Pacific National (NSW) Pty Ltd v Plummer - [2010] NSWWCCPD 109

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Pacific National (NSW) Pty Ltd v Plummer [2010] NSWWCCPD 109
APPELLANT:		Pacific National (NSW) Pty Ltd
RESPONDENT:		Michael Leslie Plummer
INSURER:		Pacific National (NSW) Pty Ltd
FILE NUMBER:		A1-2249-10
ARBITRATOR:	Mr R O’Moore
DATE OF ARBITRATOR’S DECISION:		28 June 2010
DATE OF APPEAL DECISION:		20 October 2010
SUBJECT MATTER OF DECISION:		Section 4 of the Workers Compensation Act 1987, section 38(1) of the Workers Compensation Act 1987, employer’s ignorance of alleged injury; section 38(3) of the Workers Compensation Act 1987, quantum of entitlement to weekly benefits; section 42 of the Workers Compensation Act 1987, current weekly wage rate, relevance of industry allowances
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr D G Saul instructed by Leigh Virtue & Associates
Respondent:		Mr L G Morgan instructed by White Barnes Solicitors
ORDERS MADE ON APPEAL:		Order 1 of the Certificate of Determination dated 28 June 2010 is revoked and the following orders are made in its place: 1. Award for the applicant at the rate of: $1342.50 per week from 18 December 2007 to 26 December 2007 (s 36); $367.70 per week from 16 January 2008 to 31 March 2008 (s 40); $374.90 per week from 1 April 2008 to 30 June 2008 (s 40); $1074 per week from 1 July 2008 to 6 July 2008 (s 38), and $1116.48 per week from 7 July 2008 to 26 October 2008 (s 38). 2. Orders 2 and 3 of the Certificate of Determination dated 28 June 2010 are confirmed. The appellant is to pay Mr Plummer’s costs of the appeal.

BACKGROUND TO THE APPEAL

Michael Leslie Plummer, who is 48 years of age, has been employed as a train driver for the past 23 years. He was at first employed by the former State Rail Authority of NSW following which his employment commenced with Pacific National (NSW) Pty Ltd (the appellant).

Mr Plummer alleges that he received injury to his back in the course of his employment with the appellant caused by postural difficulty, jarring and jolting whilst seated during performance of his duties. It is, in the alternative, alleged that Mr Plummer’s employment duties have aggravated a pre-existing degenerative condition of his lumbar spine.

Mr Plummer alleges that his injury caused incapacity for work between 18 December 2007 and 26 October 2008. A claim in respect of weekly compensation was made by Mr Plummer on 3 July 2008.

The appellant disputed Mr Plummer’s entitlement to compensation benefits and gave notice in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by letter dated 28 July 2008. In disputing liability the appellant placed reliance upon the provisions of s 4, s 33 and s 60 of the Workers Compensation Act 1987 (the 1987 Act) as well as s 323 of the 1998 Act. The appellant also particularised its reliance upon the opinion of Dr Anthony Smith, orthopaedic surgeon, as a basis for disputing the occurrence of injury as alleged.
The dispute concerning Mr Plummer’s entitlement to weekly compensation was the subject of an Application to Resolve a Dispute which was registered with the Commission on 18 March 2010. That application came before an Arbitrator for conciliation/arbitration on 28 June 2010. The Arbitrator later on that day delivered a written Statement of Reasons (Reasons) for his determination of the dispute and a Certificate of Determination issued.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 28 June 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1.Respondent pay the Applicant weekly compensation as follows;
From 18 December 2007 to 26 December 2007 the sum of $1394.44 per week
From 16 January 2008 until 15 July 2008 pursuant to section 38 of the Act the sum of $1394.44 per week
From 16 July to 26 October 2008 pursuant to section 38 of the Act the sum of $1115.55 per week.
2.Respondent pay the Applicant’s medical expenses pursuant to section 60 of the Act.
3.Respondent pay the Applicant’s costs as agreed or assessed.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

An application seeking leave to appeal against the decision of the Arbitrator was filed with the Commission on 12 July 2010.

ISSUES IN DISPUTE

The issues on appeal, as found in written submissions and as supplemented by oral argument at the hearing, are whether the Arbitrator erred:
(a)   in his consideration and evaluation of the expert medical evidence;
(b)   in failing to draw inferences founded upon the failure by Mr Plummer to adduce evidence of three treating doctors and a chiropractor;
(c)   in placing reliance upon the evidence of Dr Hamilton;
(d)   in his evaluation of evidence concerning the occurrence of injury to Mr Plummer’s back that was not work related;
(e)   in his factual conclusions concerning the application of s 9A of the 1987 Act founded upon the evidence including the expert medical evidence;
(f)    in determining that Mr Plummer had an entitlement to weekly benefits pursuant to s 38 of the 1987 Act, and
(g)   in the manner of quantification of entitlement to weekly benefits pursuant to s 38.

LEAVE

There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.
In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the appeal and I so order.

THE ARBITRAL PROCEEDINGS

The documentary evidence which was before the Arbitrator is summarised by him at [8] of Reasons. That summary omits reference to a report by Dr Timothy Hamilton dated 23 July 2008 which had been tendered by Mr Plummer at the hearing. The admission of that document into evidence is recorded in a transcript [T] of the proceedings which has been produced and made available to the parties. The appellant took no objection to the admission of that report [T1]. No oral evidence was given at the hearing.

