Meltons Fertilisers Pty Ltd v Eddy
[2005] NSWWCCPD 31
•9 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Meltons Fertilisers Pty Ltd v Eddy [2005] NSW WCC PD 31
APPELLANT: Meltons Fertilisers Pty Ltd
RESPONDENT: Gordon Eddy
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 12231-2003
DATE OF ARBITRATOR’S DECISION: 19 April 2004
DATE OF APPEAL DECISION: 9 May 2005
SUBJECT MATTER OF DECISION: Procedural fairness and sections 16 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Vardanega Roberts Solicitors
Respondent: Robb & Associates Solicitors Pty Ltd
ORDERS MADE ON APPEAL: That part of the decision of the Arbitrator of 19 April 2004 that is the subject of this Appeal relating to the Award for weekly benefits is revoked and the following decision made in its place:
A. That the Respondent pay the Applicant weekly compensation at the rate of $410.00 per week from 25 July 2003 to date and continuing under section 40 of the Workers Compensation Act, 1987.
B. Sub-paragraphs 2 and 3 of paragraph 22 of the Determination dated 19 April 2004 are confirmed.
C. The finding by the Arbitrator that the Applicant suffered injuries to his neck on 16 August 2001 is revoked. In particular, in paragraph 21 of the Determination that “on 16 August 2001 Gordon Ronald Eddy received an injury to his back and neck arising out of or in the course of his employment as a truck driver with Meltons Fertilisers Pty Limited” is revoked and the following finding made in its place:
“On 16 August 2001 Gordon Ronald Eddy received an injury to his back by way of fractures of the L2, 3 and 4 vertebra and aggravation of degenerative changes in the lumbar spine and facet joints arising out or in the course of his employment as a truck driver with Meltons Fertilisers Pty Limited.”
D. It follows that sub-paragraph 4 of paragraph 22 of the Determination dated 19 April 2004 is revoked and the following decision made in its place:
“In accordance with my earlier directions, the Applicant will submit to an examination by an Approved Medical Specialist to address the Applicant’s claim for lump sum benefits pursuant to section 66 in respect of the back, the operative date of injury being 16 August 2001.”
E. Each party pay its own costs of the Appeal.
BACKGROUND TO THE APPEAL
Gordon Eddy, (‘the Respondent Worker’), was employed by Meltons Fertilisers Pty Limited, (‘the Appellant Employer’), and claims he suffered an injury to his back and neck when he fell from the back of a truck on 16 August 2001.
Liability was initially accepted and weekly benefits and section 60 expenses paid. The insurer, Allianz, by letter dated 13 June 2003 advised Mr Eddy that liability “in respect of a back injury” would cease from 13 June 2003 on the grounds that “the present condition you are suffering from is not related to the work injury…”, relying on reports of Doctors Haynes and Smith.
On 16 July 2003, Mr Eddy’s solicitors filed an Application to Resolve a Dispute seeking reinstatement of weekly benefits, section 60 expenses and sections 66 and 67 entitlements, together with Directions for Production of documents on various parties.
The Employer filed a Reply in August 2003. A teleconference was scheduled for 25 November 2003. The teleconference outcome was documented by the Arbitrator on 26 November 2003. It listed the issues still in dispute between the parties as follows:
a. Is the Applicant’s back condition related to the injury of 16 August 2001?
b. Have the effects of the injury on 16 August 2001 concluded?
c.Is the Applicant’s incapacity due to his obstructive airways disease and therefore not related to the injury of 16 August 2001?
d.Does the Applicant have a disease within the meaning of section 15 and section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’)?
e.Is the Applicant entitled to compensation pursuant to sections 66 and 67 of the 1987 Act?
The Arbitrator’s notes on the teleconference outcome and directions recorded are of considerable significance in this Appeal and will be referred to in more detail below.
In short, the Arbitrator directed “the issue of liability relative to the Applicant’s claim
pursuant to the back and neck be determined by me on the papers…” and further that “the matter is to be determined on the papers”.
The Respondent Worker’s solicitors filed undated written submissions with respect to his claim on 9 January 2004. They then wrote to the Workers Compensation Commission (‘the Commission’) on 6 April 2004 enquiring as to when a decision might be expected. No submissions were made by the Appellant Employer.
