North Coast Area Health Service v McDonald (No.2)
[2009] NSWWCCPD 156
•15 December 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | North Coast Area Health Service v McDonald (No.2) [2009] NSWWCCPD 156 | |||||
| APPELLANT: | North Coast Area Health Service | |||||
| RESPONDENT: | Colin McDonald | |||||
| INSURER: | GIO General Ltd–Treasury Managed Fund | |||||
| FILE NUMBER: | A2-8897/08 | |||||
| ARBITRATOR: | Mr Foggo | |||||
| DATE OF ARBITRATOR’S DECISION: | 31 July 2009 | |||||
| DATE OF APPEAL DECISION: | 15 December 2009 | |||||
| SUBJECT MATTER OF DECISION: | Section 40(1) of the Workers Compensation Act 1987 and partial incapacity | |||||
| PRESIDENTIAL MEMBER: | President, Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | ||||
| Respondent: | Higgins & Higgins | |||||
| ORDERS MADE ON APPEAL: | Paragraph one of the Arbitrator’s determination of 31 July 2009 is revoked and the following orders made: 1. (a) The Respondent is to pay the Applicant weekly compensation in the sum of $369.00 per week from 23 November 2007 to 1 July 2008 under section 40 of the Workers Compensation Act 1987. (b) The Respondent is to pay the Applicant weekly compensation at the maximum statutory rate, for a worker with a dependent child from 1 July 2008 to date and continuing under section 40 of the Workers Compensation Act 1987. Paragraph 2 of the Arbitrator’s determination of 31 July 2009 is confirmed. The Appellant is to pay the Respondent’s costs of the appeal assessed at $600.00 plus GST. | |||||
BACKGROUND TO THE APPEAL
On 28 August 2009 North Coast Area Health Service (‘the Appellant/employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 31 July 2009.
The Respondent to the appeal is Colin McDonald (‘the Respondent/worker’).
Mr McDonald was employed as a registered nurse by the Appellant at Wauchope Hospital. On 27 March 2006 he sustained injury to his left shoulder when attempting to lift a large patient weighing 150 kilograms from a chair.
Mr McDonald was off work for three months after undergoing surgery to his shoulder in November 2006. He returned to work at the end of January 2007 on decreased hours, initially working two days a week, four hours per day, gradually returning to normal hours but still on restricted duties.
Arising from the financial strain of the worker’s prolonged incapacity his wife had returned to full time employment. This required the worker to care for his young child on certain days of the week when commercial care was unavailable. The worker’s request not to be allocated to work on those days was refused by the employer. In response to the refusal the worker resigned on 9 November 2007.
On 1 July 2008 Mr McDonald commenced employment with Stanhope Health Care Services (‘Stanhope’) as a community nurse. The work is lighter but the remuneration is substantially less than the worker’s earnings with the Appellant.
A dispute arose as to the worker’s entitlement to weekly compensation benefits based on his alleged unreasonable refusal to accept suitable employment, the quantum of any entitlement to weekly benefits, medical expenses and lump sum compensation.
Mr McDonald lodged an ‘Application to Resolve a Dispute’ (‘the Application’) on
7 November 2008 seeking weekly compensation of $1,000.00 per week from 18 November 2007 to date and continuing.
The matter was listed for conciliation and arbitration before Arbitrator Whitelaw on 15 January 2009. In a reserved decision dated 9 February 2009 the Arbitrator found that the worker was engaged in suitable employment with the employer at the time of his resignation and by resigning the worker had unreasonably refused suitable employment. In those circumstances, the Arbitrator determined the worker’s entitlement to weekly compensation was to be determined under sections 40(2A) and 40(2B) of the Workers Compensation Act 1987 (‘the 1987 Act’). He found the worker’s current weekly wage rate in suitable employment to be the same as he was earning when he resigned. The Arbitrator entered an award for the employer in respect of a claim for weekly payments and made orders remitting the claims for lump sum compensation under section 66 of the 1987 Act to the Registrar for referral to an Approved Medical Specialist (‘AMS’).
On 26 February 2009 Mr McDonald sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the decision of Arbitrator Whitelaw. I determined the appeal on 14 May 2009 (McDonald v North Coast Area Health Service [2009] NSWWCCPD 50 (‘McDonald No.1’). I held in those proceedings that the Arbitrator erred in his approach to the assessment of compensation under section 40. In particular, I found that the worker had not unreasonably refused suitable employment by resigning and section 40(2A) and 40(2B) did not apply. However, due to the unsatisfactory state of the evidence, I was unable to re-determine the matter. The Arbitrator’s orders in relation to the claim for weekly compensation payments were revoked and the matter was remitter for re-determination by another arbitrator in accordance with the reasons given.
On remitter the matter came before Arbitrator Foggo for the second conciliation and arbitration hearing on 10 July 2009. Both parties were represented by counsel. Mr McDonald gave oral evidence and was cross-examined and both parties made oral submissions.
In a reserved decision dated 31 July 2009, Arbitrator Foggo found in favour of the worker. He ordered the employer to pay weekly compensation at the maximum statutory rate for a worker with a dependent child from 18 November 2007 to date and continuing pursuant to section 40. It is from that decision that the Appellant employer now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 31 July 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.The Respondent is to pay the Applicant the weekly payments of compensation at the maximum statutory rate for an Applicant with a dependant child from 18th November 2007 to date and continuing pursuant to Section 40.
2.The Respondent is to pay the Applicant’s costs of the hearing and I confirm that I certify the matter as complex in accordance with Item 4 of Table 4 of Schedule 6 of the Workers Compensation Regulation 2003 and that an uplift of 25% applies to both parties.”
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 submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
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 issue that the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
REVIEW
At [28]–[31] of McDonald No.1, I identified the relevant principles to be applied when reviewing a decision of an arbitrator under section 352 of the 1998 Act. I propose to apply those principles in the matter now before me.
