Mohammadi v Hazara Tiling Pty Ltd - [2013] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MOHAMMADI -v- HAZARA TILING PTY LTD [2013] WADC 115

CORAM: KEEN DCJ

HEARD: 8 MARCH 2013

DELIVERED : 29 JULY 2013

FILE NO/S: APP 82 of 2012

BETWEEN: ISHAQ MOHAMMADI
Appellant
AND
HAZARA TILING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :REGISTRAR MELVILLE
Citation  :A1195 of 2012

Catchwords:

Workers compensation - Appeal - Adequacy of reasons of arbitrator - Degree of incapacity - Burden of proof

Legislation:

Nil

Result:

Leave to appeal granted in part
Appeal dismissed

Representation:

Counsel:

Appellant: Mr T J Hammond
Respondent: Mr V Hockless

Solicitors:

Appellant: Slater & Gordon
Respondent: Kott Gunning

Case(s) referred to in judgment(s):

Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Dettenmaier v Minister for Works (1979) WAR 2003
Fox v Percy 214 CLR 118
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Sotico Pty Ltd v Wilson [2007] WASCA 112
Valez Pty Ltd v Tudor [2011] WASCA 218

KEEN DCJ: Mr Mohammadi is a 66‑year‑old tiler who was born on 1 January 1947.
On 5 September 2008 Mr Mohammadi was carrying a box of tiles during the course of his employment with Hazara Tiling Pty Ltd. As he was doing so he injured his back.
As a result Mr Mohammadi made a claim for weekly payments of worker's compensation. There was a dispute as to the total period for which Mr Mohammadi was entitled to receive weekly payments.
That dispute was heard on 20 August 2012. Arbitrator Melville gave his decision on 19 September 2012 in which he allowed Mr Mohammadi's claim in part but disallowed payment of weekly payments for the period of 10 October 2008 to 6 March 2010.
Mr Mohammadi now seeks leave to appeal from that decision and, if leave is granted, to set aside the decision and substitute one whereby that period is included in the period for which weekly payments are to be made.

The legal framework

The proceedings before the arbitrator were proceedings under the Workers Compensation and Injury Management Act 1981 (the Act). Appeal lies from an arbitrator's decision under pt XI of the Act where it is, relevantly, provided:
247.Appeal against arbitrator's decision made under Part XI
(1)If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2)Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a)in the case of an appeal in which an amount of compensation is at issue —
(i)a question of law is involved and the amount at issue in the appeal is both —
(I)at least $5 000 or such other amount as may be prescribed by the regulations; and
(II)at least 20% of the amount awarded in the decision appealed against;
or
(ii)a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b)in any other case, a question of law is involved.
…
(7)On hearing an appeal made under this section, the District Court may —
(a)affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b)subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.

The appeal and grounds of appeal

In terms of s 247(2) there is no issue that the amount appealed against is, in the aggregate, $48,636 and that that sum is at least 20% of the amount awarded in the decision appealed against.
There are two grounds of appeal:
1.The arbitrator failed to adequately expose his process of reasoning for his finding that the worker had a capacity for work for the period 9 October 2008 to 6 March 2010; and
2.The arbitrator erred in finding at [44] that the worker's degree of incapacity before 6 March 2010 was capable of fluctuating.
Those grounds of appeal are supplemented by particulars. The particulars in respect of the first ground of appeal are:
Particulars
a.The Arbitrator failed to adequately express why at paragraph 50 he was satisfied that the worker had a partial capacity for work from 9 October 2008 to 6 March 2010.
b.The Arbitrator despite correctly finding that the worker was:
i.Prior to the injury only capable of performing manual labouring work in the Australian market (paragraph 49); and
ii.If prior to the injury the worker had the capacity to work in an occupation involving other skills of a less physical nature, at age 61 he would have been doing so rather than labouring (paragraph 49); and
iii.As a consequence of the injury (the disc pathology) the worker was incapacitated to perform manual labour (paragraph 50);
decided at paragraph 50 that the worker was not incapacitated for lighter physical work in the period 9 October 2008 to 6 March 2010.
c.The Arbitrator failed to provide any or and adequate reason as to why as a consequence of the findings at paragraphs 49 and 50 that the worker had the capacity to perform lighter physical work did not result in an award for weekly payments given his finding at paragraph 49 that prior to the injury the worker was limited to performing manual labouring work in the Australian market prior.
The particulars in respect of the second ground of appeal are:
Particulars
a.The Arbitrator relied on evidence from the notes made by the workers' treating medical practitioner to make the finding at paragraph 44 that the workers' incapacity was fluctuating. The evidence that the Arbitrator relied on is not specifically identified in the Arbitrators reasons.
b.The evidence that the Arbitrator relied on (exhibit 26) does not identify fluctuating symptoms. The same evidence does not identify a fluctuation in the workers' capacity to work.
c.There is no evidence that is identified in the Arbitrators reasons and there was no evidence presented to the Arbitrator by either of the parties that supported the finding that the worker had recovered and/or regained a capacity to perform manual labouring after 9 October 2008 to 6 March 2010.

