O'Loughlin v Pony Express Holdings Pty Ltd
[2006] NSWWCCPD 228
•13 September 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:O’Loughlin v Pony Express Holdings Pty Ltd [2006] NSWWCCPD 228
APPELLANT: Philip Bruce O’Loughlin
RESPONDENT: Pony Express Holdings Pty Ltd
INSURER:QBE Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 6851-05
DATE OF ARBITRATOR’S DECISION: 26 October 2005
DATE OF APPEAL DECISION: 13 September 2006
SUBJECT MATTER OF DECISION: Treatment of the evidence; sections 40(2)(b), 40(3) and 43A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: PK Simpson & Co, Solicitors
Respondent: In-House Legal Department, QBE Workers’ Compensation (NSW) Ltd
ORDERS MADE ON APPEAL: 1. Clause 1 of the Arbitrator’s determination dated 26 October 2005 is revoked and the following clause is substituted:
“1. The respondent is to pay the applicant weekly compensation on the basis of total incapacity pursuant to section 37 of the Workers Compensation Act 1987 at the statutory maximum rate for a worker with a dependent spouse and two dependent children from 1 January 2003 to date and continuing.”
2. The Arbitrator’s determination is otherwise confirmed.
3. The Respondent, Pony Express Holdings Pty Ltd, is to pay the costs of the Appellant, Mr O’Loughlin, in this appeal.
BACKGROUND TO THE APPEAL
On 4 November 2005, Philip Bruce O’Loughlin sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 26 October 2005. The Respondent to the appeal is Pony Express Holdings Pty Ltd (‘Pony Express’). Pony Express’s workers compensation insurer is QBE Workers’ Compensation (NSW) Ltd (‘QBE’).
Mr O’Loughlin was born on 26 March 1962 and is aged 44. He is married with four children, two of whom and his wife are dependent on him. He commenced employment with Pony Express on 25 September 1989 as a forklift and truck driver. Mr O’Loughlin claims to have suffered injuries to his back, neck, and both legs while in their employment: (1) on 1 May 1991 when he was hit by a fork lift truck, (2) on 10 July 1996 as a result of moving food on a pallet jack, and (3) between 1989 and July 1996 as a result of the nature and conditions of his employment.
Mr O’Loughlin commenced proceedings in the Compensation Court of NSW, which were settled on 13 October 1999. The terms of settlement included:
(1) the payment of weekly compensation from 1 July 1997 to date and continuing, pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’),
(2) lump sum compensation pursuant to section 66 for 20% permanent impairment of his back, 15% permanent impairment of his neck, 10% loss of efficient use of his left leg at or above the knee, and 5% loss of efficient use of his right leg at or above the knee,
(3) lump sum compensation pursuant to section 67 for pain and suffering,
(4) the payment of medical, hospital or related expenses pursuant to section 60, and
(5) costs.
On 22 November 2004, Mr O’Loughlin’s solicitors made a further claim for weekly compensation of $495.00 from 1 January 2003 to date and continuing, pursuant to either section 37 or section 40 of the 1987 Act, for further lump sum compensation under sections 66 and 67, and for medical, hospital and related expenses. QBE disputed various aspects of the further claim.
On 10 May 2005, the Commission registered Mr O’Loughlin’s ‘Application to Resolve a Dispute’ and, on 3 June 2005, QBE filed its ‘Reply’. On 20 July 2005 and 16 August 2005, the Arbitrator conducted teleconferences with the parties, following which the claim for further lump sum compensation was discontinued. On 14 September 2005, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, and on 26 October 2005, she made a decision in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 26 October 2005, records the Arbitrator’s orders as follows:
“1. An award for the applicant in relation to the claim for weekly benefits of $350 per week from 1.1.03 to date and continuing.
2. The respondent to pay the applicant’s costs as agreed or assessed.
3. The need to file a Notice of Discontinuance in relation to the claim for s 60 expenses, permanent impairment and pain and suffering is dispensed with.”
