Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart
[2007] NSWWCCPD 161
•19 July 2007
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision confirmed on Appeal: Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; (2008) 6 DDCR 339 | |||||
| CITATION: | Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161 | ||||
| APPELLANT: | Jeremy Muir | ||||
| RESPONDENT: | Ric Developments Pty Ltd t/as Lane Cove Poolmart | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | WCC17972-06 | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 February 2007 | ||||
| DATE OF APPEAL DECISION: | 19 July 2007 | ||||
| SUBJECT MATTER OF DECISION: | Entitlement to weekly compensation under section 40 Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Firths | |||
| Respondent: | Hicksons Lawyers | ||||
| ORDERS MADE ON APPEAL: | Time to appeal is extended to 23 March 2007. The Arbitrator’s determination 16 February 2007 is revoked and the following orders made: | ||||
| “1. Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $117.00 per week from 28 October 2005 to date and continuing. | |||||
| 2. The Respondent is to pay the Applicant’s costs as agreed or assessed.” | |||||
| The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 9 February 2001 Jeremy Muir (‘the Appellant Worker/Mr Muir’) started work as a sales assistant/pool cleaner with Ric Developments Pty Ltd t/as Lane Cove Poolmart (‘the Respondent Employer’). The work was heavy and required him to lift and carry containers of salt, chlorine and other pool chemicals. In the course of his employment on 24 May 2001 Mr Muir injured his right arm when he wrenched it trying to stop a drum of chlorine from falling to the ground. Despite swelling in his elbow and stiffness in his right shoulder and neck, he remained at work performing his normal duties until 30 June 2001.
On 2 July 2001 Mr Muir saw his general practitioner, Dr Chiu, complaining of pain in his right elbow and weakness in his right upper limb. An ultrasound on 22 August 2001 was consistent with the presence of a small intra-substance tear at the common extensor tendon at the right elbow. Mr Muir was referred to Dr Betts, orthopaedic surgeon, who examined him on 19 July 2001. Dr Betts thought it was wise for Mr Muir to consider retraining for an occupation to which he was more suited (report Dr Betts 6 November 2001).
No suitable light duties were offered to Mr Muir and his position with the Respondent Employer was terminated on 27 September 2002. In December 2002 he started work with Coles as a night filler working up to 12 hours per week at $17.05 per hour. He was paid ‘make up pay’ by the Respondent Employer’s workers compensation insurer, GIO General Limited (‘GIO’), until 28 October 2005.
In 2002 Mr Muir brought a claim for lump sum compensation in the Compensation Court of NSW (matter No. 2986/02) which was settled on 14 March 2003 for $12,000.00 in respect of 15% permanent loss of use of the dominant right arm at or above the elbow plus $5,500.00 compensation for pain and suffering. Whether Mr Muir is right arm dominant is the subject of conflicting evidence and is discussed further below.
In 2004 Mr Muir requested GIO pay for him to complete a computer course costing $19,250.00 that would have guaranteed him a job at its completion. In response GIO arranged for Mr Muir to undergo a vocational capacity evaluation with the Vocational Capacity Centre (‘VCC’) on 14 December 2004. That evaluation involved a physical assessment by Alison Figg, physiotherapist, and a vocational assessment by Trevor Hawkins, psychologist. An ‘overall assessment’ report by Ms Figg together with a ‘job match report’ by Ms Figg and Mr Hawkins were prepared on 22 December 2004 listing several jobs (with wage rates) Mr Muir was considered fit to undertake. As a result of that report GIO advised Mr Muir by letter dated 15 September 2005 that his weekly compensation would be reduced to nil from 28 October 2005 on the grounds that his ability to earn in some alternative employment was an average of $709.30 per week compared to his pre-injury wage of $633.00 per week. The letter also stated that a copy of the VCC report had been provided to Mr Muir.
As a result of the cessation of compensation payments Mr Muir resigned from his position at Coles because, as he was not entitled to any assistance from Centrelink, he was unable to afford the travelling costs and rent to enable him to continue that work (Mr Muir’s statement 2 May 2006, paragraph 10).
An Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) on 30 November 2006. In it Mr Muir sought weekly compensation from 28 October 2005 to date and continuing plus a general order for the payment of medical expenses.
By its Reply, filed with an Application to Admit Late Documents on 9 January 2007, the Respondent Employer essentially asserted that Mr Muir was capable of full-time work with suitable restrictions and, as a result, has an ability to earn in excess of his pre-injury earnings.
At a teleconference on 25 January 2007 the Respondent Employer’s Reply was admitted into evidence and the matter was listed for conciliation and arbitration on 7 February 2007. At the Arbitration the matter could not be resolved and submissions were heard from both parties.
In a Certificate of Determination delivered on 16 February 2007 the Arbitrator accepted that Mr Muir could earn more than he had in his pre-injury employment and made the following orders:
“1.Award for the Respondent [Employer] as regards the Applicant’s claim for weekly benefits.
2. No order as to costs.”
By an ‘Appeal Against Decision of Arbitrator’ initially filed by facsimile on 16 March 2007 but rejected by the registry and re-filed on 23 March 2007, Mr Muir seeks leave to appeal against the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was initially lodged by facsimile at 17:14 on Friday 16 March 2007. Whilst documents may be served on the Commission by facsimile, if they are received by the Commission after 4.30pm they are deemed to have been received on the “next day that is not a Saturday, Sunday or public holiday” (Part 8 Rule 8.1(5) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’)). Therefore, the appeal was filed out of time and was rejected by the Commission by letter dated 19 March 2007.