Proceedings before the arbitrator and his findings

At the hearing the appellant gave evidence and was not cross‑examined.
Evidence was also received by way of medical reports and other medical documentation.
Having considered all of that evidence, the arbitrator, in his written reasons published 19 September 2012, made a number of findings which included that the appellant had an incapacity for heavy lifting and bending from 8 September 2008 to 9 October 2008. However he was unable to conclude that the appellant had an incapacity for lighter physical work in the period 9 October 2008 to 6 March 2010 being the period in dispute and the subject of this appeal.
The arbitrator at [50] found that this was due to the lack of medical evidence supporting the total incapacity on the one hand and certification of partial incapacity in this period. The arbitrator also referred to the unsatisfactory nature of the evidence as to the extent of the appellant's vocational skills and abilities.
The arbitrator was unable to find any partial incapacity in this period resulted in the appellant being unable to earn at least as much in suitable alternative employment as he was able to earn as a tiler with the respondent 'having regard to the terms of clause 7(2) of the First Schedule (of the Act)'.
Clause 7(2) of sch 1 to the Act provides:
Subject to section 56 and subclause (3), where partial incapacity for work results from the injury, a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker calculated and varied in accordance with this Schedule would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the injury.
The learned arbitrator went on to find that with the passage of time the condition of the appellant's back did worsen and found that the appellant was totally incapacitated from 7 March 2010 to 31 December 2011 and awarded weekly payments for that period and for periods prior to 10 October 2008. Those weekly payments appear to have stopped on 31 December 2011; the appellant turning 65 on 1 January 2012.
In the course of reviewing the evidence the arbitrator noted [44]:
The evidence indicates that the degree of incapacity caused by the applicant's back condition is capable of fluctuation. This presents considerable difficulty in determining the extent of any incapacity between October 2008 and March 2010.

Appellant's submissions

The appellant submitted that the reasons of the arbitrator do not show any meaningful analysis undertaken by him as to why he came to the finding that he did in [44] that the appellant's back condition was capable of fluctuating. The appellant argues that the effect of that failure to properly expose his reasoning is such that a finding of partial incapacity was made which was not supported by the totality of the evidence. It is said that a finding of total incapacity was appropriate on the evidence and a finding of partial incapacity was inconsistent with facts incontrovertibly established by the evidence or which were glaringly improbable: Fox v Percy 214 CLR 118 [66].
The appellant submits that the failure by the arbitrator to adequately expose the reasons for his finding is an error of law and therefore the provisions of s 247 of the Act apply to enable this court to grant leave to appeal.
The appellant also submits that it was not open to the arbitrator to find on the evidence that the worker's degree of incapacity was capable of fluctuating: [44].
In addition, the appellant claims that by reason of his age, his generally being unskilled and illiterate he falls within the category of 'an odd lot' and the arbitrator should have treated him as such and held that he was totally incapacitated from work as a result of his injury.

Respondent's submissions

The respondent in its submissions argued that the arbitrator had properly analysed the evidence before him and noted that there was a considerable gap in the medical literature and the appellant's testimony. It is said that the arbitrator's reasoning was clear, that the appellant had failed to satisfy the burden of proof which rested upon him in order to support his claim, and that was abundantly clear from the arbitrator's reasons and his process of reasoning. The absence of evidence did not allow the arbitrator to make any other finding.
It is argued on behalf of the respondent that the arbitrator was left to deal with the substantial period of time the subject of this appeal during which there was little or no medical evidence to assist him on the issue of capacity in that period and the appellant did not give evidence about what he wished to assert was the extent of his limitation during that period. All he said was that he was unable to work.
The respondent argued that the reasons of the arbitrator are not unclear and he has adequately given reasons for his decision.
So far as the second ground of appeal is concerned it is argued that the finding that the appellant had fluctuating symptoms was open on the evidence. In any event it is said that it is a finding of fact which does not amount to an error of law.
With regard to the 'odd lot' proposition advanced by the appellant the respondent argues that there is no evidence to justify the conclusion that the appellant should be placed in this category.

