Mitchell v Bayline Roofing Pty Limited
[2006] NSWWCCPD 150
•14 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mitchell v Bayline Roofing Pty Limited [2006] NSWWCCPD 150
APPELLANT: Mark Wayne Mitchell
RESPONDENT: Bayline Roofing Pty Limited
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC551-05
DATE OF ARBITRATOR’S DECISION: 5 July 2005
DATE OF APPEAL DECISION: 14 July 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence in relation to findings of injury and incapacity.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: TD Kelly & Co
Respondent: Trisley Killmurray
ORDERS MADE ON APEAL:
1. The decision of the Arbitrator dated 5 July 2005 is revoked and the following decision made in its place:
(a)Award in favour of Mr Mitchell at the rate of $416.00 per week from 30 October 2004 to 31 March 2005 pursuant to section 40 of the Workers Compensation Act 1987.
(b)Bayline Roofing Pty Ltd to pay Mr Mitchell’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987 Act on production of accounts or receipts.
(c)Bayline Roofing Pty Ltd to pay Mr Mitchell’s costs of the proceedings before the Arbitrator on 4 July 2005.
2. Bayline Roofing Pty Ltd is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Mark Wayne Mitchell (‘Mr Mitchell’) was employed by Bayline Roofing Pty Limited (‘Bayline’) as a carpenter. He claimed that in mid April 2004, and on 30 April 2004 and 23 August 2004, he suffered injuries to his right knee in the course of his employment with Bayline.
The most significant injury appears to have occurred on 30 April 2004. Following that incident, Mr Mitchell was off work for approximately 10 weeks. He resumed on selected duties with Bayline but again ceased work following an apparent ‘flare-up’ of his symptoms on 23 August 2004.
Liability for weekly compensation and medical expenses was initially accepted by Bayline’s insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) but declined as from 29 October 2004, principally on the ground that Mr Mitchell’s “… disability is due to … pre-existing osteoarthritis.”
On 14 January 2005, Mr Mitchell filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 30 October 2004 together with medical, hospital and related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 1 February 2005, Bayline filed a ‘Reply’ disputing Mr Mitchell’s claim with particular reference to the provisions of sections 9A and 38 of the 1987 Act.
The parties attended a conciliation/arbitration hearing on 4 July 2005 where the Arbitrator’s reasons were given orally at the conclusion of the proceedings. On 5 July 2005, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons – Ex tempore Orders’ was issued. The determination of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation under s.40 of the Workers Compensation Act 1987 for the period 30/10/2004 to 31/1/2005 as follows: at the weekly rate of $647.88 subtracting 40% of the amount earned by the Applicant in the relevant week in his employment at the Lake Munmorah Bowling Club as set out in the Wages Schedule filed in these proceedings. An award for the Respondent thereafter.
2.That the Respondent to pay the Applicant’s expenses under s.60 of the Workers Compensation Act 1987 incurred up to 31 January 2005 on production of accounts or receipts. An award for the Respondent thereafter.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 28 July 2005, Mr Mitchell filed an ‘Appeal against Decision of Arbitrator’. Mr Mitchell submits that the Arbitrator’s finding that his injury “… was a temporary aggravation or exacerbation …” was against the weight of the evidence, and that the Arbitrator misunderstood and misapplied the provisions of section 38 of the 1987 Act.
On 16 August 2005, Bayline filed a ‘Notice of Opposition to Appeal’. In essence, Bayline submits that the Arbitrator’s determination was consistent with the totality of the evidence before him, and that there has been no error either of law or fact.
LEAVE TO APPEAL
The appeal was filed within the time limits prescribed by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The difficult question is whether the amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act. That section provides as follows:
“(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5000.00 (or such other amount as may be prescribed by the Regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
At the Arbitration hearing, the parties agree that the period in dispute in relation to the claim for weekly benefits was from 30 October 2004 to 31 March 2005. Mr Mitchell returned to work with Bayline on 1 April 2005.
In his application, Mr Mitchell sought benefits pursuant to section 38 of the 1987 Act for that entire period at the rate of $674.88 per week.
