O'Carroll Constructions Pty Ltd v Burgess
[2007] NSWWCCPD 224
•13 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224
APPELLANT: O’Carroll Constructions Pty Ltd
RESPONDENT: Adrian Barry Burgess
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC3702-07
DATE OF ARBITRATOR’S DECISION: 20 July 2007
DATE OF APPEAL DECISION: 13 November 2007
SUBJECT MATTER OF DECISION: Leave to appeal; section 57 of the Workplace Injury Management and Workers Compensation Act 1998; whether worker’s non-compliance with injury management plan was ‘unreasonable’.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Marshall & Partners
ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Adrian Barry Burgess (‘the Respondent Worker/Mr Burgess’) was born on 27 September 1973 and is currently 34 years of age. On 15 January 2004 he injured his neck and right shoulder whilst working as an excavator operator with O’Carroll Constructions Pty Ltd (‘the Appellant Employer/O’Carroll’). Investigations revealed a right-sided C6/7 disc prolapse with nerve root compression. Surgery has been recommended but not undertaken.
Mr Burgess’ entitlement to lump sum compensation was settled on 4 October 2006 by agreement under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) for a whole person impairment of 16% plus compensation for pain and suffering under section 67 of the 1987 Act.
It is not disputed that Mr Burgess is permanently unfit for his pre-injury duties as an excavator operator. As required by the legislation the Appellant Employer’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), prepared an Injury Management Plan (‘the Management Plan’) to facilitate Mr Burgess’ return to suitable work. As part of that plan Mr Burgess had two job placements. First, as a trade’s assistant with a company that did subdivision work. That work required prolonged periods of extension and flexion of his neck and caused an increase in his right arm and neck pain resulting in him being unable to continue.
Second, having completed a “Certificate III” gym instructor’s course as part of his rehabilitation, Mr Burgess was placed with Viking Gym as part of a new Management Plan prepared by Linda Sheargold, QBE Connect Case Manager, on 5 December 2006 with the intention that he would be a gym instructor. The Management Plan required Mr Burgess to attend Viking Gym as part of a work trial between 26 February and 13 March 2007 and attend Castle Personnel for job placement in the same period, and a functional assessment on 13 March 2007.
Mr Burgess’ evidence is that the majority of his duties at Viking Gym involved labouring and maintenance work such as painting and repairing lighting and equipment. This work required him to extend his neck and caused an increase in his neck symptoms. After about three weeks Mr Burgess accepted a place in the Occupational Therapy Course at Newcastle University. On 20 February 2007 he contacted Linda Sheargold and advised that he intended ceasing the work placement with Viking Gym and that he had enrolled in a four year course to become an Occupational Therapist with classes starting the following Monday. As a result he ceased participation in the Management Plan.
On 2 March 2007, QBE wrote to Mr Burgess advising that as he had failed to comply with the requirements of his Management Plan, his weekly compensation payments had been suspended from 26 February 2007. His benefits would be restored if he resumed the job placement program with Castle Personnel, attended a job interview with Wendy Holmes on 5 March 2007 and returned to his nominated treating doctor and obtained an up to date WorkCover medical certificate that did not list restrictions of a non medical nature. It is not disputed that QBE complied with the requirements of section 45(4) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998’) and had earlier advised Mr Burgess in writing of the consequences of unreasonably failing to comply with the requirements of the Management Plan.
QBE again wrote to Mr Burgess on 13 and 27 March 2007 advising that he had continued to fail to meet his obligations under the Management Plan and that weekly benefits would only be reinstated from the date he notified QBE of his compliance.
On 22 May 2007 Mr Burgess’ Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 26 February 2007 to date and continuing. The issue in dispute was whether Mr Burgess had failed unreasonably to comply with his Management Plan (section 57(1) of the 1998 Act). If so, his entitlement to weekly compensation ceases during any period during which the failure continues.
The matter was heard before a Commission Arbitrator on 4 July 2007 and decided in favour of Mr Burgess in a reserved decision on 20 July 2007.
By an appeal lodged out of time on 29 August 2007 the Appellant Employer seeks leave to appeal the Arbitrator’s determination.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 20 July 2007, records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly payments of compensation at the maximum statutory rate pursuant to section 40 for a worker with two dependant children from 26th February 2007 and continuing in accordance with the provisions of the Act.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether time to appeal should be extended and, if so, whether the Arbitrator made errors of fact or discretion in reaching his determination.
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.