Mr Plummer’s evidence

Mr Plummer relied upon the contents of two statements made by him dated 1 July 2009 and 8 December 2009. He stated that he has been employed as a train driver for 22 years. The corporate identity of his employer has changed from time to time. He was initially employed by State Rail Authority of New South Wales. The appellant has been Mr Plummer’s employer for some unspecified period.
Mr Plummer described his work as involving “long haul train trips” where almost all duties are performed inside the cabin of the train. He was required to spend long periods of up to nine or ten hours driving or serving as a “second man” during each journey.
Whilst working within the cabin Mr Plummer was required to utilise seating provided which he describes as being “not unlike a car seat”. He is a tall man and describes his height as being six feet one and a half inches. It is stated that, by reason of his height, he was unable to adjust the seating or the foot rests provided to enable proper lumbar support. Some seating provided in trains operated by Mr Plummer were fitted with seats that “did not have adequate length” in the base of the seat. This caused Mr Plummer to “perch” on the seat causing strain to his back.
In the course of driving Mr Plummer described his experience of “a considerable amount of jarring and jolting”. The trains which he drove were as long as a one and a half kilometers which, during operation, were caused to stretch and compress in response to changes in the terrain.
Mr Plummer stated that he experienced ongoing pain in his lower back from approximately 2000/2001. He experienced aching and a tightness in the muscles of his back and a pain in his lower back located to the right side. He had experienced some difficulties with his knee which led to investigations by way of CT scan of his left knee, hip and lumbar spine in October 2001. Mr Plummer subsequently underwent an arthroscopy of his left knee. That procedure resolved his knee pain however symptoms in his spine continued.
Mr Plummer tried to tolerate pain and discomfort; however, in 2003 or 2004 he sought some physiotherapy treatment which he attended for approximately 18 months. He also participated in pilates and underwent remedial massage. He regarded himself as being fit and healthy, however the symptoms in his back persisted. In approximately 2005 Mr Plummer noticed increasing pain in his back and experienced pain into his buttocks and a loss of sensation extending into the calf of each leg. He consulted Dr Accardi and, later, Dr Hamilton.
On 18 December 2007 Mr Plummer consulted Dr Accardi concerning the state of his back. A CT scan was arranged and conducted on 19 December 2007. Mr Plummer had taken sick leave at this time and Dr Accardi initially issued certificates of unfitness. Mr Plummer then took annual leave from his employment.
Upon his return from holidays on 15 January 2008 Mr Plummer was provided with a medical certificate by Dr Accardi certifying that he was fit for suitable duties with restrictions on lifting and sitting for extended periods. Mr Plummer presented that certificate to his employer; however, he was not offered any suitable work. Mr Plummer then took his accrued leave entitlements including sick leave. A further CT scan was arranged and Mr Plummer consulted an osteopath. He was also referred to Dr Russo, pain management specialist.
Dr Russo arranged for an MRI study to be conducted. Following that investigation Mr Plummer underwent a series of injections to his lumbar spine.
Mr Plummer presented a number of medical certificates to his employer; however, no offer of suitable work was made until his return to work on 26 October 2008 (wrongly stated as 26 September) following a recommendation made by the Registrar of the Commission to whom the matter had been referred for conciliation of a dispute. Since that date Mr Plummer has participated in a return to work program which continued during the latter part of 2008 until his return to full duties on an unspecified date.
Mr Plummer recorded in his statement that he had experienced upper back pain in the mid 1990s when water skiing. That incident caused him to be absent from work for one day. He also recorded that he lost one or two days work by reason of back spasm in approximately 2002. Mr Plummer cannot recall whether this was related to his employment. In July 2007 Mr Plummer noticed a “tweak” in his mid back whilst snow skiing. He does not recall losing any time off work after that incident. He did consult a chiropractor for some months in relation to problems experienced in his mid back. That mid-back pain did settle down however his lower back pain was ongoing.
Mr Plummer began to suspect that his employment may be relevant to his back symptoms after experiencing significant pain following a trip to Muswellbrook in the course of his work. By mid December 2007 the symptoms in his back were so severe that he was no longer able to continue his duties.
The second statement made by Mr Plummer generally confirms matters addressed in his earlier statement. It is noted that the medical certificates provided by him to the appellant were, initially, non-WorkCover certificates. A claim for compensation was made by presentation of a claim form in early July 2008. That claim was denied on 28 July.
It is stated that the appellant provided suitable duties for Mr Plummer in “early November 2008”. In that respect Mr Plummer’s statements are contradictory. Mr Plummer states that at all times he had been ready willing and able to perform suitable duties. It is stated that Mr Plummer returned to his pre-injury employment duties in May 2009.
There are three reports of Dr John E.C. Bentivoglio, orthopaedic surgeon, in evidence. Dr Bentivoglio had been qualified by Mr Plummer’s solicitors for the purpose of providing evidence in support of the claim. Dr Bentivoglio recorded a history, in the first of those reports dated 9 September 2008, of five years experience of symptoms in his back region. No specific injury was recorded however it was noted that Mr Plummer’s symptoms “came on as a result of sitting for prolonged periods of time in seats that were not really designed for (Mr Plummer)”. Mr Plummer’s height is noted as being 186cm. A history of jarring of his back in the course of driving is recorded. Dr Bentivoglio summarised the medical treatment which Mr Plummer had undergone and the findings of the various radiological studies. Following a physical examination and observation of the radiological investigations Dr Bentivoglio expressed the diagnosis that Mr Plummer had developed “some degree of discal damage at the lower two levels of his lumbar spine region, as well as developing degenerative changes present in the facet joints at the lower two levels of his lumbar spine region”. The view was expressed that the degenerative changes seen on the various investigations “would have developed as the result of his employment”.
Dr Bentivoglio, in his second report dated 24 December 2009, confirmed the matters recorded in his earlier report. His earlier diagnosis was confirmed and the following observation was recorded:
“[Mr Plummer] has worked as a train driver for 23 years. This requires him to remain in one position for prolonged periods of time, seated on a chair and in an area that is not appropriate for a person of his size. This, combined with the normal rocking and rolling and jarring of his back, I believe has caused him to develop the discal damage, as well as the degenerative changes in his lumbar spine region.”
The last report of Dr Bentivoglio dated 1 March 2010 contains a notation that Mr Plummer had returned to pre-injury duties. The view is expressed that he should exercise care as there “is potential for his back symptoms to play up on him again”.
Mr Plummer relies upon a copy of a compensation claim form which he completed and presented to the appellant on 3 July 2008. That document particularises the date of injury as being 18 December 2007. The injury was described as being “worsening lower back pain extending to hips and down legs and numbness”. It was also recorded in that form that Mr Plummer had experienced those symptoms “for about three years”. The location of injury was identified as being “while seated on the locomotive”.
At page 8 of that claim form a report from Mr Plummer’s manager, Mr G Ford, includes a notation in the following terms:
“No injury report. No occupational causal relationship to this advised injury”.
A number of radiological studies of Mr Plummer’s lumbar sacral spine were attached to his application. Those studies included a CT lumbosacral spine dated 16 October 2001 which was reported together with studies of his left knee and left hip. There is also a CT lumbar spine conducted on 19 December 2007 and an MRI lumbar spine on 29 February 2008. The detail of these studies is addressed below.
A number of medical certificates issued by Dr Accardi and Dr Hamilton are in evidence. Those certificates, which were not WorkCover NSW certificates, related to Mr Plummer’s incapacity between 18 December 2007 and 27 June 2008. Also in evidence were a number of WorkCover NSW certificates issued by Dr Hamilton. The first of those certificates was issued on 30 June 2008 and certified that Mr Plummer was fit for suitable duties from 15 January 2008 to 30 July 2008 and further that he was unfit to work from 20 December 2007 to 29 December 2007. There are two further such certificates in evidence which certified Mr Plummer was fit for suitable duties up until 30 September 2008.
A copy of correspondence dated 28 July 2008 from the appellant addressed to Mr Plummer is in evidence. That correspondence includes notice concerning the dispute as to Mr Plummer’s entitlement to compensation which is referred to in [4] above. A number of documents attached to that notice are also in evidence. Those documents, where relevant, are addressed below.
A large number of documents which had been produced were also attached to Mr Plummer’s application and are in evidence before the Commission. Included among those documents are the clinical notes produced by Dr Accardi, Dr Hamilton and Dr Russo. The clinical notes produced by Ms Bianca Oehme of the Warners Bay Osteopathic Clinic are also in evidence. Detail of these voluminous documents is, where relevant, addressed hereunder.
A report of Dr Timothy Hamilton dated 23 July 2008 was admitted into evidence as a late document by order of the Arbitrator at the hearing. That report outlines the history recorded by Dr Hamilton’s practice and detail of treatment of Mr Plummer concerning his low back disability since his presentation on 18 December 2007.
The balance of those documents relied upon by Mr Plummer at the hearing, which include a large number of medical treatment accounts and receipts, have no direct relevance to the issues on appeal.