Mr Mitchell also had concurrent employment with Lake Munmorah Bowling Club (‘the Club’) which he apparently commenced in about 1999, well prior to commencing work with Bayline in 2002 earning, according to his Wage Schedule, an average of $120.88 per week.
Mr Mitchell claims that the amount at issue on appeal being the difference between the weekly payments awarded and the weekly payments sought is a little over $7000.00.
Bayline claims that the amount is just under $2500.00.
The Arbitrator’s determination of the weekly benefits claim is in my view virtually indecipherable. I have endeavoured to calculate the award by reference to both parties’ Wage Schedules which were before the Arbitrator. I do not understand the Arbitrator’s reference to “… 40% of the amount earned by the Applicant in the relevant week in his employment at the Lake Munmorah Bowling Club ...” I do not know to which “week” he refers. The transcript in fact records his determination as follows:
“…at the rate of $674.88 minus 40 per cent of the amount earned in the relevant week during the relevant period (my emphasis) by the Applicant worker in his employment at the Lake Munmorah Bowling Club …”
The figure of $647.88 referred to in the ‘Certificate of Determination’ does not reflect the agreed pre-injury earnings of $674.88 or indeed, the amount referred to by the Arbitrator in the transcript.
Mr Mitchell was awarded weekly benefits from 30 October 2004 to 31 January 2005. He had claimed for the period 30 October 2004 to 31 March 2005. The balance of his claim, at the rate of $674.88, is for a period of a little over eight weeks. That amounts to over $5000.00. His entitlement to compensation is a different issue, but accepting the amount claimed by Mr Mitchell as being the amount ‘at issue’ on the appeal, I am satisfied that the criteria set out in section 352(4) has been satisfied.
Accordingly, leave to appeal is granted.
ON THE PAPERS REVIEW
Mr Mitchell submits that he ought to have “… the opportunity to be heard with oral submissions in support of the written submissions. The case at first instance was complex, with cross examination, and a number of different issues on appeal.”
Bayline submits that “… it is appropriate that this matter be determined ‘on the papers’…”, and further that “… the Appellant’s submissions disclose no such grounds [of appeal] and there is no good reason why any such grounds cannot be properly articulated in writing.” Bayline submits that “neither party is prejudiced by this approach”.
Both parties in their submissions sought leave to reserve the opportunity to file further submissions once the transcript was available. The transcript was forwarded to the parties by the Commission on 8 September 2005. No further submissions have been received from either party.
Having carefully read the transcript, the extensive medical and other documentary evidence before the Arbitrator, together with the parties’ submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Direction No. 1 to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.
THE GROUNDS OF APPEAL
Mr Mitchell makes a number of submissions on appeal but the grounds are essentially twofold:
·that the Arbitrator erred in his finding that his injury was in the nature of a “temporary aggravation or exacerbation, and failed to have regard to all of the medical evidence” (‘the injury error’), and
·that the Arbitrator either misapplied or failed to have regard to the provisions of section 38 of the 1987 Act in his determination of the award of weekly benefits (‘the section 38 error’).
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Injury’ Error
The Arbitrator’s reasons for his decision commence at page 47 of the transcript. At page 47, he stated:
“There is no doubt in my mind that the applicant has suffered an injury at the workplace of the employer on 30 April 2004. The other incidents in mid April 2004 and 23 August 2004 could be said to not be as significant as the injury on 30 April 2004.”
There was no real dispute between the parties as to the dates and circumstances of the injuries claimed. Bayline’s principal dispute related to the provisions of section 9A of the 1987 Act, ie, whether the employment could be regarded as a substantial contributing factor to the injury.
The Arbitrator proceeded to summarise a number of medical and radiological reports before him at pages 47 to 48 of the transcript. At page 48 of the transcript, he concluded:
“My reading of all the medical evidence is that there is no doubt in my mind that there is an underlying degenerate condition, being osteoarthritis. Now, the reports are almost unanimous on that view. Such a condition is not surprising given the Applicant’s work and recreational history and age. The Applicant has been frank in terms of his history as a soccer player and a rugby player, and, indeed, he continues some involvement in that sport today but only in a coaching capacity.