ADDITIONAL EVIDENCE
In addition to the material relied upon by the parties in the first arbitration before Arbitrator Whitelaw, the worker relied on the following evidence at the arbitration hearing before Arbitrator Foggo:
(1) Statement of Reasons and Certificate of Determination of Arbitrator Whitlaw dated 9 February 2009.
(2) A copy of McDonald No.1 decision dated 14 May 2009.
(3) Mr McDonald’s oral evidence of 10 July 2009 before Arbitrator Foggo.
(4) Documents attached to an Application to Admit Late Documents dated 13 July 2009 as follows:
a. ‘NSW Health Information Bulletin concerning Public Health System and Midwives (State) Award increases Salaries and Allowances 1 July 2009’;
b. ‘Increases to salaries and allowances Public Health System Nurses and Midwives (State) Award and Crown Employees Nurses (State) Award’, and
c. Schedules of award rates of pay for various classifications of nurses and midwives as at 1 July 2009.
(5) Application to Admit Late Documents filed 5 June 2009 consisting of an unsigned statement by Mr McDonald dated 1 June 2009.
(6) Medical Assessment Certificate (‘MAC’) of Dr Hyde-Page (AMS) date 9 April 2009.
In his statement of 1 June 2009 Mr McDonald stated that his duties at Wauchope Hospital included general nursing duties such as showering patients, making beds, toileting patients, assisting patients to ambulate and assisting patients in and out of chairs or beds. He stated that the patients were mainly elderly and “confused” patients.
Mr McDonald stated that in November 2007 when he resigned from Wauchope Hospital it was primarily because of constant pain and discomfort he was experiencing in his left shoulder. The constant pain was exacerbated by continuous use of both shoulders during his work activities. He stated that although he was classified as fit to return to normal duties he was still unable to lift more than 10 kilograms of weight. The worker stated that another reason contributing to his decision to resign was changes in his domestic circumstances. Due to his prolonged incapacity and reduced income his wife had been forced to return to full time employment, which created a need for the worker to look after his young son on Mondays and Tuesdays as commercial child care was unavailable on those days. His request to management for a set roster to accommodate his domestic arrangements was refused. Mr McDonald stated that he regretted that he did not reflect fully all of the circumstances leading to his resignation in his resignation letter and attributes this to the stress that he was under at that time.
Mr McDonald commenced work as a community nurse at Stanhope Healthcare Services in July 2008. He was employed in a casual capacity with flexible working hours. He described his duties as “not as burdened as that of a registered nurse in a public hospital”. He continued to carry out some general nursing duties, however, the physical demands of the work insofar as it concerns the injury to his left shoulder were greatly reduced. His new role largely involves completing admissions, regular reviews and assessments, conducting home assessments, assessments of activities of daily living, home need assessments, providing in-home respite and transporting of clients. He is able to take frequent short breaks at his own discretion. He stated that he is only able to comfortably work 18 to 20 hours per week before the pain and discomfort affects him. He went on to describe the details of his medication and disabilities insofar as they concern insomnia, depression and changes to his home, recreational and sporting activities.
The worker’s evidence in chief before Arbitrator Foggo on 10 July 2009 was largely consistent with his statement. In terms of the patients at Wauchope Hospital he added that the majority of them were elderly but were also quite large people. As a group they were in general, larger people than he had previously encountered. Mr McDonald confirmed that his current duties did not involve any lifting requirement. Mr McDonald generally worked approximately 18 hours per week. The maximum number of hours he had worked was 26 hours per week. When he commenced employment at Stanhope he was earning $24.50 per hour, which increased to $26.50 per hour shortly prior to the arbitration hearing.
Mr McDonald said that he now looking after his son on Mondays and Thursdays but agreed that if work were available to him on those days he would accept it, as he was now able to arrange for commercial childcare.
Mr McDonald agreed in cross-examination that on the occasion he had worked 26 hours in one week he managed ‘okay’ (T14.55). Working the longer hours aggravated his shoulder; it caused the shoulder to ache and interfered with his sleep.
In cross-examination the worker disagreed that the primary purpose for his resignation was due to the requirement to stay home to look after his young son on Mondays and Tuesdays. He said that the “larger reason” for leaving was because of his shoulder and he regretted not stating that in the letter of resignation.
In relation to Dr Snow’s certification that he was fit to return to normal pre-injury duties in November 2007, Mr McDonald agreed that he was certified fit for normal duties but he was arranging for other staff members to do much of the heavier work including lifting and manual handling. He avoided such work because he knew it would aggravate his shoulder. Whilst he accepted there was a willingness amongst his colleagues to assist he did not believe that that situation was tenable in a long term.
Mr McDonald also disagreed with the proposition that he was fit to work “regular hours”. He only attempted to work full hours (as a registered nurse) for a relatively short period of time. And even in that short period it had affected his shoulder he said, “I wouldn’t have been able to continue those full time hours for much longer”. Mr McDonald further conceded in cross- examination that he could work more then the 18 hours per week he was currently working but he rejected the proposition that he would be able to work full time because of the adverse impact it had on his shoulder.
The worker’s regular hours with the Appellant were 38 hours per week. He said that his average income was $1,300.00 per week, which included allowances for working morning, afternoon and night shifts. He was currently working an average of 18 hours but some weeks he did more and some weeks less. He said, “It’s not that I only request 18 hours. It’s what ever is there.” He agreed that he could certainly work an extra day and would attempt to work 38 hours a week as a community nurse unless it got to the point that it affected his shoulder.
In re-examination Mr McDonald said that he had tried to find other work but he hadn’t been able to find any other suitable work.
ARBITRATOR FOGGO’S REASONS
On remitter, Arbitrator Foggo noted that the worker’s probable earning, if uninjured were found in the first appeal to be $1300.00 per week. He noted that this figure included $117.00 per week overtime/shift allowance and that from the award rates, had risen twice since November 2007. He therefore adjusted the agreed rate to $1,349.60 from 1 July 2008 and $1447.60 from 1 July 2009.