In her ‘Statement of Reasons for Decision’, the Arbitrator identified the central issue in the matter as being the extent of Mr O’Loughlin’s incapacity (paragraph 17). She found that although there has been some deterioration in his condition that is likely to have led to some dimunition in his capacity for work (paragraph 22), nevertheless, he still has a capacity for part-time work (paragraph 24). She therefore addressed the five step approach prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWLR 526 (‘Mitchell’) in relation to claims for weekly compensation under section 40 of the 1987 Act. She found that Mr O’Loughlin’s probable earnings but for the injury would be $650 per week. She said there was no dispute that he would be unable to return to his pre-injury duties or any heavy manual labour, and found (at paragraph 22) that:
“there has been some deterioration in Mr O’Loughlin’s condition which coincides with his reporting of symptoms and this is likely to have led to some dimunition in his capacity for work.”
The Arbitrator said:
“24. I find on the basis of all the evidence that Mr O’Loughlin is able to perform work in some capacity on a part time basis. He would be able to perform work which required him to sit or stand for some periods of time as long as he could sit occasionally to rest. In fact, standing for periods seems to cause him less problems than sitting. He can also drive with rest periods. He acknowledges that there are some occupations on the list suggested by the respondent which he could do but which are not readily available in Moree. I accept that the labour market open to Mr O’Loughlin is restricted because of his lack of formal education and his residence in a country town. He does not seem like a man who has avoided heavy work and long hours in the past – he returned to very heavy work in the cotton industry perhaps unwisely in 2001 – and he has also held various sorts of vehicle licenses. He has been willing to work in a variety of jobs. He currently undertakes some voluntary work in his community which he sees to be within his capacity and that is much to his credit.
25. I find that Mr O’Loughlin could undertake suitable employment for approximately 20 hours per week (4 hrs per day X 5 days) and earn @ $15 per hour – approximately the average of the suitable occupations suggested by the respondent. His earning capacity at that rate would be $300 per week. That leaves a shortfall of $350 per week.
26. There is no reason for a further reduction because of any discretionary factors pursuant to s 40(1).
27. The weekly benefits to which the applicant is entitled from 1st January 2003 to date and continuing is $350 per week.”
ISSUES IN DISPUTE
Mr O’Loughlin’s solicitors submit that he is totally incapacitated for work or, alternatively, he is so incapacitated that he has no ability to earn in the general labour market reasonably accessible to him. They contend that the Arbitrator “failed to consider the Appellant’s incapacity for work in the proper context”. The parties’ submissions on these issues are discussed below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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 had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submission by Mr O’Loughlin’s solicitors that the matter can be determined on the basis of these documents, QBE being silent on this issue, 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.
Neither party sought to adduce fresh evidence.
LEAVE
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 appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue, namely additional weekly compensation claimed by Mr O’Loughlin, exceeds $5,000 and constitutes more than 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
SUBMISSIONS
Mr O’Loughlin’s solicitors’ primary submission “is that from a practical point of view the Appellant is totally incapacitated”. They submit:
“[t]here appears to be no particular evidence to base the Arbitrator’s finding that at all relevant times the Appellant could work for 20 hours per week ... and earn $15.00 per hour in the labour market that is open to him. This does not make sense as it includes the period in 2003 when the Appellant was in hospital.”
Mr O’Loughlin’s solicitors contend that both Mr O’Loughlin’s evidence and the medical evidence clearly show that he is not able to work as a packer. They submit the Arbitrator “did not give proper weight to the Appellant’s medical case”. Realistically, there is no work Mr O’Loughlin could do that is available to him in the open labour market. The Arbitrator referred to the decision in Arnott’s Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 (‘Yacob’), but did not properly apply the relevant test in determining what work Mr O’Loughlin is physically able to do, having regard to his incapacity in a practical sense and to the realities of the labour market that was open to him.
Alternatively, Mr O’Loughlin’s solicitors submit that if he is not regarded as totally incapacitated for work, then he should have a full award because “[a]ny residual earning capacity would be miniscule” and his wage loss would exceed the statutory maximum for all relevant periods.