Notwithstanding this degenerative and pre-existing condition, it is nevertheless possible for an Applicant to suffer an injury at work which exacerbates or aggravates that condition, such that the injury, as defined in section 4 of the 1998 Act, is as a result of the employment and that the employment has been a substantial contributing factor. That is what has happened here, in my view, and I therefore place some confidence in Dr Roe’s report of 4 August 2004.”
At page 49, having discussed the provisions of section 9A of the 1987 Act, the Arbitrator concluded:
“… I find that the Applicant has suffered an injury to which the employment was a substantial contributing factor. This was a temporary aggravation or exacerbation, and the duration of that aggravation I think is unclear, but certainly Dr Rimmer is clear on the point that it had ceased by 14 June 2005. He probably makes the clearest statement with respect to incapacity.”
The Arbitrator then proceeded to deal with the “incapacity” issue to which I will refer later.
In relation to the medical evidence, this was summarised by the Arbitrator as follows: (pages 47 to 48 of the transcript).
“… We have Dr Burton [sic], an orthopaedic specialist, on 15 October 2004, who notes a rupture of an anterior cruciate ligament on 25 November 2004. His report essentially agrees with Dr Thompson’s, [sic] noting that Dr Thompson, [sic] also an orthopaedic specialist, noted that there had been a further tearing of the meniscus and it was the type of injury that Mr Mitchell had described, although Dr Thompson [sic] also notes osteoarthritis.
Dr Burton [sic] on 1 December 2004 notes a significant knee derangement as a result of his work related injury, and on 7 February 2005 says that the operative findings are consistent with the work related tear. He also indicates that the post- operative finding showed that there had been pre-injury constitutional wear.
Dr Roe … writes on 4 October 2004 that the ongoing disability is due to his work injury in May 2004. He said that it is not due to the pre-existing osteoarthritis but due to degenerative tear of his medial meniscus, and refers to medial compartment osteoarthritis. He says that essentially what has occurred has been an exacerbation of an underlying osteoarthritis.
… On 20 August 2004 Dr Rimmer says that there has been an exacerbation of pre- existing osteoarthritis. On 30 July 2004 he refers to pre-existing osteoarthritis and says that the ongoing disability is due to that osteoarthritis.”
As Mr Mitchell rightly submits, no reference was made by the Arbitrator to a number of reports of Dr Richard Evans, qualified by Mr Mitchell, dated 11 November 2004, 22 November 2004 and 16 March 2005, nor indeed to the reports of Dr Vaughan, Mr Mitchell’s general practitioner.
Dr Berton was Mr Mitchell’s treating orthopaedic surgeon to whom he was referred by Dr Vaughan in about October 2004. Dr Berton also referred Mr Mitchell to Dr Neal Thomson, Orthopaedic Surgeon, for a second opinion in November 2004. Mr Mitchell was also seen by Dr Justin Roe at the North Sydney Orthopaedic and Sports Medical Centre on about 2 July 2004.
In a report dated 2 July 2004 to Dr Vaughan, Dr Roe wrote “Mark’s x-rays show quite significant medial compartment osteoarthritis with more than 50% loss of joint space and early entophyte formation. There is also some narrowing of his patellofemoral joint.”
On 29 July 2004, EMI wrote to Dr Roe in the following terms:
“It is clear that Mr Mitchell was suffering from the osteoarthritis prior to his injury with our insured and it appears that this incident has aggravated his pre-existing condition.
To determine ongoing liability for Mr Mitchell’s condition, we ask if you could please answer the following:
1. Is Mr Mitchell’s ongoing disability due to the incident in May 2004?
2. Is Mr Mitchell’s ongoing disability due to his pre-existing osteoarthritis? …”
On 4 August 2004, Dr Roe responded as follows:
“1. Mr Mitchell’s ongoing disability is due to the incident in May 2004 which took place following a twisting injury as he stepped back and went to step up on a ladder.
2. Mr Mitchell’s ongoing disability is not due to his pre-existing osteoarthritis but due to a degenerative tear of his medial meniscus.”