The Arbitrator rejected Mr McDonald’s submission that in accordance with the authority of Pira Pty Ltd t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 (‘Pira’) his actual earnings should be accepted as his ability to earn. At [25]–[28] of his Statement of Reasons (‘Reasons’) the Arbitrator found:
“25. In light of the Applicant’s frankness and transparency in cross-examination I am not persuaded that this submission is maintainable. The Applicant is currently averaging 18 hours per week, and has occasionally worked 26 hours per week. The Applicant’s oral evidence and the opinion of Dr Hyde-Page persuades me that the Applicant can work more than 26 hours per week but could not work full time and that 30 hours per week is the likely upper limited of the Applicant’s capacity to work in the employment that he has found.
26. The Applicant’s oral evidence and findings by the AMS persuade me that the Applicant is not able to undertake full time work, except as a community nurse.
27. The Respondent, being an employer of many nurses in the labour market reasonably accessible to the Applicant, has not provided any evidence as to the earnings of a community nurse nor as to the availability of such employment in the vicinity where the Applicant lives.
28. The Applicant, in his oral evidence, readily agreed that he could work 38 hours per week as a community nurse. When one takes into account his evidence that the work he is presently doing is the only work that is available, it would seem to me that the only conclusion that I can come to is that the full time work as a community nurse is not presently available to the Applicant in the region where he lives, but that if it became available the Applicant would endeavour to obtain that employment.”
The Arbitrator found that from 18 November 2007 to 30 June 2009 the worker’s capacity to earn was 30 hours per week at a rate of $24.50 per hour totalling $735.00 per week. For the period from 1 July 2009, 30 hours per week at the rate of $26.50 totalled $795.00 per week.
The Arbitrator declined to exercise his discretion under section 40(1). He accepted that the worker’s rejection of employment was for reasons associated with childcare. He accepted the worker’s evidence that he could do more work than he was currently performing, he could work 30 to 32 hours per week, that he could work full time as a community nurse and the worker had endeavoured to obtain work as best he could and was currently working all the hours available to him.
FRESH EVIDENCE
Neither party sought to rely on fresh and/or additional evidence on appeal.
ISSUES IN DISPUTE
The Appellant submits that the Arbitrator failed to properly exercise his discretion and made errors of law and fact in:
(1) finding the worker had satisfied the onus of proof in establishing an entitlement to compensation under section 40 of the 1987 Act;
(2) his application of section 40(2)(a), being the amount the Respondent worker would have been earning but for the injury;
(3) the application of section 40(2)(b), being the amount the Respondent worker could be earning in some suitable employment;
(4) failing to exercise a discretion to reduce the worker’s compensation pursuant to the fourth step in the Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) and section 40(1) of the 1987 Act;
(5) providing insufficient reasons to support his findings, and
(6) relying upon irrelevant material by giving undue weight to the MAC of Dr Hyde-Page, which was not served by either party and, it is submitted, was irrelevant to the question of incapacity.
SUBMISSIONS AND FINDINGS
Onus of proof
The Appellant submits the Arbitrator erred in finding that the worker had satisfied the onus of proof for an award under section 40 of the 1987 Act. The question of onus of proof in workers compensation proceedings was considered by Deputy President Roche in Dickson v Olympic Aluminium Co Pty Ltd [2007] NSWWCCPD 96 (‘Dickson’). After examining the authorities the Deputy President, with whom I agree, said at [27]:
“In a primary claim for weekly compensation (that is, a claim where no prior award has been made for the payment of weekly compensation) the worker bears the legal and evidentiary burden of proof.”
The Deputy President went on to note that, after establishing injury and incapacity, before a worker is entitled to recover compensation it is also necessary for him to establish that he has suffered a consequential economic loss. He added at [27]:
“In determining the quantum of that award each party carried an evidentiary burden to establish the case he or it urged the Commission to accept. (Thompson v Armstrong and Royce Pty Limited [1950] HCA 46; (1950) 81 CLR 585 at 598 (‘Thompson’)).”
The Appellant submits that the deficiencies I highlighted in the worker’s case at [93]–[99] in McDonald No.1, were only partly remedied by the worker’s oral evidence at the second arbitration hearing. However, relying on Bielecki v Rianthelle Pty Limited t/as Belfora [2008] NSWWCCPD 53 (‘Bielecki’), the Appellant submits that the Arbitrator was in error in relying on that evidence in the absence of any supporting medical opinion. The Appellant further submits that the worker’s evidence is no more than a lay opinion and is of no probative value. Reference is made to South Western Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421(‘Edmonds’), Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’), Round the Clock Transport Service v FlynnPty Ltd [2007] NSWWCCPD 204. The Appellant’s submissions in this respect are misguided and I reject them for the following reasons.
Bielecki’s case provides no support for the Appellant’s submission. That case was concerned with a medical issue, that is, whether on the balance of probabilities, the dental treatment the worker submitted to, was reasonably necessary as a result of her injuries. The worker’s evidence was that the condition of her teeth was due to a combination of vomiting and a range of different medication she had been taking. The Deputy President noted at [67] that in the absence of any supporting medical opinion that statement was no more than a lay opinion and, accordingly of no probative value.
The worker’s evidence in the instant case does not address any expert issue. It is confined to factual matters concerning his pre and post injury employment, his earnings, his reasons for resigning and a range of other factual issues. In the absence of a credit issue or contrary evidence, the Arbitrator was entitled to accept that evidence.
The Appellant submits that Arbitrator Foggo erroneously reversed the burden of proof at [27] and [34] of his Reasons by asserting that the Appellant employer:
“has not provided any evidence as to the earnings of a community nurse nor as to the availability of such employment in the vicinity where the Applicant lives.”