The appeal was filed again on 23 March 2007 with the following submissions dealing with time to appeal:
a) the appeal was filed by facsimile on 16 March 2007 and was therefore within time;
b) if the appeal is out of time the Appellant Worker will suffer demonstrable and substantial injustice if he loses the right to appeal;
c) there is no prejudice to the Respondent Employer;
d) the appeal is one day out of time, and
e) counsel’s advice in respect of the merits of the appeal was received “shortly before the expiration of the 28 day period” and once it was received it was “promptly” translated into submissions attached to the appeal (letter from Firths, 21 March 2007).
The Respondent Employer makes no submissions on the extension of time to appeal stating that time is “not in issue” (Respondent Employer’s submissions Part A paragraph 1.1, filed 3 May 2007).
An extension of time in which to appeal can be granted in certain limited circumstances. Part 16 Rule 16.1(11) the 2006 Rules provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
Whilst the Appellant Worker’s submissions dealing with the issue of time to appeal and the application for an extension of time are far from satisfactory (they do not indicate when advice was sought from counsel, when Mr Muir gave instructions to appeal nor when counsel’s advice was received), I am, for the reasons set out below, prepared to extend the time to appeal in this matter:
a) whilst the appeal was not initially filed in time, it was late by only 44 minutes;
b) the Appellant Worker’s solicitors acted promptly to rectify the problem once it was identified in the Commission’s letter of 19 March 2007;
c) the appeal raises issues that are strongly arguable, and
d) the Respondent Employer has made no submissions in opposition to the extension of time and points to no prejudice it will suffer.
Time to appeal is extended until 23 March 2007 and I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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.”
The Appellant Worker submits that the appeal can be conducted on the papers. The Respondent Employer has ticked ‘no’ to the “on the papers” question in its Notice of Opposition to Appeal Against Decision of Arbitrator filed on 3 May 2007 but in its submissions attached to that document it stated, “the appeal can be determined on the papers” (Respondent Employer’s submissions Part A paragraph 1.3).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Appellant Worker 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)admitting the VCC reports from Ms Figg and Mr Hawkins into evidence at the teleconference stage of the proceedings on 25 January 2007 (‘Vocational Capacity Centre reports’);
(b)giving weight to the VCC reports (‘medical evidence’);
(c)relying on Ms Figg’s medical assessment over that of the doctors in the case (‘medical evidence’);
(d)his understanding of Dr Wallace’s evidence (‘medical evidence’),
(e)in finding that Mr Muir could earn $672.00 per week as a pool shop manager when the evidence was that Mr Muir was unfit to undertake the pool cleaning duties involved in that job (‘capacity to earn’);
(f)failing to take into account that Mr Muir has an agreed permanent loss of efficient use of his right arm at or above the elbow of 15% (‘capacity to earn’), and
(g)finding that Mr Muir was capable of full time employment in a wide range of suitable duties (‘capacity to earn’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must by demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Vocational Capacity Centre Reports
The VCC reports were attached to the Respondent Employer’s Reply, which was attached to an Application to Admit Late Documents filed on 9 January 2007. At the teleconference on 25 January 2007 the Arbitrator admitted the Reply and its attachments into evidence. There is no transcript of the proceedings at teleconference and neither party has made submissions as to what transpired at the teleconference. I assume that the Appellant Worker raised no objection to the reports at the teleconference.
The Appellant Worker submits that the Arbitrator misconstrued the process of a teleconference when he said, “ordinarily that would be the time [the time of the teleconference] to raise the objection [to the VCC reports] which the Applicant pursued at Arbitration” (Statement of Reasons for Decision (‘Reasons’) paragraph 16). I do not agree that the Arbitrator was in error
In dealing with the admissibility of the VCC reports at the teleconference. Practice Direction No 9 of the Commission’s Practice Directions states at page five that “the Arbitrator will generally deal with the application to admit late documents at the teleconference, held in accordance with the Registrar’s Guideline for the Conciliation and Arbitration Process in the Workers Compensation Commission” (‘the Guideline’). The Guideline in force as at 25 January 2007 was published in January 2004 and revised in March 2005. In respect of the “Protocol for Telephone Conference[s]” the Guideline states at page six that an Arbitrator was to, among other things, “Deal with any issues of documents sought to be filed outside the timeframes set out in the Rules in accord with Practice Direction 9.” This is consistent with the current Guideline published in April 2007 which states at page seven that if all issues are not resolved at the teleconference the Arbitrator is then to prepare the matter for the next phase. To that end the Arbitrator is to “consider any application by any party e.g. Applications to Admit Late Evidence…”.
The Arbitrator’s conduct was consistent with the Commission’s practice and the Guideline. Each party was given notice of the teleconference and had the opportunity to be represented and make submissions on any issue that arose, including the admission of late documents. No reason has been advanced as to why Mr Muir did not avail himself of that opportunity. Assuming that Mr Muir was given the opportunity to be heard at the teleconference on the admissibility of the Reply (and no argument has been advanced to the contrary), the Arbitrator was not in error in ruling on the admissibility of that document at that time.
In any event, the Appellant Worker was given a further opportunity to object to the VCC reports at the arbitration hearing on 7 February 2007 when counsel for Mr Muir made lengthy submissions on why those document should not be admitted into evidence. It was argued that the reports were not admissible because neither Ms Figg nor Mr Hawkins had demonstrated the appropriate expertise. The Arbitrator rejected that argument but his reasons were not clearly expressed. At paragraph 37 of his Reasons the Arbitrator noted that Dr Chiu had at one stage thought it appropriate to refer Mr Muir to a physiotherapist. Whether the Arbitrator thought this was relevant to admissibility or weight is unclear. In my view the fact that Dr Chiu referred Mr Muir to a physiotherapist was not relevant to either the admissibility of Ms Figg’s reports or the weight to be attached to them.
