Pacific National Limited v Croucher & Anor
[2006] NSWWCCPD 342
•15 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Pacific National Limited v Croucher & Anor [2006] NSWWCCPD 342
APPELLANT: Pacific National Limited
RESPONDENTS: Craig Derren Croucher and the State Rail Authority of New South Wales
INSURER:Appellant as self insurer
FILE NUMBER: WCC4081-06
DATE OF ARBITRATOR’S DECISION: 7 June 2006
DATE OF APPEAL DECISION: 15 December 2006
SUBJECT MATTER OF DECISION: “Disease”; two employers; whether more than one work injury; whether another injury outside work; adequacy of reasons; and, failure to provide suitable duties.
PRESIDENTIAL MEMBER: Acting Deputy President Michael J McGrowdie
HEARING:On the papers
REPRESENTATION: Appellant: Bartier Perry, Solicitors
First Respondent: White Barnes, Solicitors
Second Respondent: Hicksons, Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 7 June 2006 is confirmed.
2.The Appellant is to pay the costs of the appeal of the Respondent Worker and the Respondent Employer.
BACKGROUND TO THE APPEAL
On 4 July 2006 Pacific National Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Appeal’) in the Workers Compensation Commission (‘the Commission’) against a decision, delivered on 6 June 2006 and certified on 7 June 2006.
The Respondents to the Appeal are Craig Croucher (‘the Respondent Worker’) and the State Rail Authority of New South Wales (‘the Respondent Employer’).
The Respondent Worker was employed by the Respondent Employer from 1980 until 1 July 1996. He worked from a rail depot at Lithgow. Within a number of years of starting work he became a locomotive driver. From 1 July 1996 he continued to work as a train driver but was then employed by the Appellant. He performed such work until he was terminated on 21 January 2005. He has not been gainfully employed since.
The Respondent Worker was born on 17 August 1963 and had essentially spent all his working life in the employments referred to above.
He suffered an injury to his back in 1986 whilst in the employ of the Respondent Employer while coupling up engines. He was treated at Lithgow Hospital. He had about 5 days off work and was paid workers compensation.
In about mid 2003 the Respondent Worker saw Dr Denovan, general practitioner, complaining of low back pain and was prescribed medication. There does not appear to be any record of him having taken time off work although the Respondent Worker has said he had a week off.
In a written statement dated 13 January 2005, the Respondent Worker said:
“Of recent times, we have been having a number of disputes with the employer regarding what we call rough riding engines. These engines are rough to ride in in the sense that they shake you around and the constant movement, which is of a jerking motion, becomes very wearying.
My job also requires that I be seated for ten (10) or twelve (12) hours at a stretch and this, of course, has not assisted.”
In terms of the work performed by the Respondent Worker there is a statement in the report dated 29 March 2005 of Dr Loefler that:
“His normal work as a train driver involved carrying a bag of 15kg as well as occasional heavy lifting when changing points on the track.”
Dr Marnie who examined the Respondent Worker at the request of his solicitors provided a report dated 23 June 2005 in which he stated that:
“The varying locomotives varied in the comfort of their ride, even in the same class the ride could be different from one locomotive to another. He particularly mentioned the Class 46 in which the seats were not sprung, which were phased out in early 1990 and Class 48, of which a number of engines gave quite a rough ride. The other factor with the newer design of locomotives is that the windshield or windscreen is lower and he can no longer stand up to drive, whereas before the driver could, at times, alternate between standing and sitting on the older machines, which was better for their backs.
Added to this is the rough ride in some engines and also the ‘slap and sway’ of the trains as they go along. Mr Croucher said this was more marked in the freight trains than the suburban trains. Added to all these factors, the other aspects of his work included bending over to attend to coupling trains and climbing in and out of the locomotive cabins.”
The Respondent Worker was examined at the request of the Respondent Employer by Dr Stephen. Dr Stephen reported on 2 February 2006 that:
“Mr Croucher tells me that his job involved prolonged sitting, as much as 8-10 hours. He said that in the old trains you were bounced around a fair bit. He also had to bend to wind on the handbrakes, walk on uneven surfaces and get in and out from under trains.”