Dr Roe went on to opine “Mr Mitchell’s current diagnosis is one of an exacerbation of his medial compartment osteoarthritis secondary to a degenerate tear on the medial meniscus that has resulted in an acute synovitis … his ongoing discomfort was certainly not entirely due to his osteoarthritis”. Dr Roe concluded that Mr Mitchell “… has suffered an injury that caused an exacerbation of their [sic] underlying osteoarthritis.
The Arbitrator placed considerable reliance on Dr Roe’s opinion as is evidenced by the transcript. Dr Roe however does not appear to have seen Mr Mitchell since about July 2004. Mr Mitchell’s subsequent treatment was at the hands of Dr Berton and Dr Thomson.
Dr Berton wrote in his report of 15 October 2004 as follows:
“[Mr Mitchell’s] history is consistent with a rupture of the anterior cruciate ligament to my mind and I can’t help but feel on examination and on actual review of the MRI that his knee does have an injury to this structure. Additional to this is a tearing of the medial meniscus which may be overloaded by a varus malalignment of the limb …”.
On 25 November 2004, Dr Berton reported as follows:
“Mr Mitchell has benefited greatly from the opinion of Dr Neal Thomson. Dr Thomson’s opinion has been forwarded to the insurer and to summarise he suggested an arthroscopy be performed to remove medial meniscul tearing and to assess for other damage within the knee …”.
On 1 December 2004, he reported on the right knee arthroscopy carried out on the same date as follows:
“The complex tear of the medial meniscus, including a large radial tear of the posterial horn of the meniscus, was effectively defunctioning the whole medial meniscus. A large amount of synovial tissue was impinging in the intercondylar area and was removed to reveal the anterior cruciate ligament. This appeared to have a proximal tear which had mild instability to probing.”
He concluded that the arthroscopic findings confirmed his own and Dr Thomson’s opinion to the effect that Mr Mitchell suffered “a significant injury knee derangement as a result of his work related injury”.
On 7 February 2005, Dr Berton wrote to Mr Mitchell’s solicitors as follows:
“Confirming as outlined in report 1 December 2004, I believe the operative findings are consistent with the work related tear of the medial meniscus leading to increased medial compartment loading complicated by a high grade partial or complete tear of the anterior cruciate ligament. The arthroscopic findings would suggest that he had pre-injury constitutional wear of the patellofemoral joint and medial compartment joint linings. I would therefore confirm that on the basis of history, investigations and arthroscopic findings that it is my opinion that Mr Mitchell has suffered a substantial work related injury.”
On 16 March 2005, Dr Evans wrote a report commenting on a number of reports from Dr Berton, and the reports of Dr Thomson and Dr Roe. Dr Evans concluded, after noting the arthroscopic findings that: “[t]he above findings do not seem to be significantly different to those suggested in the diagnosis section of my report of 11 November 2004”, noting that “… the arthroscopy was consistent with my clinical impressions.”
In his earlier report of 11 November 2004, Dr Evans concluded: “[t]here is no doubt about the presence of mild/moderate osteoarthritis affecting the medial compartment of the knee …The MRI Scan has suggested some damage to the anterior cruciate ligament …there may be damage to the medial meniscus as suggested by Dr Berton, though this was not shown in the MRI Scan …”. Dr Evans had also recommended that Mr Mitchell undergo an arthroscopy of his knee.
As the Arbitrator rightly pointed out, the medical reports were “almost unanimous” that Mr Mitchell had an underlying degenerative condition, namely osteoarthritis.
Dr Rimmer, qualified by Bayline, opined in a report dated 20 August 2004 that “Mr Mitchell’s ongoing disability is due to his pre-existing osteoarthritis …”. In his subsequent report dated 14 June 2005, Dr Rimmer, after noting that he did not have a copy of the arthroscopy report, again concluded that Mr Mitchell “… aggravated his pre-existing osteoarthritis which was in the presence of a degenerative tear of his medial meniscus”.
It appears that the Arbitrator has adopted that report and its terminology in his ultimate finding that Mr Mitchell suffered an ‘injury’ which was “… a temporary aggravation or exacerbation.”