The Appellant Worker’s argument is that as a physiotherapist Ms Figg was not qualified to provide evidence as to wage rates nor as to Mr Muir’s fitness for work. In respect of wage rates, Ms Figg set out in her report of 22 December 2004 the wages rates for various jobs for which it was considered Mr Muir was fit. The source for those figures was identified as:
a) the NSW Department of Commerce, Office of Industrial Relations;
b) WageNet, the official site for Federal Award inquiries, and
c) the Australian Bureau of Statistics 2001 Population Census and the Employee Earnings, Benefits and Trade Union Membership Survey in August 2003.
This Appellant Worker’s submission overlooks the provisions of section 352 of the 1998 Act which provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A)…
(8)…” (emphasis added)
The wage material referred to by Ms Figg was, and is, readily available on the Internet and from other sources. She obtained it in the course of her work for VCC as part of a vocational capacity evaluation conducted by that organisation in respect of Mr Muir’s capacity to earn. That assessment included the ascertainment of certain wage rates and the reproduction of those rates in the body of the report of 22 December 2004. That report was served on Mr Muir well before the teleconference and he had every opportunity to respond to it but did not do so.
Having regard to the provisions of section 352 and to the Commission’s objective of providing a “fair and cost effective system for the resolution of disputes” (section 367(1)(a)) of the 1998 Act) I do not believe the Arbitrator was in error in admitting the VCC reports into evidence.
That is not to say that every document attached to a Reply or an Application is automatically admissible in an arbitration hearing in the Commission. The Appellant Worker submits that, based on the Arbitrator’s reasoning, “a party should be able to tender a ‘Mad’ magazine to prove a fact. Clearly that proposition is ludicrous”. This submission is unhelpful and demonstrates a fundamental misunderstanding of the legislative framework within which the Commission operates. Part 15 Rule 15.2 of the 2006 Rules provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following
principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in
dispute,
(c) evidence based on speculation or unsubstantiated assumptions is
unacceptable,
(d) unqualified opinions are unacceptable.”
The above Rule is in identical terms to Rule 70 of the 2003 Rules which was considered by McColl JA at [128] of Edmonds:
“Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:
‘Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.’”
Applying the above principles in the present matter it is my view that the evidence from Ms Figg as to wage rates was “relevant”, “logical and probative” and was not based on “speculation or unsubstantiated assumptions”. As Mr Muir’s ability to earn in some suitable employment was one of the main issues in the case, evidence of wage rates in that employment was relevant. The wage figures set out by Ms Figg were logical and probative having been arrived at after a consideration of the kind of work it was thought Mr Muir would be able to perform in his injured state. The information was not based on “speculation or unsubstantiated assumptions” but on material prepared by the Department of Commerce and the Australian Bureau of Statistics. In addition, the material was made available to Mr Muir and or his solicitors in time for him to conduct his own research if he so wished. The Arbitrator was not in error in admitting Ms Figg’s report of 22 December 2004 setting out wage rates.
As a physiotherapist Ms Figg was well qualified to express an opinion on Mr Muir’s physical restrictions as found on her testing. That is what she did. Whether her evidence should have been preferred over evidence of the doctors in the case is considered below.
It was argued before the Arbitrator that as Mr Hawkins is a psychologist he is not qualified to do a “job skills analysis” (T4.5). Mr Hawkins described himself as a vocational psychologist. His qualifications were listed as: “BA (Hons), GradDipRC, MSc, MAPS, MASRC”. A MASRC is a Member of the Australian Society of Rehabilitation Counsellors and a GradDipRC is a Graduate Diploma in Rehabilitation Counselling. As a holder of these qualifications Mr Hawkins was well qualified to offer an opinion on Mr Muir’s vocational prospects and the Arbitrator was not in error in admitting and considering his reports.
Medical Evidence
From as early as 2001 evidence from Dr Betts suggested that it would be wise for Mr Muir to consider retraining for an occupation “to which he may be more suited” (report Dr Betts 6 November 2001).
On 20 November 2001 Mr Muir was assessed by Sally Goodwin, clinical psychologist, because of ongoing pain, stress and low mood as a result of his injury. Ms Goodman noted that he was “clearly distressed in relation to the effect his injury has had on his physical ability and his engagement in many of his previous activities” (report Ms Goodman 22 November 2001, page three). She recommended that Mr Muir needed 5-10 psychological sessions on a weekly basis.
On 2 January 2002 Susan Eaton, physiotherapist, reported that Mr Muir had attended for 10 treatments but his right elbow had not responded. His symptoms were unchanged such that his pain was aggravated by activities such as lifting a cup of coffee, opening a door and washing himself with a washer. Mr Muir continued to report numbness in his fingers and intermittent pain at the base of his thumb. Objective examination on 21 December 2001 revealed pain with active wrist and finger extension and slight restriction to supination.
On 22 April 2002 Dr Patrick reported on Mr Muir. He recorded that Mr Muir is “somewhat ambidextrous. He writes left handed, but bats and throws a ball right handed” (report Dr Patrick 22 April 2002, page two). Mr Muir’s symptoms were listed by Dr Patrick under ‘present symptoms’ and may be summarised as follows:
1.pain in the whole of the lateral epicondyle region at the right elbow, with pain and tenderness also in the proximal extensor musculature of the right forearm;
2.numbness at the proximal thenar muscles at the radial side of the right hand;
3.discomfort at the whole of the dorsal aspect of the wrist and about the region of the ‘CMC’ joint at the base of the right thumb;
4.a sensation of pins and needles and tingling affecting tips of all fingers of the right hand but mainly the ring and little fingers;
5.difficulty resting his right arm on his chest as it tends to go numb;
6.discomfort and stiffness in the neck and right shoulder (not major);
7.difficulty handling anything heavy using the right arm;
8.some feeling of a fluctuating lump in the region of the “pec muscle” on the right;
9.difficulty with sustained strong gripping using the right hand;
10.difficulty (sometimes) holding a coffee cup with the right hand, and
11.restricted recreational activities due to his symptoms.