QBE submits that the Arbitrator gave appropriate consideration to the evidence including the opinions of five doctors to whose evidence she referred in her Statement of Reasons. There was evidence before the Arbitrator indicating that Mr O’Loughlin has some work capacity, including the opinions of Drs Nash, Fearnside and Govind and the oral evidence from Mr O’Loughlin himself that he has a limited capacity to work as a packer (albeit, on cross-examination he narrowed this to one hour per day) and that he performs some work on a voluntary basis. It was open to the Arbitrator to find that Mr O’Loughlin could work four hours a day on five days a week and she gave adequate reasons for so deciding. QBE notes that the Arbitrator not only referred to the decision in Yacob, but also referred to sections 40(3) and 43A of the 1987 Act and reviewed the evidence given by Mr O’Loughlin.
EVIDENCE
I have examined the relevant evidence, in particular, the transcript of Mr O’Loughlin’s oral evidence at the hearing, and the medical reports of the various specialists relied on by the parties. I note at the outset that there is reference to Mr O’Loughlin having surgery to insert a spinal cord stimulator at Newcastle Hospital performed by Dr Mark Russo, Anaesthetist, in, it would appear, March 2003, and there is reference in reports from Dr Maree Puxty, Mr O’Loughlin’s general practitioner, and from his treating Orthopaedic Surgeon, Dr Matthew Giblin, to Mr O’Loughlin having been in hospital (it appears in Moree) in late April/early May 2004 because of intense pain. Mr O’Loughlin would have been totally incapacitated for work during those periods. It is less obvious when he may have had other hospital treatment in respect of sleep apnoea, which is referred to in Dr Giblin’s reports.
Turning to the medical evidence, Dr Michael Fearnside, Neurosurgeon (report dated 18 October 2004), said Mr O’Loughlin is unfit for physical work. Dr Grahame Mahony, Orthopaedic Surgeon (report dated 19 October 2004), said Mr O’Loughlin is “permanently unfit for any form of work”. Dr Thomas Nash, Surgeon (report dated 17 November 2004), said Mr O’Loughlin:
“does not appear to be motivated to obtaining some form of light sedentary activity. He has no training and he is unfit to return to labouring or truck driving. His back impairment will restrict him for lifting weights in excess of 10 kg, frequent bending, twisting, working in confined spaces or driving or sitting for long periods. His neck is vulnerable to frequent twisting/turning or overhead work.”
Dr Elias Matalani, Occupational Physician (report dated 21 October 2004), said Mr O’Loughlin:
“is fit for suitable duties and the following activities should be restricted:
• Repetitive bending and twisting of the spine.
• Squatting and kneeling.
• Prolonged walking, standing and uninterrupted sitting.
• Heavy manual handling activities.
• Pushing and pulling heavy weights.
• Activities causing jolting, jarring or jerking of the back.
• Sustained flexion or extension of the neck.
• Repetitive neck rotation.
• Prolonged standing, prolonged walking or walking over uneven ground.
• Running.
• Prolonged driving.
The above restrictions make Mr O’Loughlin virtually unemployable and will significantly reduce his working and earning capacity. Due to his age, lack of transferable skills, his symptoms and disability, it is most unlikely that he will be able to obtain employment.”
I note the Arbitrator’s comment at paragraph 23 of her statement of reasons that neither Dr Mahony nor Dr Matalani:
“saw reports of the scans or investigations. They both accepted the existence of radiculopathy, which was not verified by the investigations and not accepted by those medical witnesses with neurological expertise (Drs Hughes and Fearnside).”
(Dr James Hughes, Neurologist, provided reports dated 27 March 2003 and 19 May 2003.)
In a report dated 18 May 2005, Dr Giblin, noted that Mr O’Loughlin’s pain had reached a stage where he was considering further surgical options. Dr Giblin recommended a fusion at L4/5, having previously performed an L5 decompression and fusion at L5/S1 in 1997. Mr O’Loughlin appears to have discontinued his claim for further compensation for permanent impairment and pain and suffering (pursuant to sections 66 and 67 of the 1987 Act) because of the possibility of his undergoing further surgery, although he told the Arbitrator at the arbitration hearing that he did not wish to undergo further surgery at that time.