However, the Arbitrator does not identify the nature of the ‘injury’. It may probably be inferred that he meant “a temporary aggravation or exacerbation” of an underlying osteoarthritic condition. But this completely overlooks the findings at arthroscopy and the concurring opinions of Mr Mitchell’s treating specialists, Doctors Berton and Thomson, together with Dr Evans. True it is that he had some underlying osteoarthritis and indeed some “pre-injury constitutional wear of the patellofemoral joint and medial compartment joint linings” as Dr Berton pointed out. But the ‘injury’ as found by Doctors Berton, Thomson and Evans was, as Dr Berton described it in the arthroscopy report, “the complex tear of the medial meniscus, including a large radial tear of the posterior horn of the meniscus” and a “proximal tear” of the anterior cruciate ligament.
In other words, the findings at arthroscopy vindicated the diagnosis proffered by Doctors Berton, Thomson and Evans such that the weight of medical evidence suggested that as a result of the incident on 30 April 2004, Mr Mitchell suffered a tear of a medial meniscus together with a tear of his anterior cruciate ligament.
Notwithstanding any underlying degenerative or constitutional pathology, the weight of evidence supported the diagnosis that Mr Mitchell suffered damage to his knee as a result of trauma, ie, the twisting injury on 30 April 2004. This evidence was markedly inconsistent with the theory propounded by Dr Rimmer, in the absence of arthroscopic findings, that Mr Mitchell had merely aggravated his pre-existing osteoarthritis.
The Arbitrator’s finding of ‘injury’ was against the weight of the evidence, and constitutes an error of law.
The ‘Section 38’ Error
Mr Mitchell submits that “the Arbitrator misunderstood and misapplied section 38. The Arbitrator erroneously held that section 38 did not apply to the facts and circumstances in this case. The uncontested evidence was that the Applicant has forwarded all light duties WorkCover Certificates diligently to his employer, but was not offered light duties until 1 April 2005.”
That is not an accurate summation of all the evidence in relation to the claim for section 38 benefits. The evidence was clear that Mr Mitchell did indeed forward light duties certificates to his employer, but as to other aspects of his claim, the evidence was not quite so straight forward.
In his statement dated 16 December 2004, Mr Mitchell said:
“On 15 September 2004, Dr Vaughan certified that I was fit for selected duties … on this day I rang Mr Shane Cavanaugh [a director at Bayline] and advised him of my certificate and asked for suitable duties. He told me he would get back to me. My brother passed away on 3 October 2004. On 5 October 2004 Mr Cavanaugh rang to offer me light duties and I told him words to the effect that I could work any day other than my brother’s funeral. He told me that he would get back to me. He has not offered me any suitable duties since that day. I remain available to work in accordance with my medical certificate and restrictions.”
On 10 March 2005, Bayline wrote to Mr Mitchell in the following terms:
“Following our telephone conversation on 5 October 2004, it was advised to yourself that Bayline Roofing were in a position to offer yourself suitable duties in line with your medical certificate.
At this point, you advised me that you did not think you would be able to return to work as you believed your knee injury would flare-up again, at this point you further advised that your brother had very sadly just passed away and would require additional time away from work to attend to the funeral arrangements and to attend his funeral.
Several months have now passed and we are still receiving medical certificates stating that you are able to perform suitable duties but to date, we have not heard or seen yourself.
I would have thought that if you were interested in return to work, you would have at least telephoned or come into the office to discuss your situation with either Ben or myself [Shane Cavanaugh].
On two occasions, I have tried calling you at home but have been unable to contact yourself on both occasions …”.
On 15 March 2005, Mr Mitchell’s solicitors wrote to Bayline’s solicitors noting that:
“We are instructed to again request that the Respondent provide the Applicant with suitable duties, that is: duties within his certified restrictions. The Applicant remains ready, willing and able to recommence suitable work with the Respondent. Please consider this a request for such duties.”
This material was the subject of oral evidence at the arbitration hearing. When asked by his counsel about the contents of Bayline’s letter of 10 March 2005, in response to the question, “do you say that you told Mr Kavanagh [sic] that you did not think you would be able to return to work as you believed your knee injury … would flare-up again?” Mr Mitchell replied: “No, I said to Shane that me brother just died and we’d got the funeral on and I’ll be back to work whenever you want me but I can’t come back on the day of the funeral.” (page 9 transcript).