Professor Ryan examined the Respondent Worker for the Appellant. The Respondent Worker’s employment had been terminated on the basis that he had been off work for a period and could not return to work without restrictions placed upon the work he could perform. In a report of 19 October 2005 Professor Ryan states:
“When I inquired about why he was not allowed to return to work, he stated Doctor Denovan would not let him. Dr Denovan considered it appropriate that he should not lift more than 20kg. No work was available which set aside these conditions. Mr Croucher stated that an auto-coupler weighed more than 50kg, possibly 100kg.”
The injury suffered by the Respondent Worker to his back in 1986 involved the upper back and not the low back. Contemporaneous documents are included in the Reply to Application to Resolve a Dispute lodged by the Appellant with the Commission on 20 April 2006 and in the Reply lodged by the Respondent Employer on 28 April 2006. The injury occurred on 27 December 1986. On 8 January 1987 the Respondent Worker signed a declaration that he had suffered a strain of his back under the right shoulder.
In his statement of 13 January 2005, the Respondent Worker refers to this incident as having occurred in 1990 but clearly it was in December 1986. Dr Marnie, in his report of 23 June 2005, refers to a few days off work and then no further time off but does say that after that episode the Respondent Worker did develop some low back pain. He further refers to the back pain worsening over the years.
Dr Stephen takes a more likely history which he sets out in his report of 2 February 2006. After referring to the 1986 injury, Dr Stephen says that the pain, which he described as being in the region of the upper lumbar and low right ribs, settled completely. Dr Stephen further states:
“Mr Croucher began to develop a different type of pain about 12 or 15 years ago. This was low back pain. He noticed that first of all on prolonged standing, particularly when watching his boys play football on the sideline. He continued to have backache thereafter. He had good and bad days.”
The Respondent worker gave evidence at the Arbitration Hearing on 6 June 2006 that prior to ceasing work in May 2004 he had been suffering back pain for 10-15 years.
Immediately prior to ceasing work on 28 May 2004, the Respondent Worker undertook the inspection of floorboards under his mother’s house. This involved pulling away some sarking from underneath the boards. The Respondent Worker was in a confined space and his already present back pain increased. According to the Respondent Worker’s oral evidence at the Arbitration Hearing, he was concerned that such an activity should cause an increase in his symptoms and this led him to consult his general practitioner, Dr Denovan, on 31 May 2004.
Dr Denovan certified the Respondent Worker as unfit for work and continued to do so until 29 July 2006 when he certified the Respondent Worker fit for selected duties. Dr Denovan’s notes of the consultation on 31 May 2004 do not record the occurrence of any incident or any injury having been suffered by the Respondent Worker on 28 May 2004. Indeed, there is no reference to it at all. It is unlikely that the Respondent Worker has in any way sought to conceal an incident on 28 May 2004, as he has freely given a history of his activities on that date to various doctors.
Whilst considerable significance was sought to be attached to these activities by the Appellant and the Respondent Employer, it was argued by the Respondent Worker that the fact of such an activity heightening symptoms was simply a manifestation of the Respondent Worker’s underlying back problems that he had been suffering from for some time. This appears to have been accepted by the Arbitrator and I will come to that shortly.
When the Respondent Worker was certified fit to resume selected duties at the end of July 2004, the Appellant was unable to accommodate the Respondent Worker with suitable work and steps were taken towards retiring the Respondent Worker. Until his termination, the Respondent Worker did not receive workers compensation but was paid sick pay. The Respondent Worker has subsequently gone onto social security benefits.
By way of an Application to Resolve a Dispute registered by the Commission on 16 March 2006, the Respondent Worker sought weekly compensation on a continuing basis from 28 May 2004. The Respondent Worker also sought a general order for payment of medical expenses together with lump sum compensation for an assessment of whole body impairment.
The Respondent Worker alleged injury to the back as a result of an incident on 27 December 1986 and as a result of his exposure “to using rough riding engines and being jarred and jerked during the period of his employment”. Both the Appellant and the Respondent Employer were self-insured.
The Appellant and the Respondent Employer declined to meet the Respondent Worker’s claim and the matter proceeded for determination by the Arbitrator.
The Appellant and the Respondent Employer submitted to the Arbitrator that any incapacity suffered by the Respondent Worker resulted from a non-employment injury on 28 May 2004 when the Respondent Worker was inspecting floorboards from under his mother’s house.
