Narasell Pty Ltd as Trustee for Heath Newton Family Trust v Evers
[2009] NSWWCCPD 135
•22 October 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Narasell Pty Ltd as Trustee for Heath Newton Family Trust v Evers [2009] NSWWCCPD 135 | |||||
| APPELLANT: | Narasell Pty Ltd as Trustee for Heath Newton Family Trust | |||||
| RESPONDENT: | Troy Evers | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-1537/09 | |||||
| ARBITRATOR: | Mr J Ireland | |||||
| DATE OF ARBITRATOR’S DECISION: | 15 June 2009 | |||||
| DATE OF APPEAL DECISION: | 22 October 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 40 of the Workers Compensation Act 1987; weight of evidence; vocational assessment report | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Turks Legal | ||||
| Respondent: | Denniston & Day | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 15 June 2009 is confirmed. The Appellant to pay the Respondent’s costs of the appeal | |||||
BACKGROUND TO THE APPEAL
On 10 July 2009, Narasell Pty Ltd as Trustee for Heath Newton Family Trust (‘the Abattoir / the Appellant’) filed an ‘Application to Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 15 June 2009.
The Respondent to the appeal is Mr Troy Evers. Mr Evers claims three children as dependents.
Mr Evers is a 36 year old abattoir worker who was employed by the Respondent at its Junee abattoir from on or around 20 November 2006 to 8 March 2007, when his employment was terminated. He claims to have suffered injury in the form of bilateral medial and lateral epicondylitis as a result of repetitive and constant hanging of sheep carcasses over an unspecified period of time with a nominated date of injury of 5 December 2006. Mr Evers brought a claim in the Commission by way of an Application to Resolve a Dispute, filed on 1 March 2009 claiming weekly compensation benefits at a rate of $685.76 per week from 28 November 2008 to date and continuing and medical expenses.
The Respondent filed a Reply on 23 March 2009.
The Respondent did not dispute injury, however by way of a section 74 Notice dated 16 October 2008, it disputed incapacity. The Respondent alleged that Mr Evers had either recovered completely, or, alternatively any residual incapacity was unrelated to the injury on 5 December 2006. It further alleged that Mr Evers had a capacity to earn more than his probable earnings if not for injury and he therefore had no entitlement to compensation under section 40. In the alternative, if it was accepted that he had an incapacity as a result of the work injury, such incapacity was partial only. The Respondent also disputed the medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987’) on the basis they were not reasonable or necessary.
The matter proceeded to a conciliation and arbitration hearing on 18 June 2009. The parties were unable to resolve the dispute and the matter proceeded to arbitration hearing. Both parties were represented by counsel. Neither party adduced oral evidence but both parties made oral submissions. At the conclusion of the hearing the Arbitrator reserved his decision and issued a Certificate of Determination and a statement of reasons (‘Reasons’) on 15 June 2009. It is from this decision that the Respondent now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 June 2009 records the Arbitrator’s orders as follows:
“1. There will be an award for the Applicant in respect of the claim for weekly compensation as and from 25 November 2008 to date and continuing at the rate of $112.96 per week
2. The Respondent to pay the Applicant’s costs as agreed or assessed.”
ON THE PAPERS REVIEW
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 Numbers 1 and 6, the documents that are before me, and the submission 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.
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 1998 Act.
There is no dispute that the quantum at issue on appeal meets the thresholds in section 352(2) of the 1998 Act.
Time
The appeal was lodged on 10 July 2009 within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
EVIDENCE
Mr Evers’ evidence
Mr Evers relied on a signed statement dated 6 February 2009. He detailed his version of events leading up to the termination of his employment. Mr Evers stated that on an unspecified day he was sweeping the shed floors. The sweeping aggravated his elbows. He was then requested to tidy a large driveway, which was covered in sand. During this process he pushed the wheelbarrow and let go of the handles letting it roll away from him. The “big boss, the owner”, reprimanded him over this behaviour. Mr Evers responded, and then left the workplace. He was informed the following day that his employment was terminated.
