Morcos v Deosa Enterprises Pty Limited - [2020] NSWWCCPD 73

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Morcos v Deosa Enterprises Pty Limited [2020] NSWWCCPD 73
APPELLANT:	Andrew Morcos
RESPONDENT:	Deosa Enterprises Pty Limited
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-2763/20
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	5 August 2020
DATE OF APPEAL DECISION:	17 December 2020
SUBJECT MATTER OF DECISION:	Section 32A of the Workers Compensation Act 1987; no current work capacity
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Morgan, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr J Beran, counsel
Hall & Wilcox Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph 1 of the Certificate of Determination dated 5 August 2020 is revoked. 2. The appellant’s entitlement to weekly compensation from 12 January 2020 to date and continuing, if any, is remitted to the Arbitrator to determine whether the appellant is likely to continue indefinitely to have no current work capacity and otherwise to determine the matter in accordance with the reasons in this decision.

INTRODUCTION AND BACKGROUND

Andrew Morcos (the appellant) was employed by Deosa Enterprises Pty Limited (the respondent) as a self-employed electrician. On 23 May 2017, he sustained an injury to the right knee. Subsequently, on 4 December 2017, the right knee gave way and Mr Morcos fell onto his right arm causing a triceps tendon avulsion of the right elbow and the need for surgery on the right arm.
The appellant developed a secondary psychological condition described as an adjustment disorder.
As a result of the injury of 23 May 2017, the appellant was paid weekly payments of compensation for 130 weeks.
By letter dated 29 November 2019, the insurer informed the appellant that weekly payments of compensation would end on 11 January 2020 due to the operation of s 38(3) of the Workers Compensation Act1987 (the 1987 Act).
The issue before the Arbitrator for resolution was defined as:
“(a) Whether the applicant has no current work capacity since 12 January 2020 and is likely to continue indefinitely to have no current work capacity (sections 32A and 38(2) of the 1987 Act).”
A Certificate of Determination issued on 5 August 2020[1] recorded the Arbitrator’s determination of that issue:
“The Commission determines:
1. The applicant has failed to establish that he has had no current work capacity from 12 January 2020 to the date of his decision.”
[1] Morcos v Deosa Enterprises Pty Ltd [2020] NSWWCC 267 (Reasons).
The appeal is against that determination and identifies two grounds of appeal asserting that the Arbitrator erred in fact and law in:
(a) determining the applicant has current work capacity, and
(b) failing to determine the application or otherwise of s 32A and s 38.
The relief sought in the appeal are orders:
(a) that the determination of the Arbitrator be set aside, and
(b) that the matter be returned to (an) alternative arbitrator for determination.
For the reasons that follow, Ground 1 of the appeal is made out and the matter is remitted to the Arbitrator for re-determination in accordance with the reasons in this decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)

Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The available relief is provided for in s 352(7) of the 1998 Act:
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7).”
In Raulston v Toll Pty Limited,[2] Roche DP said:
“First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)     An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)     Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)     It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[3]
[2] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston);
[3] Raulston, [19].