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the award of weekly compensation is at issue and the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was originally lodged electronically at 4:54pm on Friday 17 August 2007. Under Part 8 Rule 8.1(5) of the Workers Compensation Commission Rules 2006 (‘the Rules’), a document lodged with the Commission after 4:30pm is received “on the next day that is not a Saturday, Sunday or public holiday”. Therefore, the original appeal was not lodged until Monday 20 August 2007 and was outside the 28-day period within which an appeal must be lodged under section 352(4) of the 1998 Act.
The registry rejected the original appeal by letter dated 21 August 2007. The appeal was lodged again on 29 August 2007 with submissions seeking an extension of time to appeal under Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’). That Rule provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Appellant Employer submits:
(a)its solicitor received the transcript of the Arbitrator’s decision on 9 August 2007 and provided advice in respect of an appeal on that day;
(b)on 15 August 2007 instructions were provided to appeal;
(c)the original appeal was only 24 minutes out of time and that delay would not cause “injustice” to the Respondent Worker;
(d)if an extension of time is not granted it will suffer a demonstrable and substantial injustice because the Arbitrator’s decision contains “substantial errors of fact and discretion” (Appellant Employer’s submissions 29 August 2007, paragraph 2.1(i));
(e)an extension of time in which to appeal should be granted in order to do justice between the parties as the prospects of success are real;
(f)the balance of the evidence suggests that the Arbitrator made errors of fact and discretion;
(g)refusal of the application would be manifestly unjust as it would be denied the opportunity to challenge the Arbitrator’s decision which is based on errors of fact and discretion, and
(h)extending time to appeal will have no adverse consequences for the Respondent Worker.
The Respondent Worker submits:
(a)no exceptional circumstances have been established to justify an extension of time;
(b)the Appellant Employer’s submissions do no more than acknowledge that the appeal was filed out of time;
(c)the Arbitrator made no errors of fact or discretion and evidence was not disregarded;
(d)the Arbitrator identified the correct legal test and then made factual findings which were available to him on the evidence, and
(e)the application that time be extended should be refused.
The factors weighing against extending time to appeal are significant. They include:
(a)no proper explanation has been offered as to why the appeal was filed late;
(b)the requirement that documents be lodged by 4:30pm has always existed in the Commission and is or should be well known to the profession. An attempt to file the documents in person after 4:30pm would have been unsuccessful;
(c)inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances (Department of Education & Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55), and
(d)it is most unusual that the Appellant Employer’s solicitor did not receive the transcript of the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) until 9 August 2007. The Arbitrator’s Reasons were attached to the Certificate of Determination (dated 20 July 2007) and were forwarded to the parties’ respective document exchanges by letter dated 20 July 2007.
Each application to extend the time in which to appeal must be dealt with on its own facts. Whilst I have real reservations about whether “exceptional circumstances” exist in the present matter which justify the extension of time to appeal, to determine if the refusal to grant an extension of time will result in a “demonstrable and substantial injustice” it is necessary that I consider the merits of the appeal in detail.
Discussion and Findings
It is necessary to deal with a preliminary issue before considering the parties’ submissions. The Appellant Employer objects to the Notice of Opposition being considered because it was filed on 18 October 2007, six days outside the timetable set by the Registrar on 31 August 2007 and outside the time set in Part 16 Rule 16.2(8) of the Rules. Contrary to the Appellant Employer’s submissions, the Commission has power under Part 1 Rule 1.6 of the Rules to dispense with compliance with any requirement of the Rules and power under Part 3 Rule 3.2 to extend or abridge any time fixed by the rules. In circumstances where there is no prejudice to the Appellant Employer and where it has filed further submissions in Reply to the Notice of Opposition, I extend the time for filing the Notice of Opposition until 18 October 2007.
It is conceded that the Arbitrator correctly stated the issue as being whether “pursuant to section 57 of the 1998 Act the Applicant had unreasonably failed to comply with the requirement of Chapter 3 of the 1998 Act after being requested to do so by the Insurer” (Reasons, paragraph six). That question is a question of fact and it is not disputed that the Appellant Employer carries the onus of proof (Jafari v Bartter Enterprises Pty Limited [2004] NSWWCCPD 88) (Reasons, paragraph seven).
The Appellant Employer’s first submission is based on the false premise that “the Arbitrator found that the principal reason for the Management Plan being unreasonable” was that Mr Burgess had the ability to work as an Occupational Therapist, a role excluded from the Management Plan “because of its inherent physical requirements that contraindicated the worker’s own physical limitations” (Appellant Employer’s submissions, paragraph 2.7(a)). This submission incorrectly states the issue the Arbitrator had to determine and did in fact determine.