Findings on appeal

Ground 1

There was no dispute between the parties as to the relevant law.
In Valez Pty Ltd v Tudor [2011] WASCA 218 Murphy JA set out the relevant principles in relation to the requirement for adequacy of arbitrator's reasons.
His Honour dealt specifically with the provisions of s 213(4) of the Act which provides:
The reasons for an arbitrator's decision —
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
His Honour went on to consider the common law position. The case proceeded on the basis that the common law principles were to be applied in light of and subject to that section. Under common law he noted the duty of judges to give reasons for their decisions as being well established. The function of those reasons is to give effect to any right of appeal to enable an appeal court to determine whether or not an appellable error had been made and to allow the parties to understand why they were or were not successful.
His Honour went on to consider Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, in which Meagher JA had noted that the judge should refer to the relevant evidence but not necessarily in detail and, secondly, the judge should set out any material finding of fact and any conclusions or ultimate findings of facts reached. However it was noted that that requirement did not extend to making explicit findings on each disputed piece of evidence.
His Honour, Murphy JA, went on to observe that in Beale's case it was noted that where there was conflicting evidence on a matter of significance the judge should set out his or her findings as to why one set of evidence is preferred to another but again noting it was unnecessary to make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear.
After referring to other authority his Honour then went on to note the observations of Wheeler JA in Sotico Pty Ltd v Wilson [2007] WASCA 112 and her Honour's reference to s 213(4) of the Act and her observation that the legislature was intending that the arbitrator should not be required to engage in an exhaustive process of specifying which opinions were rejected and the reasons for their rejection in the context of medical reports being considered by an arbitrator.
Finally, his Honour, Murphy JA, concluded [70]:
In identifying the facts accepted and the reasons for doing so (s 213(4)(a)) and the law applied and the reasons for doing so (s 213(4)(b)), the arbitrator will in my view still be obliged to expose the reasoning process linking them, and justifying the ultimate result. (citation omitted)
In his reasons the learned arbitrator set out the relevant principles of law by which he was bound. Those included that the appellant (applicant) carried the burden of proof to prove the nature and extent of his incapacity and that it was caused by the alleged injury: Mitchell v Canal Rocks Beach Resort [2002] WASCA 331.
After citing further authority, the learned arbitrator then noted that it was relevant to take into account the background of the worker, his or her physical characteristics, age, pre‑existing physical disabilities, employment background, skills, expertise, training and education in coming to a conclusion as to whether the worker was incapacitated.
The learned arbitrator then finally referred to s 188(3) of the Act whereby the arbitrator was permitted to inform himself as he or she thought fit. In doing so the arbitrator noted that in the present case there was little direct evidence provided to him as to the appellant's employment, background, skills, expertise, training and education. Some material had been recorded by orthopaedic surgeon Mr Slinger in a report, which of course is hearsay, but which the arbitrator recognised he was permitted to rely upon. He did comment later in his reasons that whilst doing so he would not attribute to it the weight that he would attribute to evidence that the appellant would have himself given to that effect. He described it as lacking the same persuasive effect.
His Honour noted in his reasons that the evidence comprised a combination of documents filed with the application and a witness statement of the appellant (applicant) dated 15 December 2011 and oral evidence taken at the hearing before the arbitrator.
In his reasons at [17] he set out the essential parts of the appellant's evidence from his statement as augmented by his oral evidence. In his oral evidence he confirmed that his statement was true.
Part of that evidence was that following a CT scan the appellant was certified unfit for work following which he went home to Melbourne at the end of September 2008. In his oral evidence he said that he had not done any work since returning to Melbourne.
The appellant was not cross‑examined on his evidence.
The learned arbitrator then went on to deal with the other evidence constituted by the documentary record of events. The evidence to which he referred was in relation to the CT scan carried out on 10 September 2008 and an MRI scan on 19 September 2008 which revealed pathology in the lower spine. On 26 September 2008 the appellant was certified by Dr Albir as unfit to continue with his usual occupation. A first medical certificate had been issued on 9 September 2008. There were progress certificates certifying total incapacity from 11 September to 25 September 2008. The learned arbitrator noted there was no further certification of incapacity until 3 April 2009 at which time the appellant was certified as fit for alternative duties from 3 April 2009 to 3 May 2009. That certification as to that level of incapacity continued.
The learned arbitrator noted that the appellant was admitted to hospital on 7 March 2010 and 8 March 2010 and the records indicated a disc prolapse and associated pain.
A discharge summary on 8 March 2010 referred to 'abnormal sensation left leg, which in new from yesterday patient represented with increased pain lower back and abnormal sensation in leg'. That report went on to note the history of low back pain onset 2 1/2 years previously and continued 'had initial improvement with medication, had good night sleep and in the morning woke up pain‑free. Did gardening and pain re‑appeared with absence of sensation in left lteral [sic] side of leg'.
From that point onwards the learned arbitrator noted the continuing medical history in the papers before him which deal with the period after 19 July 2010. It is not necessary for me to go through that as those periods are not relevant to the period now in dispute. However they do demonstrate that the appellant had continuing problems with his low back and ultimately underwent surgery on 24 March 2011.
It was following that review of the evidence that the arbitrator observed:
The evidence indicates that the degree of incapacity caused by the applicant's back condition is culpable of fluctuating. This presents a considerable difficulty in determining the extent of any incapacity between October 2008 and March 2010.
The learned arbitrator went on to observe [45]:
Even assuming that the applicant experienced a degree of ongoing symptoms, if not occasional pain and discomfort, questions still arise as to the nature and extent of those symptoms, pain and discomfort in that period and the extent to which they may have impaired his ability to work. Further, I have poor evidence of the worker's educational background, work experience, and the like, and I find the totality of the evidence covering the period October 2008 to March 2010 dissatisfying. Although he gave evidence he had not worked since his return to Melbourne, that in itself does not necessary compel the inference that this was because he was unfit for work. That evidence is equally consistent with being unable to find work due to labour market conditions or a lack of desire to find work.