On page 10 of the transcript in response to the question “… did you make any other effort to contact your employer after that conversation of 5 October 2004?”, Mr Mitchell replied: “I made a number of phone calls, and Shane was never in, and I said I’d ring back. And I rang back and he still wasn’t in.”
In reply to the question “Did you ever get a phone call back during that period?” Mr Mitchell replied “No”. When asked “Before you received this letter of 10 March 2005, can you remember any other contact that your boss or your employer made with you between 5 October and 10 March regarding light duties?” Mr Mitchell replied “No”.
Under cross examination, Mr Mitchell’s responses were a little less clear. For example, at page 14 of the transcript, this exchange took place between Bayline’s solicitor and Mr Mitchell:
Bayline’s solicitor: “You don’t say anywhere in your statement that you made several phone calls after forwarding the certificates. Why is that?”
Mr Mitchell: “Because it should be in the report from the provider and that [sic]. Most of the times when we make phone calls the provider always said to me, ‘make sure you ring Shane and see if there is any available things’. So I was just doing that. Whenever I had the chance, I’d ring him up, and Shane said, ‘unless you get on a frigging roof I don’t want you back here.’”
Bayline’s solicitor: “Well you just said a second ago that you didn’t speak to Shane and now you are saying you did speak to Shane?”
Mr Mitchell: “I spoke to Shane before … that’s before the operation. With the time that you told me you are talking about when we had the operation done on the knee.”
Bayline’s solicitor: “No am talking about when you forwarded the certificates for suitable duties.”
There was some apparent confusion as to what period of time was being discussed. At page 15 of the transcript, when asked “When did you request suitable duties?” Mr Mitchell replied “I can’t remember… I keep a diary … I am not good with dates”.
In response to the question from Bayline’s solicitor, “You didn’t request suitable duties did you?” Mr Mitchell replied “I was sending certificates every week …” When asked “Yes, but you didn’t request suitable duties did you?” Mr Mitchell replied “Well, if I can’t talk to him I can’t ask for them”.
There followed further confusion about the times and dates that requests may have been made. When asked whether he had made a request for suitable duties prior to March 2005, Mr Mitchell again responded “I don’t know. I’d have to have a look at the date.” The parties then appeared to agree that they were somewhat at “cross purposes” and it was apparent that Mr Mitchell was somewhat vague in his recollection of his applications for suitable employment with Bayline.
The evidence was certainly equivocal on this issue. Section 38 of the 1987 Act provides as follows:
“(1) Entitlement. If:
(a) a worker is partially incapacitated for work as a result of an injury; and
(b) the worker is not suitably employed during any period of that partial incapacity for work, the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.”
Section 38A makes provision for determining whether or not a worker is seeking suitable employment. Section 38A(2)(a) provides that a worker is not to be regarded as seeking suitable employment unless “the worker is ready, willing and able to accept an offer of suitable employment from the employer.”
Whilst Mr Mitchell maintains that he was ready, willing and able to perform suitable duties with Bayline, it seems that there may have been some miscommunication between the parties. It is noted that Mr Mitchell ultimately commenced suitable duties on 1 April 2005, presumably as a response to his solicitor’s letter to Bayline’s solicitor dated 15 March 2005. That suggests that perhaps Bayline was unaware of Mr Mitchell’s availability prior to that date consistent with its letter to Mr Mitchell of 10 March 2005.
In relation to all of this evidence, the Arbitrator concluded at page 49 of the transcript as follows:
“By the end of January 2005 the Applicant worker, however, was clearly doing significant hours at the Lake Munmorah Bowling Club. I accept the evidence that that was largely sedentary work, but, on all of the evidence, considering that capacity – and I have also considered the fact that both parties have obligations to, on the one hand, offer and, on the other hand, seek suitable employment, the evidence is different there, of course, but I don’t think that blame can be sheeted 100 per cent to one party or the other, but I consider that to be a mutual obligation.”
Mr Mitchell’s Wage Schedule disclosed that from about early November 2004, he had increased his hours of work at the Club. In particulars provided to Bayline’s solicitors, Mr Mitchell’s solicitor stated that:
“… the Applicant has increased his hours from about 7 per week to 12 per week since his injury … [and] presently earns approximately $200.00 to $250.00 per week in this employment. Prior to his injury, he would earn about $100.00 to $120.00 per week”.