Dr Patrick concluded that Mr Muir’s symptoms were genuine and consistent with the work injury. On the issue of incapacity he said:
“He continues with significant ongoing partial work incapacity in that he should avoid physical work involving heavy or repetitive use of [the] right arm, or work activity involving sustained strong gripping using the right hand.”
On 14 November 2002 Dr Wallace reported on Mr Muir. He confirmed Mr Muir’s complaints of pain at the lateral aspect of the right elbow radiating to the right wrist and the thenar eminence of the right hand. The pain was said to be worse “with driving, lifting activities, bending or twisting movements at his right arm, pulling, gripping objects or any prolonged activity at his right arm and is relieved by the use of an elbow brace and stretching exercises”. Mr Muir also complained of weakness of grip of the right hand and persisting stiffness at the right elbow and wrist. Dr Wallace recorded Mr Muir to be left hand dominant.
In terms of his current activities Dr Wallace noted that Mr Muir had difficulty with the following:
a)dressing himself, particularly putting on a shirt;
b)showering, due to ongoing right arm pain;
c)sleeping;
d)driving a car even short distances;
e)hanging the washing, and
f)lifting activities.
Dealing with Mr Muir’s fitness for work Dr Wallace stated:
“At present I do not believe he is fit to return to his full pre-injury duties at work as a Pool Cleaner. He would not be fit for activities requiring repetitive bending or twisting movements at his right elbow, wrist or hand, repetitive fine motor movements at his right hand, activities requiring normal grip strength at his right hand, working in confined spaces, at heights or on ladders, prolonged driving a motor vehicle or operation of machinery or prolonged use of hand utensils at his right hand.”
Dr Wallace’s prognosis was that Mr Muir’s symptoms would persist despite further conservative treatment and that he would be “best suited to retraining [for] work involving light or moderate physical activity on a part-time bases [sic] with due consideration given to restrictions on his activities as detailed above” (emphasis added).
Dr Wallace reviewed Mr Muir on 15 December 2005 (report 7 February 2006) when he recorded Mr Muir’s complaints to be:
a)persisting and constant aching pain at the lateral epicondyle of the right elbow radiating to the proximal muscle mass;
b)worse pain with lifting activities, bending or twisting movements or any prolonged activity. This pain is relieved by rest or an ice pack;
c)numbness at the right palm;
d)weakness of grip in his right hand;
e)stiffness at the right elbow;
f)difficulty in driving a car with manual transmission, and
g)difficulty with all household tasks including mowing and gardening.
Dr Wallace’s opinion on Mr Muir’s fitness for work was substantially the same as that expressed in his report of 14 November 2002. He added that Mr Muir was not fit for employment as a swimming pool service person, shop manager or security officer but he “may be fit for a sales representative position with due consideration given to his restrictions on his activities” as detailed in the body of the report.
Several medical certificates were tendered from Dr Chiu (the latest dated 9 May 2006) which declared Mr Muir to be fit for suitable duties for eight hours per day five days per week with a lifting restriction of four kilograms and a direction to “avoid rep [sic] use of R elbow”. Dr Chiu also provided a report to GIO dated 24 September 2001 that made no comment on Mr Muir’s capacity for work and adds nothing to the issues before me on appeal.
The Respondent Employer relied on a report from Dr Coyle, orthopaedic surgeon, dated 31 August 2005. His history of Mr Muir’s complaints was quite different to that recorded by Mr Muir’s doctors. He noted that Mr Muir complained of “occasional activity-related aching in the region of the lateral aspect of his right elbow and some discomfort with strenuous activities, such as lifting, gripping and pulling with the right hand” that did not interfere with his work or leisure activities (report 31 August 2005, page two).
On examination he found the elbow to be fully mobile and strong but with tenderness over the lateral epicondyle and common extensor tendon. On the issue of incapacity the doctor stated that Mr Muir could work normal hours in “all occupations for which he has training and aptitude.”
The Respondent Employer also relied on five reports from VCC. Included in those reports was Ms Figg’s Functional Capacity Evaluation Summary Report (‘the FCE report’) prepared as a result of the assessment she conducted on 14 December 2004. In her history she recorded that Mr Muir feels like he is “making a good recovery” (page two) but there is always an ache present that is “not bad”. Shaking hands, gripping and lifting things aggravate his pain. He also complained of a loss of strength in the right arm and intermittent tingling in the right index and middle finger and sometimes in the right wrist.
On examination Ms Figg found all movements and strength of the right elbow, shoulder and wrist to be normal but also noted:
a)signs of adverse neural tension in the right upper limb;
b)tenderness in the right lateral epicondyle;
c)tenderness in the wrist extensor muscles of the right forearm proximal to the elbow;
d)stiffness in the right glenohumeral joint;
e)mild functional restriction during the waist to overhead lifting and right hand carry test;
f)reduced right hand grip strength, and
g)demonstrated weakness in the right upper limb compared to the left in two tests (the waist to overhead and the right hand carrying tasks).
After noting that Mr Muir’s pre-injury job required him to lift and carry pool chemicals weighing 25 kilograms, Ms Figg concluded that Mr Muir did not demonstrate physical signs of restriction that would prevent him from returning to his pre-injury occupation. However, she concluded at page five of the FCE report:
“Mr Muir may need to avoid repetitive medium and heavy manual handling with his right arm. He may need to avoid repetitive force or heavy hand gripping with the right hand. He may need to avoid lifting weights above 13 ½ kilos to overhead positions due to weakness in the right upper limb. Otherwise Mr Muir has demonstrated unrestricted physical capabilities for work.” (emphasis added)
Ms Figg’s statement that Mr Muir did not demonstrate any physical signs of restriction that would prevent him from returning to his pre-injury occupation was inconsistent with her statement that he may need to avoid repetitive medium and heavy manual handling with his right arm and with her findings on formal testing.