The Appellant’s Evidence

The appellant relied upon those documents attached to its Reply filed on 29 March 2010. A great many of the documents attached to that Reply have also been tendered on behalf of Mr Plummer. A number of documents which have been admitted into evidence, which include those produced by the New South Wales Police and financial records produced by Mr Plummer, have no relevance to the claim as it was conducted before the Arbitrator, nor do they have any relevance to issues raised on this appeal.
The appellant relied upon reports produced by Dr Anthony L.G. Smith, orthopaedic surgeon, dated 15 July 2008 and a report of Dr Tim Anderson, occupational physician, dated 30 October 2008. Both of those reports may be described as medico-legal reports. No argument has been raised either before the Arbitrator or on this appeal that the appellant’s reliance upon those reports is, in any way, in breach of the Regulation.
Dr Smith examined Mr Plummer on 15 July 2008. Dr Smith’s report contains a history concerning the onset “some years ago” of back pain experienced by Mr Plummer, however there appears no summary in that history of the conditions of his work. Dr Smith summarised the results of radiological investigations and noted his findings on physical examination. Dr Smith’s opinion was expressed at page 3 of that report. It was considered that Mr Plummer had experienced symptomatic lumbar degenerative disease. Dr Smith also expressed the view that Mr Plummer’s job was not one that would “be particularly likely to cause any deterioration or aggravation to his lumbar spine over and above any other occupation”. Dr Smith expressed the view that he did not believe that Mr Plummer’s employment was a substantial contributing factor to the aggravation which was experienced by him in mid December 2007. It was accepted by Dr Smith that such an exacerbation of underlying degenerative disease occurred at that time; however, Dr Smith noted that such exacerbation occurred “for reasons that are not apparent”. Dr Smith asserts in that report that there is “no work accident or injury”. He further stated that he considered such aggravation or exacerbation had ceased as at the time of his examination.
Dr Anderson examined Mr Plummer on 30 October 2008. Dr Anderson took a detailed history concerning the onset of back symptoms experienced by Mr Plummer and recorded a careful description of Mr Plummer’s daily activities in the course of his work. Particular attention was given to the seating provided for train drivers in the employ of the appellant. Dr Anderson’s diagnosis was that of “dysfunction associated with (Mr Plummer’s) lower back”. Dr Anderson noted that there is evidence of significant degenerative changes in the facet joints of the lower lumbar spine. The view was expressed that Mr Plummer’s lower back condition was due to the effects of naturally occurring degenerative change and Dr Anderson was not persuaded that Mr Plummer’s occupation had been “a significant contributing factor to the development of the back condition”. Dr Anderson included in his report a number of comments that were directed to alteration of Mr Plummer’s day to day working activities to ensure that such work was “ergonomic”. Dr Anderson also suggested that postural position whilst driving should be altered and that all seating should be adjustable and ergonomic.

Mr Plummer’s submissions

Counsel appearing on behalf of Mr Plummer summarised the evidence relating to the day to day work conditions experienced by a train driver and the evidence of Mr Plummer concerning the onset of his symptoms. Reliance was placed upon the opinion of Dr Hamilton concerning the causal nexus between those work conditions and the onset of disabling symptoms. Reliance was also placed upon the opinion of Dr Bentivoglio concerning the causal relationship between work activities and the development of discal damage to the lower two levels of Mr Plummer’s lumbar spine region.
Counsel challenged the probative value of Dr Smith’s evidence upon the basis that a complete history concerning work conditions was not taken by that practitioner at the time of the examination conducted by him. The opinion as expressed by Dr Anderson was also the subject of criticism by counsel during the course of his submissions. It was put that Dr Anderson’s expression of view as to there being “no specific feature due to [Mr Plummer’s] occupation that seems likely to influence his lower back condition” was of little probative value. Counsel sought to emphasise Dr Anderson’s acknowledgement made in his report that alteration of postural position while carrying out driving duties was “worthy of consideration”. Attention was also given during the course of submissions to Dr Anderson’s views expressed concerning the need for seating provided to drivers to be adjustable and ergonomic.
Counsel stated that Mr Plummer’s claim in respect of weekly payments extended from December 2007 to October 2008. It was put that the facts supported Mr Plummer’s claim that his entitlement is to be assessed pursuant to the provisions of s 38 of the 1987 Act.
It was argued by counsel that Mr Plummer had always been “open and frank” concerning “previous problems he had in relation to his back” and reliance was placed upon the evidence of Dr Hamilton which supported the proposition that there was no evidence of Mr Plummer suffering back pain “from an alternative injury”. That submission was put in response to the suggestion made on behalf of the appellant during the proceedings that Mr Plummer had suffered injury or injuries whilst snow skiing.

The Appellant’s submissions

Counsel appearing on behalf of the appellant summarised the evidence concerning Mr Plummer’s work conditions and a general submission was put that such activity did not involve any excessive physical activity and was not likely to be causally related to the occurrence of the degenerative condition diagnosed or the aggravation of that condition.
Submissions were put that the state of the evidence up until mid-2008 supports the contention that there was no work relationship to the onset of Mr Plummer’s symptoms. Attention was drawn to those documents containing denials by Mr Plummer that treatment was related to a workers compensation claim. Counsel sought to emphasise that the initial certificates that were issued certifying Mr Plummer fit for suitable duties were not WorkCover certificates.

It was argued that the clinical records of the osteopath Ms Oehme establish “that the main complaint is from a ski injury”. The opinion of Dr Bentivoglio is criticised in the course of submissions upon several bases including the absence of a history taken by that practitioner concerning Mr Plummer’s “active skiing pursuits, and the injuries (sic) that he’s sustained during those pursuits”. It is put that Mr Plummer has failed to discharge the onus of proof concerning causation of injury.
Counsel challenged Mr Plummer’s suggested entitlement to compensation calculated with reference to s 38 upon the basis that there is an absence of any WorkCover medical certification until June 2008. Criticism is made in the course of submissions to the “back dating” of that certification.

The Arbitrator’s Decision

The Arbitrator addressed those submissions put on behalf of the appellant concerning the relevance of the notation by Ms Oehme concerning a skiing injury or incident. The arguments advanced by the appellant were rejected and the Arbitrator found that Mr Plummer “should be believed on his evidence”.
The Arbitrator acknowledged that Mr Plummer’s injury “was not identified as a work injury for some six months” following his treatment in December 2007. The Arbitrator observed that such delay “does not mean that [Mr Plummer] has failed to establish liability in the employer”. The Arbitrator proceeded to find that the nature and conditions of Mr Plummer’s employment caused injury to his lumbar spine “in the months in and before December 2007.” The conclusion was expressed that the evidence established that employment was a substantial contributing factor to injury.

The Arbitrator concluded that the appellant “did not offer [Mr Plummer] suitable duties … until November 2008”. He also concluded that there had been “no non- compliance” by Mr Plummer with the obligations which arise under s 38A of the 1987 Act. The Arbitrator noted that the form of medical certificates was not strictly complied with but that the section “permits some latitude”.
The Arbitrator proceeded to enter the award in favour of Mr Plummer as appears at [6] above.

SUBMISSIONS DISCUSSION AND FINDINGS

The appellant’s challenge to the Arbitrator’s findings has focused upon two discrete issues. The first challenge relates to the Arbitrator’s finding in favour of Mr Plummer concerning his allegation of injury. Both the fact of injury is challenged and, in the alternative, reliance is placed upon the provisions of s 9A of the 1987 Act. It is put that Mr Plummer’s employment was not a substantial contributing factor to any injury as alleged. The second challenge addresses those findings concerning Mr Plummer’s entitlement to the benefit of the provisions of s 38 of the 1987 Act. The manner of calculation of Mr Plummer’s entitlement pursuant to that section is also challenged by the appellant. It is proposed to deal with these issues serially.

Injury

The Arbitrator, following a summary of the evidence, made the following findings concerning Mr Plummer’s allegation of injury (at [48] and [49]):
“48)In my view there was clearly an incident in December 2007 which caused this worker to consult his treating doctor. The asserted defect in the medical evidence is that the injury was not identified as a work injury for some 6 months. That of itself does not mean that the worker has failed to establish liability in the employer.
49)I am satisfied that the nature and conditions of the worker’s employment caused injury to the worker (sic) lumbar spine in the months in and before December 2007.”