THE ARBITRATOR’S REASONS

The Arbitrator summarised the appellant’s evidence as provided in his statement dated 15 May 2020. He observed that the appellant left school at 17 years of age and entered the electrical trade, becoming self-employed in 2015–2016. He recorded in brief terms the injuries sustained by the appellant and quoted the appellant’s statement that he had worked his entire career in occupations requiring physical endurance and labour, that he would not be physically capable of returning to work due to ongoing pain in the right knee, right elbow and right ankle. The Arbitrator also made mention of the appellant’s statement that he did not believe he could return to employment due to psychological symptoms.
The Arbitrator noted that the appellant had stated that he had failed multiple medical examinations for prospective employers and had been told by potential employers that he would be a liability.
Thereafter, the Arbitrator summarised chronologically part of the medical evidence before him. The summary was of the medical evidence from 13 May 2019 to 13 March 2020. The Arbitrator said:
“I restricted my summary of the medical evidence to the past 12 months. However, there is medical evidence prior to this period which supports a finding that, although the applicant could not return to the full duties required of an electrician, he was capable of engaging in suitable work having regard to the injury to the right knee and condition of his right elbow.”[4]
[4] Reasons, [48].
The Arbitrator defined the elements of the claim required to be proven by the appellant as requiring that the appellant “not only establish that he has no current work capacity, but that he is likely to continue indefinitely to have no current work capacity.”[5]
[5] Reasons, [45].
The appellant’s case before the Arbitrator was that “the combination of the applicant’s physical injuries to the right knee and consequential condition to the right elbow, the ongoing opioid medication that the applicant is taking, and the secondary psychological condition that the applicant has been diagnosed with, means that there has been no suitable employment which the applicant has been suited for since 12 January 2020, and the applicant can therefore be regarded as having no current work capacity.”
The Arbitrator first considered the appellant’s physical circumstances. The Arbitrator later considered the psychiatric evidence in the reports of Drs Khan and Teoh. The appellant’s case at the hearing was that he had no current capacity because of the combined effect of his physical and psychiatric conditions.
He said that Dr Chugh, the appellant’s general practitioner, in June 2018 had informed the Rehabilitation Service that the appellant could work as a Customer Service Manager or Electrical Training Technician. On 13 May 2019, Dr Chugh certified the appellant as having a capacity for 5 hours of work per day for 5 days per week with a lifting limit of up to 10 kilograms. The Arbitrator found that opinion to be consistent with the previous medical opinion. Thus, although the appellant could not return to the full duties of an electrician, he was fit to undertake part-time work in suitable employment.[6]
[6] Reasons, [53].
In August 2019 the treating orthopaedic specialist, Dr Kirsh, in consultation with Dr Chugh, expressed the view that the appellant was not fit for work. The Arbitrator dealt with this conclusion in a manner ultimately critical to his conclusion:
“The entry made by Dr Chugh from that consultation was that the applicant would be unfit for work for the next three to six months. If that evidence on its own were accepted as establishing that the applicant had no current work capacity, then that would take the period of no current work capacity to no further than early February 2020. There is no additional evidence from Dr Chugh or Dr Kirsh after August 2019 which can assist in my determination as to whether the applicant has had no current work capacity since 12 January 2020.
There is no adequate explanation from Dr Chugh or Dr Kirsh as to why they considered the applicant was unfit for work for three to six months from early August 2019, particularly given the medical opinions of the previous 12 months, including from Dr Chugh, which considered the applicant had some capacity for suitable employment. There is no explanation from Dr Kirsh as to whether the jobs that he refers to and which he understands the applicant has failed to qualify for, involved essentially physical work or not. The applicant is not able to assist because his own evidence is limited to: ‘have failed multiple medical exams that have been conducted by prospective employers.’ No evidence is provided as to the identity of those prospective employers, and what jobs the applicant was applying for.”[7]
[7] Reasons, [54]–[55].
Contrary to the appellant’s statement that he had always worked in physically demanding jobs and would not be able to work in a sedentary role, the Arbitrator found that because the appellant had run his own business at the time of the injury “it [was] reasonable to infer that this would have involved some rudimentary management skills”.[8]
[8] Reasons, [67].
The Arbitrator found it significant that the appellant had owned and operated a service station from 2003 to 2016 and that such duties “included customer service, managing finances and stock control”.[9]
[9] Reasons, [67].
From these essential findings, the Arbitrator reasoned:
“The evidence of past work experience and education, along with the medical evidence which I have accepted in regard to the applicant’s physical injuries, leads me to conclude that at the very least the applicant could do a few hours of work for a few days per week in some menial clerical or administrative job.”[10]
[10] Reasons, [68].
The employments regarded by the Arbitrator as suitable were level 1 employee as a clerk under the Private Sector Award 2010; retail employee level 4 under the General Retail Industry Award 2010.[11]
[11] Reasons, [69]–[70].
He said:
“I conclude from a review of the evidence that the applicant is at least fit for part time work in basic clerical or administrative work, or basic retail managerial work, despite the ongoing effects of the injury to his right knee and consequential condition affecting his right elbow. The applicant has failed to establish that, as a result of those physical injuries, [he] has had no current work capacity from 12 January 2020.”[12]
[12] Reasons, [73].
Having concluded that the appellant could physically perform part time work, the Arbitrator then considered the impact of the secondary psychological injury concluding:
“I have already given my reasons as to why I consider the applicant has the physical capacity to undertake at least part time work in basic clerical, administrative or retail management jobs. The findings made by Dr Teoh that the applicant’s cognitive functions were intact and there was no evidence of memory impairment, leads me to the conclusion that there is no impediment to the applicant doing that same work, also in a part time capacity, notwithstanding his psychological condition. The poor concentration which Dr Teoh accepts the applicant has, might limit the amount of hours of work that the applicant can do, but not preclude him from such work altogether.”[13]
[13] Reasons, [80].
The Arbitrator said of Dr Khan’s evidence that Dr Khan did not record his own observations of the applicant’s psychological symptoms but merely recorded what the worker said were his symptoms. Further, “[n]or does Dr Khan explain why the applicant could not return to any work within the next 12 months.”[14]
[14] Reasons, [76].
The Arbitrator concluded dispositive of the appellant’s case at [81] of the Reasons:
“The practical exercise of determining whether the applicant has been fit for suitable employment since 12 January 2020 leads me to find that the applicant has not been able to establish that he has had no current work capacity from 12 January 2020 to the date of this decision.”
The Arbitrator recorded the submissions of counsel with respect to the word “indefinite” in s 38(2) of the 1987 Act, but in so far as the appellant had failed to establish that he had no current work capacity from 12 January 2020 it was not necessary for the Arbitrator to determine that issue and he did not do so.[15]
[15] Reasons, [85].