He stated that during the period of his rehabilitation he was “constantly applying for jobs to no avail” and he was still applying for jobs but had not been able to find work within his capabilities. He had obtained a forklift driving licence but in undertaking the training the constant spinning of the wheel aggravated his arms.
Mr Evers also confirmed that he assisted in coaching children’s rugby league teams, usually twice a week for about an hour. During this time he threw and caught balls with the children. The activity hurt his arms a bit but did not cause him much of a problem. He also stated that he holds his children’s hands and if they pull hard on his arm it hurts him. Lifting his children also hurts his arms. He can do a lot of tasks with his arms provided it is for short periods of time. Constant and repetitive activities cause the pain in his arms to worsen.
Dr Millons, surgeon, examined the worker and prepared a report dated 22 May 2007. He noted that Mr Evers left school after year 10 and worked as a shearer and roustabout for a number of years in the Junee area. At an unspecified time he moved to Wollongong and ran his own business resurfacing concrete for ten years. He returned to Junee and worked as a shearer for three years and then at the Junee Abattoir for two weeks in November /December 2006 where he developed problems in his elbows after hanging about 2900 sheep on chains every day. Dr Millons recorded a history that Mr Evers had not worked since March 2007 with the exception of one day of shearing work, which aggravated his elbows, and he did not persist with it.
Dr Millons was of the opinion that the whist it was unusual to have both lateral and medial epicondylitis, Mr Evers was suffering from both. Given Mr Evers was aware of some discomfort in his elbows whilst shearing, he may have had low grade epicondylitis that did not interfere with his work but the very hard work of lifting 2900 lamb carcasses to hang on chains was an activity that could set up epicondylitis. Mr Evers was fit for work of a light non-repetitive nature avoiding excessive use of his arms and excessive lifting more than 5kg. Forklift driving and work in a store or office environment were within his capacity but he was unfit to return to the work at the Abattoir. Whist at the time of his examination the doctor believed that work as a shearer was not suitable, he considered it remained an option if his elbow symptoms settled.
Dr Voss, rehabilitation specialist, prepared a report dated 27 November 2008. The doctor agreed with Dr Millons’ diagnosis and opinion. He discounted the comments made in the Lee Kelly and Associates surveillance report that the observations did not disclose the worker displaying signs of limitation or aggravation of his left elbow (see [29] below) because Mr Evers admitted to performing, for limited periods of time, activities that aggravated his pain. The doctor accepted that the work at the Abattoir precipitated the current condition and ensured its chronicity and that it was likely to limit his capacity for work for the rest of his life. Further he noted that the worker complained of increased elbow pain after driving long distances, although the distance/time was not particularised in the report.
Dr Robinson, the nominated treating doctor, provided a final WorkCover medical certificate dated 5 November 2008. In this certificate the doctor referred to injury in the form of severe pain in both elbows after repeated lifting at work and the date of injury was recorded as 30 November 2006. Whilst the doctors correctly noted the employer as the Junee Abattoir, he incorrectly referred to the worker’s occupation as “shearer”. The doctor certified that Mr Evers had reached maximum medical improvement and that from 5 November 2008 he was fit for full time hours (40 hours per week) of permanently modified duties. Suitable duties included forklift driving, delivery driving, customer service, cleaner. He also noted that “General labouring jobs should be individually assessed regarding demonstration of ability to handle heavy tools and tasks.”
The Abattoir’s evidence
Lay evidence
The Appellant relied on a number of statutory declarations from staff at the Abattoir.
Mr Newton, Managing Director of the Abattoir, in a statutory declaration dated 8 March 2007 confirmed that on 8 March 2007 after he made a request to Mr Evers to look after the wheel barrow he was using, Mr Evers responded to him rudely and walked out of work at 8.10am.
Mr Clemson, Quality Assurance Manager, in a statutory declaration dated 8 March 2007 confirmed Mr Evers was not co-operative with the duties that were provided to him when he returned to work after his injury.
Mr Hands, Assistant Managing Director, and Mr Smith, slaughter floor supervisor, both prepared similar brief statuary declarations dated 8 March 2007, in respect of Mr Evers first reporting problems with his arms.