The question in the present matter was not whether the Management Plan was unreasonable per se (though that will often be a relevant question in matters of this kind) but whether Mr Burgess’ failure to comply with it was unreasonable. On that issue the Appellant Employer sought to discharge the onus it carried by calling evidence that work as an Occupational Therapist was not suitable for Mr Burgess and, therefore, his non-compliance with the Management Plan, in order to pursue a career as an Occupational Therapist, was unreasonable. The Arbitrator was not persuaded that Mr Burgess did not have the physical capacity to perform the duties of an Occupational Therapist. Accordingly, he found that Mr Burgess’ failure to comply with the Management Plan was reasonable (Reasons, paragraphs 48 and 49). More accurately, the Arbitrator should have found that Mr Burgess’ failure was not unreasonable, but neither party has made any submission on this point and I doubt that anything turns on it.
The question to be determined (if leave to appeal is granted) is whether the Arbitrator’s decision on that issue is affected by some error of fact, law or discretion (The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19]) such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
It is argued that Mr Burgess tendered no evidence to support the Arbitrator’s finding that he had the ability to work as an Occupational Therapist and, therefore, the Arbitrator was not entitled to find that Mr Burgess’ decision not to comply with the Management Plan was reasonable. This submission is misguided as it seeks to reverse the onus of proof. It was not for Mr Burgess to prove that he acted reasonably, but for the Appellant Employer to prove that his failure to comply with the Management Plan was unreasonable.
The Appellant Employer relied on a report dated 22 June 2007 from Mr Proctor, Rehabilitation Consultant. After identifying the nature of the work performed by Occupational Therapists, Mr Proctor stated at page five of his report:
“It should be noted that I believe Mr Burgess will come across a large number of barriers to entering the workforce as an Occupational Therapist let alone successfully completing his undergraduate degree if he is unable to manage his placements during the 4 year course. Given Occupational Therapists work in a large number of different areas Mr Burgess may eventually identify a part time position for him where he is able to manage the physical demands. However, given the results of the section 40 assessment and the purpose of the NSW Workers Compensation system to rehabilitate workers back into the workplace quickly and safely I do not believe that Mr Burgess undertaking such a degree is the quickest and safest way for him to return to paid employment. I believe the section 40 assessment has identified more physically appropriate options for Mr Burgess and areas which do not require any extensive additional training such as a degree. The aim of longevity of rehabilitation is also of concern to the writer in that Mr Burgess is at greater risk of ongoing and regular aggravations of his symptoms if he does enter the workforce as an Occupational Therapist given the areas of concern noted above.”
The Arbitrator did not accept Mr Proctor’s conclusions, stating at paragraphs 39, 40 and 48:
“39.However I agree with the Applicant’s Counsels criticism of this report. It does seem to me to be very much focused on any possible barriers that the Applicant would have in physically being able to undertake the occupation of an Occupational Therapist and in many instances seeks to elevate to an artificial level what would be minor inconveniences with which the Applicant could readily adapt his physical limitations to meet with the physical demands of an Occupational Therapist. I agree that the concerns set out on the fourth page of Mr Proctor’s report are matters that the Applicant could comfortably deal with, and, apart from the areas of psychiatric care, aged care and dementia patients and behaviourally challenged children as set out in paragraph 5 at page 5 of Mr Proctor’s report, the Applicant could readily work in many fields of Occupational Therapy.
40I find the comments at the bottom of page 5 in Mr Proctor’s report to be purely negative and not to be justified on the available medical evidence and the continuing disabilities set out in page 3 to 4 of the Applicant’s Statement. Mr Proctor observes at page 5 that ‘Given the results of the Section 40 Assessment and the purpose of the NSW Workcovers [sic] Compensation System to rehabilitate workers back into the workplace quickly and safely I do not believe that Mr Burgess undertaking such a degree is the quickest and safest way for him to return to paid employment.’ He concludes by also observing that ‘The aim of longevity of rehabilitation is also of concern to the writer in that Mr Burgess is at greater risk of ongoing and regular aggravations of his symptoms if he does enter the workforce as an Occupational Therapist given the areas of concern noted above.’
…
48Accordingly I am not persuaded by the opinion of Mr Proctor that the Applicant does not have the requisite physical capacity to perform the duties as an Occupational Therapist and therefore it follows that the Applicant is entitled to a finding that his decision not to comply with the Insurer’s requirement to submit himself to the Injury Management Plan is reasonable.”