On 19 April 2004 a Certificate of Determination (“the Determination”) with reasons was issued, wherein an award was made in favour of the Respondent Worker for weekly benefits and section 60 expenses. The decision was set out at paragraph 22 as:
1. “There will be an award for the Applicant in respect of the Applicant’s claim for weekly benefits from 25 July 2003 to date and continuing at the rate of $500 per week.
2. Award for the Applicant in respect of the Applicant’s claim for expenses pursuant to Section 60.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.
4. In accord with my earlier Directions the Applicant will submit to an examination by an Approved Medical Specialist to address the Applicant’s claim for lump sum benefits pursuant to Section 66 in respect of the back and neck the operative date of injury in respect of each being 16 August 2001.”
A copy of the Determination, although initially forwarded to the wrong solicitors, eventually reached the Appellant Employer’s solicitors, and an Application to Appeal against the Arbitrator’s decision was filed on 17 May 2004.
10. The Grounds for Appeal are essentially as follows:
(i)The Arbitrator denied natural justice to the Appellant Employer by deciding the matter based only on the Respondent Worker’s submissions and in the absence of any submissions by the Appellant Employer, and further in the absence of certain additional medical reports.
(ii)That the Arbitrator’s findings relating to diagnosis and interpretation of the Respondent Worker’s condition are unclear and/or not supported by the evidence.
(iii)That the Arbitrator made an error in the calculations of the section 40 award.
11. The Appellant Employer submits that the Arbitrator’s decision is flawed and should be reviewed in light of the additional evidence annexed to the Application to Appeal. The ‘denial of natural justice’ ground essentially incorporates a procedural fairness complaint in that late evidence upon which the Respondent Worker wished to rely was not put before the Commission.
12. The Appeal satisfied the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and leave to Appeal is granted. Both parties have consented to the Appeal being dealt with on the papers. 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.
INITIAL PROCEEDINGS
13. In this particular case, it is important to look at the conduct of the initial proceedings.
14. Practice Direction 1 of the Commission deals with the determination of matters without a conciliation conference or arbitration hearing in person i.e., on the papers.
15. Section 354 of the 1998 Act deals with procedures before the Commission. Relevantly, section 354(3) states “the Commission is to act according to equity, good conscience and the substantial merits of the case…” and section 354(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”.
16. The Practice Direction goes on to look at examples of matters that may be suitable for determination on the papers and factors relevant to such a determination, noting for example disputes about payment of weekly compensation where “liability has been accepted previously and all relevant evidence (my emphasis) is before the Commission.” Factors to be considered include relevantly “whether there is significant conflict.. where conflicting reports have been prepared by expert witnesses”.
17. Notwithstanding the nature of the dispute, the parties agreed that the matter could be dealt with on the papers, possibly because I note that the Respondent Worker resides in Henty, near Albury. It was therefore crucial that the Arbitrator had all relevant evidence and sufficient information as required by section 354 of the 1998 Act and Practice Direction 1.
18. The Directions made at the teleconference were therefore critical to a just and fair determination of the matter. In the present case, much hinges on the parties’ understanding of those Directions.
19. The Commission file contains a written summary of the outcome of the teleconference on 25 November 2003 completed by the Arbitrator on 26 November 2003. Leave was granted to the Appellant Employer to issue Directions for Production on four parties; leave was granted to the Respondent Worker to admit Tax Returns or late documents and specifically (point 4) “I direct that the Applicant cause to be filed with the Commission and to provide a copy to the Respondent’s solicitors of the medical reports of Dr E Khoury…”
20. In paragraph 5, the order was “… the parties be afforded 28 days following the production of the documents directed to be produced under paragraphs 1, 2, 3 and 4 hereof and to file any submissions to the Commission for referral to me”. The note is silent as to the service of any documents and as to service of submissions on each party.
21. Access orders were made in respect of the various producers with the first access period commencing 5 January 2004 and the second on 19 January 2004.
22. The Arbitrator sent an email to the Commission on 16 January 2004, referring to his Directions accompanying the teleconference on 25 November 2003. He states:
“I have … received copies of the Taxation Returns and Submissions, however, I do not have any evidence to conclude that the Applicant has complied with Direction 4 nor do I know whether the Respondent has followed up an inspection of the documents produced presumably to the Direction for Production under Direction 2. If there has been compliance with Direction 2 and 4 then I would like to know whether you have yet filed with you a copy of the Respondent’s Submissions. You might let me have a copy so that I might add to file (sic) and make the appropriate determination on liability”.