Mr Smith prepared an additional signed statement also dated 8 March 2007, in which he confirmed that he supervised Mr Evers from 20 November 2006 to 30 November 2006 during which time Mr Evers failed to follow instructions. He complained by day three that his arms were aching. He confirmed that whilst Mr Evers requested work on the slaughter room floor when he returned to work, the duties were unsuitable for him and he was also unskilled to perform them, particular those requiring knife work.
Mr Sullivan, Occupational Health and Safety Co-ordinator prepared a statuary declaration dated 9 April 2007. He noted that when Mr Evers was certified fit for permanently modified duties, the rehabilitation provided needed to be organised and that until that was completed the Abattoir would provide duties for him in accordance with Dr Huntsdale’s specifications. He confirmed that building extensions were taking place at the Abattoir and Mr Evers was provided with general cleaning and tidying up activities, which he agreed to perform. Mr Sullivan also stated that Mr Evers did not complain to him about the jobs he was undertaking.
Also annexed to the Reply, was a statutory declaration from Mr Evers dated 2 May 2007. He confirmed he developed pain in his elbows at work and that he reported the problem to the main office on 5 December 2006. He also disputed the suitability of the work duties provided to him on his return to work and the exact circumstances surrounding the verbal altercation he had with Mr Newton on 8 March 2007, after which his employment was terminated.
The Abattoir also relied on Lee Kelly and Associates Ltd surveillance reports and DVD films dated 10 July 2008 and 9 March 2009. The film as reported on 10 July 2008, showed the worker coaching children’s football. He was observed to use both arms to catch and throw a football. The film as reported on 9 March 2009 showed the worker lifting one of his children and using his right arm to throw and catch a football over a period of approximately 10 minutes.
Medical evidence
The Abattoir relied on general practitioner, Dr Saad’s, WorkCover certificate dated 16 May 2007 in which the doctor certified that Mr Evers had reached maximum medical improvement and was fit for permanently modified duties from 20 April 2007. The restrictions certified were “no repetitive movement by both hands”.
Dr Huntsdale, treating orthopaedic surgeon, prepared a number of reports dated 14 December 2006, 8 January 2007, 7 February 2007, and 20 February 2007 addressed to Dr Saad, general practitioner. Dr Huntsdale did not consider that Mr Evers could return to the abattoir work. He believed that he was fit for work that did not involve heavy lifting.
In a report dated 14 March 2007, addressed to CGU Workers Compensation Ltd (‘CGU’), the Appellant’s workers compensation insurer, Dr Huntsdale confirmed that Mr Evers should not perform work that required vigorous movements of the right arm. The doctor considered that the rehabilitation providers should determine the details of work duties and hours.
In a further report dated 14 May 2007 addressed to CGU, Dr Huntsdale confirmed his opinion that Mr Evers had bilateral lateral epicondylitis. He certified him fit for light work at full time hours but unfit for repetitive heavy work and permanently unfit for his pre-injury duties.
On 24 October 2007, Dr Huntsdale reported that Mr Evers was completing a forklift course and he believed that he could manage driving a forklift. He noted that the bilateral tennis elbow condition was only causing him minor inconvenience except when he performed heavy work.
Dr Huntsdale issued three WorkCover certificates dated 19 February 2007, 20 April 2007 and 16 May 2007. In each he certified Mr Evers fit for permanently modified duties from 19 February 2007, avoiding heavy lifting and repetitive movements.
Dr Smith, orthopaedic surgeon, prepared a report for CGU dated 28 August 2008. Whilst the doctor obtained a consistent history of the work activities of lifting up to 3000 sheep carcasses per day, he did not believe Mr Evers suffered from epicondylitis and found nothing wrong with him on clinical examination. He considered that the muscle weakness in his arms that he demonstrated was manufactured. He concluded Mr Evers was fit to return to work as a shearer and felt there was a wide variety of occupations in which he could engage.