The Arbitrator proceeded to make a finding (at [50]) that Mr Plummer’s employment was a substantial contributing factor to the injury as found. That finding, it was stated, was made having regard to the evidence of Mr Plummer, Dr Hamilton, Dr Bentivoglio and Dr Russo.
The appellant argues that the Arbitrator’s finding concerning injury had been reached following an erroneous consideration of the evidence. It is correctly put in submissions that the Arbitrator wrongly characterised the medical certificates which were furnished to the appellant in December 2007 as being “WorkCover Certificates” (at [28] of Reasons). It is clear that the certificates issued by Dr Accardi and Dr Hamilton prior to 30 June 2008 may not be described as a “WorkCover” certificates and, in particular, those certificates make no reference to work-related injury.
It is argued that the Arbitrator erred in concluding that Mr Plummer’s allegation of work injury was supported by the evidence of Dr Hamilton. Dr Hamilton is one of three general practitioners who have been consulted by Mr Plummer at the practice in Glebe Road Mereweather. Dr Hamilton’s colleagues are Dr Accardi and Dr Jones. Dr Hamilton’s report dated 23 July 2008 records a history taken by Dr Accardi in December 2007 of six months increasing low back pain. That pain was reported by Mr Plummer to be worse at rest and lying down after he had been to work. Dr Hamilton’s report includes a detailed summary of subsequent treatment and radiological investigation. Dr Hamilton proceeded to express the view that “Mr Plummer’s work as a train driver over the last 21 years has been a significant contributing factor to his lumbar spine pain”. Dr Hamilton expressly excluded the existence of any other cause of injury. It was also stated in that report that the nature of Mr Plummer’s work and the gradual increase of pain over time “is commensurate with (Mr Plummer’s) employment as a train driver”.
I am of the opinion that the evidence as found in Dr Hamilton’s report provided a basis for the Arbitrator’s conclusion that injury in the course of employment had been received by Mr Plummer. It is asserted that Dr Hamilton’s views as expressed are a “bare ipse dixit”. There can be no doubt that the appellant has drawn upon those observations made by Heydon JA (as he then was) in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (Makita). It appears that the appellant asserts that Dr Hamilton’s expression of opinion is made dogmatically and is unsupported by facts and circumstances relevant to his expertise as a medical practitioner. That submission must be rejected. Dr Hamilton’s expertise is not in question. He has had the benefit of conducting physical examination of Mr Plummer and has had the advantage of diagnostic tests which have been arranged through his practice. It may reasonably be inferred that he has also had regard to the clinical notes which have been compiled at his practice both by himself and his colleagues. He has taken a history which is recorded in his report. It may be inferred that his expression of opinion concerning the question of causation of injury is founded upon the combination of those matters which I have just summarised.
The appellant correctly submits that the Arbitrator mis-stated the evidence when, at [37] of Reasons, he observed that there “is no evidence of other non-work injury except the evidence of an osteopath Bianca Oehme in January 2008 who takes a history of injury in ‘01’ and a reference to ‘August’ from skiing ‘injured two disc bulges unsure which levels L3/S1’”. As the appellant notes in submissions, Dr Russo in his clinical notes which have been tendered on behalf of each party makes a notation that Mr Plummer, in July 2007, “experienced a slight ‘tweak’ of the mid/lower back whilst snow skiing. By the next day was in pain and having trouble with normal movement taking pain killers to continue skiing”.
The appellant again correctly identifies a mis-statement of the evidence recorded at [40] of Reasons where it was said that there “is no other evidence of injury, treatment or radiological investigation in or about August 2007 to support [the appellant’s] assertion that there should be found on this evidence that the worker in fact suffered back injury while skiing in August 2007 and that that is the cause of his back condition, not [the appellant’s] employment.” As noted in submissions, Dr Russo’s notes contain a copy of a report by Dr Brad Macdonald dated 9 August 2007 which relates to a radiological study of Mr Plummer’s lumbopelvic region. The clinical history recorded by Dr Macdonald was that of “low back pain”. The impression recorded by Dr Macdonald was that of “mild lower lumbar degenerative change”.
The appellant further submits that the Arbitrator has erred in failing to draw inferences adverse to Mr Plummer by reason of the absence of reports in evidence from his treating medical practitioners Dr Russo, Dr Jones and Dr Accardi. It is noted at [8d] of submissions that there is no report from Mr Staciwa in evidence before the Commission.
It is put in argument that the Arbitrator was in error to make reference to an “osteopath’s report” in the course of his reasons given that no report was tendered from the treating osteopath. The absence of such report should, it is submitted, give rise to a “substantial inference against (Mr Plummer)”.
The appellant again correctly notes that the Arbitrator, at [46] of Reasons, made reference to “WorkCover certification” from January 2008. The evidence reveals that the first “WorkCover” certificate in evidence is dated 30 June 2008. That certificate was issued by Dr Hamilton.
The appellant suggests error on the part of the Arbitrator concerning his determination of issues raised by a consideration of the provisions of s 9A of the 1987 Act. It is put that the evidence of Dr Hamilton and Dr Russo could not, as found by the Arbitrator, support a conclusion that Mr Plummer’s employment was a substantial contributing factor to his injury. It is also argued that the Arbitrator has failed to take account of that evidence which suggests that Mr Plummer was receiving treatment in respect of a condition that was not “a workers compensation matter”.
The appellant has identified a number of errors which are noted at [55], [58], [59] and [62] above. Having regard to the arguments raised I am of the opinion that the evidence as a whole requires review to determine the correctness or otherwise of the Arbitrator’s finding that Mr Plummer suffered injury in the course of his employment. Mr Plummer asserts in submissions on this appeal that the Arbitrator has applied a broad and reasoned approach to the medical evidence and that it is clear that he did not accept the opinions as expressed by the appellant’s medical experts. It is also argued that there should be no adverse inference drawn by reason of the absence of any report from medical witnesses as argued on behalf of the appellant. It is said in submissions that the system of adjudication concerning workers compensation claims is “aimed at producing just, quick and efficient outcomes for injured workers and their employers”. It is further put that acceptance of the appellant’s argument would “result in an over burdening of Arbitrators with medical opinion evidence”. It is also argued that time and cost considerations should be taken into account when determining questions as to the need or otherwise for a multitude of medical reports in support of a claim. The balance of Mr Plummer’s submissions are, where relevant, addressed in the course of discussion which appears hereunder.
The disability of which Mr Plummer has complained at relevant times concerns pain in his low back which radiates at times into his legs. The symptoms experienced by Mr Plummer may in part be explained having regard to the matters revealed following radiological studies. An MR lumbar spine study conducted on 29 February 2008 revealed the following as reported by Dr Michael Lannan:
“MR LUMBAR SPINE
History: Lower back pain. ? Cause.
Findings: At L1/2, there is a loss of disc height and there is a Schmorl’s node through the superior end plate of L2.
At L4/5, there is a minor annular bulge and some posterior element hypertrophic changes, more marked on the right. There is a synovial cyst arising posteroinferiorly from the facet joint. There is no significant spinal canal or foraminal narrowing.
At L5/S1, there is an annular tear posterolaterally towards the right. There are some facet joint hypertrophic changes.
CONCLUSION
Annular tear at L5/S1. Facet joint degenerative changes most marked at L4/5 and L5/S1.”