23. An email from the Commission dated 16 January 2004 to the Arbitrator advised that:
“point 4 (of the teleconference directions) has not as yet been complied to (sic) and at this stage, only Submissions from the Applicant have been received. I would suspect that following the Respondent’s inspection of the documents, Submissions will then be submitted”.
It noted that access ended on 30 January 2004.
There is no further correspondence relevant to these issues other than the Respondent Worker’s solicitor’s letter to the Commission on 6 April 2004. Perhaps that prompted the Arbitrator to make a determination. This was done on 19 April 2004. There is no record of any attempt to contact the Appellant Employer regarding its submissions or to contact the Respondent Worker’s solicitors with respect to compliance with Direction 4.
25. The Arbitrator at paragraph 10 of the Determination, details the documents that were in evidence before the Commission and taken into account in making the Determination. No reference is made to the documents required pursuant to Direction 4 of the teleconference nor indeed to those referred to in paragraph 2. The Arbitrator then notes
“for the Respondent:
·Memorandum of Dr P Haynes… 8/7/02
·Medical report of Dr P Haynes…17/12/03”
No reference is made to the report of Dr Smith served by the Appellant Employer.
26. The Appellant Employer contends that it was never served with the reports of Dr Khoury nor the Respondent Worker’s submissions. The former was a specific direction of the Commission. Whilst there was no direction as to service of submissions, as a matter of professional courtesy, at the least, those submissions ought to have been served on the Appellant Employer, just as the Respondent Worker’s submissions on Appeal were served on 25 June 2004.
PROCEDURAL FAIRNESS AND DENIAL OF NATURAL JUSTICE
Submissions
27. The content of procedural fairness will depend upon the nature of the decision under review (Kioa v West [1985] 159 CLR 550). The Commission is bound by general law principles of procedural fairness and by the statutory provisions governing its procedure (see section 354 of the 1998 Act).
28. The Appellant Employer submits that in accordance with the directions at the teleconference, it was awaiting production of documents by Wetterns Transport (a prior employer) before providing written submissions. The Appellant Employer submits that it was denied natural justice as no submissions were placed before the Arbitrator “due to a misunderstanding of orders made”, and further, that “had the Arbitrator been appraised of the Applicant’s full clinical history which became evident upon perusal of documents produced pursuant to directions… together with the Respondent’s submissions in this regard, then the Arbitrator’s decision would have differed”.
29. The Respondent Worker quite properly in my view, submits that there was a failure by the Appellant Employer to comply with the Arbitrator’s directions in that the Appellant Employer failed to enforce production of documentation by Wetterns Transport in accordance with Rule 53 of the Workers Compensation Rules 2003 and has not demonstrated what, if any, attempts were made to enforce compliance.
30. Further, the Respondent Worker points out that no documents were specified in the required section such that compliance would have been difficult if not impossible.
31. The Respondent Worker’s submission is that there has been no disadvantage to the Appellant Employer by the failure of Wetterns Transport to produce any documentation. I think that is true, there being no submission by the Appellant Employer on this point nor anything from Wetterns Transport contained in ‘fresh evidence’ documents the Appellant Employer now seeks to rely upon, which may have had a material impact on the decision of the Arbitrator.
32. Further, the Respondent Worker submits that the Appellant Employer’s assertion that the failure to produce by Wetterns Transport was the reason for its failure to provide written submissions, has no merit since “the written submissions of the Respondent should have been filed 14 days after the expiry of the Respondent’s access…” i.e., by 13 February 2004.
33. The Appellant Employer however, as I read it, is not asserting that the Wetterns Transport documents were crucial to its submissions. The Appellant Employer submits that its interpretation of the directions made by the Arbitrator resulted in its failure to comply with the timetable and to provide written submissions.
34. The Respondent Worker’s understanding of the Orders is at odds with what was in fact recorded by the Arbitrator. The Arbitrator’s notes are not entirely clear. He does say “the parties be afforded 28 days following the production of the documents… and to file any Submissions to the Commission…” Presumably, he meant 28 days after access. Nothing was said about 14 days, and he did seem to accept that submissions would be made after the parties had access to documents.