GROUNDS OF APPEAL

The appellant appeals from the Arbitrator’s decision as containing error in fact and law in:
(a) determining the applicant has a current work capacity, and
(b) failing to determine the application or otherwise of s 32A and 38 (of the 1987 Act).
The brevity of the grounds of appeal may in some circumstances be commendable. However, Practice Direction Number 6, paragraphs 17 and 18, require the appellant to identify:
(a)    the respects in which error of law, fact or discretion is alleged to have occurred;
(b)    any material findings it is said the Arbitrator should or should not have made, and
(c)    any material facts it is said the Arbitrator should or should not have found.
The deficiency in the grounds of appeal is not well compensated for in the appellant’s written submissions.

LEGISLATION

The Arbitrator and the parties applied the legislation as it was before the 2018 amendments. The 2018 amendments affected the definitions in s 32A. The definition of “current work capacity” was amended. The definition of “no current work capacity” was unaltered. The two definitions were removed to Schedule 3. The definition of “suitable employment” and the provisions of s 38(2) remained unaltered.
The grounds of appeal do not raise any issue with respect to the amended legislation and it is apparent that the parties were content to have the Arbitrator deal with the matter on the basis of the unamended s 32A. I set out the legislation as considered by the parties and the Arbitrator noting that the s 32A is different after the 2018 amendments.
The version of section 32A of the 1987 Act applied by the Arbitrator provided relevantly:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker’s age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker’s pre-injury employment, and
(iv) the worker’s place of residence.”
Section 38(2) of the 1987 Act provides:
“A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.”

SUBMISSIONS AND DISCUSSION

Ground 1: Determining the applicant has a current work capacity

The appellant’s conclusory submission is:
“The Arbitrator needed in the proper exercise of his determinative powers to consider the evidence as a whole and his failure to do so constituted error.”[16]
[16] Appellant’s submissions, [12].
The appellant makes three principal submissions in support of that proposition and in support of Ground 1 of the appeal:
(a)     The Arbitrator “in determining the applicant had capacity to work based on the medical evidence he quoted failed to consider the impact of the physical conditions (leg and arm) in combination with the psychological nuances of the applicant’s condition such that he ought properly have held that there was no suitable employment for which the applicant had been suited for since 12 January 2020 such that the applicant had no current work capacity per the approach of DP Roche in Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55 … at [63].”
(b)     The Arbitrator “erred in considering the physical and psychological conditions independently and not in combination and without due regard to the applicant’s statement evidence with respect to their effects.”
(c)     In addition, the appellant complains the Arbitrator acted “in the absence of evidence and without the proposition being put to the applicant inferred at [70] and [80] that the applicant had ‘administrative skills’ despite the applicant’s direct evidence to the contrary”.