If the incapacity was work-related, then a question for the Arbitrator was whether the Respondent Worker had suffered the aggravation of a “disease” within the meaning of section 16 of the Workers Compensation Act 1987 (‘the 1987 Act’) thereby fixing liability on the Appellant for the disease upon the basis that the deemed date of injury would be in the Respondent Worker’s period of employment with the Appellant.
The Arbitrator did find that the Respondent Worker suffered an injury within the meaning of the 1987 Act consisting of the aggravation of a disease and determined the deemed date of injury to be 28 May 2004, being the Respondent Worker’s last day of employment with the Appellant. The Arbitrator did not regard the activities of the Respondent Worker under his mother’s house as significant.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ records the Arbitrator’s orders as follows:
“1.That this matter be referred to an Approved Medical Specialist for medical assessment with the Registrar to select. The date of injury is 28 May 2004.
2.An Award for the First Respondent as to the Applicant’s claim against it, no order as to costs.
3.That the Second Respondent pay the Applicant’s medical expenses under s60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4.That the Second Respondent pay the Applicant weekly compensation at the maximum statutory rate for the period 28 May 2004 to 28 November 2004 under s38 of the Workers Compensation Act 1987.
5.That the Second Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependents from 29 November 2004 under s40 of the Workers Compensation Act 1987 such payment to continue in accordance with the Act.
6.That the Second Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute are:
(a)Whether the Arbitrator erred in failing to determine that the Respondent Worker’s incapacity was as a result of a non-work related injury suffered by him under his mother’s house whilst inspecting floorboards on 28 May 2004.
(b)Further and in the alternative,
(i)Whether the Arbitrator erred in concluding that the Respondent Worker suffered injury consisting in the aggravation of a disease and applying the provisions of section 16 of the 1987 Act to fix liability solely on the Appellant for the payment of compensation;
(ii)Whether the Arbitrator erred in failing to determine that the Respondent Worker had suffered more than one injury so that liability could have been apportioned as between the employers pursuant to section 22 of the 1987 Act;
(iii)Whether the Arbitrator erred in applying the provisions of section 38 of the 1987 Act for any period when ordering the payment of weekly compensation to the Respondent Worker;
and
(c)Generally, whether the Arbitrator failed to provide adequate reasons for his determination.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management & 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.”
None of the parties have sought to be heard orally in respect of the appeal.
I am satisfied having regard to Practice Directions Numbers 1 and 6 and the documents before me that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is an appropriate course in the circumstances.
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.
Relevantly, the appeal was lodged within 28 days of the Arbitrator’s primary decision in compliance with section 352(4) of the 1998 Act and the amount of compensation in issue on appeal is both (a) at least $5,000 and (b) at least 20% of the amount awarded in the decision appealed against.
Leave is hereby granted to the Appellant to appeal against the decision of the Arbitrator.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ - a schedule of the new evidence,
- a copy of the new evidence,
- a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and
- submissions why the new evidence should be admitted.”
Neither party has sought leave to give evidence on the appeal that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against.
EVIDENCE AND SUBMISSIONS
Accordingly, the evidence on the appeal is the evidence that was before the Arbitrator.
There was no real dispute that the Respondent Worker was rendered incapacitated to work as a locomotive driver by his back condition. Indeed, the Respondent Worker was only capable, on the evidence, of some work of a light nature. A report of an MRI scan of the lumber spine performed on 28 October 2004 showed that at the levels of L4/5 and L5/S1, there was some degeneration as well as small annular tears associated with small posterior disc protrusions. There was evidence also of an L5 spondylolisthesis with minimal loss of alignment.
The Respondent Worker’s general practitioner, Dr Denovan, referred the Respondent Worker to Dr Loefler. Dr Loefler saw the Respondent Worker in October 2004 and reported on 29 March 2005 that:
“I believe that this man has mechanical back pain which is most likely arising from the lower lumbar spine….in relation to heavy lifting and other physical work demanded of his job.”
According to the history taken by Dr Loefler, “(the Respondent Worker) did not recall a specific accident or injury”. Dr Loefler makes no reference to the Respondent Worker inspecting floorboards under his mother’s house on 28 May 2004.
Dr Marnie does refer to the under-floor episode and states in his report of 23 June 2005 that:
“I would regard this episode as being a flow-on from his long standing low back problems.”
Dr Marnie did not regard the spondylolisthesis at L5/S1 to be responsible for his condition. He considered that the Respondent Worker had disc lesions at L4/5 and L5/S1 due to the work performed as an engine driver.