That finding needs to be considered in the light of the background of the appellant. Having noted that the background was to be found in a report of Mr Slinger and it was hearsay, the learned arbitrator did note that the evidence revealed that the appellant was a man who emigrated from Afghanistan arriving in Australia in 2000. Following his arrival he worked in manual labouring occupations. The arbitrator noted that he was illiterate in English and worked on a farm and as a shopkeeper in Afghanistan. He also noted he was 61 years old at the time that he was injured.
Finally, the arbitrator noted at [48] the effect of the evidence. He said:
Given my ability to inform myself as I see fit, I do have regard to the hearsay evidence of the applicant's occupational history taken by Dr Slinger. However because it is hearsay, I do not attribute to it the weight I would attribute to it had the applicant given sworn testimony to this effect. In particular having regard to the cautionary words of Dixon J in Briginshaw v Briginshaw that the required level of satisfaction should not be produced by inexact proofs, indirect testimony and indirect references, I find the evidence on the question of the worker's capacity to engage in any form of employment, either from a vocational point of view or a physical point of view, in the period 9 October 2008 to 6 March 2010 as lacking the same persuasive effect it would if given by the applicant.
In order to put that in perspective it is to be noted that the learned arbitrator at [42] noted Mr Slinger's opinion that the accident of 5 September 2008 was a significant contributing factor in the appellant's soft tissue injury to the lumbar spine and acute disc protrusion or herniation. Mr Slinger was of the view that the appellant was not fit to return to his usual occupation and his impairment was permanent. That report by Mr Slinger was following a review on 16 January 2012. The learned arbitrator then went on to note at [43] that there was a considerable gap in the medical literature following the appellant's return to Melbourne and his admission to hospital in March 2010.
It is appropriate that I set out in full the arbitrator's finding at [50]:
However, notwithstanding I find the applicant had an incapacity for heavy lifting and bending from 8 September 2008 to 9 October 2008, I am unable to conclude he had an incapacity for lighter physical work in the period 9 October 2008 to 6 March 2010. This is due to the lack of medical evidence supporting total incapacity on the one hand and certification of partial incapacity in this period (see certifications of Dr Hamima dated 5 May 2009 and 3 June 2009) and the unsatisfactory nature of the evidence as to the extent of his vocational skills and abilities on the other hand. Accordingly, I am unable to find any partial incapacity in this period resulted in the applicant being unable to earn at least as much in suitable alternate employment as he was able to earn as a tiler with the respondent having regard to the terms of clause 7(2) of the First Schedule.
Returning to the relevant law as identified and explained by Murphy JA in Valez Pty Ltd v Tudor, and in particular the provisions of s 213(4), in my view the arbitrator identified the facts that he has accepted in coming to his decision. He has accepted facts that were open to him on the evidence. However this is a case where there has been an absence of evidence and it is on this basis and the fact that the appellant bore the burden of proof that the arbitrator expressed his dissatisfaction with the level of proof.
It is difficult to see what more the arbitrator could have done. He has exposed his reasons for his findings, namely an absence of adequate evidence. He has provided not only adequate but in my view full reasons for making the relevant findings of fact and conclusions that he did and in applying the law to the facts as he found them to be.
Having regard to one of the reasons for the necessity for adequate reasons, namely to allow parties to understand why they were or were not successful, it is quite transparent from his reasons that the reason that the appellant was unsuccessful in respect of this period was the absence of evidence which would demonstrate a relevant loss in the relevant period. Clause 7(2) of sch 1 to the Act makes it clear that where there is partial incapacity for work arising from the injury the amount of weekly payments during that partial incapacity is the difference between the weekly earnings of the worker to the extent that they would exceed the amount that he is able to earn in some suitable employment after the accident. The learned arbitrator noted that there was a certification of total incapacity to 25 September 2008. There was no further certification of incapacity until 3 April 2009 at which time the certification was that the appellant was fit for alternative duties from that date to 3 May 2009 and that level of certification continued. It continued until the appellant was admitted to Casey Hospital on 7 March 2010.
As the arbitrator noted, there was no evidence from the appellant relevant to that level of incapacity. The appellant's evidence was that after seeing Dr Mutahar on 11 September 2008 when he was certified as totally unfit for work (that certification lasting until 25 September 2008) he went home to Melbourne at the end of September and he had not worked since.
The learned arbitrator did not accept in his reasons that the mere statement that he had not worked since was sufficient to compel the inference that that was because he was (totally) unfit for work.
The fact that the appellant had a capacity to perform lighter work according to the certification on 3 April 2009 needed some further explanation from the appellant. The mere fact that the appellant was illiterate in English and had a capacity only to work in manual labouring in the Australian labour market does not assist the appellant. The onus was still upon the appellant to demonstrate that because of these matters, and any other matters, whilst being partially fit, he could not obtain any such work. There was a complete absence of that evidence.
In those circumstances, assuming the grant of leave to appeal, ground 1 of the appeal must fail.