The Arbitrator preferred the evidence of Ms Figg that Mr Muir was restricted to avoiding lifting weights above 13 ½ kilograms to overhead positions, which he felt was “certainly not a major restriction” (Reasons paragraph 32). However, that was not the only restriction Ms Figg placed on Mr Muir. She also restricted him to a maximum ‘right carry’ weight of 13.5 kilograms. Both restrictions were on the basis that such weights would only be lifted for between one and five percent of an eight hour day. If lifting was required for between 34%-66% of an eight-hour day, the weight restriction was six kilograms for the overhead lift and nine kilograms for the ‘right carry’. These results clearly demonstrate that Mr Muir has reduced strength in his right arm and that he is unfit for his pre-injury work with the Respondent Employer which required him to regularly lift weights of 25 kilograms. The Arbitrator failed to consider the relevance and impact of this part of Ms Figg evidence.
The Appellant Worker’s argument is that the Arbitrator erred in giving weight to the opinions in the VCC reports in preference to the evidence of his doctors. Ms Figg’s opinions were based on her assessment of Mr Muir’s physical capacity as observed by her and recorded on the “FCE form” attached to her report. It is not known how Dr Chiu arrived at the lifting limit of 4 kilograms set out in his medical certificates. In this regard his opinion was unsubstantiated and unqualified. In these circumstances the Arbitrator was entitled to prefer the evidence of Ms Figg. As McColl JA (Mason P and Beazley JA agreeing) held in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 at [84], “…a court cannot be expected to, and should not, act upon an expert opinion the basis for which is not explained by the witness expressing it”. Applying this authority it is my view that the Arbitrator was entitled to prefer the evidence of Ms Figg as to the weight Mr Muir could reasonably lift in preference to the unqualified opinion of Dr Chiu. Subject to my comments at [60] above, I also prefer Ms Figg’s evidence as to Mr Muir’s ability to lift but I note that her restrictions are greater than those stated by the Arbitrator (see paragraph [61] above).
On the question of whether Mr Muir was fit to work full time the Arbitrator correctly noted that, of all the experts in the case, only Dr Wallace expressed the view that Mr Muir could only work part time. The reason for that restriction was not explained. Mr Muir did not suggest that he could only work part time. Dr Chiu expressly stated that he could work full time, in suitable work. It is possible that Mr Muir’s right arm could fatigue more quickly than if he had not been injured and that was why Dr Wallace felt that he was only fit for part time work. Dr Wallace did not offer that opinion or explore that issue in any way. In these circumstances the Arbitrator was not in error in finding that Mr Muir is capable of working full time in some suitable employment. I agree that Mr Muir is capable of working full time in suitable employment.
It is argued that the Arbitrator was in error stating that “it is difficult to see how Dr Wallace progresses from his comments as to what the Applicant ‘would not be fit for’ to his perceived need for re-training and work on a part time basis” (Reasons paragraph 27). It is submitted that in effect Dr Wallace was saying that Mr Muir was not fit for any of the occupations listed in his report as “prior occupations” and he therefore required re-training and work on a part time basis. The Arbitrator did not accept that interpretation of the evidence. Mr Muir’s prior occupations (as listed by Dr Wallace) included “computer industry, finance dealer, bar attendant, estate agent, manager for Taubmans, and manager for Aurora paints”. The Arbitrator clearly felt that Mr Muir would have been fit for at least some of those jobs even with the restrictions noted by Dr Wallace. In these circumstances the Arbitrator was entitled to reach the view he did about Dr Wallace’s opinion and I agree with it. This conclusion is reinforced when one considers the history recorded in Mr Hawkins’ Vocational Assessment Report (‘the VAR’) at page seven that Mr Muir did not think his right arm condition would negatively impact in the long term on computer-based work. A similar history was recorded in the FCE report prepared by Ms Figg who noted that Mr Muir wrote a child’s book at home and “has not found that computer work aggravated his symptoms” (FCE report, page two).
Capacity to Earn
The VAR prepared by Mr Hawkins sets out Mr Muir’s education and employment background. He completed his higher school certificate in 1984, had some in-service training in banking in 1985, trained to be a radio announcer in 1987, obtained a Certificate in Real Estate Sales through the Queensland Department of Consumer Affairs in 1993 and received a Statement of Attainment in surface coating in 1996. He has a basic knowledge of computing, being limited to word processing.
Mr Muir’s employment history is very diverse and includes work as a sales assistant, sailboard teacher, bar attendant, console operator, courier driver, truck driver, turf layer, gardening assistant, trainee manager, general manager of a paint shop, computer operator, real estate salesperson, commercial finance broker and pool maintenance. He has also written and animated a children’s book though he has had difficulty in getting it published.
Mr Muir presented to Mr Hawkins as a person of at least average abilities (confirmed on testing which showed ‘high average’ spelling and grammar skills) who was open and outgoing. He could be successful at skilled work and formal training at technical college level is possible (VAR, page six). His main vocational focus was on becoming a Microsoft Administrator and securing the training necessary to enter that area (VAR page seven).
Mr Hawkins concluded that with minimal or no training Mr Muir could consider the following occupations: inquiry clerk, sales assistant (paint products), security officer, console operator, switchboard operator, rental salesperson, museum attendant, driving instructor, tourist information officer, flight attendant, sales representative (building supplies), radio dispatcher, real estate salesperson, shop manager and word processing operator (VAR page eight).
On 22 December 2004 Ms Figg and Mr Hawkins jointly wrote a Job Match Report (‘the JMR’) listing jobs suitable for Mr Muir and the wages for those jobs. The jobs listed as “most appropriate vocational choices” and the salary range for them were:
a)swimming pool service person ($527.25 to $633.00 per week);
b)shop manager ($538.20 to $672.00 per week);
c)sales representative, builder’s and plumber’s supplies ($549.70 to $926.00);
d)real estate salesperson ($483.10 to $1,166.00), and
e)security officer ($545.80 to $726.00 per week).