By way of further analysis, Dr Marnie in his report of 16 December 2005, gave consideration to the 1986 injury and concluded that the Respondent Worker would have had some low back pain after that incident due to his work. Whilst it is clear that the Respondent Worker had low back pain after this incident, I do not think that it was until quite some time later having regard to the contemporaneous records of the 1986 injury which refer not to low back pain but to pain in the upper back below the right shoulder.
Dr Marnie indicated in the report that he would regard a lumbar disc lesion as being a disease of such a nature as could be contracted by a gradual process, with the jerking and jolting of his work being part of the development of this condition. He states:
“…He did have a disease which was contracted by a gradual process and which was then aggravated by the nature and conditions of his work.”
Whilst Dr Marnie thought that it was possible that the 1986 injury initiated changes in the Respondent Worker’s lower back, I do not consider that this is supported by the evidence.
The likelihood, on the evidence of the work performed by the Respondent Worker, is that the changes in the Respondent Worker’s back developed subsequently and produced symptoms.
Professor Ryan examined the Respondent Worker in October 2005 and took a history of the incident in December 1986 as initiating low back pain which continued on and off thereafter. He also took a history of an aggravation whilst at work in 2003 and again in May 2004 whilst doing work under his mother’s house. In his report of 19 October 2005, Professor Ryan stated:
“I consider that Mr Croucher’s incapacity arose through the nature and conditions of work ..It is likely that the incident which occurred in May 2004 (crawling under his mother’s house), further aggravated his pain.”
I regard the statement by Professor Ryan in relation to the May 2004 incident as suggesting that it did not lead to any change in pathology.
In any event, Professor Ryan concluded that the Respondent Worker suffered from a permanent impairment of his back entirely due to his employment.
Following a review of the matter and primarily for the reason other that the Respondent Worker remained off work after experiencing increased symptoms whilst under his mother’s house, Professor Ryan, in a supplementary report of 5 January 2006, expressed the view that:
“…It is reasonable to conclude that this injury was chiefly responsible for his incapacity to perform his pre-injury duties.”
No attempt was made by Professor Ryan to explain the apparent inconsistency of this view with the views expressed in his earlier report.
Dr Stephen saw the Respondent Worker on behalf of the Respondent Employer on 2 February 2006. In his report of 2 February 2006, Dr Stephen refers to the incident of December 1986 which involved a sudden severe pain in the back situated in the right flank and in the region of the lower right ribs. He then describes the development of low back pain in the period possibly from the early 1990’s and the presentation by the Respondent Worker to Dr Denovan in 1993. He further describes how the Respondent Worker’s backache became worse when the Respondent Worker was under the house looking for rotted floorboards. Dr Stephen states:
“He saw Dr Denovan again. He had x-rays and a CT scan. He was given physiotherapy. This made his backache worse so he stopped it. He was given eight weeks off work. When he reported to go back to work he was told he was not allowed to return to work.”
Dr Stephen sets out his diagnosis as follows:
“Mr Croucher has non-specific mechanical low lumbar backache. This is emanating from the lower lumbar region where he has a long-standing constitutionally based spondylolisthesis of L5 on S1 and a retrolithesis of L4 and L5. At both levels there was accompanying disc degeneration.”
Dr Stephen goes on to say:
“The most substantial contributing factor to Mr Croucher’s condition is the constitutional change described above…In my opinion, two-thirds of his impairment is constitutional and one-third work-related. The work-related element represents a continuing, indeed, permanent aggravation of a pre-existing constitutional condition.”
In terms of a permanent impairment of the Respondent Worker’s back, Dr Stephen attributed one-third to the consequences of the employment. He regarded the remaining two-thirds as constitutional in nature.
Dr Stephen did not apportion any contribution to the Respondent Worker’s activities under the house in 2004. It does not appear that Dr Stephen attributed any ongoing incapacity or impairment as a result of the injury in 1986.
Although Dr Stephen regarded the back condition suffered by the Respondent Worker to be one that developed as a gradual process he did not regard the condition as a disease “in a strict sense”. Dr Stephen does not offer an explanation of the distinction he sought to draw.
