the symptoms were ongoing and permanent, however, he clearly did not have all the evidence and his history did not take into account the significant improvement as recorded by Debra Dunstan in April 2004 and the fact that Mr Malaquin had been working full time from 3 May 2004.
The weight to be attached to expert’s reports was considered by the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 where the Court stated that in regard to expert’s opinion based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved otherwise “the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight”.
Although the Arbitrator in the decision referred to Dr Searle’s report in some detail, Mr Malaquin submits that she did not provide adequate reasons for rejecting the doctor’s evidence. At paragraph 74 of the decision, the Arbitrator identified the issue in dispute:
“…is whether the Applicant’s incapacity for work results from one of the injuries suffered by the Applicant or whether it is the result of the Applicant’s pre-existing back condition which is referred to in the Applicant’s statement of 6 November 2003 and in the medical and other evidence.”
The Arbitrator noted the significance of the history of back problems before the injury at Cargill Meat on 23 October 2003 and at paragraph 84 of the decision made the following finding:-
“Using a commonsense view of the causal chain and considering all of the above evidence, the minor nature of the incidents which led to the injuries, the type of the injuries suffered by the Applicant, being muscular, soft tissue, strain injuries and the medical history and reported symptoms of the Applicant’s prior back condition, I find that the Applicant’s incapacity for work from 17 November 2004 is not the result of either of his injuries at work on 23 October 2003 or 18 February 2004.”
After making this finding the Arbitrator referred to the fact that Mr Malaquin had reported a significant improvement to Debra Dunstan in April 2004 and commenced employment in May 2004.
In Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 President Justice Sheahan stated:
“Section 294(2) of the 1998 Act requires the Arbitrator, in the event of making a determination, to provide a “brief statement” of “reasons”. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 clarifies that “lengthy or elaborate” reasons, finding and linking every fact leading to the final conclusion, are not required, but “the essential…grounds upon which the decision rests must be articulated” (per McHugh JA, at 280D, but see also the judgment of Kirby P, generally, and that of Mahoney JA, at 271-3). See also Rule 73.”
The Arbitrator set out in the decision the “essential grounds” for preferring other evidence which she found more persuasive than that of Dr Searle and I can see no error of fact, law or discretion on this issue. After reading the transcript of Mr Malaquin’s evidence and the documentary evidence that was before the Arbitrator I agree with her conclusion in rejecting the evidence of Dr Searle whose medical report was of diminished weight having regard to the limited and inaccurate history.
Entering an Award for the Respondent from 17 November 2004
As I have stated above the dispute at the Arbitration hearing was in relation to the weekly payments of compensation from 3 May 2004 when Mr Malaquin commenced employment at Coffs Harbour. It was common ground that Mr Malaquin was paid some weekly payments of compensation to 26 December 2004 when all payments stopped.
At the Arbitration neither party raised sections 54 and 58 of the 1987 Act. Mr Malaquin has raised them as issues having regard to the decision of the Arbitrator. Section 54 of the 1987 Act provides that where a worker has been in receipt of weekly payments of compensation for a continuous period of one year or more, six weeks notice is required before the person paying the compensation discontinues payment.
It is submitted by Mr Malaquin that the Arbitrator is bound by the provisions of section 54 of the 1987 Act to the same extent as an insurer and accordingly should have ordered payment of six weeks compensation after she found liability for future weekly compensation payments ceased on 17 November 2004. Cargill Meat respond that the provisions of section 54 of the 1987 Act only have application in circumstances where payments are discontinued by the employer or its insurer and have no application to orders in regard to weekly compensation made by the Commission. In my view the wording of the section is clear when it states “…the person paying the compensation shall not discontinue payment.” Accordingly I am of the view the section has no application to orders made by the Commission in regard to payments of weekly compensation.
Compensation paid voluntarily after 16 November 2004
The Arbitrator found that Mr Malaquin’s incapacity for work from 17 November 2004 was not the result of injuries at Cargill Meat. The Arbitrator then proceeded to deduct the payments made from 17 November 2004 to 26 December 2004 from the amount owing.
Mr Malaquin submits that the power of the Commission to order repayments of any amounts overpaid by the insurer is contained wholly within the provisions of section 58 of the 1987 Act and in particular subsection (4) of that section. Mr Malaquin submits that this subsection is restricted to the recovery of overpayments from future payments “in respect of any previous period.”
Cargill Meat respond that section 58(4) of the 1987 Act provide the Arbitrator with power to adjust the overpayment and that the Arbitrator did not err in exercising her discretion.
Section 58(4) of the 1987 Act was considered by Judge Neilson in the unreported decision of Allied Constructions Pty Ltd v Angelo Roncato (3 July 1996). In that decision Neilson J held that section 58(4) of the 1987 Act allowed the Court to adjust a worker’s right to be paid weekly payments of compensation in the future.