Dr Leu, specialist occupational physician, prepared report dated 31 August 2008 in response to a request to comment on surveillance material of Mr Evers participating in a football training session. The doctor noted that he had previously examined the worker in April 2008. There are no other reports from Dr Leu in evidence.
After viewing the surveillance film of Mr Evers assisting in a training session with children, throwing balls and gesturing with his arms and also walking with a small child holding onto and pulling his left arm, the doctor concluded that Mr Evers is able to use his arms rapidly, and forcefully without any significant discomfort. The doctor considered that this was inconsistent with his presentation at the time of his examination. The doctor concluded that Mr Evers could perform work of mild to moderate physical nature including forklift driving, delivery driver, and customer service. He stated that he was “probably” fit for cleaning work, but the surveillance material did not provide sufficient information for him to comment on whether Mr Evers was fit for highly physical activities of abattoir worker or shearer. The doctor commented that the presentation on surveillance was different from his examination and either there was recovery over that three-month period or Mr Evers’ presentation on examination was not valid.
AIMS (Active Injury Management Specialists), prepared a vocational report dated 8 May 2007. The report noted that there were psychosocial barriers to Mr Evers’ return to work including the fact he had not adjusted to his physical state and loss of earning capacity and that he was depressed and anxious. Counselling sessions and also literacy and numeracy training noting that Mr Evers had very basic skills and “may be functionally illiterate” were recommended. It was however noted that he had transferable skills in that he had operated a small business as a concrete finisher, although his wife had assisted with the paper work. The report concluded that suitable employment options included re-establishing his concrete stencilling business or training as a wool classer.
AIMS prepared a number of rehabilitation progress reports dated 14 June 2007, 26 June 2007, 25 July 2007, 31 August 2007, 28 September 2007, 22 October 2007, 19 November 2007, and 20 December 2007. Insight Rehabilitation prepared the further progress reports on 18 January 2008, 20 February 2008, 17 March 2008, 17 April 2008, 15 May 2008, 16 June 2008, 17 July 2008, 18 August 2008, and 18 September 2008.
These reports demonstrate that rehabilitation efforts were focussed on assistance with job seeking and skill development. In the report dated 28 September 2007, it was noted that Dr Saad recommended new occupations such as forklift driver, sales and light manual labouring work, which did not involve repetitive work. A caseworker employed by the rehabilitation provider conducted job searching on behalf of Mr Evers and when suitable jobs were identified the details were provided to him. The jobs identified throughout the period from June 2007 to September 2008 in the Junee, Temora, Cootamundra and Wagga Wagga area included a casual shop assistant position, a piggery worker, a meter reader, cleaning positions and positions with an electrical wholesaler and sheep skin business. Mr Evers had been enrolled in a forklift driving course and in a literacy course through the community college.
In the Insight report dated 16 June 2008, it was recorded that Mr Evers expressed a disinclination to apply for positions in which his net weekly earning would be $400.00 per week, because this was less than he was receiving in compensation payments.
In the report dated 18 August 2008, Mr Evers was not co-operative with the rehabilitation provider, he refused to sign the injury management plan and requested a new case manager. In the report dated 18 September 2008 it was however noted that Mr Evers had applied for two jobs in pet shops. He expressed a desire to find work outdoors working with animals.
Insight closed its file and prepared a case closure report dated 11 November 2008. It confirmed that Dr Robinson had certified Mr Evers fit for 40 hour per week of suitable duties as detailed in [21] above.
A CRS Australia report titled “Information relevant to the calculation of section 40 under the NSW Workers Compensation Act 1987-CGU” referred to an assessment interview dated 22 September 2008 to determine suitable employment options for the purpose of assessment of benefits under section 40 of the 1987 Act.
The report identified a number of suitable job options of meter reader, caravan park attendant/caretaker, console operator and sales assistant. It identified average earning and award rates in these positions.
The report concluded that given Mr Evers’ fitness for work, his earning potential as a meter reader is $572.80 per week, which is the award rate. In respect of caravan park attendant and caretaker positions, the report concluded that Mr Evers had an earning potential of between $543.78 and $663.10 per week in such employment. As a shop assistant or console operator it was estimated that he had an earning potential of $582.92 per week.