Ground 2

In this ground it is said that the arbitrator erred in finding at par 44 that the worker's degree of incapacity before 6 March 2010 was capable of fluctuating.
I have previously set out the particulars that are said to support this ground of appeal and will not set them out in detail again. However I shall refer to them in order to deal with them.

Particular (a)

In referring to the evidence indicating that the degree of incapacity caused by the appellant's back condition was capable of fluctuating, the learned arbitrator was clearly referring to the combined effect of the appellant's statement, his oral evidence and documentary evidence provided.
What is relevant is the fluctuation of the degree of incapacity – not the fluctuation in symptoms. The whole inquiry is directed towards incapacity and payment of compensation for that incapacity.
For the purposes of considering this ground of appeal it is necessary to look at the period prior to October 2008 and how it affected the arbitrator's assessment of the period from October 2008 to March 2010.
In his review of the evidence the learned arbitrator noted that after the initial injury to the appellant's back he returned to work. However that was followed shortly after by scans being taken which showed that he had a pathology in his back and by 26 September 2008 he was certified by Dr Albir as being unfit to continue his usual occupation from 26 September 2008 to 9 October 2008.
At that stage the appellant's degree of incapacity for work was established. The learned arbitrator had noted that there was a progress medical certificate for the period 11 September 2008 to 25 September 2008 certifying total incapacity and noting 'minor degenerative changes with nothing else of significance'.
Following the certification from Dr Albir which concluded on 9 October 2008 the next certification relevant to incapacity was dated 3 May 2009 from Dr Hamima for the period 3 April 2009 to 3 May 2009. That described the appellant as being fit for alternative duties without any further explanation. The learned arbitrator ruled that that certification then continued.
The statement of the appellant made no reference to his progress and capacity during this period in dispute. His statement concludes that on 11 September 2008 Dr Mutahar certified him as being totally unfit for work. His statement continues that he then returned home to Melbourne at the end of September 2008 because he was unable to work.
His oral evidence did not canvass the position between his suffering the injury in September 2008 (save to describe the then effects) and his position after his surgery in March 2011 other than to say that since returning to Melbourne (end of September 2008) he had not worked.
It can be seen that there is a paucity of evidence as to his capacity to work in the relevant period.
However, what of the period leading to this? Again, the evidence is lacking but it does demonstrate a fluctuating capacity. The meaning of 'to fluctuate' (Macquarie Dictionary) includes; to rise and fall, to vary irregularly, to be unstable.
The very fact that the appellant went from having been certified as totally incapacitated from 11 September 2008 to 25 September 2008 to fit for alternate duties from 3 April 2009 to 3 May 2009 and beyond would tend to show that there was a varying in or a rise and fall in his level of capacity or that it was unstable. There is also the certification from Dr Albir for the period 26 September 2008 to 9 October 2008 that he was unfit to continue his usual occupation. As to what that means, there was no evidence. It might be reasonable to read that as referring to his usual occupation as a tiler and to be totally unfit to continue that occupation.
All of this evidence says nothing of the periods between these certifications about which there was no evidence, whether it be as to total or partial capacity.
On that limited evidence, in my view, it was open to the learned arbitrator to find as he did. The learned arbitrator did not expressly link his finding that the degree of incapacity was capable of fluctuating in the manner that I have described but it is readily capable of inference that that was the case.