Dr J Govind, Occupational Physician (report dated 16 July 2005), said Mr O’Loughlin:
“is not totally or permanently incapable of working. His physical attributes allow him to be gainfully employed as a,
• car park attendant,
• ticket seller or ticket usher,
• security officer (conducting surveillance duties using closed circuit TV system),
• hand packer,
• traffic/crossing supervisor,
• postal sorting officer.”
Mr O’Loughlin said in oral evidence at the arbitration hearing that he did not think he could perform any full-time or part-time work. In terms of the positions suggested by Dr Govind, Mr O’Loughlin said there is no car park in Moree with an attendant. There is one privately owned and family run theatre in Moree, but he would have difficulty working as a ticket seller or usher because he is unable to sit or stand “for too long” and he would have difficulty with the stairs and with walking around the theatre. There is a security company that employs security officers, but they work eight hour shifts, and he would not be able to handle the twisting and turning required for getting in and out of the car all the time and would be unable to pursue anyone. Mr O’Loughlin was not aware of any companies in Moree involved in conducting surveillance using closed circuit television.
With regard to the suggested position of hand packer, Mr O’Loughlin said the factories in Moree are mainly agricultural, heavy steel fabrication. He acknowledged he might be able to work an hour in the morning and again in the afternoon as a traffic/crossing supervisor, for example outside a primary school, but said there were no such jobs available. They are either undertaken by volunteers or paid school employees. Mr O’Loughlin did not think he could work as a postal sorting officer because of the standing, turning and twisting required.
Mr O’Loughlin said he is currently doing voluntary work for the Miyay Birray Youth Service driving a 13 seater minibus for half an hour in the morning, and “even after a half-hour when I get out of the bus I’m as sore as hell” (transcript page 4). He said he had worked as a gatekeeper at the tip some years ago, a position he obtained through the Commonwealth Rehabilitation Service (‘CRS’), at about the time of his court settlement (1997), but that involving standing, twisting and climbing up on the side of trucks to check the loads and he did not last long.
In cross-examination, Mr O’Loughlin was asked whether he was motivated to return to work. He said the CRS were the only ones who talked with him about returning to work but it was the CRS who, ultimately, suggested he apply for the disability support pension. With regard to hand packing sitting at a bench, Mr O’Loughlin agreed that such work was a possibility, but only for about an hour, and he said there were no such positions in Moree. Packing requires twisting, bending, sitting and standing which put pressure on his back. He used to have a bus driver’s licence and a taxi licence but did not renew them because his back was getting worse and, in the case of the bus driver’s licence, because he would not pass the physical test. He has a friend who owns a taxi, but taxi shifts are of eight hours duration: Mr O’Loughlin said he cannot sit for long and his friend did not think it was viable for Mr O’Loughlin to drive for only three quarters of an hour at a time.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr O’Loughlin’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73, at paragraph 40, should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
There is no dispute that Mr O’Loughlin is at least partially incapacitated for work. At issue, however, is whether, following a deterioration in his condition, he is now totally incapacitated for work. At the arbitration hearing, Counsel for Mr O’Loughlin said (transcript page 11):
“the applicant’s case is principally that there’s been a deterioration in his condition since this matter went to court in 1999 and a resultant diminishing of his capacity to earn.”
Counsel submitted (transcript page 31) that the Arbitrator should:
“either find that he [Mr O’Loughlin] was totally incapacitated, or if you are of the opinion that he was only partially incapacitated, his capacity to earn would be of such a minimal nature that he’d be entitled to get a full – an award at the full statutory rate, in any event.”
The relevant sections of the 1987 Act referred to were, respectively, sections 37 and 40.
A relevant issue for both sections 37 and 40 is whether Mr O’Loughlin has a physical capacity for work in the general labour market reasonably accessible to him. When determining this, regard should be had to the decision of the NSW Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206, where Mahoney P, with whom Handley and Powell JJA agreed, said:
“28. The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work: see Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177. That principle has been applied frequently by this Court: see e.g. Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 at 226–229. As the Arnotts case illustrates, partial incapacity involves the physical incapacity for doing some but not all of such work.
29. Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
30. In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity “for work”. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity “for work” having regard to the realities of the labour market in which he is to be engaged...”