The report discarded as unsuitable traffic controller, because it was not approved by the nominated treating doctor, council labourer because the duties included heavy labouring, courier driving work because of the requirement to undertake repetitive light lifting and repetitive lifting is outside Mr Evers’ physical restrictions, handyman work because the occupation requires manual handling tasks and forklift operator because operating the forklift levers and steering wheel has “proven to aggravate Mr Evers’ upper limb condition” he trialed such work but suffered a significant aggravation and “only endured one day”.
Additional wages information annexed to the section 74 Notice was included in email communication between Lucy Boorer, from CRS Australia and Darleen Gray from CGU after Ms Gray requested the provision of casual award rates for a number of positions on 15 October 2008.
Ms Booler responded in an email dated 15 October 2008. She confirmed that the probationary meter readers award rate was $514.95 per week and the meter readers award rate was $572.80 and the casual loading for both was 15%. In contrast to the wage material for shop assistants and console operators as provided in the CRS Rehabilitation report and referred to at [47] above, Ms Booler provided a figure of $544.00 per week for earnings in these positions and confirmed casual employment had a 25% loading on the hourly rate. In respect of caravan park attendant, Ms Booler provided a figure of $501.10 per week and noted that casual employment attracted a 35% loading on the hourly rate.
ARBITRATOR’S DECISION
The Arbitrator made the following findings at [23]-[24] of his Reasons:
“23. I am satisfied that if the Applicant were genuine in his endeavours to find a vocation in either of the areas to which he has agreed fit within his capability, be it the meter reader and/or caravan attendant/caretaker, he would have a capacity to earn in the vicinity of $572.80 (meter reader) up to $603.82 (caravan park attendant/caretaker). In applying therefore the third of the prerequisites of the Mitchell Test there would accordingly be a differential of $112.96 based on the comparable of $685.76 less that received in the lesser of the two vocations, namely meter reader, of $572.80 per week.
24. Whether I should exercise a discretion in terms of the difference of the $112.96 per week, I am satisfied that there is no overriding factor that would influence my view in terms of there being a need to reduce this sum further and accordingly I am satisfied that an appropriate award ought be in the sum of $112.96 per week.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator in determining the worker’s ability to earn in suitable employment:
(a)made a decision against the weight of evidence;
(b)gave inadequate reasons for his decision, and
(c) erred in the application of the test in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) in assessing the worker’s ability to earn in suitable employment (step 2) and in exercising his discretion under section 40(1) of the 1987 Act (step 4).
SUBMISSIONS
Appellant’s submissions
The Appellant made submissions in its application and also filed submissions in reply to the Notice of Opposition. They are summarised below.
The Arbitrator erred in finding that the suitable employment options were substantially limited, when reviewed against the weight of evidence.
The Arbitrator erred in placing “additional weight” on the worker’s statement and by ignoring the CRS section 40 assessment in respect of capacity to work and the findings the Arbitrator made were not open to him on the evidence and were against the weight of evidence.
The Arbitrator’s reasons at [18] and [20] that he preferred the worker’s statement over the medical evidence solely because it post dated the medical evidence was erroneous. Further, the Arbitrator failed to give adequate reasons as to why he rejected part of the CRS report and preferred the worker’s statement.
At [20] of his reasons, the Arbitrator noted that the medical evidence indicated that the worker was capable of forklift driving but because the worker’s statement post dated the medical evidence, the Arbitrator relied on the statement rather than referring to the available medical evidence.
The Arbitrator failed to explain why he challenged the validity of the section 40 assessment report because it pre-dated the claim for compensation. Liability was declined based on the report and therefore, by necessity, it pre-dated the declinature of liability.
The Arbitrator’s findings in respect of suitable employment were contrary to the evidence as contained in the CRS report.
The Arbitrator erred in excluding as suitable the jobs of console operator and sales positions on the basis that the worker preferred an outdoors position. Determining suitable employment positions is based on the worker’s ability to undertake the duties not a personal preference to work in certain positions. The second limb of the Mitchell test is a determination of the worker’s ability to earn in suitable employment regardless of a preference for work indoors or outdoors.