Other suitable options were:
a)tourist information worker ($561.20 to $564.00 per week), and
b)flight attendant ($681.00).
Jobs listed as being suitable for Mr Muir with training included:
a)computing support technician ($769.00 per week);
b)desktop publishing operator ($527.50 to $627.00 per week);
c)sales representative, information and communication products ($549.70 to $781.00 per week);
d)travel agent ($551.69 to $557.00 per week), and
e)real estate valuer ($888.00).
On 25 January 2005 Ms Figg wrote to Mr Muir’s case officer at GIO confirming that Mr Muir was working casually with Coles for approximately 12 hours per week according to the store’s needs. In her opinion there was no physical restriction that would prevent him from working full time in that job “if work is available”. There is no evidence that the work was available for more than 12 hours per week.
The Arbitrator found that Mr Muir’s “qualifications as a manager are obviously quite strong” (Reasons paragraph 36). The evidence relied on by the Arbitrator to support this conclusion is in Dr Wallace’s report of 7 February 2006 at page two where he recorded that Mr Muir worked as a manager for Taubmans Paints for four years. The evidence does not disclose whether that job required Mr Muir to lift tins of paint. Given that Mr Muir has no formal tertiary qualifications as a manager, it is difficult to imagine that his job with Taubmans would not have involved some physical activities. The Arbitrator also relied on the Respondent Employer’s “offer of a managerial position” referred to in its letter of 23 November 2005. This letter refers to Mr Muir being employed by the Respondent Employer “to manage the shop” at $15.50 per hour. Considering the wage offered and the fact that the job also included pool cleaning, I do not think the Arbitrator was correct to describe the Respondent Employer’s offer of employment as an offer of a ‘managerial position’. Nor was the Arbitrator correct to describe Mr Muir’s ‘qualifications’ as a manager as “quite strong”. Mr Muir has no formal qualifications as a manager and his work experience has been patchy at best.
The Arbitrator did not see Ms Figg’s physical restrictions for Mr Muir as a “meaningful constraint in most management positions” (Reasons paragraph 36). Whether that is correct or not depends on the nature of the particular job being considered. A ‘manager’ with no formal tertiary qualifications will usually be required to do more than merely sedentary duties as is well illustrated by Mr Muir’s ‘management’ job with the Respondent Employer.
The Arbitrator referred to Mr Hawkins’ evidence in the VAR that Mr Muir worked as a “general manager” of a paint shop (VAR, page three) and found that to have performed at the level of a “general manager” (Reasons paragraph 36) opens up more job opportunities than simply to have been a manager and that it is less likely to require physical exertion to the extent of raising 13 ½ kilograms above head height using the non-dominant arm. The exact nature of the work performed by Mr Muir at the paint shop was never clarified in the evidence. Apart from ‘shop manager’, Mr Hawkins did not list any ‘managerial positions’ as being suitable for Mr Muir. In my opinion most such positions for a person without tertiary qualifications would require some physical exertion. Given the lack of evidence, the Arbitrator placed too much weight on Mr Muir’s alleged experience as a “general manager” in assessing his ability to earn when there was no evidence as to the nature of that experience or the availability of work for a person of Mr Muir’s experience and qualifications.
On the basis that Mr Muir could work as a general manager the Arbitrator accepted that he could work as a shop manager with 5-12 assistants. The market rate of pay for such work is $672.00 per week, which the Arbitrator found to be Mr Muir’s ability to earn under section 40(2)(b) of the 1987 Act. This amount exceeds the amount the Arbitrator found for probable earnings under section 40(2)(a) ($664.50 per week). Therefore, the Arbitrator determined that Mr Muir had no entitlement to an award for weekly compensation.
In support of his conclusion the Arbitrator added at paragraph 40 of his Reasons:
a)Mr Muir’s job with Coles did not cease because of any physical limitation. There was no evidence that Mr Muir could not have worked unrestricted hours with Coles. At $17.05 per hour for 40 hours per week he would earn $682.00;
b)Ms Figg stated in her letter of 25 January 2005 that there was no physical limitation to Mr Muir working full time at Coles;
c)Mr Muir’s job with a retail outlet such as Coles was one further example, apart from a managerial role, of the alternatives open to Mr Muir;
d)the VCC reports noted that by virtue of Mr Muir’s cognitive skill base he would be successful in securing a new job if he left Coles, and
e)Mr Muir’s experience base was very wide and provides considerable evidence as to his adaptability.
The evidence is that Mr Muir worked all of the hours offered to him by Coles and there is no suggestion that suitable full time work was available. There is no evidence that full time work was available for Mr Muir at Coles and, as discussed below at [90], the availability of work is a crucial factor in determining ability to earn.
Under ‘summary’ the Arbitrator found that Mr Muir was capable of “full-time employment in suitable duties covering a wide range” (Reasons paragraph 51) and that the most appropriate vocational choices included the five positions listed at paragraph [70] above but “probably also include a general manager’s position, a return to retail and other positions considered appropriate by the Applicant himself and the subject of his job application evidence.” This is a reference to Mr Muir’s evidence that he sought employment in a number of “IT” positions and as a graphic designer.
The Appellant Worker’s challenge is that as a pool shop manager he would earn $100.00 per week less if he were unable to do the pool cleaning involved in that job. It is unclear which evidence is relied on to support this submission. The Respondent Employer’s letter of 23 November 2005 states that Mr Muir was employed on 11 February 2001 “to manage the shop” and was initially paid $15.00 per hour for two to three months while he was training and then $15.50 per hour and “$24.50 per pool clean once competent to do both of these jobs on his own” (emphasis added). At the arbitration, counsel for Mr Muir incorrectly submitted that a “swimming pool maintenance person earns $9 per hour more than a shop manager” (T27.9). In his first week with the Respondent Employer Mr Muir earned $510.00 and in his last pay he earned $664.50 though it is not known how many hours he worked. Presumably the increase from $510.00 to $664.50 was because of the increase in his hourly rate after completion of his training period and because of his pool cleaning activities.