With regard to section 40, the worker’s ability to earn in the general labour market reasonably accessible to the worker (section 40(3)(a)) is also considered at step 2 of the approach prescribed by the NSW Court of Appeal in Mitchell, to which the Arbitrator referred in her Statement of Reasons. Relevantly, at 530, the Court said that step 2 requires the Commission:
“2. To determine ‘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’ (section 40(2)(b)). Section 40(3) provides the determination of this amount 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.’”
Section 43A states:
“(1) For the purposes of sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,
(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment,
(h) any other relevant circumstances.”
As Deputy President Fleming said in Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56, at paragraph 25, physical capacity to perform particular work alone does not make that work ‘suitable employment’ within the meaning of section 43A: regard must also be had to the other factors referred to in section 43A(1). Having determined what constitutes suitable employment for the worker (section 40(3)(b)), the Commission must then determine the average weekly amount that the worker would be able to earn in that suitable employment from time to time (section 40(2)(b)) subject to the worker’s ability to earn in the general labour market reasonably accessible to the worker (section 40(3)(a)).
In her Statement of Reasons, the Arbitrator, having correctly stated the law, considered Mr O’Loughlin’s capacity for work. Having discussed the medical evidence, she found (Statement of Reasons, paragraph 24, quoted in paragraph 8, above) Mr O’Loughlin “is able to perform work in some capacity on a part-time basis”. In my view, however, the Arbitrator does not seem to have given proper weight to Mr O’Loughlin’s oral evidence as to the restrictions on what he can do, and how this would affect his capacity for work. She recognised that Mr O’Loughlin has been willing to work in a variety of jobs, suggesting that she rejected Dr Nash’s opinion that Mr O’Loughlin does not appear motivated to obtain light work – a rejection that, in my view, having considered the evidence, is well-founded. The Arbitrator found that Mr O’Loughlin “would be able to perform work which required him to stand for some periods as long as he could sit occasionally to rest”. She also found he can drive with rest periods, and that he acknowledged “there are some occupations on the list suggested by the respondent which he could do but which are not readily available in Moree”.
Having reviewed Mr O’Loughlin’s evidence, above, my view is that the Arbitrator gave insufficient weight to the restrictions on Mr O’Loughlin’s capacity to work – in terms of standing, sitting, twisting, bending etc, and overstated what Mr O’Loughlin said he would be capable of doing. The Arbitrator said (at paragraph 24, quoted above) that Mr O’Loughlin “acknowledges that there are some occupations on the list suggested by the respondent which he could do”. However, his evidence was that there are significant restrictions on what he can do, for example, his capacity to work as a hand packer would be for an hour a day, he would be able to work as a traffic/crossing supervisor for an hour in the morning and an hour in the afternoon (he said no such work was available), and he said that his voluntary work as a driver for the Miyay Birray Youth Service, involved his driving a 13 seater minibus for half an hour in the morning and that he is “as sore as hell” when he gets out of the minibus.
While the Arbitrator referred to the High Court decision in Yacob in relation to the meaning of ‘partial incapacity for work’, she did not discuss the general labour market that is generally accessible to Mr O’Loughlin and his capacity for work having regard to the realities of that labour market, when considering whether he was totally or partially incapacitated for work. Moreover, in addressing the application of step 2 of the approach prescribed in Mitchell, the Arbitrator did not properly determine what constitutes ‘suitable employment’ for Mr O’Loughlin – her discussion of this is limited to what she said in paragraph 24 of her Statement of Reasons. She does not seem to have properly considered the factors referred to in section 43A(1), as required by section 40(3)(b), and appears not to have turned her mind to the general labour market that is generally accessible to Mr O’Loughlin (section 40(3)(a)) in determining what he would be able to earn in some suitable employment. In particular, I can find no specific evidence to support her finding, at paragraph 25 of her Statement of Reasons, that “Mr O’Loughlin could undertake suitable employment for approximately 20 hours per week (4 hrs per day X 5 days)”.
Rule 73 of the Workers Compensation Rules 2003 states:
“(1) A statement of reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the 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.”