The Arbitrator erred by not calculating an average rate of all the employment positions recommended by CRS in the section 40 assessment.
The Arbitrator erred in making the calculations under section 40 because he only relied on the award rates that he deemed appropriate, rather than the actual comparable earnings for persons in those positions.
In accepting that the worker was fit for suitable employment as a caravan park attendant/caretaker or a meter reader, the Arbitrator erred in “applying the lesser of the two vocations” in determining the worker’s “potential average weekly earnings” and failed to provide adequate reasons for so doing. The Appellant relies on Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237 at [57].
The Arbitrator should have relied on the worker’s lack of co-operation in relation to training and rehabilitation in the exercise of his discretion under section 40(1). Reliance is placed on Formosa v Express Transport & Packaging Pty Ltd [2009] NSWWCCPD 21
The fact that the worker did not want to travel, and the circumstances around his termination of employment were factors relevant to the exercise of the discretion.
A different decision would have been reached if the Arbitrator had given proper weight to the Section 40 Assessment, the rehabilitation reports and the medical evidence.
The relief sought by the Appellant is for the Arbitrator’s decision to be revoked and the matter remitted for re-determination.
Mr Evers’ submissions
The Arbitrator had regard to all the evidence presented and gave considerable weight to the CRS report as note at [21] of his Reasons.
The Arbitrator was entitled to adopt the position that he did and he had regard to the Insight and the CRS reports in coming to his determination as to likely comparable positions in making the section 40 award.
The Arbitrator had regard to the worker’s evidence, the report from Dr Huntsdale dated 14 May 2007 and the Dr Millons’ report dated 22 May 2007.
It is not necessary for the Arbitrator to address every matter raised in a vocational CRS report (Mifsud v Campbell (1991) 21 NSWLR 725 at 828, Beale v GIO of NSW (1997) 48 NSWLR 430 at 443).
The submissions that the Arbitrator was obliged to calculate the average rate of all employment positions as recommended by CRS report and the section 40 assessment are incorrect.
The Arbitrator did not err in the approach he adopted in the exercise of his discretion.
The Arbitrator’s decision should be confirmed and the appeal dismissed with costs.
DISCUSSION AND FINDINGS
There is no dispute that Mr Evers suffered injury in the form of bilateral epicondylitis as a result of his work duties lifting and hanging sheep carcasses working at the Abattoir during the period 20 November 2006 to 5 December 2006.
With the exception of one day shearing, Mr Evers has not been employed since his employment with the Abattoir was terminated in March 2007. The issues before the Arbitrator were limited to the questions of whether Mr Evers had a partial incapacity for work as a result of this injury and his entitlement, if any, to weekly compensation. The Arbitrator was required to assess his ability to earn in suitable employment under section 40(2)(b), having regard to the factors in section 43A and determine the worker’s ability to earn in the labour market reasonably accessible to him.
The thrust of the Appellant’s appeal is that had the Arbitrator given proper weight to the section 40 assessment, the medical evidence and the rehabilitation reports he would have reached a different decision in respect of the worker’s ability to earn in suitable employment and in exercising his discretion under section 40(1). Unfortunately the Appellant does not submit what conclusion the Arbitrator should have reached, but merely seeks to have the matter remitted for determination afresh.
Mr Evers is 36 years old who lives in Junee. He has been assessed as having very basic literacy and numeracy skills, such that it was suggested that he may be “functionally illiterate”. Part of the rehabilitation plan was directed to improving his literacy skills. His work history has been limited to manual and physical work including shearing and roustabout work, the short period of work at the Abattoir where he sustained injury and a ten year period whilst residing in Wollongong, when he ran his own of concrete resurfacing business, with his wife’s assistance with the paper work.