The Arbitrator provided inadequate reasons for the deduction referred to above and made no reference to section 58 of the 1987 Act. In my opinion the Arbitrator erred when making the deduction in paragraph 87 of the Decision because deductions, if any, are to be made from future weekly payments of compensation and not as in this situation, from compensation already paid. In this situation where there was no award for payments of future weekly compensation, no order for deductions should have been made.
A further issue arises in this matter, not raised by the parties to the appeal, but evident on the face of the reasons for decision. The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process. The Arbitrator’s Statement of Reasons does not disclose that the Arbitrator applied these steps in awarding compensation pursuant to section 40 of the 1987 Act and this constitutes an error.
Accordingly I find the Arbitrator’s determination in awarding weekly compensation in a lump sum without undertaking the steps required by section 40 of the 1987 Act and making a deduction for overpayment are errors of law. Having made this finding I am of the view that it is preferable in the circumstances that I revoke paragraph 1 of the Certificate of Determination and substitute a new decision in its place (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). I have taken this view having read the transcript and the documentary material in detail together with the submissions of both parties at the Arbitration, which were recorded in the transcript, and their further written submissions on appeal.
Notwithstanding the errors referred to above, I am of the opinion that the Arbitrator’s conclusions of fact with respect to the issue of incapacity are well founded. The Arbitrator’s Reasons for Decision (paragraphs 74 to 84 inclusive) contain a thorough and detailed summary of the medical evidence and it is my view that her ultimate conclusion of fact that Mr Malaquin’s incapacity for work from 17 November 2004 is not the result of either of his injuries at work with Cargill Meat, should stand.
Section 40 Entitlement
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:-
(1)Determination of the weekly amount the worker would probably have been earning if uninjured;
(2)Determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
(3)Subtraction of the figure in (2) from the figure in (1);
(4)Exercise of the discretion contained in subsection (1) of section 40; and
(5)Make an award in the amount arrived at by step (4).
The parties agreed that Mr Malaquin was partially incapacitated and that the correct compensation was paid to 2 May 2004. It was further agreed by both parties that the probable earnings but for injury were $750 per week. The relevant period is 3 May 2004 to 16 November 2004 and I find that the probable earnings for this period are $750 per week.
The amount the worker is earning, or would be able to earn
The period in issue is 3 May 2004 to 16 November 2004. Mr Malaquin’s actual earnings from 3 May 2004 to 24 October 2004 were agreed by the parties as $303.10 per week. In this period he was employed at the smash repairer at Coffs Harbour in a full-time apprenticeship. Mr Malaquin in his statements has indicated that the reason for stopping work on 24 October 2004 was due to a downturn in his employer’s business. He was then unemployed until he commenced similar employment on 22 November 2004 where he remained employed at the time of the Arbitration hearing on 1 April 2005.
On reading Mr Malaquin’s statements and the medical reports it is clear that he had no real difficulty with the work that he was doing at Coffs Harbour and again had no real difficulty with the work he was doing from 22 November 2004.
Having regard to the wording of section 40 of the 1987 Act and the decision of Aitken v Goodyear Tyre & Rubber Company (1946) 46 SR 20, I am of the opinion that Mr Malaquin’s actual earnings ($303.10 per week) represents his ability to earn in the general labour market reasonably accessible to him.
This leaves the period 25 October 2004 to 16 November 2004 when Mr Malaquin was unemployed. I find that his ability to earn in this period is the same as his earnings when he was employed up to 24 October 2004. I do so because Mr Malaquin’s employment at Coffs Harbour would not have come to an end on 24 October 2004 except for his employer’s downturn in business and because he was able to work at this employment on a full time basis.
The amount at step (3) after subtracting the figure at step (2) from step (1) is $446.90 per week.
Section 40 Discretion
Having found the amount at step (3), subsection (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. In Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 the Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on”.
Having read the transcript, medical reports and other material before the Arbitrator I can see no reason for the exercise of the discretion in this matter as Mr Malaquin was well motivated and working full-time. Accordingly, at step (5) I intend to make an award in the amount of $446.90 per week for the period 3 May 2004 to 16 November 2004, with credit to be given to Cargill Meat for payments already made in that period. I note that this sum does not exceed the maximum statutory rate for a worker with 4 dependent children.
DECISION
For the reasons above, paragraph 1 of the Arbitrator’s decision dated 22 April 2005 is revoked and the following orders are substituted:
1.(a) That Cargill Meat Processors Pty Ltd pay Andrew Robert Malaquin weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 from 3 May 2004 to 16 November 2004 at the rate of $446.90.
(b)Credit to be given to Cargill Meat Processors Pty Ltd for payments made in the period 3 May 2004 to 16 November 2004.
2. Paragraphs 2 and 3 of the Arbitrator’s decision dated 22 April 2005 are confirmed.
COSTS
Cargill Meat Processors Pty Ltd to pay Mr Malaquin’s costs of the appeal.
Julian Martin
Acting Deputy President
19 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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