The report of Dr Lannan was produced following a referral by Dr Russo. Dr Russo had been consulted by Mr Plummer on 20 February 2008. It is of some significance that Dr Russo recorded a history of low back pain experienced by Mr Plummer “for the last six years with the pain centred over the L5/S1 segmental level in the mid line in a small vertically orientated band with radiating pain down onto (sic) the buttocks and the posterior aspect of the thighs and calves”. Dr Russo at that time had the advantage of a lumbosacral CT scan which had been taken, as stated by him, “recently” which “shows broad based disc protrusions at L4/5 and L5/S1 and facet joint osteoarthritis at the right L4/5”. Following examination on that occasion Dr Russo expressed a diagnosis as follows:
“I suspect (Mr Plummer) has symptomatic lumbar spondylosis affecting the lower lumbar facet joints and disc and he may well have a symptomatic annular tear”.
It is to be noted that the annular tear suspected by Dr Russo was later confirmed by Dr Lannan’s report concerning the MRI study noted at [66] above. It is accepted by all medical practitioners whose evidence is before the Commission, including the appellant’s witnesses Dr Anderson and Dr Smith, that Mr Plummer experiences disabling pain in his low back with symptoms radiating to his lower extremities.
The evidence reveals that the earliest recorded complaint made by Mr Plummer to a medical practitioner concerning the condition of his low back was made to his general practitioner on 10 October 2001. On that occasion Mr Plummer complained to Dr Accardi of problems with his left knee with pain “also radiating to back”. It was this complaint that caused Dr Accardi to refer Mr Plummer for radiological investigation which was conducted by Dr Macdonald on 16 October 2001. Dr Macdonald conducted investigations of the left knee, the left hip and the lumbosacral spine. The clinical history recorded by Dr Macdonald was “past history of ligamentous reconstruction in the left knee”. That was the history as taken by Dr Accardi and recorded in his notes. It is of significance, in my view, that Dr Accardi recorded on 10 October 2001 the words “worse after prolonged sitting” immediately after the notation of pain radiating into Mr Plummer’s back. Whilst it is correct that no complaint on that occasion was recorded by Dr Accardi concerning work conditions, it is Mr Plummer’s evidence that his work involved prolonged sitting and he had been performing that work for many years prior to that consultation. Mr Plummer’s evidence amplifies the conditions of his employment including the unsuitability of his seating. That evidence, as noted in submissions put on his behalf, has not been challenged.
There is in evidence a large volume of medical records and it is fair to observe that the history given by Mr Plummer from time to time concerning duration of low back and associated pain has varied. I note that Dr Jones recorded a history of six years experience of low back and pelvic pain, which history was confirmed by Dr Russo following Mr Plummer’s referral to that practitioner. Dr Bentivoglio took a history of back symptoms over a period of five years at the time of his consultation in September 2008. The general practice clinical notes record a complaint of “worsening low back pain for months” during a consultation which occurred on 18 December 2007. Mr Plummer reported that the pain sometimes radiated to his calves and that pain was worse with rest and lying down. A CT examination was arranged in that month. During a consultation on 20 December 2007 Mr Plummer reported that he was not well enough to return to full duties as a train driver. It is recorded that Mr Plummer needed “a few more days mc”. Those notes record that he had earlier been issued with a medical certificate for the purpose of taking time off work as he had not been able to sleep.
The clinical notes of the Warners Bay osteopathic clinic compiled, it seems, by Ms Oehme appear to contain a notation referring to “skiing” as noted by the Arbitrator at [37] of Reasons. It is of significance, in my view, that Ms Oehme’s report dated 4 March 2008 to Dr Hamilton makes no reference to a history of a skiing injury. Ms Oehme’s notes record that Mr Plummer reported “pelvic problem for years”. It is again, in my view, significant that Ms Oehme recorded “last couple of years had lots of (? pain). A: sitting at work all day. R: stretching, remedial.”
There is evidence before the Commission concerning treatment of Mr Plummer’s low back pain during the period between 2001 and 2007. That is to be found in a type-written document which summarises the history as found in Dr Russo’s notes which have been tendered by each party. The following matters are there recorded:
“Oct. 2001 – began to experience pain radiating from the right side rear of the sacroiliac joint and small lump in the same area.
GP recommended physiotherapy.
Visited 2 different physiotherapists over the next 18 months and had some remedial massage with only minor temporary relief.
2003 after much treatment on and off but no result was recommended by the Physio to try Pilates to cure “activation” problems in pelvis movement.
After near 6 months of Pilates no change in problem just gave up.
Problem continued with intermittent intensity the whole time.
July 2007 experienced a slight ‘tweak’ of the mid/lower back whilst snow skiing. By the next day was in pain and having trouble with normal movement, taking pain killers to continue skiing.
Aug/Sept 07 sought chiropractic treatment for near 3 months only minor relief and then probably worsening, gave up on treatment, lower back pain abated slowly.
Oct. 07 had regular remedial massage therapy which did provide temporary relief but still had the original problem of the pain in the sacroiliac joint area and the lack of movement.
Mid Dec. 07 experienced rapid worsening of the same condition accompanied by worsening lower back pain.
CT scan revealed disc problems, took holiday time over xmas and Jan. to rest up but pain only worsened, by this time needing pain-killers to sleep every night.
Currently having Traditional Chinese treatment and acupuncture as well as Osteopathy with some relief occurring slowly and varying day to day.
Still experiencing most symptoms but mostly to a lesser degree than in January, not using pain-killers very often. But also resting much more and avoiding aggravations.”