The respondent submits, inter alia:
(a)    The respondent says that the appellant’s reliance on the approach in Wollongong Nursing Home v Dewar[17] is incorrect that the proper approach to the determination of suitable employment is that provided by Popal v Myer Holdings Pty Ltd.[18] That the ‘correct approach’ is to undertake a practical exercise “having regard” to the matters identified in the definition of suitable employment. The respondent submits that is what the Arbitrator did in his Reasons at [65].
(b)    At [79] the Arbitrator turned his mind to the combination of the physical and psychological effects of the compensable injuries, the very question the appellant says was not considered by the learned Arbitrator.[19] The learned Arbitrator determined that the evidence relied upon by the appellant was insufficient to sustain such an argument.
(c) The Arbitrator turned his mind to the “worker’s age, education, skills and work experience as required by s 32A” asserting that the appellant “seeks to cavil” with inferences drawn by the Arbitrator as to the appellant’s skills and experience without offering substantive reasons as to why “the Arbitrator was incorrect to rely upon the evidence of his prior experience and education at [67] of his decision.”
(d)    In relation to the decision making process when determining the skill and experience of the appellant, the respondent submits that the decision is factual and that the appellant has failed to demonstrate that the learned Arbitrator’s decision was wrong so as to be amenable to appeal as required by Raulston.
[17] [2014] NSWWCCPD 55; 15 DDCR 253 (Dewar), [63].
[18] [2020] NSWWCCPD 32 (Popal), [50]–[51].
[19] Referring to the appellant’s submissions at [9].