While in other respects the Arbitrator has provided a well-written statement of reasons, her discussion of the evidence and reasoning on the central issue of whether Mr O’Loughlin is totally or partially incapacitiated for work and also of the application of step 2 of Mitchell is, in my view, inadequate, and indicate that she has not fairly and lawfully determined the application: YG & GG v Minister for Community Services [2002] NSWCA 247. She thereby made an error of law.
My view is that an analysis of the medical evidence and Mr O’Loughlin’s oral evidence supports a finding that because of the significant restrictions on his ability to sit, stand, twist, bend, carry, drive etc, only a limited range of employment would be open to him and for a very limited number of hours per day.
The only evidence as to ‘suitable employment’ is that of Mr O’Loughlin and Dr Govind. There is no dispute that Mr O’Loughlin is unable to perform his pre-injury employment or any heavy labour. It appears Mr O’Loughlin had a limited education and although he has skills as a forklift driver, and truck and bus driver, and has performed a variety of relatively unskilled work, little if any such work is open to him due to the restrictions imposed by his condition. As stated above, he is aged 44, lives with his family in Moree and, for the past three years, has not been employed and has been receiving the disability support pension. Although there is no detail as to rehabilitation, Mr O’Loughlin’s evidence suggests that he was assessed by the CRS, who assisted him in attempting to find suitable employment (for example, as a gatekeeper at a tip) without success. Mr O’Loughlin said it was the CRS who recommended that he apply for the disability support pension. His only current work activity is the voluntary work he undertakes driving a minibus for approximately half an hour in the mornings.
Mr O’Loughlin gave oral evidence about the suitable positions suggested by Dr Govind. While Mr O’Loughlin may have a capacity to undertake some sedentary work for short periods, the evidence does not suggest he would be an attractive prospect for an employer because of the significant restrictions on what he can do. As the Arbitrator acknowledged, the evidence suggests that, in the past, Mr O’Loughlin has made genuine attempts to find suitable work but without success.
In conclusion, Mr O’Loughlin’s evidence suggests that he might be able to work for an hour or perhaps two hours a day at best. As stated above, I am unable to find any basis for the Arbitrator’s finding that Mr O’Loughlin could work four hours a day on five days a week, although the rate of $15 per hour seems appropriate with reference to the wage schedule provided by QBE. Given Mr O’Loughlin’s evidence about the availability of the positions suggested by Dr Govind in Moree, and the very limited hours Mr O’Loughlin could realistically work, in my view, it is very unlikely that he will be able to find suitable employment that will generate an income. He is, therefore, in a practical sense, totally incapacitated for work and is entitled to weekly compensation pursuant to section 37 of the 1987 Act.
I note that in his ‘Application to Resolve a Dispute’ and, specifically, in relation to his claim for weekly compensation, Mr O’Loughlin refers to his wife and two of his four children as being dependants. I also note that there was no dispute in the discussion between the two counsel and the Arbitrator at the hearing that Mr O’Loughlin’s maximum statutory entitlement for weekly compensation at that time was that for a worker with a dependent spouse and two dependent children (transcript pages 45 – 46).
Thus, clause 1 of the Arbitrator’s determination must be revoked and a clause substituted awarding Mr O’Loughlin weekly compensation at the statutory maximum for a worker with a dependent spouse and two dependent children from 1 January 2003 to date and continuing. Although it makes no difference to the outcome, for the sake of completeness, I also note that clause 1 of the Arbitrator’s determination did not take into account periods in March 2003 and April/May 2004 when Mr O’Loughlin was hospitalised and therefore totally incapacitated for work.
DECISION
Clause 1 of the Arbitrator’s determination dated 26 October 2005 is revoked and the following clause is substituted:
“1. The respondent is to pay the applicant weekly compensation on the basis of total incapacity pursuant to section 37 of the Workers Compensation Act 1987 at the statutory maximum rate for a worker with a dependent spouse and two dependent children from 1 January 2003 to date and continuing.”
The Arbitrator’s determination is otherwise confirmed.
COSTS
The Respondent, Pony Express Holdings Pty Ltd, is to pay the costs of the Appellant, Mr O’Loughlin, in this appeal.
Robin Handley
Acting Deputy President
13 September 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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