The evidence, which I have attempted to outline above, establishes that Mr Plummer has experienced low back pain radiating into his lower extremities since at least October 2001. It was reported by Mr Plummer to his general practitioner in October 2001 that his symptoms were worse after prolonged sitting. The evidence given by Mr Plummer concerning his experience of ongoing pain from approximately 2000-2001 is, in my view, corroborated by the matters which have been recorded in the clinical notes and medical reports which have been presented in evidence. I am not satisfied that the abnormalities noted in the radiological studies of Mr Plummer’s lumbar spine are in any relevant sense causally related to any injury received whilst skiing either in 2001 or 2007. I have reached that view having regard to the contents of Ms Oehme’s notes and her report. It is reasonable to infer that, had the history as recorded by the osteopath been relevant to those matters for which treatment was sought, some mention concerning the significance of the history briefly noted may be expected. I accept Mr Plummer’s evidence as found at [33] of his first statement dated 1 July 2009 that “for a long period of time” he was “not entirely clear as to the cause” of his on-going back symptoms. What is clear is that he complained of difficulty with prolonged sitting as early as 2001. His duties in evidence have been described in detail. I accept Dr Bentivoglio’s opinion as recorded in his report of 24 December 2009, that the seating arrangement in Mr Plummer’s trains was not appropriate for a person of his height. I accept Dr Bentivoglio’s opinion that Mr Plummer has “developed some degree of discal damage at the lower two levels of his lumbar spine region, as well as some degree of degenerative changes present in the facet joints of the lower two levels of his lumbar spine region as a result of his work activities”. Dr Bentivoglio attributes this damage to the need for Mr Plummer to remain in one position for prolonged periods seated on a chair in an area that is not appropriate for a person of his size and that such conditions, combined with the rocking and rolling and jarring of his back whilst driving, caused development of the discal damage as well as the degenerative changes noted in his lumbar spine region.
I accept Mr Plummer’s submission that the weight of the opinion expressed by Dr Smith requires evaluation having regard to the complete absence of a detailed history of his work conditions. Whilst Dr Smith states plainly that Mr Plummer’s job is not one that would be “particularly likely to cause any deterioration or aggravation of his lumbar spine over and above any other occupation” that expression of view has been made without, it seems, a consideration of detailed characteristics of his day to day work.
I prefer the view of Dr Bentivoglio as to causation of injury to that as expressed by Dr Anderson in his report of 30 October 2008. At [9d] of that report Dr Anderson appears to accept the need for a train driver in Mr Plummer’s position to alter his postural position whilst carrying out his duties. At [9e] Dr Anderson acknowledges the importance that all seating should be adjustable and ergonomic. The acceptance of those matters by Dr Anderson lead me to conclude that Dr Bentivoglio’s opinion as to causation of Mr Plummer’s lumbar spine disability is, more probably than not, correct.
In reaching my conclusion as to the question of causation of Mr Plummer’s lumbosacral injury I have also taken into account the opinion of Dr Hamilton as expressed in his report of 23 July 2008. I have earlier, at [57] above, rejected the appellant’s argument that Dr Hamilton’s opinion is of no probative value. Dr Hamilton and his colleagues have had the advantage of treating Mr Plummer over many years. I accept that Mr Plummer did not relate his back disability to his work conditions because, as recorded by Dr Hamilton, “there was no specific injury” and Mr Plummer “did not consider his work as a train driver as a possible cause of his lumbar spine pain”. That state of mind persisted into the first half of 2008 and would, it is reasonable to infer, have led Mr Plummer to inform those then treating him that his incapacity was not work related.
My acceptance of Mr Plummer’s evidence concerning his being unaware of there being a causal nexus between work and his back disability is, in part, founded upon the notation found in the general practitioner’s clinical notes made on 13 June 2008. On that occasion, during a consultation with Dr Hamilton the following notation was made:
“Trying to get back to work. Spoke to union rep/lawyers. Back problems started at work sitting for long periods, no specific injury. But didn’t want to seek compensation.”
The matters recorded by Dr Hamilton in mid 2008 reflect the manner of presentation by Mr Plummer when he sought treatment at the practice in 2001 with a complaint of pain being worse after prolonged sitting. I accept Mr Plummer’s explanation concerning his unawareness of a link between his work and his disability and I find that ignorance of such matters is perfectly reasonable having regard to all the circumstances. The evidence suggests that Mr Plummer is otherwise a very fit individual who has consistently pursued physical sporting activities and maintained his fitness. His perseverance with his back disability throughout the years between 2001 and late 2007 is consistent with a stoic attitude which may reasonably be expected of a man with his general attitude to health and fitness. It is clear that, following consultation with experienced advisers, the likely link between his disabilities and work were made apparent for the first time.
A feature of this matter is the vast volume of medical records including clinical notes and reports which are in evidence. Whilst it is correct, as submitted by the appellant, that Mr Plummer has not adduced reports from a number of practitioners with whom he has had dealings, it cannot be said that there is any significant absence of evidentiary material concerning his involvement with those practitioners. I do not accept the appellant’s argument that an absence of reports from the treating practitioners including the chiropractor forms a basis upon which an adverse inference should be drawn that the evidence of those individuals would not have advanced Mr Plummer’s case.
For the reasons which I have attempted to outline above I find that, notwithstanding those errors identified by the appellant made by the Arbitrator in the course of his Reasons, and notwithstanding the arguments raised generally on behalf of the appellant, the conclusion reached by him concerning the question of causation of Mr Plummer’s injury was true and correct.

Section 9A

The Arbitrator, in the course of Reasons following his determination (at [49]) that Mr Plummer’s employment caused the subject injury, proceeded to state (at [50]):
“I am also satisfied on the evidence that employment was a substantial contributing factor to injury upon the factual evidence of (Mr Plummer) and the medical evidence from Drs Hamilton, Bentivoglio and Russo.”
The appellant criticises the Arbitrator’s reasoning as it appears in [50] of Reasons. It is argued that the evidence of Dr Hamilton and Dr Russo could not “provide any support” for the Arbitrator’s conclusion concerning employment being a substantial contributing factor to injury. I reject the appellant’s argument concerning the evidence of Dr Hamilton. That practitioner states plainly that he considers that Mr Plummer’s work as a train driver during the period of 21 years had been a significant contributing factor to his lumbar spine pain. That expression of opinion does not specifically address the precise terms of s 9A, and Dr Hamilton’s use of the word “pain” suggests that he was directing his attention to symptoms experienced by Mr Plummer rather than the question of causation of injury as is addressed in the evidence of Dr Bentivoglio. Notwithstanding that analysis of Dr Hamilton’s evidence it must be remembered that the questions raised by the provisions of s 9A are ultimately questions of fact which require proper application of the provisions of the statute and that the expression of opinion by a medical expert, such as Dr Hamilton in the present case, is but one aspect of the evidence which needs to be taken into account in reaching the relevant factual conclusion. It is my view that the expression of opinion made by Dr Hamilton, whilst not determinative of issues raised by s 9A, is both relevant and persuasive concerning those matters. It was open to the Arbitrator to rely, in part, upon Dr Hamilton’s evidence when reaching his conclusion concerning the application of the section.
The appellant’s criticism of the Arbitrator’s reliance upon Dr Russo’s evidence has, in my view, some merit. Whilst Dr Russo took a history of Mr Plummer’s experience of low back pain extending to his knees over a period of six years there is no notation to be found in his notes or his subsequent reports as to the nature or relevance of his conditions of employment. Whilst I have reached the view that Dr Russo’s evidence is of considerable value concerning diagnosis, particularly concerning the existence of an annular tear at L5/S1, his evidence does not, as asserted correctly by the appellant, directly address those issues raised by consideration of s 9A. Notwithstanding the Arbitrator’s stated reliance upon the evidence of Dr Russo, his ultimate conclusion concerning the argument raised as to substantial contributing factor is one that was open to him on the evidence as a whole and is one with which I respectfully agree. Dr Russo’s observations concerning the radiological reports available to him and his ultimate diagnosis adds weight, in my view, to the views expressed by Dr Bentivoglio. There are, in my view, other features of the evidence which have some relevance to the issues raised with respect to s 9A. The observations made by Dr Anderson concerning alteration of postural position whilst carrying out duties and the need for properly designed seating and lumbar support permits the inference, which I draw, that Mr Plummer’s work conditions were such that they may well contribute to, at least, aggravation of those abnormalities present in the lumbar spine. I note that it was acknowledged by Dr Smith at page 5 of his report that Mr Plummer had suffered an “exacerbation of underlying degenerative disease for reasons that are not apparent”. I reject Dr Smith’s assertion that “there is no work accident or injury”. The weight of the evidence, including the inference to be drawn from Dr Anderson’s report, supports a conclusion that there is a causal nexus between Mr Plummer’s employment and his injury. I have earlier noted my agreement with the Arbitrator concerning employment being a substantial contributing factor to that injury.