Whilst there is no clear reference in the transcript to the provisions of section 38, the Arbitrator appears to have found against Mr Mitchell on the basis that he was not satisfied that the mutual obligation on both parties had been fulfilled in light of the “different evidence” relating to Mr Mitchell’s applications for suitable employment.
It is not my task on appeal to further debate the evidence before the Arbitrator. Whilst an appeal from an Arbitrator to a Presidential Member is not an appeal in the strict sense but is by way of review, it is similarly not a ‘rehearing’ of a matter ‘de novo’. The power of the Commission to revoke a decision is exercisable only when it can be demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (see Allesch v Maunz (2000) 203 CLR 172).
I am not satisfied that the Arbitrator has made any error on this point in light of the conflicting evidence to which I have referred. It was open to the Arbitrator to find that Mr Mitchell had not satisfied the requirements of sections 38 and 38A of the 1987 Act.
Turning now to the Arbitrator’s award, at page 49 of the transcript, he concluded “[o]n all of the circumstances and the evidence I consider the relevant section 40 period to be 30 October 2004 to 31 January 2005.” He went on as follows:
“Calculations of the amount under section 40 requires me to conduct an enquiry into the facts to determine the loss suffered by the worker as a result of the injury. Probably the clearest view of that is as expressed in Australian Iron & Steel v Elliott, a decision that goes all the way back to 1966, but the arguments that have been put to me … have been good arguments but, at the end of the day, that’s what I consider my role to be, is to consider what has the loss been as a result of that injury and having some regard to the facts as they were presented before me today.
Comparing the worker’s 2004 earnings to his 2003 earnings, at the Lake Munmorah Bowling Club – and I appreciate I have only some of the pay slips available – and accepting that this is employment that is subject to seasonal variation, he appears to be earning approximately double in 2004 what he was earning in 2003. However, I have also had regard to the fact that the Applicant worker has had some periods where has not been able to earn what he ordinarily would running coaching clinics and the like. My order with respect to section 40, therefore, reflects all these considerations”.
This reflects a somewhat unusual approach to the determination of the section 40 award. In the first place, there was simply no evidence that Mr Mitchell’s incapacity ‘ceased’ on 31 January 2005. Whether that physical incapacity translated into any economic incapacity was a different issue. Bayline conceded, that Mr Mitchell had forwarded to it certificates for ‘suitable duties’ since at least October 2004. The fact that Mr Mitchell resumed light duties with Bayline on 1 April 2005 is further confirmation of his continuing incapacity during the period claimed.
The Arbitrator has either misconceived or misinterpreted the provisions of section 40 and indeed section 33 of the 1987 Act. As I said in Griffiths v Miller Corporation Pty Limited t/as Pizza Hut [2006] NSWWCCPD 52 at paragraphs 34 and 35:
“Division 2 of the 1987 Act relating to the payment of weekly compensation commences with section 33. Its purpose is to establish the primary obligation of an employer to pay weekly compensation where injury gives rise to incapacity; it is the ‘source’ as it were, of liability.
Subsequent sections define the nature and duration of any weekly payments. Section 40(1) of the 1987 Act refers to a worker’s entitlement to weekly payments during partial incapacity as follows:
‘The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.’”
In the present case, there was no evidence to contradict Mr Mitchell’s assertion that he was partially incapacitated for work for the period 30 October 2004 to 31 March 2005. The task of the Arbitrator was to determine what, if any, reduction in Mr Mitchell’s weekly earnings had occurred.
Both parties filed a Wage Schedule. Bayline made no reference to Mr Mitchell’s pre-injury earnings with the Club. Those earnings were calculated by Mr Mitchell at an average of $120.88. This amount, in the absence of evidence to the contrary by Bayline, was the uncontested evidence before the Arbitrator.
Both parties agreed that Mr Mitchell’s average weekly pre-injury earnings with Bayline were $674.88 per week. Bayline’s Wage Schedule, in calculating the difference between Mr Mitchell’s “actual earnings and comparable earnings” omitted any reference to his concurrent employment with the Club.