Referring again to Bielecki, the Appellant submits the worker carries the onus of providing such evidence. The Arbitrator made it clear at [34] of his Reasons that his findings were based on acceptance of the worker’s evidence:
“· that he could work more than he has worked presently
· that he could probably do between 30 to 32 hours
· that he would undertake full-time employment as a community nurse
· that his present employment was all that was available to him at the present moment persuade me that the Applicant has been endeavouring to obtain work as best he can and that his capacity is more than the work that is available to him. I am also persuaded that full time work other than as a community nurse is not available to him in the general labour market reasonably accessible to him.”
The Arbitrator’s findings were consistent with the onus as discussed in Dickson, that is, once the worker has proven injury and incapacity and a consequent economic loss, in determining the quantum of that loss “each party carried an evidentiary burden to establish the case he or it urges the Commission to accept”.
In this case the Appellant urged the Arbitrator to accept that any award under section 40 should be diminished on discretionary grounds; either on the basis that the worker had chosen to resign his employment and take lighter work, the worker was working fewer hours (T23.15), or that he was capable of working a 38 hour week as a community nurse (T21.46). In either case the burden of satisfying the Commission of those matters rested with the Appellant employer. It was that issue that the Arbitrator was addressing at [27] of his Reasons. The Arbitrator said:
“The Respondent, being an employer of many nurses in the labour market reasonably accessible to the Applicant, has not provided any evidence as to the earnings of a community nurse nor as to the availability of such employment in the vicinity where the Applicant lives.”
Mr McDonald made no submissions on this issue other than to assert the Arbitrator was not in error.
Mr McDonald, having established a prima facie entitlement to compensation, the Arbitrator was correct in stating that the evidentiary burden with respect to the discretionary matters, in the context of the Arbitrator’s findings and the state of the evidence, rested with the employer. I reject the submission that the Arbitrator reversed the onus of proof.
The Worker’s Probable earnings but for the injury – Section 40(2)(a)
Section 40 of the 1987 Act is concerned with the calculation of weekly payments during a period of partial incapacity. Relevantly it provides:
“40 Weekly payments during partial incapacity-general
(cf former ss 9, 11)
(1) Entitlement.
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
(2) Calculation of reduction in earnings of worker-general.
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:
(a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (but not exceeding $1,000), and
(b)the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (but not exceeding $1,000).
(3) Ability to earn in suitable employment
The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.”
Calculation of the upper limb of the section 40 equation (section 40(2)(a)) involves assuming the worker would have continued in the same or some comparable employment: The exercise is a hypothetical one (Australian Wire Industries Pty limited v Nicholson (1985) 1 NSWCCR 50; Singh v TAJ (Sydney) Pty Ltd (2006) 4 DDCR 557).
The Arbitrator approached the assessment of the worker’s probable earnings by accepting the parties’ agreement that at the time of his injury (26 March 2006) Mr McDonald was earning $1,300.00 per week (Reasons at [11] and [30]).
In the ‘Application to Admit Late Documents’ dated 13 July 2009, the worker’s solicitors filed an information bulletin from NSW Health entitled “Public Health System Nurses’ & Midwives’ (State) Award Increases Salaries & Allowances 1 July 2009” dealing with increases in salaries and allowances for nurses and midwives. The bulletin referred to a Memorandum of Understanding (MOU) between the New South Wales Nurses Association and New South Wales Health dated 4 July 2008 providing for the following award increases for nurses and other health professionals:
· 3.9% increase from the first full pay period to commence on or after 1 July 2008, and
· 3.9% increase from the first full pay period to commence on or after 1 July 2009.
The Arbitrator accepted (at [12] of his Reasons) the worker’s oral evidence that his pre-accident earnings of $1,300.00 included an amount of $117.00 per week by way of overtime/shift allowance (T14.39).
The Arbitrator also accepted the worker’s submissions that he should quantify the worker’s probable earnings relying on the relevant award adjustments in 2008 and 2009 plus the additional component of $117.00 to compensate for the loss of shift allowances.
Thus, the Arbitrator found that as at 1 July 2008, the award rate was $1,232.60 to which he added $117.00 for the shift allowance and arrived at probable earnings of $1,349.60. On 1 July 2009 the award rate increased to $1,330.60 to which the Arbitrator again added $117.00 finding the worker’s probable earnings were $1,447.60 at that point.
This approach is consistent with the earnings disclosed in the wages schedule filed by the employer shortly before the first arbitration on 14 January 2009. It is clear from an examination of those records that the worker’s normal pre-injury salary was consistent with the award rate of about $1,200.00 plus penalty rates of about $117.00 per week.
The Appellant submits that the Arbitrator erroneously rejected the previous agreement on the amount under section 40(2)(a) without evidentiary basis. That submission is not sustainable. The Arbitrator accepted a starting point of $1,300.00 for the worker’s probable earnings at March 2006 and made adjustments to that rate consistent with the evidence of award adjustments in 2008 and 2009.
The evidence in relation to the award adjustments was not contested in the proceedings before the Arbitrator Foggo. The figure of $1,300.00 in 2007 was consistent with the evidence of the worker’s actual earnings at that time, as evidenced by the wages schedule of 14 January 2009 and the attached wage records. The findings were based on evidence that was logical and probative and does not demonstrate any error on the part of the Arbitrator and I agree with them.
The Worker’s ability to earn in suitable employment – section 40(2)(b)
The worker’s claim for weekly compensation spans two distinct periods, one when the worker was not working following his resignation, and, a further period after the worker commenced alternative employment with Stanhope. Different considerations will apply to the determination of the worker’s entitlement to compensation in these two periods.
(i) The period 23 November 2007 to 30 June 2008 when Mr McDonald was unemployed
Partial incapacity was described in the joint judgment of the High Court in Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at [13]:
“It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working, or might reasonably be expected to work.”
Mr McDonald resigned from his employment with the Appellant by letter dated 9 November 2007, with effect on 23 November 2007. He remained unemployed until 1 July 2008 when he commenced employment with Stanhope. The worker’s resignation letter stated he resigned because of his employer’s unwillingness to provide him with tailored shifts to accommodate his childcare responsibilities. He was, however, willing to work “any shift required from Tuesday night through to Sunday evening shift.” In evidence at the second arbitration hearing he said that he regretted the terms of his resignation because it failed to refer to his constant pain and discomfort in the left shoulder, which was “the larger reason for leaving” (T11.20).
On 12 November 2007, within a few days of his resignation, Mr McDonald again wrote to his employer requesting it consent to him remaining on the casual nursing staff. That request was apparently refused.
After resigning the worker did not seek alternative employment immediately (T12.33). No reason was provided as to why Mr McDonald did not seek work immediately after he resigned. There is no evidence as to when he began seeking alternative employment. All that is known is that he commenced alternative employment with Stanhope as a community nurse on 1 July 2008.
Mr McDonald said that his work with the Appellant involved working with elderly patients, many of whom were either wheelchair-bound, using walking frames and were quite debilitated. His day-to-day activities included showering patients, mobilising them, turning them in bed, assisting them in and out of chairs and other things of that nature. He added that many of the patients were quite large people (T4.12).
The rehabilitation reports tendered by the employer indicate that after Mr McDonald returned to suitable duties with the Appellant he only worked 13 of the 61 days up to 28 September 2007. Mr McDonald said in cross-examination that although Dr Snow, his general practitioner, had certified him fit for his normal pre-injury duties, he never actually returned to normal duties, in that he was being assisted by his colleagues to do the heavier work. There is no report from Dr Snow in evidence.
Mr McDonald said he was having his colleagues do a lot of the duties that were classed as normal duties for a registered nurse. Those duties included lifting, turning and manual handling. He said that he avoided those duties because he knew he would aggravate his shoulder. Mr McDonald said that he could not expect his colleagues to perform those duties for him on a regular basis (T11.49).
Mr McDonald said in cross-examination that he only worked his full duties (with the assistance he was receiving from his colleagues) for a relatively short period of time and having regard to the effect it had on his shoulder, he did not believe that he would be able to do that work “for much longer”(12.17).
In his current employment Mr McDonald is not required to undertake duties that involve repetitive use of his left arm above shoulder height, nor does it require him to lift heavy weights. He described the majority of his work as preparing assessments in relation to patient care needs, medications, home care needs and things of that nature (T5.33).
Dr Powell, orthopaedic surgeon, examined the worker on behalf of his employer on 24 September 2007. In a report dated 8 October 2007 he considered Mr McDonald unfit to undertake duties which involve repetitive overhead work, or lifting weights in excess of 10kg. This restriction renders Mr McDonald unfit for his normal duties with the Appellant as a registered nurse.
Dr O’Keefe, orthopaedic surgeon, who prepared a report dated 27 June 2008 at the request of Mr McDonald’s solicitors, having examined Mr McDonald that day, agreed Mr McDonald should avoid overhead work and repetitive lifting using his left arm.
Dr Hyde-Page, orthopaedic surgeon and AMS examined the worker on the 24 March 2009 and prepared a MAC on 9 April 2009. Dr Hyde-Page took a comprehensive history of the worker’s treatment (current symptoms details of previous or subsequent accidents, injuries or conditions, his general health and work history where relevant). He detailed his examination findings and noted investigation’s previously undertaken including x-rays and ultrasound and an MRI of the left shoulder. He found that Mr McDonald suffered an acute strain to his left shoulder where he developed persistent symptoms around his left shoulder that did not settle with conservative treatment. After excision of left distal clavical and decompression of rotator cuff as well as a repair of the glenoid labrum, his left shoulder has improved. He noted a reasonably full range of shoulder movement but some persistent pain involving his left AC joint where the clavicle has been excised. It interferes with moderate to heavy physical activity as well as his sleep. He assessed Mr McDonald as suffering a 6% whole person impairment from which he deducted 1/10th for a pre-existing degenerative condition resulting in a funding of 5%WPI as a consequence of the work injury.
Dr J Snow is the worker’s general practitioner and Nominated Treating Doctor. He provided numerous medical certificates between May 2006 and December 2007. In each of the medical certificates prior to December 2007 he certified the worker fit for suitable duties with restrictions on lifting and other duties. Dr Snow issued two ‘Final’ medical certificates on 18 December 2007. One of the certificates (I infer the first) certified the worker fit for pre-injury duties from 18 December 2007. However, a notation at the foot of the certificate states “Category 3 corrected 18 December 2007.” The signature adjacent to the notation appears to be that of Dr Snow. Category 3 relates to the certification of “Fitness for Work”
The second certificate issued by Dr Snow on the 18 December 2007 certifies the worker’s fitness for work as “has reached maximum medical improvement and is permanently fit for modified duties from 18/12/2007 (final certificate only)” There is no report in evidence from Dr Snow to explain his certificates or what is meant by the expression “fit for permanently modified duties,” however, I think it is reasonable to infer that Dr Snow accepted that Mr McDonald would never be fit for the full range of his former duties.
The Appellant submits that the MAC provided by Dr Hyde-Page was not relied on by either party in the arbitration, nor referred to in submissions, and therefore the Arbitrator erred in relying upon it to the extent that Dr Hyde-Page commented on the worker’s capacity for employment. That submission is incorrect. At the commencement of the arbitration hearing the Arbitrator identified that the MAC of Dr Hyde-Page dated 9 April 2009 formed part of the material before him (T1.25). Dr Hyde-Page’s report was the subject of submissions by Mr Baker of counsel on behalf of Mr McDonald. It was only relied upon by the Arbitrator to the extent that Dr Hyde-Page found the worker to be a credible person and secondly that his complaints were “perfectly reasonable”, according to the doctor. Mr Niven for the employer also addressed on the AMS report, relying upon it in support of a submission that a finding of a 5% impairment was indicative of a modest disability (T34.35). In these circumstances, the Appellant’s submission is untenable.
The Appellant submits that the Arbitrator was in error in relying upon the evidence of Dr Hyde-Page to support his findings that the worker was fit for 30 hours work per week because Dr Hyde-Page, acting in his capacity as an AMS, was not required to, and did not, assess the worker’s capacity for work. I reject that submission for the following reasons.
Pursuant to section 326 of the 1998 Act the opinion of an AMS is conclusively presumed to be correct with respect to certain matters, which can generally be described as matters concerning the permanent impairment arising from an injury. Subsection (2) of section 326 provides that as to any other matter the Medical Assessment Certificate (‘MAC’) is evidence, but not conclusive evidence, in proceedings before the Commission.
The Arbitrator did not rely on Dr Hyde-Page in assessing the worker’s fitness for work to be 30 hours per week. However, he did rely on the doctor’s opinion as evidence, consistent with all of the other medical evidence, to find that the worker was incapacitated for full-time work as a registered nurse (Reasons at [22]). The evidence of the AMS was given the same weight as other medical evidence (Director General of Education and Training v Pomeroy [2007] NSWWCCPD 56 at [32]-[35] and Ric Developments trading as Lane Cove Poolmart v Muir [2008] NSWCA 155).
The Appellant also submits that there is no medical evidence provided on behalf of the worker to support the Arbitrator’s findings of physical incapacity. I reject that submission for the following reasons. The worker relied on the report of Dr O’Keefe who assessed him as suffering from a permanent impairment of 4% of the left shoulder. At page five of his report Dr O’Keefe provided evidence as to the limitations of the worker’s physical capacity in terms of his inability to undertake overhead work or repetitive lifting using his left arm. The worker also relied on Dr Powell’s report dated 8 October 2007 (see [70] above), which was attached to the Application to Resolve a Dispute. Both Dr Powell and Dr O’Keefe agreed the worker was unfit for work involving overhead use of the arm and repetitive use of the arm or lifting weights in excess of 10kg. Those restrictions clearly rendered Mr McDonald unfit for the full range of duties required in his pre-injury employment as a registered nurse. Finally, there is the worker’s own evidence, which I accept, of his physical limitations.
The Appellant also submits that the worker did not rectify the deficiency in the evidence I identified in McDonald No 1 concerning the worker’s pre and post injury duties and his capacity to work full time. That issue was addressed in two respects, firstly by the worker’s statement, which is undated that was attached to the Application to Admit Late Documents dated 5 June 2009. In that statement he addressed the nature of the work required of him as a registered nurse including showering of patients, making beds, toileting patients, assisting patients to ambulate and so on. His statement also dealt with the tasks now required of him in his new role as a community nurse, which are referred to at [22] above. Secondly, the issue is addressed by the worker’s oral evidence, which dealt extensively with his capacity for work both in terms of physical restrictions and hours of work.
The work Mr McDonald now performs, as a community nurse seems to be well within the physical restrictions recommended by Drs Powell, O’Keefe and Hyde-Page. In the period under consideration (23 November 2007 to 30 June 2008) neither party offered any evidence regarding the availability of work as a community nurse, or indeed, any other work in the general labour reasonably accessible to the worker.
The evidence in McDonald No 1 established that Mr McDonald was unable to arrange for commercial child care for his young son on Mondays and Tuesdays. As his wife had returned to full time employment it fell to the worker to care for his son on those days, and that was the reason he gave for resigning when his employer was unable to provide him with shifts tailored to meet his domestic arrangements. I held in McDonald No 1 that that was not an unreasonable rejection of suitable employment within the meaning of section 40(2A).
Arbitrator Foggo found the worker had a capacity to work up to 30 hours a week. On the evidence before me I believe that was an underestimate. Although Mr McDonald said that he thought 26 hours per week was the limit of his capacity, he agreed that he coped adequately with 26 hours of work, he also agreed that if he were offered fulltime work as a community nurse he would attempt it unless it affected his shoulder. I can see nothing in the description of the duties of a community nurse, as described by the worker, that are inconsistent with his the limitations on his fitness for work as described by Drs Powell, O’Keefe and Hyde Page. Whilst each of those witnesses placed restriction on the duties Mr McDonald could perform, they did not placed any restrictions on Mr McDonald in terms of working hours. I can see no reason why the worker should not have been assessed as being physically capable of undertaking the work of a community nurse on a full-time basis in the period under consideration.
Accordingly, I assess the worker’s ability to earn between 23 November 2007 and 1 July 2008 at 38 hours per week at a rate of $24.50 per hour, which is the worker’s uncontested evidence of the hourly rate for a community nurse when he commenced work at Stanhope. For these reasons I find the worker’s ability to earn in this period to be $931.00 per week.
Applying the third step in Mitchell during the period from 23 November 2007 to 30 June 2008, the difference between Mr McDonald’s probable earnings (section 40(2)(a)) of $1,300.00 and his ability to earn (section 40(2)(b)) of $931.00 is $369.00 per week.
(ii) The period 1 July 2008 and continuing
On 1 July 2008 Mr McDonald commenced work with Stanhope as a community nurse. Where a worker is in employment and actually earning, the appropriate amount to be considered in section 40(2)(b) is, prima facie, the worker’s actual earnings, unless it is established that the worker’s actual earnings are not the proper test. In Aitkin v Goodyear Tyre and Rubber Co (Aust) Pty Ltd (1945) 46 SR (NSW) 20, (1945) 62 WN (NSW) 233 (‘Aitkin’), Jordan CJ stated the principle as follows at [235]:
“As to the phrase ‘is earning’ it has been held that if the partially incapacitated worker is earning something his actual earnings must prima facie be taken as the basis, and the rate of compensation provided for by s.9 reduced by a calculation based on the excess of his pre-injury average weekly earnings above what he is actually earning: Blakemore v Delta Mill (1919) Ltd (5). If, however, it is proved that his actual earnings are not the proper test, because there is some other reason unconnected with his earning power, which makes them lower than they should be, the other alternative, what he is ‘able to earn,’ must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power.”