Mr Plummer’s entitlement to weekly benefits: sections 37 and 38 of the 1987 Act

Counsel appearing on behalf of Mr Plummer at the hearing of this appeal sought and was granted leave to amend the claim with respect to weekly benefits. The amended form of the claim seeks an award at the rate of $1600 per week from 18 December 2007 to 26 December 2007 and between 16 January 2008 and 26 October 2008. Whilst reliance has been placed by Mr Plummer upon the provisions of s 38 of the 1987 Act neither party has given any particular attention to the Arbitrator’s findings with respect to the extent of incapacity as appears in his determination.
There is abundant evidence, including Mr Plummer’s evidence and the certificates issued by Dr Accardi on 18 December and 20 December 2007, to support a conclusion that Mr Plummer was totally incapacitated by reason of his work-related injury between 18 December 2007 and 26 December 2007. That evidence supports the Arbitrator’s conclusion as expressed at [51] of Reasons and it is a conclusion with which I agree. Accordingly Mr Plummer is entitled to an award pursuant to s 36 of the 1987 Act during that period. The quantum of his entitlement is addressed hereunder.
The Arbitrator’s finding that Mr Plummer was partially incapacitated between 16 January 2008 and 26 October 2008 had been reached having regard to the balance of the medical certificates which were in evidence. The Arbitrator’s conclusion as to the existence of partial incapacity is one with which I agree. The reliance Mr Plummer places upon the provisions of s 38 for the purpose of calculating his weekly entitlement raises a number of difficulties which were not addressed in any detail before the Arbitrator but were more carefully addressed by the parties during the hearing on this appeal. That section makes special provision concerning quantification of weekly benefits in the case of a worker being partially incapacitated and not suitably employed. That section and s 38A, so far as relevant, provide:
“[WCA 38] Partially incapacitated workers not suitably employed – special initial payments while seeking employment
38 (1) Entitlement. If:
(a) a worker is partially incapacitated for work as a result of an injury; and
(b) the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2)Maximum period of entitlement. The maximum total period for which the worker may be so compensated is 52 weeks.
(3)Rate of compensation. When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:
(a) 80% of the worker’s current weekly wages rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity);
(b)the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).
(4)Worker to seek suitable employment. Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).
[WCA 38A] Section 38 – Determination of whether worker is seeking suitable employment
38A(1) Application. This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2)General requirements. The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer; and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker; and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer; and …”.
The following matters are established on the evidence and give rise to no controversy as between the parties:
(a)   Mr Plummer ceased work on 18 December 2007 and remained absent from work until 26 October 2008;
(b)   Non WorkCover medical certificates were presented by Mr Plummer to the appellant which stated that he was “affected by Low Back Pain” and that he was “able to work selected duties” which were described at the foot of the certificate. Such certificates were current up until 27 June 2008;
(c)   On 30 June 2008 Dr Hamilton signed a WorkCover NSW medical certificate which particularised a work injury as follows:
“lumbo-sacral back pain worsened mid December 2007, no specific injury, pain became so severe he had to stop work. Has been train driver for 21 yrs and has noticed LBP since approx 2003 related to his employment”.
That certificate stated that Mr Plummer had been fit for suitable duties from 15 January 2008 to 30 July 2008 and that he was unfit for work from 20 December 2007 to 29 December 2007;

(d) Mr Plummer provided a worker’s compensation claim form to the appellant on 3 July 2008. The content of that form is noted at [28] and [29] above, and
(e) The appellant made suitable duties available to Mr Plummer and he resumed those duties on 27 October 2008.

The question arises as to whether, on the facts, Mr Plummer is entitled to have his weekly benefits quantified in accordance with the provisions of s 38. At the hearing of the appeal the appellant, by way of preliminary submission, argued that there had been “no compliance with the provisions of s 38” by Mr Plummer and that he had not “proven his case”. The point was made that the provisions of s 38 may be distinguished in significant respects from its legislative predecessor being s 11(2) of the Workers Compensation Act 1926 (the 1926 Act). It was argued that it was not until July 2008 that a medical practitioner “decided” that Mr Plummer’s injury had a relationship to his work conditions. It was put that the provisions of s 38 cannot be “enlivened after the event”.
It was argued on behalf of Mr Plummer that the medical certificates which were presented before July 2008 were, in form and content, within the requirements of s 38A(2)(b). It was acknowledged that there had not been a claim for compensation until July 2008, however it was argued that proof of the provision of the certificates and that Mr Plummer was ready, willing and able to accept suitable duties were sufficient to give rise to an entitlement pursuant to s 38. It was argued that Mr Plummer had done all he was required to do by the terms of the 1987 Act.
Counsel appearing on behalf of Mr Plummer argued that, when determining the quantum of entitlement to weekly benefits, the decision of Walker J in Aughterlony v Hydrotech Scientific Services Pty Ltd (1997) 15 NSWCCR 587 (Aughterlony) should be preferred to the view as expressed by Duck J in Eyeington v New England Leather Pty Limited 25 October 1996 (unreported). The detail of these submissions is addressed hereunder.
The appellant replied to those submissions put on behalf of Mr Plummer and it was asserted that there was no entitlement to benefits pursuant to s 38. It was put in argument that the appellant had no knowledge of an alleged work injury until presentation of the claim form. The provisions of s 38, when they have application to given facts, has the effect of a penalty for failure to provide suitable duties to an incapacitated worker. It was put that it would be wrong to impose such a penalty when the appellant had no knowledge of the suggested work relationship between incapacity and work injury.
It was further argued that the provisions of s 38A(2)(b) concerning supply of a relevant medical certificate needs to be read with the provisions of s 38(1)(a). The last mentioned sub section was said to “presume relevant injury”. The argument advanced appears to suggest that the certificates issued prior to July 2008 could in no way be seen to be certificates within the description appearing in s 38A(2)(b).
As to the quantification of any weekly entitlement, the appellant argued that the views expressed by Duck J in Eyeington should be preferred to those to be found in the decision of Walker J in Aughterlony.
The evidence establishes that Mr Plummer was partially incapacitated for work at relevant times: s 38(1)(a). It is not in dispute that Mr Plummer was not suitably employed during relevant periods of partial incapacity: s 38(1)(b). Mr Plummer argues that he has satisfied the only other requirement of s 38 being that he was, at relevant times seeking suitable employment which is to be determined in accordance with the provisions of s 38A.

The evidence establishes that Mr Plummer was at relevant times ready, willing and able to accept an offer of suitable employment from the appellant: s 38A(2)(a). There is no dispute that Mr Plummer had requested the appellant to provide suitable employment: s 38A(2)(c). The dispute between the parties focuses attention upon the question as to whether the early certificates provided by Dr Accardi are of such a character that it may be said that Mr Plummer has met the requirements of s 38A(2)(b).
An employer’s liability to make weekly payments under the 1987 Act arises by virtue of the provisions of s 9 and s 33. Section 9 provides that a worker who has received an injury shall receive compensation in accordance with the 1987 Act. Section 33 provides that, if total or partial incapacity results from an injury compensation payable shall include a weekly payment during incapacity (emphasis added).
I accept the appellant’s argument that s 38A(2)(b) must be read together with s 38(1)(a). It is my opinion that liability to make payments in accordance with the provisions of s 38 arises upon proof by a worker of compliance with the formal requirements of s 38A but only in circumstances where it is established that the partial incapacity addressed in the medical certificate (s 38A(2)(b)) arises as a result of an injury within in the meaning of the 1987 Act or that the employer was otherwise aware, by reason of notice of injury or a claim, of such injury.
There had been no notice of injury nor notice of claim until July 2008. The certificates relied upon contained no reference to a relevant injury. It must be noted that the form of a WorkCover certificate as it appears in Appendix 1 to the Medical Practitioners Guide to WorkCover requires a statement of how “the injury” occurred; statement of a diagnosis and a statement of opinion as to whether the worker’s employment is a substantial contributing factor to the injury. In the present circumstances I am not satisfied that provision of the non WorkCover certificates gave rise to liability pursuant to the special provisions found in s 38. I so conclude given the appellant’s complete ignorance at that time of the allegation that the partial incapacity alleged was as a result of injury (s 33).
Section 38 is in very different terms to s 11(2) of the 1926 Act; however, each provision has, or had, a similar consequence concerning an employer’s liability where there is a failure to provide suitable employment to a partially incapacitated worker. In my view there can be no such failure on the part of an employer who has no knowledge of relevant work injury.
Notwithstanding the matters which I have attempted to summarise I conclude that Mr Plummer is entitled to weekly compensation in respect of his partial incapacity between 15 January 2008 and 30 June 2008 pursuant to s 40 of the 1987 Act. The quantum of that entitlement is addressed hereunder.
The evidence establishes, and I accept, that Mr Plummer first presented a WorkCover NSW medical certificate to the appellant on 30 June 2008 and subsequently, on 3 July 2008, presented a compensation claim form. I have reached the conclusion that Mr Plummer has since 30 June 2008 satisfied all those relevant requirements as prescribed by s 38 and s 38A and is thus entitled from that date to the benefit of the provisions of s 38 concerning the quantification of his entitlement to weekly payments up until his commencement of suitable duties as provided by the appellant in October 2008. Whilst it is the case that Dr Hamilton’s certificate dated 30 June 2008 makes reference to fitness for suitable duties from 15 January 2008 I am of the view that an obligation to provide suitable duties may not be imposed retrospectively upon the appellant.