This submission is not entirely accurate. The Arbitrator found at paragraph 38 of his Reasons that Mr Muir was fit for the position of a ‘shop manager’. Subject to what I say below about the availability of that work for a person with a 15% permanent loss of efficient use of the right arm at or above the elbow, that finding was open on the evidence. In addition, the Arbitrator found at paragraph 51 of his Reasons that Mr Muir could do the five positions listed at paragraph [69] above, which included the position of ‘swimming pool service person’. The evidence is clear that Mr Muir is unfit for that work and to the extent that he found otherwise the Arbitrator was in error.
It is also argued that the Arbitrator failed to take into account in any real sense the fact that Mr Muir has an agreed permanent loss of efficient use of his right arm at or above the elbow of 15%. Whilst the Arbitrator referred to that fact at paragraph 18 of his Reasons, he made no other mention of it in his determination. Nor did the Arbitrator consider the availability of work for a person with Mr Muir’s disability and no formal tertiary qualifications. This error has clearly impacted on the award made. The availability of work is a crucial factor in assessing ability to earn under section 40(2)(b). That availability must be measured in light of Mr Muir’s particular circumstances.
Whilst assessments of the kind conducted by VCC are often useful in determining the general area of work that may be suitable for an injured worker, the recommendations in such reports must be considered in the light of the authorities and the realities of the labour market faced by a worker with a proven disability. The Arbitrator failed to do this.
In the text Workers Compensation in New South Wales, second edition, by C P Mills (‘Mills’), the following passage provides what I believe to be a fair summary of the law on incapacity and identifies the proper question to be asked. At page 285 the author said:
“The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.” (emphasis added)
In Alexander v Ashfield Municipal Council, CA 78/81, 27 October 1982, Hutley JA observed:
“Capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of injury.”
The case of Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 is also instructive. In that case the worker suffered a repetitive strain injury to her left dominant arm whilst working for Alcan as a switchboard operator/telephonist. After being retrenched by Alcan and undergoing treatment the worker obtained employment as a telephonist with George Patterson & Co earning more than she earned with Alcan. The later employment ended because of a reason unrelated to her injury. In her claim for weekly compensation Alcan argued that the worker had no entitlement to compensation because she had a proven capacity to earn more than her pre injury earnings and, therefore, there was no economic loss as a result of her injury. The medical evidence established and the judge accepted that the worker had a continuing problem with her left arm as a result of her injury with Alcan and that that problem prevented her from doing rapid or repetitive work with her left arm. Prima facie, that finding indicated the worker had an incapacity on the open labour market.
In quantifying that incapacity the judge held, at 577F:
“…the appropriate way of looking at the case is that the applicant’s ability to get jobs such as the one she got with George Patterson & Co, is reduced. For example, she could not work where no headset was provided to her, where she would have to hold the telephone appliance in her dominant left hand. Nor would she be able to work with computerised switchboards which would require keying duties with her dominant left hand and which she has said she could not do and which I accept she could not do.
Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment - that is, employment suitable to a lady with her disability in her dominant left arm.”
The judge ultimately made an award in favour of the worker on a continuing basis in the sum of $83.00 per week.
A similar factual situation arose in Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385 (‘Cassells’). In that case the worker suffered an injury to his left foot that left him with a permanent restriction. He returned to work with Akawa in a light duties capacity but ceased when it relocated. He subsequently obtained employment at a wage higher than his pre injury earnings. He ceased that work partly because of his foot and partly because of poor relations with the staff. In his claim for weekly compensation the employer argued that the worker had a proven capacity to earn more than he did in his pre injury job and, therefore, he had no entitlement to compensation. The trial judge rejected that argument. On appeal the Court of Appeal held that once the trial judge found a partial incapacity he was entitled to quantify it and there was no error in the approach adopted. The headnote to the case states at 385 that “partial incapacity due to injury will ordinarily be reflected in reduced earning capacity even though a worker may in some post-injury employment earn as much if not more than pre-injury”.
In Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’) a Commissioner of the former Compensation Court of NSW (‘the Court’) found an injured worker to be partially incapacitated but did not award any weekly compensation on the ground that the worker was able to earn more as a security guard (suitable light duties) than he had in his pre-injury job. On appeal to a judge of the Court it was held by Judge Burke that the Commissioner had fallen into error in his approach to calculating compensation under section 40 of the 1987 Act. His Honour said at 180:
“When assessing a capacity to earn under section 40(2), it is not sufficient to merely identify a particular potential avenue of employment and attribute the income from such a job as a man’s capacity to earn. Allowance must be made for the availability of work - availability, not so much in the sense of a presently depressed labour market but in the sense of the general availability in any labour market. A rarely available niche in the labour market which carries, perhaps, substantial remuneration, does not serve as a sole criterion of capacity to earn.”
His Honour added:
“When one assesses an ability to earn under section 40(2), one is really arriving at a weighted average. Wage rates for jobs within capacity that are rarely available, though perhaps highly paid, rate poorly in such an assessment. Conversely, the income derivable from more readily available work rates highly.”
The Court of Appeal in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175 expressly approved the approach by Burke J in Mangion.