Consideration and decision

The Arbitrator dealt with the combined effect of the physical and psychological impairments at paragraphs [78]–[80] of the Reasons.
The Arbitrator did not accept Dr Teoh’s evidence or the assessment he provided because he regarded the opinion as being ambiguous. The ambiguity arises from the impairment rating.
At page 5 of Dr Teoh’s report dated 13 March 2020, the doctor expresses an opinion with respect to a number of questions:
“10.   In your opinion, is the current psychiatric condition and/or psychological problems of our client likely to affect his future life, including his ability to form and maintain relationships both in the past and in the future?
His condition has become chronic, and his mental and physical condition is likely to affect his future life.
His relationship was strained and he separated from his partner in 2019.
11.    Does our client have any capacity for work as a result of his psychological injury and any medication being administered?
He is not able to work at all as a result of his physical and mental condition.
12.    Having regard to our client’s pre-injury occupation, please comment on our client’s fitness for work from his date of injury to date and continuing. In particular, please comment on the restrictions you would impose on our client (eg type of work and hours of work per week) should you consider him fit for suitable duties at any point.
He is not fit to work as an electrician, as a result of his current chronic condition.
13.    Are you of the opinion, given our client’s injuries or illness, that it is unlikely that he will ever again engage in gainful employment on a sustainable basis in any occupation for which he is reasonably qualified by education, training or experience?
It is likely that he will not be able to return to his pre-injury employment.
14.    Prognosis for the future.
His prognosis is guarded, as his condition has become chronic.”[20]
[20] Application to Resolve a Dispute (ARD), p 40.
Notwithstanding the answers to the posed questions, Dr Teoh when considering the impairment rating against the box “Employability”, gave a rating of 3 and said “He is fit for suitable duties. He has been preoccupied with negative thoughts, including a sense of hopelessness. He has been worrying about his future and his physical condition.”[21]
[21] ARD, p 41.
The Arbitrator concluded:
“It may be that Dr Teoh considers that it is the combination of the applicant’s physical and psychological conditions caused by the work injury in May 2017 that causes the applicant to have no current work capacity … However, I really need more of an explanation than the one line answer given by Dr Teoh.”[22]
[22] Reasons, [79].
The Arbitrator does not say what more he felt Dr Teoh should have said or upon what other or additional basis he rejected the opinion.
The report of Dr Teoh is plainly ambiguous, on the one hand offering the opinion that the appellant is unable to work at all and on the other hand suggesting for the purpose of the impairment rating that he is fit for suitable duties. It was for the appellant to adduce evidence to resolve this ambiguity.
There was no application made to adjourn the proceedings to obtain further evidence from Dr Teoh to clarify the ambiguity. This meant the Arbitrator was required to resolve the ambiguity. It was open to the Arbitrator to not be satisfied with the internally conflicting evidence of Dr Teoh and to conclude that he was not persuaded.
The Arbitrator dismissed the treating psychiatrist, Dr Khan’s, evidence for different reasons. At paragraph [76] of the Reasons the Arbitrator says Dr Khan did not record “his own observations” of the appellant’s psychological symptoms and did not explain why he could not return to work within the next 12 months.
Plainly Dr Khan did not provide an explanation of his view that the appellant would not return to work within the next 12 months. But the antecedent question of what was the appellant’s capacity for employment was properly answered and for the reasons that follow, in my view the rejection of Dr Khan’s opinion on the ground that he had not recorded his own observations of the applicant’s psychological symptoms is in error and requires correction.
Dr Khan (report of 30 January 2020) was asked this:
“10.   In your opinion, is the current psychiatric and/or psychological condition of our client likely to affect his prospects of employment and/or earning capacity? If our client’s earning capacity prospects are affected, could you please specify the extent that you consider they are affected or reduced by?
Yes - Mr Morcos’ current psychiatric/psychological conditions are likely to affect his prospects of employment and/or earning capacity. Mr Morcos has not been able to return to work since his work-related physical injury in 2017; however, it is his psychiatric/psychological conditions that have been the predominant barrier to his recovery. It is unlikely that Mr Morcos will be able to return to work within the next one year. Should he return to work in the future, it is unlikely that he will be able manage with full-time work, which would result in a reduction in his earning capacity.
11.    Considering our client’s psychological condition, please comment on our client’s fitness for work from his date of injury to date and continuing.
From the date of injury to date and continuing, Mr Morcos has not been fit for work due to his psychological conditions.
12.    In your expert opinion, will our client be able to return to any form of employment he has performed in the past?
From a psychiatric perspective, it is unlikely that Mr Morcos will be able to return to any form of employment he has performed in the past.”[23]
[23] ARD, p 35.
Dr Khan records at page 2 in response to question 4:
“Mr Morcos has suffered psychological injuries, namely chronic adjustment disorder with mixed disturbance of emotions and conduct as well as an opioid use disorder.
The mental disabilities consequent upon the injury is the impact of these psychological injuries on Mr Morcos’ functioning in the domains of self-care and personal hygiene, social and recreational activities, travel, social functioning, concentration, persistence and pace, and employability. It is difficult to determine a likely duration of any such disability although given that there had been limited improvement in Mr Morcos’ functioning since his work-related injuries on 23 May 2017, it is unlikely that these mental disabilities will resolve within the next one year.”[24]
[24] ARD, p 33.
Later in the same report Dr Khan says:
“Mr Morcos’ psychiatric conditions found on examination are the direct result of physical injuries he sustained during his employment. If Mr Morcos did not suffer the aforementioned work-related physical injuries, it is unlikely that he would have developed chronic pain and impairment in his social, occupational and other important areas of functioning at this stage of his life. It is the pervasiveness of his chronic pain and functional impairment that resulted in a gradual deterioration of his mental state and caused these psychiatric conditions.”[25]
[25] ARD, p 34.
The rejection of Dr Khan’s opinion was in error. The Arbitrator misstates Doctor Khan’s evidence. Dr Khan did examine the appellant and on the basis of his examination certified the appellant as having no current capacity to engage in work.
Dr Khan does not in his report expressly refer to a “mental state examination” of the appellant, but the report includes Dr Khan’s statement referring to “conditions found on examination”. That is a clear indication of an independent medical examination by Dr Khan rather than, as conjectured by the Arbitrator, a mere recitation of the appellant’s complaints.
The conclusion that the psychiatrist merely recorded what he was told by Mr Morcos is contradicted by Dr Khan’s statement at page 3 of his report of 30 January 2020, “Mr Morcos’ psychiatric conditions found on examination” and the Arbitrator’s conclusion to the contrary was in error.
The evidence is that while the appellant may have a physical capacity for some types of part‑time work as found by the Arbitrator, the treating psychiatrist expressed the opinion that he was not fit for any employment at the present time and would not be likely to have recovered so as to return to any employment within the next 12 months. Accepting that there is an internal inconsistency in Dr Teoh’s report there is nevertheless a consistency with the views of Dr Khan. The respondent called no psychiatric evidence to contradict the evidence of Drs Teoh or Khan. The rejection of the evidence of Dr Khan at least was an error going to the outcome of the proceedings that the appellant had failed to persuade the Arbitrator.
On the basis of all of the evidence, both physical and psychiatric, the Arbitrator should have reached the conclusion that the appellant did not have any ability to return to work either in the pre-injury employment of electrician or in suitable employment. It follows that the Arbitrator should have found that as 12 January 2020 the appellant had “no current work capacity”.
For completeness I add that I do not detect any error in the Arbitrator’s approach to the determination of what should be regarded as “suitable employment” for the appellant.[26] Furthermore I do not detect any tension in the approaches adopted to the issue of suitable employment in Dewar and Popal.
[26] Reasons, [48], [68]–[70], [73].
For these reasons in my view Ground 1 of the appeal is made out.