DISCUSSION AND FINDINGS
The Arbitrator clearly addressed the question of whether or not the Respondent Worker suffered injury consisting in the aggravation of a disease to which section 16 of the 1987 Act applied. The definition of injury in section 4 of the 1987 Act includes the aggravation of a disease where the employment was a contributing factor.
The Arbitrator found that:
“The Applicant has suffered injury to his back over the course of his employment with both the First and Second Respondents.”
The Arbitrator went on to find that:
“The Applicant has suffered an aggravation of an underlying condition…within the ambit of section 16.”
Further, the Arbitrator determined that the Respondent Worker’s employment over the last 10 to 15 years as a train driver was a substantial contributing factor.
With regard to the activities of the Respondent Worker under the house, the Arbitrator stated:
“Whilst I accept that the Applicant’s work under the house for his mother did amount to an aggravation of the condition, that does not discount the permanent aggravation suffered by the Applicant prior to that date.”
Clearly, the Arbitrator did not regard the activity as significant in terms of the Respondent Worker’s ongoing incapacity and medical evidence to this effect was available to the Arbitrator. It is also supported by the Respondent Worker’s oral evidence.
The Respondent Worker did say in his statement of 13 January 2005, with regard to those activities, that “I had to stop and I have had trouble with my back ever since”. However, in his oral evidence the Respondent Worker explained that he experienced an increase in his already present symptoms. He explained that he was concerned that such an activity without specific incident could stir up his pain and that that was the reason he presented himself to the doctor at the time.
From the Arbitrator’s reasons, it is apparent that he placed reliance on the views expressed by Dr Stephen which the Arbitrator referred to in the following way:
“Dr Stephen says that there is permanent aggravation of a pre-existing constitutional condition…”
It is also apparent that the Arbitrator regarded the Respondent Worker’s back condition to be a disease in much the same way as the condition of carpal tunnel syndrome was held by the Compensation Court to be a disease (Perry v Tanine Pty Limited t/as Ermington Hotel & Ors 16 NSWCCR 253; see also the more recent decision of Acting Deputy President Moore ADP in Westbus v Benjamin [2006] NSWWCCPD 25).
The Arbitrator considered that the work performed by the Respondent Worker as described by the Respondent Worker in his statement of 13 January 2005, and referred to in the medical reports, was significant in terms of its effect on the Respondent Worker’s back.
Somewhat unfortunately, the Arbitrator made no reference to the 1986 injury. It might be said that it is inherent in his decision that he did not regard it as causative of any ongoing incapacity or as giving rise to any permanent impairment. An examination of the reasons for determination makes it apparent that the Arbitrator formed the view that the work performed by the Respondent Worker aggravated an underlying constitutional condition of the spine which the Arbitrator regarded as a disease.
In any event, the 1986 injury was, as I have already referred to, an injury to the upper back and not to the Respondent Worker’s low back which is the area of the Respondent Worker’s ongoing complaint. Obviously, the evidence supports a conclusion that the low back symptoms developed quite some time after the 1986 injury.
The conclusion reached by the Arbitrator that the incapacity suffered by the Respondent Worker was the result of his general work aggravating a disease was a conclusion available to the Arbitrator on the evidence.
Consistent with the decision of the Court of Appeal in Rail Services Australia v Dimoski & Anor [2004] NSWCA 267, where there is the aggravation of a disease and no frank injury to the low back, there is only one injury. That injury is deemed by section 16 to have occurred on a particular date. The Arbitrator found this date to be 28 May 2004. Accordingly, there is no apportionment available pursuant to section 22 as the section only operates where there is more than one injury.
In my view, the failure of the Arbitrator to articulate his views in relation to the 1986 injury is not fatal to his determination even though it would have been appropriate for him to refer to it.
In Department of Education & Training v Jeffrey Sinclair[2004] NSWWCCPD 90, President Justice Sheahan stated that:
“Section 294(2) of the 1998 Act requires the Arbitrator, in the event of making a determination, to provide a ‘brief statement’ of ‘reasons’. Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 clarifies that ‘lengthy or elaborate’ reasons, finding and linking every fact leading to the final conclusion, are not required, but ‘the essential…grounds upon which the decision rests must be articulated’ (per McHugh JA, at 280D, but see also the judgment of Kirby P, generally, and that of Mahoney JA, at 271-3). See also Rule 73.”
As stated by Deputy President Byron in Department of Education & Training v Ingle [2003] NSWWCCPD 18:
“…the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444).”