Given the above authorities it was for the Arbitrator to assess Mr Muir’s section 40 entitlement in light of the fact that he had an agreed 15% permanent loss of use of his right arm at or above the elbow and that he had a proven incapacity on the labour market. Such an incapacity will ordinarily be reflected in a reduced earning capacity even though there may be some other job or jobs that the worker could perform if they were available. The VCC reports provided no guidance as to the availability of the jobs identified as being suitable for Mr Muir. Even if they were readily available in the labour market assessable to Mr Muir there is the real probability, based on Mr Muir’s unsuccessful efforts to obtain employment between December 2002 and November 2005, that he will suffer longer periods of unemployment because of his injury and, as a result, suffer an economic loss as a result of his injury.
Therefore, the Arbitrator was in error in not considering the impact of the agreed 15% permanent loss of use of Mr Muir’s right arm at or above the elbow on his ability to earn in the labour market available to him. That error requires that the Arbitrator’s decision be revoked and that the matter be re-determined. As no oral evidence was given before the Arbitrator and no credit issues are relevant to the assessment, I am in as good a position to re-determine Mr Muir’s claim and that is the course I propose to adopt.
In reaching the above decision I have carefully considered the Respondent Employer’s submission that “interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully” (Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73 at [40]). In my view the Arbitrator’s errors do not merely go to matters of discretion but amount to a failure to fairly and lawfully consider and apply the relevant authorities dealing with section 40 of the 1987 Act. In addition, the Arbitrator failed to consider the disadvantage Mr Muir faces on the open labour market and the impact that disadvantage will have on his ability to sell his labour.
Re-Determination
Mr Muir is now 40 years of age. He obtained his higher school certificate in 1984 but his further training has been limited to the matters listed in paragraph [65] above. Whilst he is of average intelligence and has worked as the manager of a paint shop it must be borne in mind that he is now seeking work with a permanent disability in his right arm. The evidence as to Mr Muir’s left arm dominance is conflicting and I believe the better view is that he is ambidextrous for many activities.
Given the complaints made by Mr Muir about his symptoms to Ms Figg and having regard to the results of her functional tests, it is my opinion that Mr Muir’s current disability is only mild. Nevertheless, I accept that it makes him unfit to perform all aspects of his pre-injury job. In particular he is unfit for lifting containers of chemicals weighing up to 25 kilograms and therefore unfit for the pool cleaning part of his old job.
Nevertheless, he has a reasonable residual earning capacity in alternative occupations. The occupation most likely to be suited to his qualifications, experience and disability is that of a shop manager. His capacity to perform that work has been reduced as a result of his inability to lift medium to heavy weights. In addition, Mr Muir’s chances of obtaining such employment are reduced by virtue of his injury and his prospects of being out of work for longer than average are greater than if he had not been injured.
Applying the provisions of section 43A(1)(a) to (h) of the 1987 Act I make the following findings:
a)Mr Muir is incapacitated for work involving repetitive medium and heavy handling with his right arm and will need to avoid repetitive force or heavy hand gripping with the right hand (FCE report page five). As a result he is unfit to perform his pre-injury job;
b)he is now 40 years of age, has his higher school certificate and considerable work experience in many different fields including work as a shop manager. He also has word processing skills;
c)Mr Muir lives at Frenches Forest in Sydney and therefore has ready access to a large labour marker;
d)Mr Muir’s medical certificate has been considered above and for the reasons given above I prefer the evidence of Ms Figg as to Mr Muir’s lifting restrictions. I find that Mr Muir is capable of working full time in suitable employment;
e)no injury management plan is in evidence;
f)Mr Muir’s sought suitable full time employment from December 2002 until November 2005 and has been unemployed since early 2005, and
g)there are no other circumstances relevant to the determination of this matter.
Applying the five step process in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 I find:
a)probable earnings but for injury (section 40(2)(a) of the 1987 Act): I find probable earnings but for the injury to be $664.50, as submitted by the Appellant Worker on appeal and as found by the Arbitrator;
b)ability to earn in some suitable employment (section 40(2)(b) of the 1987 Act): I have carefully considered the nature and extent of Mr Muir’s disability. There is some uncertainty as to whether he is left hand dominant (as suggested by Dr Wallace) or right hand dominant (as stated in the Compensation Court Terms of Settlement). It seems more likely that he is ambidextrous as suggested by Dr Patrick. It is therefore not appropriate to assess the impact of his injury on the basis that he has injured his non-dominant arm. Whilst Mr Muir has had many jobs in the past, most of those have been unskilled or semi skilled. His lack of success in obtaining employment between December 2002 and November 2005 is evidence that he will have difficulty securing employment in his current circumstances. His tertiary qualifications are not such that they will readily enable him to secure employment in an area that does not require some physical exertion. I do not accept that the positions of sales representative in building and plumbing supplies is a realistic option because of Mr Muir’s lack of experience in this area. Real estate salesperson and security officer are also not presently available options because he is not licensed to work in either area. Work as a tourist information officer and a flight attendant may well be suitable but with no evidence as to the availability of those jobs it is difficult to assess their realistic viability. Shop management is an area in which Mr Muir has had some experience and may be suitable provided it does not involve heavy lifting. The salary range for such work is $538.20 to $672.00 per week. Given Mr Muir’s injury, disability and difficulty in obtaining employment, it is not realistic to expect he will be able to start such work at the top end of that range. In all the circumstances I find that Mr Muir’s ability to earn in some suitable employment as a full time shop manager is $547.50 per week;
c)the difference between steps one and two is $117.00 per week;
d)exercise of the discretion under section 40(1) of the 1987 Act: there are no reasons to exercise my discretion to reduce the figure of $117.00 per week, and
e)there will be an award for the Appellant Worker in the sum of $117.00 per week under section 40 of the 1987 Act from 28 October 2005 to date and continuing.
DECISION
The Arbitrator’s determination dated 16 February 2007 is revoked and the following orders made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $117.00 per week from 28 October 2005 to date and continuing.
2.The Respondent is to pay the Applicant workers costs as agreed or assessed.”
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
19 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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