The medical evidence, overwhelmingly supports a finding that Mr Evers is permanently unfit for his pre-injury duties at the abattoir. With the exception of Dr Smith, who considered Mr Evers had nothing wrong with him, the medical evidence relied on by both parties confirms that Mr Evers is fit to work full time hours in permanently modified duties. He has been certified fit for mild to moderate physical work but not for work involving heavy or repetitive activities including abattoir work and shearing. The doctors agree that physically, Mr Evers is fit for non-repetitive work including forklift driving, store or office work delivery driving and customer service work and cleaning work.
I reject the Appellant’s submission that the Arbitrator erred in preferring the worker’s evidence that forklift driving aggravated his elbow condition, over the medical opinion certifying such work as suitable. Whilst Dr Huntsdale noted that Mr Evers had completed a forklift driving course, at the time that the doctors examined Mr Evers and assessed forklift operator as a suitable employment option, none of the doctors recorded or considered the history that when Mr Evers attempted forklift driving he experienced increased elbow symptoms. Ms Poulter in the CRS report, expressly rejected forklift operating as unsuitable:
“Operation of forklift leavers and steering wheel has proven to aggravate Mr Evers’ upper limb condition. This job option was trialled [sic-trialed] by Mr Evers with the support of his Rehabilitation Provider. It aggravated his condition significantly and he only endured one day.”
It was therefore not only open to him, but clearly appropriate, for the Arbitrator to accept and prefer the worker’s evidence, as supported by the CRS report commissioned and relied on by the Appellant to find that forklift operating was not suitable employment.
Whilst there is merit in the Appellant’s submission that a worker’s personal preference for working environments, alone, cannot be the basis for determining suitable employment, I am satisfied that the Arbitrator’s acknowledgment of the worker’s preference for outdoor work was clearly consistent with Mr Evers’ work history and work experience, noting all the work he had undertaken since leaving school, with the exception of the work at the Abattoir, was conducted outdoors or in rural settings. The Arbitrator also relevantly noted that the worker expressed concern that his personality was not suited to sales assistant work in that he was concerned that he would lose his temper and “ become angry with people”. Further, having analysed the evidence, Mr Evers’ very basic literacy and numeracy skills would also adversely impact on his ability to secure or maintain sales assistant work and possibly console work.
Whilst I accept theoretically that Mr Evers is fit for console operator work, provided it did not require numeracy or literacy skills beyond Mr Evers’ basic level, I note the CRS report concluded that based on a 38-hour week and given Mr Evers’ fitness for work he would have the potential to earn $582.92 per week as a console operator. This is only $10.12 more per week than the figure of $572.80 found by the Arbitrator as reflective of Mr Evers’ ability to earn in suitable employment as a meter reader. Whilst the Arbitrator’s reasons are brief, having analysed the evidence and for the reasons I have given, I am not persuaded by the Appellant’s submission that the Arbitrator erred in rejecting the positions of sales assistant or console operator as suitable employment has any merit and I reject it.
The Appellant’s submissions that the Arbitrator was required to calculate an average rate of all positions recommended by the CRS section 40 assessment and average them and that he erred in not averaging the projected earnings of caravan park attendant/caretaker and meter reader but selected the lesser weekly earning figure of meter reader to determine the worker’s ability to earn in suitable employment is also without merit and inconsistent with the authorities.
The correct approach to calculating a worker’s ability to earn is set out in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’), which has been expressly approved by the Court of Appeal in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175.
In Mangion, a Commissioner of the former Compensation Court of NSW (‘the Court’) found an injured worker to be partially incapacitated but because he considered that he could earn more in suitable light duties as a security guard, than he had in his pre-injury employment, the Commissioner did not award any weekly compensation. On appeal to a judge of the Court, Judge Burke held that the Commissioner had erred in the approach he adopted to calculating compensation under section 40. 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.”