Section 43(1)(b) of the 1987 Act provides that:
“If the worker has entered into concurrent contracts of service with 2 or more employers under which he or she worked one time for one such employer, and at another time for another such employer, the worker’s average weekly earnings shall be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the time of the injury.”
Thus, the relevant benchmark in the calculation in any section 40 award was the sum of $795.76, being the combined earnings with Bayline and the Club.
Mr Mitchell in his Wage Schedule set out the difference between his actual earnings for the period 30 October 2004 to 31 March 2005 and his pre-injury ‘combined’ earnings. His actual earnings over the period in question with the Club were at various rates but averaged $379.74 per week. At no stage did he exceed his pre-injury combined earnings. Thus the average loss over that period was $416.02 per week. It should also be noted, without objection from Bayline, that Mr Mitchell claimed a wife and five children as dependant on him for support upon him.
The Arbitrator overlooked his obligations to adopt the ‘5 step process’ enunciated in Mitchell v Central West Health Service (1998) 14 NSWCCR 527 (‘Mitchell’s case’). His determination (at page 50 of the transcript) that Bayline pay Mr Mitchell “… weekly payments of compensation under s.40 of the 1987 Act at the rate of $674.88 minus 40 per cent of the amount earned in the relevant week during the relevant period … in his employment at the Lake Munmorah Bowling Club” does not reflect a proper consideration of the principles established in Mitchell’s case, and constitutes an error of law.
CONCLUSION
The Arbitrator has made errors of fact and law not only in relation to his finding of injury but also as to his calculation of Mr Mitchell’s section 40 entitlement. His finding that Mr Mitchell had not satisfied the requirements of section 38 of the 1987 Act was open to him on the evidence available and this finding is confirmed on appeal.
Having determined that there was no evidence to contradict Mr Mitchell’s assertion that he was partially incapacitated for work for the period 30 October 2004 to 31 March 2005, I make the following determination in relation to his claim for section 40 benefits in accordance with the rules set out in Mitchell’s case and in light of my reasoning in paragraphs 74 to 80 above:
(a)The amount that Mr Mitchell would probably have earned in the employ of Bayline and the Club is $795.76 per week.
(b)The average weekly amount that Mr Mitchell was able to earn in suitable employment for the period 30 October 2004 to 31 March 2005 is $379.74 per week.
(c)Mr Mitchell’s entitlement pursuant to section 40(2) is $416.02 per week.
(d)In the exercise of my discretion, the sum of $416.00 (rounded off to the nearest dollar) is a proper reflection of the reduction in Mr Mitchell’s ability to earn given the nature and extent of his injury, the nature of his pre-injury employment, and the acceptance by the Arbitrator that the work at the Club was “largely sedentary work”.
(e)Mr Mitchell is entitled to weekly compensation pursuant to section 40 of the 1987 Act at the rate of $416.00 per week.
The Arbitrator’s determination that Mr Mitchell’s ‘incapacity’ effectively ceased on 31 January 2005 because he was “… clearly doing significant hours at the Lake Munmorah Bowling Club …” was an incorrect application of the provisions of section 40.
Having found that the Arbitrator’s determination of ‘injury’ was flawed, and that Mr Mitchell was partially incapacitated for the period claimed, it follows that the Arbitrator’s determination that Bayline pay Mr Mitchell’s section 60 expenses up to 31 January 2005 only is also incorrect, such that Mr Mitchell is entitled to ongoing section 60 expenses.
DECISION
The decision of the Arbitrator dated 5 July 2005 is revoked and the following decision made in its place:
(a)Award in favour of Mr Mitchell at the rate of $416.00 per week from 30 October 2004 to 31 March 2005 pursuant to section 40 of the Workers Compensation Act 1987.
(b)Bayline Roofing Pty Ltd to pay Mr Mitchell’s medical, hospital and related expenses pursuant to section 60 of the Workers Compensation Act 1987 on production of accounts
or receipts.
(c)Bayline Roofing Pty Ltd to pay Mr Mitchell’s costs of the proceedings before the Arbitrator on 4 July 2005.
COSTS
Bayline Roofing Pty Ltd is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
14 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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