The Appellant Employer submits that the Arbitrator’s conclusions were erroneous. As Mr Proctor reviewed all the documents produced in the proceedings “the Arbitrator had no entitlement to find that the limitations identified by Proctor were at ‘an artificial level’” and he erroneously discounted the weight of Mr Proctor’s opinion on the critical point of Mr Burgess’ ability to work as an Occupational Therapist (Appellant Employer’s submissions, paragraph 2.7(k)).
I do not accept this submission. A failure to accept evidence from one side does not necessarily indicate error by a decision maker. It was for the Arbitrator, not Mr Proctor, to consider and determine, based on all of the evidence, if Mr Burgess’ actions were unreasonable. He did that. He was not bound to accept Mr Proctor’s opinion. There was other evidence relevant to the issue of whether Mr Burgess’ actions were unreasonable. That evidence included Mr Burgess’ evidence and the evidence in the section 40 assessment report prepared by Sharon Beckett, Psychologist, and Fiona Holman, Occupational Therapist, prepared on behalf of Best Practice Rehabilitation on 1 December 2005 (‘the section 40 assessment’), which the Arbitrator referred to at paragraph 41 of his Reasons.
The section 40 assessment determined Mr Burgess to be fit for work rated as ‘light’ (section 40 assessment, page two). Such work is defined as involving exerting up to 10 kilograms of force occasionally and/or up to five kilograms of force frequently. The physical demands are in excess of those for sedentary work and usually requires walking or standing to a significant degree. The functional capacity evaluation indicated that Mr Burgess has ongoing limitations with loading of the cervical spine. He demonstrated safe maximal lifting tolerances of: floor to bench of 10.5kg, bench to bench of 13kg and bench to chest level of 8kg.
Mr Burgess left school in year 11 and has his school certificate but has not undertaken any tertiary education. His employment history has been in the area of plant operator, concreter, trade’s assistant and labouring positions. Mr Burgess has functional literacy and numeracy levels consistent with his educational and employment history suggesting that he would be able to complete the literacy requirements of a semi-skilled or skilled occupation (section 40 assessment, page 12).
Having regard to Mr Burgess’ education, employment history, work skills and medical status, the authors of the section 40 assessment determined the following work options to be appropriate (page 25):
·Excavator operator (with maintenance personnel available to perform associated duties);
·Store person;
·Service station attendant, and
·Sales assistant.
After referring to these jobs, the Arbitrator said at paragraph 42 of his Reasons:
“In my view if the Applicant is capable of performing these tasks he is comfortably able to manage the employment in all but a very few areas of Occupational Therapy and would have no difficulty in coping with the practical elements of his course in years 3 and 4.”
The above conclusion was open to the Arbitrator and discloses no error. The conclusion is reinforced when one considers that the work of a storeman, assessed to be suitable for Mr Burgess, has the following physical requirements (section 40 assessment, page 17):
“Time on job spent standing 80%
Time on job walking or running 70%
Time bending or twisting the body 50%
Time kneeling, crouching, stooping or crawling 50%
Time spent sitting 50%
Time in awkward positions 40%”
The physical demands of work as a storeman are in many respects similar (but not identical) to those of an Occupational Therapist. In addition, the work of an Occupational Therapist involves a wide range of activities in “a large number of different areas” (Mr Proctor’s report, page five). Whilst the evidence suggests that Mr Burgess may well experience difficulties in some of those areas, that falls well short of supporting the Appellant Employer’s argument that his actions amounted to an unreasonable failure to comply with the requirements of the Management Plan.
Mr Proctor’s opinion was that occupational therapy was not the “quickest and safest” way for Mr Burgess to return to paid employment. There is no obligation on a worker to adopt the quickest return to paid employment after injury, though a timely return to work will usually be preferred to a protracted one. Safety is also a relevant factor to be considered in any return to work proposal. Provided the usual safeguards are adopted, I do not believe there is anything inherently unsafe about the career path selected by Mr Burgess.
In determining if a worker’s failure to comply with an Injury Management Plan is unreasonable it is appropriate to consider the provisions of section 41(1) of the 1998 Act. That section provides:
“41 Object and application of Chapter
(1) The object of this Chapter is to establish a system that seeks to achieve optimum results in terms of the timely, safe and durable return to work for workers following workplace injuries.”
However, other matters, such as the worker’s attitude and approach to rehabilitation in general and whether he is serious about seeking a genuine and sustainable return to work, or, whether he is deliberately avoiding his obligations so as to prolong time on compensation, are also relevant. In looking at these matters it is necessary to consider a worker’s overall circumstances, his injury and incapacity, his education and qualifications, his likely career prospects in general and whether his past attempts at rehabilitation and or retraining have been genuine.