This is the approach applied by Deputy President Roche in Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237. Further, I note the application of the authorities in Wagga Wagga City Council v Owers [2009] NSWWCCPD 34, where Acting Deputy President Snell observed at [68]:
68. Applying the decision of Burke J in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175, expressly adopted by Handley JA in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175, I am required to adopt a “weighted average”, having regard to availability of work in the accessible labour market. I agree with the arbitrator that there is no reason, on the medical evidence, why the Respondent Worker could not carry out work on a full-time basis. Weighting the average more towards the figure for work as a caretaker, having regard to the fact that some available positions as process worker would be unsuitable, and therefore less frequently available, I assess the Respondent Worker’s ability to earn in some suitable employment at $750.00…” (emphasis added)
Applying the above authorities, given Mr Evers’ inexperience in meter reading work or caravan park/caretaker work, his poor literacy, his physical limitations and the fact that he has been unemployed since ceasing work with the Appellant in March 2007, if he secured employment, it is likely he would be remunerated in such work at the lower end of the market. It was therefore open to the Arbitrator on the evidence to find that Mr Evers’ ability to earn in such suitable employment was $572.80, weighted at the lower end of the market rates.
Having undertaken a review on the merits and analysed and assessed the evidence, I am satisfied that the Arbitrator’s determination and findings in respect of the worker’s ability to earn in suitable employment were open to him on the evidence and I agree with them.
Finally, the Appellant submits that the Arbitrator should have exercised his discretion under section 40(1) and further reduced the award because of the worker’s disinclination to travel the circumstances surrounding his termination of employment and his lack of co-operation in relation to training and rehabilitation.
The following situations are examples of situations in which it has been held to be appropriate to use the discretion to reduce the arithmetical difference between the weekly amount the worker would probably earning but for the injury and had the worker continued to be employed in the same or some comparable employment and the average weekly amount he is able to earn in suitable employment: where the worker has retired or suffered some supervening illness or injury (Nicholson at 55, and Australia Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87); where the worker had been retired for two years before the injury which occurred during a short period of work which was a one-off job (Pratt v Claydon (1996) 14 NSWCCR 86); where the worker was imprisoned during a period of partial incapacity (Stranlund v Mid Coast Meat Co Pty Ltd (1999) 19 NSWCCR 91), since the injury the worker has been dismissed because of a criminal conviction (Morgan v Commissioner for Railways [1972] WCR 33); in a situation where before the injury the worker chose to work for only limited periods each year (May v Eisenhower [1967] WCR 137), and in circumstances where the worker was pregnant (Wrigley Co Pty Ltd v Holland (2002) NSWCCR 463).
The Arbitrator in considering the open labour market reasonably accessible to Mr Evers did not limit it to Junee, he considered Wagga Wagga and surrounding towns in his determination of the factors in section 43A and Mr Evers’ ability to earn in suitable employment. This was appropriate and I agree that this is the labour market reasonably accessible to Mr Evers.
The circumstances surrounding Mr Evers’ termination of employment are not relevant to the determination of entitlement under section 40 because the Appellant elected not to argue that worker’s cessation of work was an unreasonable refusal of suitable work in terms of section 40(2A).
Failure to co-operate with rehabilitation may be relevant to the determination of ability to earn in suitable employment (Mitchell step 2). Whilst acknowledging that Mr Evers had completed the forklift operator course and undertaken some literacy training, the Arbitrator’s comments at [23] of his Reasons that “if the Applicant were genuine in his endeavours to find a vocation in either the areas he has agreed fit within his capacity…” clearly disclose that the Arbitrator took into account Mr Evers’ rehabilitation efforts in determining his of ability to earn in suitable employment. There is no justification for a further deduction on this basis at step 4 of the Mitchell test.
I am therefore satisfied and agree with the Arbitrator that there are no grounds that would require a further reduction of the award through the exercise of the discretion.
CONCLUSION
I have conducted a detailed review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249). I have also had regard to the observations of Allsop P and Hoeben J (Beasley JA agreeing) in Sapina v Coles Myer Limited [2009] NSWCA 71 at [57]–[59] as to the nature of the ‘review’ under section 352 of the 1998 Act. For the reasons given, the Appellant’s appeal is without merit and fails. The decision of the Arbitrator is confirmed.
DECISION
The Arbitrator’s decision dated 15 June 2009 is confirmed.
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
His Hon. Judge Keating
President22 October 2009
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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