35. What is important however is that the Respondent Worker never complied with Direction 4, i.e., service of the reports of Dr Khoury (this is dealt with more fully when dealing with the application for fresh evidence aspect) nor served its submission on the Appellant Employer. One can only surmise the outcome of such action. I would have thought the Respondent Worker might well have been prompted to respond.
36. If the Appellant Employer’s submission was purely that its failure to access the documents produced by Wetterns Transport was its reason for not providing written submissions, then I think the Appeal on this ground would fail. However, my understanding of the Appellant Employer’s submissions, although not very clearly stated, is that it was its misunderstanding of the timetable set down at the teleconference which led to its failure to provide submissions.
37. Clearly, the Respondent Worker had not complied with its Direction (No 4 at the teleconference). That may have had some bearing on the Appellant Employer’s subsequent progress.
38. There has been a failure on both sides to properly comply with Directions, which in my view, was essential, given the parties agreement to determine the matter on the papers.
39. In the interest of equity, good conscience and the merits of the case, in my view the Arbitrator should have required that all directions made at the teleconference had been complied with before proceeding to a final determination of the matter.
40. As Deputy President Fleming said in Seymour v Western Sydney Area Health Service [2004] NSW WCC PD 18:
“The parties were entitled to rely upon the Arbitrator’s directions in relation to the on going conduct of this matter… There has been a denial of procedural fairness in the determination of the substantive matter by the Arbitrator. A denial of procedural fairness is an error of law and a ground upon which a decision may be revoked.”
41. As such, in my opinion the Arbitrator could not have fairly concluded that sufficient information (not necessarily evidence) had been supplied to him to enable him to determine the matter on the papers in accordance with the provisions of section 354 of the 1998 Act, and accordingly, there has been a denial of procedural fairness and the Arbitrator erred in law.
FRESH EVIDENCE
Submissions
42. Practice Direction No. 6 stipulates that in general, the Commission will allow new evidence to be given on Appeal only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator, and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.
43. The Respondent Worker submits that the Appellant Employer had access to the medical reports it now seeks to rely upon and did not, prior to 19 April 2004, serve those reports or make any application to admit late documents. That would seem to be correct.
44. However, the Respondent Worker is silent in its submissions as to why he did not serve the reports of Dr Khoury as directed by the Arbitrator and now sought, in part, to be relied upon by the Appellant Employer.
45. There is no doubt the Appellant Employer had been granted access to the documents. Its failure to tender, serve or submit those documents in an ‘on the papers’ determination again relates to its primary submission as to its misunderstanding of the directions made at the teleconference, and its argument that it was denied procedural fairness.
46. If the Appellant Employer had simply overlooked, disregarded or omitted to produce relevant material from the documents provided under direction, then in my opinion that aspect of the Appeal would fail. But that is not its complaint – rather, that it was a misunderstanding as to the timetable.
47. The next step in the examination of the ‘fresh evidence’ is to determine whether failure to allow that evidence would cause a substantial injustice in the circumstances of the individual case.
48. In this case, I would accept the Respondent Worker’s submission that the absence of some of the documents sought to be relied upon by the Appellant Employer would not have caused a substantial injustice in this case. However, one report of Dr Khoury is included, and in light of the Arbitrator’s direction at the teleconference as to service of other reports, its inclusion carries some weight.
49. Given the Arbitrator’s determination that “even if it were correct that fractures of the L2, L3 and L4 had healed, there is still clearly evidence of exacerbation of the degenerative changes…” many of the reports the Appellant Employer seeks to admit have substantial bearing on this assertion.
50. The Respondent Worker submits that some of the late reports relating to his treatment in 2002 and 2003 for other medical conditions do not address the impact, if any, which those conditions may have on the Respondent Worker’s capacity for employment and therefore carry no weight. That is not their sole purpose: They are reports from treating doctors referring to other medical conditions which the Arbitrator, in his determination of the substantive question of the Worker’s incapacity, may have found relevant.
51. Further, the Respondent Worker submits that “the Arbitrator in his determination at paragraph 18 specifically refers to the issues of the Applicant’s non work related medical conditions and clearly was mindful of them when making his determination”.
52. The only reference the Arbitrator makes is under the heading “Respondent’s Medical Evidence”. No mention is made of these conditions under the heading “Submissions” or “Findings and Reasons”.