Mr Burgess is a young man whose two attempts at job placement as part of his organised rehabilitation have been unsuccessful. Of his own volition he now seeks an alternative career path. In his statement of 11 May 2007 he said:
“I am seeking to qualify as an Occupational Therapist as I believe that the only employment for which I can become suitably qualified is employment which does not require me to undertake labouring duties and which is sedentary in nature.”
His decision means that he is unable to continue the Management Plan prepared by QBE. In determining if his failure to comply with the requirements of the plan was unreasonable it is appropriate to consider the objectives of the legislation. Those objectives are to achieve optimum results for the worker in terms of a timely, safe and durable return to work. In many cases the Injury Management Plan prepared by the insurer will provide the best method of achieving that objective. But that will not always be the case.
The Arbitrator correctly accepted that the objectives of the 1998 Act had to be taken into account in determining if Mr Burgess’ actions were unreasonable (Reasons, paragraph 43). He also took into account the following matters:
(a)the potential benefit to the insurer if Mr Burgess qualifies as an Occupational Therapist and obtains employment in that field, namely, his level of remuneration may result in the insurer having no ongoing liability under section 40 of the 1987 Act (Reasons, paragraph 44);
(b)if Mr Burgess’ attempt to undertake the occupational therapy course is thwarted it may result in him losing motivation which could result in exposing the insurer to increased expense in the management of the claim (Reasons, paragraph 45), and
(c)if Mr Burgess was limited to the suitable employment identified in the section 40 assessment he would be entitled to an award under section 40 of the 1987 Act at the maximum rate (Reasons, paragraph 45).
The Appellant Employer submits that in considering the matters listed in [45] above the Arbitrator erred because he went beyond the objectives of the legislation. I do not accept that the Arbitrator was in error in considering these matters. The 1998 Act does not list the matters to be taken into account in determining whether a worker acted unreasonably in failing to comply with a Management Plan. An Arbitrator is required to consider all relevant circumstances in making his or her decision.
The Arbitrator’s conclusion that there may be a potential benefit to the insurer if Mr Burgess ultimately obtains employment as an Occupational Therapist was a relevant factor. It demonstrated that Mr Burgess is attempting to embark upon an alternative career path that, if successful, could result in him receiving an income greater than in his pre-injury occupation. That is most relevant in determining if his actions were unreasonable. He is not avoiding his obligations under the legislation, but is accepting them by making a serious attempt to retrain himself in an area in which he has some interest and motivation.
Mr Burgess is not restricted to the occupations listed in the section 40 assessment or in the Management Plan. If he is able, through his own endeavours, to pursue an alternative career path in an area in which he has some interest, and he has the motivation and ability to do so, then, provided the alternative career is reasonably feasible, he is entitled to do so without loss of his weekly compensation. That is particularly so in circumstances where the pursuit of two of the alternative occupations provided by the insurer’s rehabilitation providers to date have been unsuccessful and where, even if Mr Burgess was successful in obtaining one of the alternative occupations listed in the section 40 assessment, he would (most likely) still be entitled to a full award under section 40 of the 1987 Act.
All of the above matters were relevant to determining if Mr Burgess’ actions were unreasonable. It is quite possible that Mr Burgess may not be fit for all jobs as an Occupational Therapist. It is also possible that he would find many of the jobs listed in the section 40 assessment to be unsuitable or unavailable. Nevertheless, if he successfully pursues a career as an Occupational Therapist he has the opportunity to move into a more remunerative and more rewarding field. Such an outcome would be a benefit to him and the insurer. In this context his non-compliance with the Management Plan cannot be said to have been unreasonable and the Arbitrator was not in error in considering all the circumstances of the case.
Whether Mr Burgess would lose motivation if he is unable to pursue the Occupational Therapy course was also a relevant matter because it would impact on his rehabilitation prospects in general. It is certainly possible that he could lose motivation if he is prevented from pursuing his new career. However, there was no evidence that that was likely and this was not a matter on which the Arbitrator was entitled to speculate. Nevertheless, the Arbitrator’s conclusion was not based on this matter alone and I do not believe that but for this error a different result would have followed.
CONCLUSION
Having carefully considered the submissions by both parties I have concluded that the Arbitrator’s decision discloses no error of fact, law or discretion and the appeal has no prospects of success. In these circumstances the refusal to extend the time in which to appeal will not result in any injustice let alone a “demonstrable and substantial injustice” and I decline to extend the time to appeal. As a result leave to appeal must be and is refused.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the costs of the appeal.
Bill Roche
Deputy President
13 November 2007
I TUYET WALLIS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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