Read as a whole, the Arbitrator’s decision leaves no doubt that he regarded the general work performed by the Respondent Worker as an engine driver as work causing injury involving the aggravation of a disease Such a conclusion was well supported by the evidence.
Dr Marnie certainly supported the notion of disease. Whilst Dr Stephen did not regard the Respondent Worker’s back condition as a disease “in a strict sense” it was open to the Arbitrator to find that it was a disease within the meaning of the 1987 Act and to apply the provisions of section 16.
In M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19, Deputy President Fleming said at [85]:
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The Court of Appeal in YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002), per Hodgson JA, said:
‘…inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: See Absolon v NSW TAFE [1999] NSWCA 311.
….In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a Tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may ‘reasonably differ’ (at [37] – [38]).’
Deputy President Fleming went on to say at [85]:
“While I am satisfied that the Arbitrator did not provide entirely adequate reasons for decision, I am satisfied that the decision has been made according to law and that there has not been any injustices to the parties.”
In the present case, the preponderance of evidence supports the conclusion that the 1986 injury was not to the low back and did not result in any ongoing incapacity or impairment so that, having determined the aggravation of a disease, the Arbitrator was correct in concluding that liability rested solely with the Appellant. Accordingly, I do not consider that it would be appropriate to disturb the determination of the Arbitrator on the ground of ‘inadequate reasons’ with regard to the absence of reference by the Arbitrator to the 1986 injury.
A submission made by the Appellant on appeal is that the Arbitrator did not give adequate reasons for concluding that the Respondent Worker’s employment was such as to cause the aggravation of a disease. The reasons for determination given by the Arbitrator refer to work performed by the Respondent Worker as disclosed in the evidence and the Arbitrator concluded that:
“The nature of employment and type of employment, and the type of activities that the Applicant had to undergo would have created stress such as to bring it within section 16.”
In my view, the Arbitrator has adequately and properly addressed the significance of the contribution of the Respondent Worker’s employment.
The Appellant also submits that the Arbitrator erred in awarding compensation to the Respondent Worker under section 38 of the 1987 Act. The Arbitrator ordered the payment of compensation pursuant to section 38 for the first 26 weeks of incapacity commencing on 28 May 2004.
The evidence was to the effect that the Appellant failed to provide the Respondent Worker with suitable employment when certified fit for selected duties by Dr Denovan.
The Arbitrator refers to section 38 in his determination and says, in part:
“I have considered the …factors that the Second Respondent has put to me in arriving at this decision with respect to section 38”.
An examination of the transcript reveals that the issue raised by the Appellant was whether the Respondent Worker was ready, willing and able to accept an offer of suitable employment from the employer.
The evidence discloses that the Respondent Worker was certified unfit for work by Dr Denovan until late July 2004 and was then certified as fit for restricted duties. When the Respondent Worker approached the Appellant with this certificate no suitable duties could be provided. It is clear that the Respondent Worker presented himself on the basis of being ready, willing and able to work within his medical restrictions. In those circumstances, and this being the issue raised by the parties before the Arbitrator, there was no error involved in the Arbitrator’s determination that section 38 (rather than section 40) applied for the first 26 weeks of incapacity.
The Appellant seeks to rely on the decision of Fishburn v Integral Energy Australia [2005] NSWWCCPD 53 in general aid of its submissions that the decision of the Arbitrator should be “reviewed and overturned”. In Fishburn’s case Deputy President Fleming was dealing with the admission into evidence of medical reports in the proceedings and their disclosure to an Approved Medical Specialist.
In that case, the Deputy President affirmed that the Commission is bound by the principles of procedural fairness and that the exercise of administrative discretion should be overturned only where it has not been exercised fairly and according to law. Essentially, the question is whether the Arbitrator has, as stated by Deputy President Fleming in Fishburn:
“…acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts, or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re: National Roads & Motorist Association Limited [2003] FCAFC 206 at [21] to [21]). Whether or not another decision-maker or an appellate tribunal would simply have come to a different view is irrelevant.”
DECISION
I consider that the determination made by the Arbitrator was made according to law.
In these circumstances, I find that the decision of the Arbitrator dated 7 June 2006 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal of the Respondent Worker and the Respondent Employer.
MICHAEL J McGROWDIE
Acting Deputy President
15 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL J McGROWDIE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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