53. Doctor Brealey records the Respondent Worker’s statement as follows (page 3 of report dated 4 February 2003), “he says he has had no illnesses in the past. He has not suffered from asthma or any cardiac problems. He says he has always been fit and strong”. That would not seem to accord with the report of Dr Beinart who saw the Respondent Worker in July 2002 with cardio-respiratory problems.
54. In my opinion, the absence of some of the reports now sought to be relied upon by the Appellant Employer have caused substantial injustice in the case. They deal with medical conditions raised by the Appellant Employer’s doctors in the initial proceedings. The Arbitrator failed to give reasons or in any way deal with the issues raised in those reports. Indeed, no reference is made to the report of Dr Smith at all.
55. I therefore permit the tender of fresh evidence.
The Arbitrator’s Decision – Diagnosis
56. The second ground of the Appeal is twofold: firstly, the Appellant Employer submits the Arbitrator’s decision is unclear as to his interpretation of the diagnosis of the Respondent Worker’s condition and not supported by the evidence, and secondly, that it is unclear from the Arbitrator’s decision as to what condition it is alleged resulted in the Respondent Worker’s current incapacity.
57. Part of this Ground of Appeal has been covered in the previous paragraphs relating to denial of natural justice and ‘fresh evidence’.
58. As to the first part, the Arbitrator determined that “I am satisfied that the Applicant did receive an injury arising out of the course of his employment with the Respondent and that the Applicant’s employment was a substantial contributing factor”. The Arbitrator does not say what that injury was. The medical evidence before the Arbitrator was fairly clear that the Respondent Worker had sustained a fall and injured his back. The radiological evidence referred to in the medical reports all suggest the Respondent Worker sustained fractures of the L2, L3 and L4 on the left side. Similarly, most of the medical examiners agree that the Respondent Worker suffers some pre-existing degenerative changes in the lumbar spine.
59. The parties do not seem to dispute that the Respondent Worker had a fall and injured his back. Indeed, the Respondent Worker in his statement says “…I slipped and fell backwards onto my back. I sustained injuries to my back”.
60. Whilst not clearly stated, I am satisfied that the Arbitrator adequately described and diagnosed the Respondent Worker’s injuries. He says “I am mindful that even if as suggested there had been a total recovery from the factures… then one would still be left to consider the ramifications of the exacerbation of the degenerative changes involving facet joints bilaterally at the L4/5 and L5/1 levels”.
61. The further reports the Appellant Employer wishes to rely upon do not really add much to this issue. The report of Dr Khoury would suggest that the fractures have indeed healed, but there is ample additional material on which the Arbitrator could conclude that the Respondent Worker suffered an exacerbation of degenerative changes.
62. The second arm of this ground of Appeal has more weight. The Appellant Employer submits that it is unclear from the Arbitrator’s decision as to what condition it is alleged resulted in the Respondent Worker’s current incapacity again, as I have said, the Arbitrator’s conclusion that “…the Applicant did receive an injury arising out of or in the course of his employment…” is not necessarily sufficient in an examination of section 40. In determining a worker’s entitlement to weekly benefits on the basis of ‘partial incapacity’, regard must be had to the worker’s probable earnings ‘but for injury’. If other ‘injuries’ or ‘conditions’ have an impact on that incapacity, then they must be taken into account.
Neck and Right Arm
63. Consideration of the Arbitrator’s approach to the ‘neck’ and ‘right arm/shoulder’ condition is therefore significant in this context.
64. The Respondent Worker in his statement made no reference to injuring his neck in the fall. The Respondent Worker claims his incapacity relates solely to the injuries sustained in that fall, and not to the nature and conditions of his employment. The only medical report dealing with symptoms in the Respondent Worker’s neck is that of Dr Combe (page 4) and he states that “his neck and right shoulder symptoms commenced when he was working for the employer prior to Meltons Fertilisers and I attribute his neck and right shoulder conditions to that employment”.
65. The Arbitrator concluded that:
“So far as the injury to the Applicant’s neck (sic) I am similarly of the mind that whilst incapacity to the neck pre-existed employment with the Respondent it was a condition carried over and into the employment with the Respondent and was similarly exacerbated as a consequence of the injury in August 2001.”