So far as particular (b) is concerned, in my view, for the reasons that I have expressed, the evidence does reveal a fluctuating capacity. Again, I stress that it is the capacity that is relevant to the present inquiry not the symptoms.
With regard to particular (c) it must be remembered that the appellant bore the burden of proof. Assuming Dr Albir's certificate for the period 26 September 2008 to 9 October 2008 can be treated as a certificate of total incapacity, as appears to have been accepted by the learned arbitrator, there was no certification of total incapacity thereafter. The only incapacity certified was for alternate duties.
Apart from that, the highest that the evidence reached was a report of 1 February 2012 from Mr Slinger, orthopaedic surgeon, who reviewed the appellant on 16 January 2012. His opinion was that the then current symptoms and restrictions were as a result of the appellant's injury in September 2008 and he was permanently not fit to return to his usual occupation. However that report says nothing of the appellant's capacity for the period under dispute.
To conclude this part of the appeal, the respondent argued that the finding made as to the fluctuating incapacity is a finding of fact and does not amount to an error of law so as to enliven the leave provisions of the Act. With respect, I agree.
I will come to the issue of leave in a moment, but for the reasons I have expressed I would, in any event, dismiss this ground of appeal.
Before leaving the grounds of appeal it is necessary that I address the 'odd lot' submission made by the appellant.
In Dettenmaier v Minister for Works (1979) WAR 2003 Burt CJ referred to the concept of an 'odd lot' and cases in which this concept had been considered.
His Honour noted (205):
If on the facts it is found that the appellant is an 'odd lot' and in the absence of evidence to show that work was available which he was able to do, then he is suffering a total incapacity for work, and in that case clause 3(b) of the First Schedule casts no onus upon him. He is not within the clause at all.
That clause referred to a worker who is not in fact totally incapacitated.
Whatever may have been the case post‑6 March 2011 the appellant cannot pray in aid this concept to support a finding that he was or should be treated as totally incapacitated during the period in dispute. There would need to be relevant evidence that he fitted within the concept of an 'odd lot'. The arbitrator noted that he had poor evidence of the appellant's educational background, work experience and the like. He did note, as I have observed previously, the position as explained by Mr Slinger in his report.
In Dettenmaier his Honour the chief justice also noted that 'the concept of "odd lot" to which the Board refer is only an idea which operates upon evidence which establishes that the worker is totally incapacitated for work'. In the present case there was no such evidence for the relevant period. His Honour went on to observe:
It operates so as to lead one to say of a worker who by reason of his injuries and resulting loss of bodily function is 'physically incapacitated from ever earning by work any part of his livelihood' he being a person who is only able to obtain 'special employment of an unusual kind' that he is suffering a total incapacity for work.
Again no such evidence to support such a proposition was led in the present case.
Accordingly, I do not accept that the appellant falls within the definition of an 'odd lot' so as to claim the benefit of a deeming that he was totally incapacitated.

Conclusion

In terms of s 247 of the Act I am satisfied that leave to appeal should be granted in respect of ground 1 of the appeal. It is a ground that does raise a question of law and the other limiting provisions of the section have been satisfied. However I am not so satisfied that leave should be granted in respect of ground 2 as no question of law arises.
Accordingly, I would grant leave in respect of ground 1, but for the reasons that I have expressed I would dismiss the appeal.
As to ground 2, in the event that leave should have been granted I would have dismissed the appeal for the reasons that I have expressed.