In JC Ludowici & Sons Ltd v Cutri (1992) 26 NSWLR 580 (‘Ludowici’) where Kirby P (as he then was) said at [593D]:
“Parliament included the reference to what the worker ‘is earning’ for a purpose. The phrase cannot be ignored. The earnings are not mere evidence of what the worker is ‘able to earn’. In fact, if the worker is ‘earning’ that will normally be the end of the inquiry. It is only if, for some reason, that amount, where it exists, or existed, is suggested to be an under-estimate or a false measure of the worker’s ability to earn that the alternative inquiry will be embarked upon.”
Aitkin was applied with approval in Pira, where Beasley JA observed (at [32]) that it is clear not only from the statement of Jordan CJ but also from the manner in which the court approached the test in Ludowici, that as a first step, one has to approach the matter on a prima facie basis and only move from that basis if the evidence establishes that the actual earnings are not, in the circumstances of the case, a proper test.
Remarkably, neither party made any submissions on the application of Pira or Aitkin in this appeal, notwithstanding I expressly referred to those authorities at [92] in McDonald No 1 and the application of those authorities was the subject of discussion before, and determination by, Arbitrator Foggo.
In McDonald No1 it was agreed the worker’s earnings with Stanhope were $670.00 per week. The basis for that agreement was not provided. However, that figure is inconsistent with the evidence and with the worker’s Wages Schedule filed on 13 January 2009. The wages schedule states the worker’s actual earnings with Stanhope are $663.70. That figure corresponds precisely with the worker’s gross fortnightly earnings on his pay slip dated 23 December 2008, which is an attachment to the wages schedule. Two other pay slips from Stanhope dated 26 November 2008 and 10 December show the worker’s earnings to be $1,238.50 and $1,473.39 per fortnight respectively. It appears from the pay slips that Mr McDonald’s pay varied depending on his hours of work and whether he worked weekend shifts.
The pay slip tendered for the period ending 23 December 2008 states the worker’s gross earning for the year to date at $12,874.14. Noting he commenced duties on 1 July 2008, this represents his earnings over 25 week period and is evidence of an average earning of $515.00 per week as at the end of December 2008. The worker’s evidence, which I accept, is that his hourly rate increased in June 2009 from $24.50 to $26.50 (T6.45) which equates to an increase of about 8%, which would increase his average earnings from 30 June 2009 to $556.00. Accordingly I find the worker’s actual earnings from 1 July 2008 to be $515.00 and from 30 June 2009 to be $556.00.
Having established the amount of the worker’s actual earnings with Stanhope, those earnings, at least at a prima facie level, fix the amount under section 40(2)(b), unless it can be shown that those earnings are not a proper test of the worker’s ability to earn.
There is no evidence before me that the worker is deliberately taking lower paid work or that he is idling or that there are any other reasons to justify a departure from applying the Aitkin principle. In fact, the evidence is to the contrary. The worker has taken steps to secure work appropriate to his physical limitations. He has said there is no other work available to him other than the work he is currently doing (T16.29). He also said he is willing to take on more work as and when it becomes available (T16.3).
The Arbitrator concluded that the principles enunciated in Aitkin should not be applied in this case because of the evidence that the worker had an ability to earn greater than his current level of earnings. That finding was based on the worker’s concession that he could do more work than he was currently doing, and the evidence of the AMS, Dr Hyde-Page, who found that Mr McDonald’s condition incapacitated him for moderate to heavy physical activity. In my view, the Arbitrator was wrong not to apply Aitkin notwithstanding those findings for the following reasons.
The fact that a worker has a capacity to earn more than he is currently earning, by taking on additional hours or other duties, or even if he concedes he could earn more than he is currently earning is not, of itself, a reason to depart from Aitkin. In approaching the matter the way he did the Arbitrator was focused on an assessment of “what the worker would be able to earn in suitable employment” without considering why the evidence of what the worker “is earning” was not the proper test. As Kirby P said in Ludowici the phrase “is earning” in section 40(2)(b) is there for a reason and cannot be ignored.
In an unreported decision of Walker J in the Compensation Court of New South Wales of McKinnon v Pollock and ors trading as Premier Linings, Matter 1621 of 2000 (14 December 2000), His Honour held that the worker’s actual earnings accurately represented his ability to earn in some suitable employment in circumstances where a worker living in a small community and occupied a job in one of the local service stations, notwithstanding a concession by the worker that he might be able to perform some extra tasks in some circumstances.
In order for the Commission to depart from Aitkin, I would need to be satisfied that the additional hours or the additional work, which the worker says he is capable of, are available and Mr McDonald has refused those additional hours. The only evidence regarding the availability of work in the labour market reasonably accessible to the worker comes form his oral evidence. The employer tendered no evidence on this issue, even though as the Arbitrator noted it employs a substantial number of health professionals. The worker’s evidence, which I accept, is that he takes on as much work as is available to him by his current employer and he has been unable to find any other work in his local area (T16.29).
Having regard to the nature of the worker’s duties with the Appellant at Wauchope Hospital, and the physical restrictions assessed by Drs Powell, O’Keefe and Hyde-Page, I find that Mr McDonald is unfit for hospital work as a registered nurse, but he is fit for the work of a community nurse. I find that his actual earnings with Stanhope are the proper measure under section 40(2)(b).
For these reasons I find that the worker’s ability to earn is $515.00 from 1 July 2008 to 30 June 2009 and $556.00 from 1 July 2009 and continuing. His probable earnings during these periods are, as I have found, $1,379.69 and $1,447.60 respectively. Applying the third step in Mitchell, the difference is $864.69 from 1 July 2008 to 30 June 2009 and $891.60 from 1 July 2009 and continuing.