66. There is simply no evidence either lay or medical to support this finding. The wording of section 16 of the 1987 is clear: employment must be “a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration”. The concept of a condition being ‘carried over’ is nowhere in the realm of the legislation. Nothing in the Respondent Worker’s statement, or the medical reports, suggests his neck condition was either aggravated, accelerated, exacerbated or deteriorated as a consequence of the fall on 16 August 2001.
67. There is clear evidence the Respondent Worker had pre-existing symptoms in his neck, right shoulder and arm. The Respondent Worker states: “I have pain and restriction of movement with respect to my right shoulder. I have a loss of strength”. He does however go on to state “at the time of my accident my shoulder pain did not prevent me from working”.
68. The Appellant Employer submits that the Arbitrator's decision is flawed since he did not properly determine the issue of the “incapacity resulting from the Applicant’s right shoulder injury sustained as a result of earlier employment…” However, there was no evidence before the Arbitrator attributing incapacity to that injury. Whilst Dr Combe did assess loss of use of the right arm, he noted “his shoulder movements are not restricted” and Dr Haynes reached the same conclusion. Dr Combe concluded “because of his back he is permanently unfit for work involving prolonged immobilisation, repeated bending or heaving lifting”.
69. Whilst a number of doctors made reference to the Respondent Worker’s shoulder symptoms, none, including Dr Haynes and Dr Smith, dealt with the issue of any incapacity resulting from that condition. Whilst I agree with the Appellant Employer’s submission as to the error in the finding by the Arbitrator that the Respondent Worker injured his neck, there is nothing in the evidence before the Arbitrator to suggest that the Respondent Worker may have had an incapacity as a consequence of his right shoulder injury.
Other Medical Conditions
70. The Appellant Employer submits that, whilst conceding that the Arbitrator was aware that the argument of the Respondent Worker’s inability to return to work was attributable to “other constitutional conditions including shortness of breath and being overweight”, the Arbitrator would have placed greater significance on the effects of these conditions had he had the medical reports annexed to the Respondent Worker’s submissions, in particular, those marked ‘G’, ‘H’, ‘I’ and ‘J’. The Appellant Employer contends that the Respondent Worker has significant health problems to which the Arbitrator has not given due consideration, and further, that “the Commission cannot be satisfied that the Applicant is suffering from any incapacity as a result of his employment with the Respondent”.
71. I agree that the Arbitrator’s determination pays scant regard to these medical conditions, and as I have said, no mention is made of the report of Dr Smith.
72. However, the reports on which the Appellant Employer now relies, referred to above, do not assist the Commission in making a determination as to the impact of these conditions on the Respondent Worker’s capacity for employment. Indeed, Dr Landy, Consultant Physician, opines (Annexure ‘I’) “Given that he is not particularly limited (he is probably more limited by his back pain than breathlessness) he is not keen to pursue coronary angiography at this stage”. Dr Beinart, another Consultant Physician (Annexure ‘K’) concludes “he has mild obstructive airways disease…”
73. I do not think these reports demonstrate, as the Appellant Employer suggests, “significant” health problems in the context of the Respondent Worker’s capacity for employment. They may indeed have some bearing, but they are in my opinion insufficient to conclude that the Commission “would (my emphasis) have placed greater significance upon the effect of same from the Applicant’s ability to return to the work force...” True, Dr Smith, an Orthopaedic Surgeon, opines that “he is probably unfit to work because of his dyspnoea. I would have thought he has chronic obstructive airways disease”. This opinion is not supported by Dr Beinart, treating physician, whose report the Appellant Employer now seeks to rely upon.
74. The Appellant Employer’s submission that, because of these ‘significant problems’ the Commission could not be satisfied that the Respondent Worker is suffering from any incapacity as a result of his employment with the Appellant Employer is simply not supported by the totality of the evidence.
75. In summary then this aspect of the Appeal should fail.
Error in Calculation of Section 40 Award
76. The Appellant Employer submits that the Arbitrator erred in his calculations of the section 40 Award. The Arbitrator found the Respondent Worker’s probable earnings at the time of injury to be $750.00 per week, based on the Respondent Worker’s statement “at the time of my accident I had a gross weekly income of approximately (my emphasis) $750.00 per week”.
77. The Respondent Worker has also supplied to the Commission his Tax Returns for the years 2000, 2001 and 2002. Those documents were clear evidence before the Commission that, since the matter was being determined ‘on the papers’, they ought to have been taken into account, just as the Arbitrator took into account the comparable earnings of Matthew Harris (a co-worker).