Ground 2: Failing to determine the application or otherwise of s 32A and s 38 (of the 1987 Act)

It is unnecessary to determine Ground 2 of the appeal.
It was common ground, that s 38(3) of the 1987 Act was not satisfied for the reasons set out in the insurer’s letter of 29 November 2019. That is to say, as the document accompanying the letter explained, if the appellant had a current work capacity he did not satisfy the special requirements of s 38(3) of the 1987 Act.
The Arbitrator, having found that the appellant had not persuaded him that he had no current work capacity from 12 January 2020, was not required to determine, presumably, on an alternative basis the operation s 38(2) and issues relevant to suitable employment.

CONLCUSION

In my view, Ground 1 of the appeal is made out and the decision of the Arbitrator was affected by an error of fact.
The appellant has asked that the decision of the Arbitrator be set aside and the matter returned to an alternative Arbitrator for determination.
The Arbitrator received submissions from the parties’ counsel relevant to whether the appellant was “likely to continue indefinitely to have no current work capacity” within s 38(2) of the 1987 Act, but the Arbitrator expressly refrained from determining that issue in the circumstances of the dispute.
On the appeal, neither the appellant nor the respondent has advanced submissions or raised this issue for determination. There is no basis upon which I can determine that issue and it must be remitted to the Arbitrator for determination of the issue of whether the appellant is “likely to continue indefinitely to have no current work capacity”. As the remittal is limited to a discrete issue, I do not see any reason why the present Arbitrator should not determine it.[27]
[27] Dewar, [69].
The jurisdiction given by s 352(7) of the 1998 Act extends to remitting the matter back to the Arbitrator for determination in accordance with this decision and includes a capacity to make a direction.

DECISION

Paragraph 1 of the Certificate of Determination dated 5 August 2020 is revoked.
The appellant’s entitlement to weekly compensation from 12 January 2020 to date and continuing, if any, is remitted to the Arbitrator to determine whether the appellant is likely to continue indefinitely to have no current work capacity and otherwise to determine the matter in accordance with the reasons in this decision.

Geoffrey Parker SC

ACTING DEPUTY PRESIDENT

17 December 2020