The ‘Application to Resolve a Dispute’ particularises the claim for compensation on the basis of a dependent wife and one child. However, Mr McDonald conceded at the arbitration hearing that his wife is not dependent and his only dependent is his three year old son. I note that amounts referred to in [99] above are substantially in excess of the statutory maximum for a worker with one dependent.
Discretionary Factors
The fourth step of the Mitchell steps requires a consideration, in accordance with section 40 (1) of the 1987 Act, of whether, and to what extent, the reduction in the worker’s capacity to earn, so calculated, appears proper in the circumstances of the case.
The Arbitrator concluded, notwithstanding the circumstances of the worker’s resignation, that this was not an appropriate case to further reduce his amount as calculated at step four of Mitchell. I agree with the Arbitrator’s conclusion for the following reasons.
In Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 (‘Nicholson’) McHugh JA, dealing with the discretionary element said at [54]:
“The third step [the fourth step in Mitchell] in the process requires the Compensation Court to look at the circumstances of the case. The weekly payment awarded must bear such relationship to the differential amount - which is the result of the exercise under the first and second steps - and is under the circumstances of the case is proper. This third step therefore calls for the exercise of a judicial discretion of a kind with which courts have long been familiar.
It is at this stage that the Compensation Court can and must examine all the facts. The matters, which can be examined, include such matters as retirement, other supervening illnesses, the personal employment history of the worker and so on. See Australian Iron and Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 at 92f; Morgan v Commissioner of Railways (1972) 46 WCR (NSW) 33; Metropolitan Coal Co Ltd v Duffy [1966] 1 NSWR 379.”
His Honour went on to say at [57]:
“compensation for lost earnings as a result of work injuries remains the primary purpose of the statute. Money which was not likely to be earned cannot be regarded as lost earnings for that purpose.”
In Mitchell the Court observed at [534]:
“The discretion is a broad one and it is proper to refrain from endeavouring to define its outer limits.”
If the worker had withdrawn himself from the workforce, to attend to his domestic arrangements and the care of his child, such that he had no intention of working, that would in my view be justification for the exercise of the discretion in section 40(1). It would render the loss during any such period as “money which was not likely to be earned”, as discussed by McHugh JA in Nicholson.
However, that is not the evidence in this case. In his resignation letter the worker made it clear that he regarded himself as capable of undertaking any of the shifts offered to him, except those which fell on Monday or Tuesday. In a further letter to the employer dated 12 November 2007 he requested the opportunity to remain on the casual nursing staff at Wauchope Hospital.
Further, the evidence discloses that Mr McDonald did secure suitable alternative employment by July 2008. It is reasonable to infer that he had been seeking suitable employment for some reasonable period prior to commencing duties with Stanhope in July 2008. The worker said that he is capable of doing more work than he is currently performing and has indicated a willingness to undertake additional work when it is available. Indeed, the worker has indicated if full-time work as a community nurse becomes available he would attempt to work full-time unless it transpired that it adversely affected his shoulder injury.
These actions are not the actions of a worker who has voluntarily withdrawn his labour. On the contrary they are evidence of the worker’s intention to continue working within the limits of his capability.
The Appellant submits that the worker's childcare responsibilities and his concession that he could perform more work that he is currently doing without adversely affecting his injury are factors relevant to the exercise of the discretion. I disagree and for the reasons I have given I am of the view that there are no discretionary factors that require me to reduce the arithmetical difference found at step three.
I note the worker’s solicitors made no submission on this issue.
Adequacy Of The Arbitrators Reasons
In the exercise of their determinative powers, arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311). A failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision.
Part 15, Rule 15.6 of the Rules reads:
“15.6 Certificates of determination
A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them. (emphasis added).”
To succeed in having the Arbitrator’s decision set aside on this ground, the Appellant must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty Limited Anor [2007] NSWCA 203 at [30]).
The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6). It is not necessary for an arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (1997) 48 NSWLR 430 at 443-444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:
“If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.”
The Appellant submits the Arbitrator’s reasons were inadequate in that he failed to consider relevant evidence on the question of incapacity. I accept that the Arbitrator failed to refer to the evidence of Dr Powell, which is a significant omission. He also failed to refer to the final medical certificate, which I infer is a reference to the certificate by Dr Snow.
The Appellant further submits the reasons are deficient due the Arbitrator’s failure to refer to the “Return to Work Plan.” There are various references to the return to work plan in Dr Snow’s certificates, which was apparently a six-stage plan. However the plan itself was not in evidence and therefore the failure to refer to it does not demonstrate error by the Arbitrator.
Although the Arbitrator failed to refer to the evidence of Dr Powell and Dr Snow I have considered that evidence on review, and for the reasons given, I have reached the conclusion set out below.
Again I note the worker’s solicitors made no helpful submissions on this issue other than to assert the Arbitrator did not err and gave ‘detailed and sufficient reasons’.
DECISION
Paragraph one of the Arbitrator’s determination of 31 July 2009 is revoked and the following order made:
1. (a) The Respondent is to pay the Applicant weekly compensation in the sum of $369.00 per week from 23 November 2007 to 1 July 2008 under section 40 of the Workers Compensation Act 1987.
(b) The Respondent is to pay the Applicant weekly compensation at the maximum statutory rate, for a worker with a dependent child from 1 July 2008 to date and continuing under section 40 of the Workers Compensation Act 1987.
Paragraph 2 of the Arbitrators determination is confirmed.
COSTS
Although the appeal was partially successful it was unsuccessful in respect of the majority of the compensation at issue on the appeal. Therefore, the Appellant is to pay the Respondent’s costs of the appeal. I assess those costs at $600.00 plus GST.
His Hon. Judge Greg Keating
President
15 December 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
0
20
0