78. The Respondent Worker submits that “the Applicant was not cross-examined with respect to this matter (earning $750.00 per week) nor was any evidence adduced to contest this assertion by the Applicant”. It was of course not possible to cross-examine the Respondent Worker since the matter was dealt with on the papers, and further, the Respondent Worker himself had provided evidence which contradicted that assertion, i.e. the Tax Returns.
79. The Respondent Worker also relied upon wage records of an alleged comparable earner, Matthew Harris, for the period 17 August 2001 to 20 December 2001. The Arbitrator rejected this evidence as “they are reflective of a very short period of time”.
80. As I have said, it was incumbent upon the Arbitrator when dealing with a determination ‘on the papers’ to satisfy himself that he had “all relevant evidence”.
81. The Respondent Worker’s statement that he used to earn approximately $750.00 per week is possibly correct when taking into account the allowances he earned as set out in the Group Certificates and Tax Returns. Section 42 of the 1987 Act prohibits the inclusion of such allowances in the calculation of the Respondent Worker’s current weekly wage rate.
82. Section 40 of the 1987 Act deals with weekly payments during partial incapacity, and requires an examination (section 40(2)) of “the weekly amount for which the Worker would probably have been earning as a Worker but for the injury and had the Worker continued to be employed in the same or some comparable employment…”.
83. No evidence was put before the Arbitrator of any comparable earners other than Mr Harris, and those records ceased as at December 2001.
84. In the circumstances, in my opinion the Arbitrator erred in failing to take into account the Tax Returns in determining the section 40 Award. I accept the Appellant Employer’s submission that the Respondent Worker’s comparable earnings should have been assessed at $660.00 per week.
85. The Appellant Employer, despite its submissions on the medical evidence, takes no issue with the Arbitrator’s calculation of the Respondent Worker’s reduction in earnings “but for injury” as required by section 40, nor consequently with the determination that, during the period of partial incapacity “the average weekly amount he was able to earn in some suitable employment from time to time after the injury was $250.00 per week”. Accordingly, that determination stands.
86. In accordance with section 40 of the 1987 Act and the Court of Appeal’s decision in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 I therefore find that the Respondent Worker is entitled to $410.00 per week from 25 July 2003 to date and continuing. This amount being the difference between the weekly amount the worker would probably have been earning if uninjured ($660.00) and the average weekly amount that the worker is earning or is able to earn in some suitable employment from time to time after the injury ($250.00).
87. There is no evidence before me, nor have submissions been put before me, to suggest that I should exercise my discretion in section 40(1) to reduce this amount in the circumstances of the case.
DECISION
88. That part of the decision of the Arbitrator of 19 April 2004 that is the subject of this Appeal relating to the Award for weekly benefits is revoked and the following decision made in its place:
A.That the Respondent pay the Applicant weekly compensation at the rate of $410.00 per week from 25 July 2003 to date and continuing under section 40 of the Workers Compensation Act 1987.
B.Sub-paragraphs 2 and 3 of paragraph 22 of the Determination dated 19 April 2004 are confirmed.
C.The finding by the Arbitrator that the Applicant suffered injuries to his neck on 16 August 2001 is revoked. In particular, in paragraph 21 of the Determination that “on 16 August 2001 Gordon Ronald Eddy received an injury to his back and neck arising out of or in the course of his employment as a truck driver with Meltons Fertilisers Pty Limited” is revoked and the following finding made in its place:
“On 16 August 2001 Gordon Ronald Eddy received an injury to his back by way of fractures of the L2, 3 and 4 vertebra and aggravation of degenerative changes in the lumbar spine and facet joints arising out or in the course of his employment as a truck driver with Meltons Fertilisers Pty Limited.”
D.It follows that sub-paragraph 4 of paragraph 22 of the Determination dated 19 April 2004 is revoked and the following decision made in its place:
“In accordance with my earlier directions, the Applicant will submit to an examination by an Approved Medical Specialist to address the Applicant’s claim for lump sum benefits pursuant to section 66 in respect of the back, the operative date of injury being 16 August 2001.”
E.Each party is to pay its own costs of the Appeal.
Deborah Moore
Acting Deputy President
9 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH ROBYN MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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