Quantum of Entitlement to Weekly Benefits

Having regard to the findings made on this review Mr Plummer is entitled to an award of weekly payments in respect of total incapacity between 18 December 2007 and 26 December 2007. Thereafter his entitlement to weekly benefits between 16 January 2008 and 30 June 2008 requires calculation in accordance with the provisions of s 40. From 1 July 2008 to 26 October 2008 Mr Plummer’s entitlement is to be determined having regard to the provisions of s 38.
Mr Plummer is entitled to a weekly award in respect of the period of total incapacity in the amount of his current weekly wage rate (s 36). The parties have not agreed as to the quantum of the relevant current weekly wage rate. Mr Plummer asserts that the current weekly wage rate is to be determined having regard to the base pay hourly rate plus regular allowances being a Hunter Valley driver’s allowance and a loco driver’s allowance. It is the appellant’s contention that the current weekly wage rate is to be determined by reference to the base pay hourly rate alone.
The issue in dispute concerning computation of the current weekly wage rate, which requires application of the provisions of s 42 of the 1987 Act, has been addressed by the Court of Appeal in Lismore City Council v Garland (1992) 26 NSWLR 542 (Garland). In Garland the question arose as to whether an industry allowance is part of an ordinary rate, that is whether such allowances should be taken into account when determining the current weekly wage rate. It was decided by Mahoney JA (with whom Sheller JA agreed) that such allowances were part of “the ordinary rate fixed by” the award for the work performed by the worker”. Such allowances, it was found, were not excluded by s 42(6) (at 553E). Kirby P reached a similar conclusion but for different reasons. I am satisfied, having regard to the matters addressed in Garland, that both allowances are to be taken into account when determining Mr Plummer’s current weekly wage rate. In the circumstances his weekly entitlement during total incapacity is in the sum of $1342.50.
The appellant has submitted that, should there be a need to determine Mr Plummer’s entitlement pursuant to s 40, the matter should be remitted to an Arbitrator for consideration of that question. That course is opposed by Mr Plummer and it was put that the appropriate course would be to determine such question on appeal. I accept Mr Plummer’s submission and it is proposed to determine his entitlement to weekly payments in respect of partial incapacity between 16 January 2008 and 30 June 2008 in accordance with those principles enunciated in MitchellvCentral West Area Health 14 NSWCCR 526 (Mitchell). The first question is to determine Mr Plummer’s probable earnings but for injury. There has been no agreement with respect to this matter, however I have earlier dealt with the dispute concerning computation of the current weekly wage rate. I adopt that rate, namely $1342.50, as the amount which Mr Plummer would probably have earnt but for injury.
The next question is to determine Mr Plummer’s ability to earn during partial incapacity. Having regard to the medical evidence, in particular the content of the medical certificates which were issued during the relevant period, I conclude that Mr Plummer was capable of work not involving sitting down for periods longer that 40 to 60 minutes, not doing any heaving lifting (that is greater than 8 kilograms) and that office duties were, on the probabilities, the most suitable duties at that time. There is no suggestion in the evidence that Mr Plummer was capable of performing work for a period less than 38 hours per week. Having regard to the Commission’s knowledge of the general labour market and in particular relevant industrial awards in respect of such work I conclude that Mr Plummer, in his incapacitated state, was capable at relevant times of earning the sum of $740 per week performing clerical work, working full time within the limitations as appear in the various medical certificates.
The difference between Mr Plummer’s probable earnings and his ability to earn as found is in the sum of $602.50. That sum exceeds the maximum statutory rate payable to a worker in Mr Plummer’s position of having no dependents. Accordingly his prima facie entitlement is in the sum of $367.70 per week from 16 January 2008 to 31 March 2008 and $374.90 from 1 April 2008 to 30 June 2008. I find no fact or circumstance requires the exercise of discretion to reduce the quantum of compensation.
Having regard to my earlier findings Mr Plummer is entitled to an award in respect of deemed total incapacity pursuant to s 38 between 1 July 2008 and 26 October 2008. As noted earlier at [89] the parties have taken different positions concerning the quantum of Mr Plummer’s entitlement should there be a finding that the provisions of s 38 apply.
The differing views expressed in the decisions of Aughterlony and Eyeington concern the proper construction of the provisions of s 38(3) which regulates the rate of compensation payable under that section. The view of Walker J as expressed in Aughterlony was that entitlement to weekly compensation is to be determined having regard to a literal construction and application of that provision notwithstanding the existence of an anomaly in that case that the worker would receive more compensation pursuant to s 38 as a partially incapacitated worker than he would receive under s 37 in respect of total incapacity.
The decision of Duck J in Eyeington acknowledged the anomaly that may arise by a literal application of the provisions of s 38(3) and his Honour reached the conclusion that s 38 should be read down having regard to the provisions of s 37(2) and s 40(5). That last sub- section provides that weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity.
Mr Morgan, appearing on behalf of Mr Plummer at the hearing, drew attention to the provisions of s 40(8) which provides:
“Exemption. This section does not apply to any period of partial incapacity for work during which the worker is compensated under this Act as if the worker’s incapacity for work were total.”
I accept Mr Plummer’s submission that the provisions of s 40(5) have no application to the period of partial incapacity with which I am presently dealing being a period when the worker’s incapacity for work is being treated as total. I acknowledge that in the past I have expressed, without determining the issue, a preference for the reasoning as was expressed by Duck J in Eyeington. That reasoning did not expressly take into account the operation of s 40(8). Having regard to the operation of that last mentioned subsection I conclude that Mr Plummer’s entitlement pursuant to s 38 is to be determined by a literal application of the provisions of sub-section (3) of that section. In an appropriate case regard must, as stated by Duck J, still be had to the provisions of s 37(2). In the present circumstances Mr Plummer is entitled to 80 per cent of his current weekly wage rate between 1 July 2008 and 26 October 2008. Taking into account an increase of the current weekly wage rate which, it was agreed, occurred on 6 July 2008, Mr Plummer is entitled to an award pursuant to s 38 at the rate of $1074 from 1 July 2008 to 5 July 2008 and at the rate of $1116.48 per week from 7 July 2008 to 26 October 2008.
Having regard to my conclusions reached on review it is apparent that order 1 of the Arbitrator’s determination requires revocation. That is to be substituted with an order made in accordance with the above findings.

DECISION

Order 1 of the Certificate of Determination dated 28 June 2010 is revoked and the following orders are made in its place:

“1.Award for the applicant at the rate of:
$1342.50 per week from 18 December 2007 to 26 December 2007 (s 36);
$367.70 per week from 16 January 2008 to 31 March 2008 (s 40);
$374.90 per week from 1 April 2008 to 30 June 2008 (s 40);
$1074 per week from 1 July 2008 to 6 July 2008 (s 38), and
$1116.48 per week from 7 July 2008 to 26 October 2008 (s 38).”
2.Orders 2 and 3 of the Certificate of Determination dated 28 June 2010 are confirmed.

COSTS

The appellant is to pay Mr Plummer’s costs of the appeal.

Kevin O’Grady
Deputy President
20 October 2010

I, MARGOT UNDERCLIFFE CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE