Podmore v Mt Warrigal Care Nursing Home
[2006] NSWWCCPD 335
•7 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Podmore v Mt Warrigal Care Nursing Home [2006] NSWWCCPD 335
APPELLANT: Caroline Mary Podmore
RESPONDENT: Mt Warrigal Care Nursing Home
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC17266-05
DATE OF ARBITRATOR’S DECISION: 26 April 2006
DATE OF APPEAL DECISION: 7 December 2006
SUBJECT MATTER OF DECISION: Section 40(2)(b) of the Workers Compensation Act 1987; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Tydd
HEARING:On the papers
REPRESENTATION: Appellant: Lough Wells Duncan Lawyers
Respondent: Edwards Michael Moroney Lawyers
ORDERS MADE ON APPEAL: 1. Paragraph four (d) of the decision of the Arbitrator dated 26 April 2006 is revoked and the following orders are made in its place:
“(i) $233.08 per week from 4 April 2005 to 30 June 2005, and
(ii) $189.30 per week from 1 July 2005 to date and continuing in accordance with section 40 of the Workers Compensation Act 1987.”
.
2. Paragraphs one; two; three; four (a), (b), (c) and five of the Arbitrator’s decision were not raised on appeal and are confirmed.
3. The Respondent to pay the Applicant’s costs of the appeal.
BACKGROUND TO THE APPEAL
Caroline Mary Podmore (‘Ms Podmore’) is a 54 year old woman who commenced work as a nursing assistant with Mt Warrigal Care Nursing Home (‘Mt Warrigal Care’) in 1989. Ms Podmore’s duties required her to lift and transfer elderly patients and on 18 March 2001 she injured her back; right leg, neck and right shoulder area when using a mechanical lifter to move a patient and again later that day she suffered a further injury to her back when manually lifting another patient from the floor to a chair. Ms Podmore returned to work the following day but did not complete her shift because of pain.
Ms Podmore was certified unfit for work by her general practitioner, Dr Haider from 20 March 2001 to 22 April 2001 and thereafter was certified fit to return to work on ‘light duties’ with a gradual increase in her hours. Ms Podmore remained on ‘light duties’ until 10 October 2003 when Mt Warrigal Care terminated her employment. At that time Ms Podmore was working 30 hours per week. Ms Podmore was unable to obtain suitable employment again until January 2005 when she commenced casual work with Illawarra Nursing Service (‘INS’).
Employers Mutual Indemnity (Workers Compensation) Limited (‘the Insurer’) initially accepted liability and Ms Podmore was paid weekly payments of compensation until 5 April 2004 when the Insurer denied liability for ongoing weekly compensation payments on the grounds that any employment related injury had resolved.
The Application to Resolve a Dispute
On 11 October 2005 Ms Podmore lodged an ‘Application to Resolve a Dispute’ (WCC17266-05) in the Workers Compensation Commission (‘the Commission’) naming Mt Warrigal Care as the Respondent. Ms Podmore claimed that she suffered an injury to her back, neck, right arm, right leg, and psychological injury as a result of the two frank injuries set out above and also as a result of the nature and conditions of her employment with Mt Warrigal Care from 1998 to 18 March 2001. Ms Podmore sought weekly compensation from 5 April 2004 to date and continuing; lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) for 67% permanent impairment of her back; 20% permanent impairment of her neck; 17% permanent loss of use of efficient use of her right arm at or above the elbow; 5% permanent loss of use of efficient use of her right leg at or above the knee; $20,000 pursuant to section 67 of the 1987 Act, and an order for medical and related expenses pursuant to section 60 of the 1987 Act.
On 1 November 2005, Mt Warrigal Care lodged a Reply to the ‘Application to Resolve a Dispute’ in which it disputed: that employment was a substantial contributing factor to the injury; the extent of incapacity and loss of earnings claimed, and that the medical and related expenses were reasonable and necessary.
Conciliation and Arbitration Proceedings
A teleconference was conducted on 20 December 2005 and by consent the injury to Ms Podmore’s right arm only was referred for assessment by Dr Bodel, an Approved Medical Specialist (‘the AMS’). In previous discontinued proceedings involving the same injury Dr Bodel had issued a Medical Assessment Certificate (‘MAC’) dated September 2004 providing an assessment of Ms Podmore’s back, neck and right leg at or above the knee.
Following the issuing of Dr Bodel’s MAC dated 1 March 2006 a further teleconference was conducted on 31 March 2006. The matter was not resolved at that time, for reasons which included the dispute regarding Ms Podmore’s section 40 of the 1987 Act entitlements. A conciliation/arbitration hearing was conducted before the Arbitrator on 19 April 2006. It appears on the evidence before me, that the claim for psychological injury was not pursued.
The Arbitrator provided a ‘Certificate of Determination’ and ‘Statement of Reasons’ dated 26 April 2006. The decision of the Arbitrator noted the impairment certified by Dr Bodel, of 10% permanent impairment of the back; 5% loss of use of the right leg at or above the knee, and 10% loss of use of the right arm at or above the elbow as a result of the injury sustained on 18 March 2001 together with 5% impairment of the neck and 2% loss of use of the right arm at or above the elbow as a result of the nature and conditions of employment from 1989 to 2001.The Arbitrator made the following orders:
“1) The Respondent pay the Applicant’s s.60 of the Workers Compensation Act1987 expenses up to the sum of $11,258.15
2) The Respondent pay the Applicant lump sum compensation under s.66 of the Workers Compensation Act 1987 in the sum of $21, 350 [sic $21,350.00].
3) The Respondent pay the Applicant compensation of $12, 000. [sic $12,000.00] under s.67 of the Workers Compensation Act 1987 for pain and suffering.
4) The Respondent pay the applicant weekly compensation payments from
a) 5/04/04 to 5/10/04, at the rate of $375.67 under s38 of the 1987 Act.
b) 6/10/04 to 14/1/05 at the maximum statutory rate of $328 under s40 of the 1987 Act.
c) 15/01/05 to the 3/04/05 at the maximum statutory rate of $328.9 [sic $328.90] (or $334.10 after 1/04/05) under s40 of the 1987 Act
d) 4/04/05 to date and continuing at the rate of $116.30 per week under s40 of the 1987 Act.
Such payments to continue in accordance with the Act.5) That the Respondent pay the Applicant’s costs as agreed or assessed.”
Lodgement of the appeal
On 24 May 2006 Ms Podmore sought leave to bring an ‘Appeal Against Decision of Arbitrator’.
On 20 June 2006 Mt Warrigal Care filed a ‘Notice of Opposition to Appeal’.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether the Arbitrator erred in her application of section 40(2)(b) of the 1987 Act.
·Whether the Arbitrator erred in failing to provide adequate reasons for her decision.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum at issue on the appeal is in excess of $5,000.00 therefore section 352(2)(a) of the 1987 Act is satisfied. In respect of the threshold contained in section 352(b) of the 1987 Act Ms Podmore challenges the Arbitrator’s award of $116.30 per week from 4 April 2005 and continuing. The amount ‘at issue’ is determined by reference to the amount of any monetary award made by the Arbitrator (Grimson v Integral Energy [2003] NSWWCCPD 29). The Arbitrator’s decision when considered in totality amounts to in excess of $61,000.00. However the award of weekly compensation was made on a continuing basis. I am satisfied that the appeal against the ongoing award for weekly compensation which implies the Insurer’s obligation until Ms Podmore’s retirement (Albury City Council v Gow[2006] NSWWCCPD 319) is at least 20% of the amount of weekly compensation contained in the ‘order’ or ‘award’ for weekly compensation made by the Arbitrator (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 62 at paragraph 21).
Mt Warrigal Care submits that the appeal was lodged one day later than the date required in compliance with section 352(4) of the 1998 Act. However submissions opposing the granting of leave were not made by Mount Warrigal Care. Ms Podmore submits that the appeal was lodged by facsimile on 24 May 2005 and the appeal was therefore lodged within time. Following my review of the files I am satisfied that the appeal was received by facsimile on 24 May 2006, as permitted by Rule 19 of the Workers Compensation Commission Rules 2003 (‘the Rules’) in force at the relevant time. Whilst the facsimile was received at 5:46 pm, on my assessment of the Rules, in force at the relevant time “day” means a calendar day and the Rules do not prohibit the lodging of documents outside normal business hours. I note that Part 8 of the Workers Compensation Commission Rules 2006 now provide a 4:30 pm concluding time for service on a given day.
I grant leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Ms Podmore submits that in the interests of fairness a proper analysis of all the submissions is best achieved by way of oral hearing because of the substantial evidence, the questions of law raised, and the amount of compensation in issue. Mt Warrigal does not believe that any useful benefit will ensue from oral submissions. I do not consider that the issues raised on appeal or the amount of evidence precludes a review on the papers nor do I consider that this approach offends the requirements of procedural fairness. Further I am satisfied that Ms Podmore’s legal representatives have been provided with an opportunity to address the issues and they have done so by providing submissions on three separate occasions. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mt Warrigal Care that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
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.”
Ms Podmore submits that “it may be necessary for the Appellant to apply for the tender of fresh evidence at some stage in the immediate future” as it is envisaged that such evidence may become available given the circumstances of the case. The application is opposed by Mt Warrigal Care. I have summarised the requirements of Practice Direction 6, which are or should be known to Ms Podmore’s legal representatives. The Practice Direction clearly sets out the requirement to identify the new evidence relied upon and provide a copy of the new evidence, it does not, in my view envisage the granting of a ‘general order’ to admit unidentified new evidence. Additionally, in my view the nature of the claim and the evidence in support of the appeal is or should be known to Ms Podmore’s legal representatives particularly in circumstances where a transcript of proceedings has been provided and submissions from her representatives in support of the appeal have been lodged. In the absence of compliance with Practice Direction 6 and identification of the new evidence relied upon I am unable to consider the admissibility of new evidence as required (Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7). In my view, the application to admit new evidence is misconceived and is refused.
SUBMISSIONS AND EVIDENCE
Ms Podmore’s submissions
Ms Podmore’s submissions challenge the Arbitrator’s findings of capacity for work and ability to earn from 4 April 2005 only. It is submitted that the Arbitrator erred in finding that Ms Podmore was fit to work 30 hours per week from 4 April 2005 and in failing to find that Ms Podmore’s actual earnings after 4 April 2005 represented her ability to earn for the purposes of section 40(2)(b) of the 1987Act. In support of the appeal Ms Podmore submits that the Arbitrator’s findings were inconsistent with the medical certificates of Dr Haider and Ms Podmore’s own evidence. Dr Haider’s certification in July 2005 that Ms Podmore was capable of working 35 hours per week was revised in his certificates dated 11 August 2005 and 4 September 2005 which reduced Ms Podmore’s hours to between 20 to 25 hours per week and these certificates were consistent with Ms Podmore’s evidence that the increase in hours resulted in an increase in her symptoms. The Arbitrator’s finding that Ms Podmore’s evidence was “unconvincing” related only to “a relatively minor” aspect of her evidence (that she was required to lift large boxes) and this finding should not result in a rejection of her evidence in total. Accordingly the Arbitrator had no basis upon which to ground her finding that Ms Podmore was capable of working 30 hours per week. Further the Arbitrator’s reasons do not “properly disclose the reasoning process that lead to her findings.”
Further it is submitted that the Arbitrator’s award of $116.30 per week from 4 April 2005 pursuant to section 40 of the 1987 Act is inconsistent with a proper application of the principles laid down in Aitkin v Goodyear Tyre & Rubber Co (Australia) Limited (1945) 46 SR (NSW) 20 (‘Aitken’) as none of the exceptions provided by Jordan CJ at paragraph 22 apply to the present case. There is no evidence that Ms Podmore had deliberately obtained lower paid work, that she was idling or was receiving a reduced wage for a reason unconnected with the work injury. Ms Podmore also relies upon J C Ludowic & Son Limited v Cutri (1992) 26 NSWLR 580 (‘Ludowic’) and Pira Pty Limited trading as Langdon and Bartley v Tucker (1996) 14 NSWCCR 26 (‘Pira’) in support of a finding that the Arbitrator erred in not finding that Ms Podmore’s earnings were her actual earnings for the purposes of section 40(2)(b) of the 1987 Act. Additional submissions were provided by Ms Podmore, dated 19 July 2006 in which Ms Podmore relied on the decision of Acting Deputy President Harrington in Layton v Leichhardt Municipal Council (2006) NSWWCCPD 100 (‘Layton’) in support of her submission that the Arbitrator was required to find that her actual earnings from time to time, represented her ability to earn pursuant to section 40(2) of the 1987 Act.
In further submissions, dated 23 June 2006 provided following receipt of the transcript and the Notice of Opposition Ms Podmore referred to Mt Warrigal Care’s submissions that she informed Dr Revai of her love of her work. Whilst Ms Podmore does not resile from this statement she submits that Dr Revai’s report was not in evidence and further her oral evidence does not amount to a concession that she was capable of working 30 hours per week. Rather she informed Dr Revai of the difficulties she experienced in performing her duties (transcript page 9 line 18) and Mt Warrigal Care’s submission that on her own evidence she was capable of working 30 hours per week is not sustainable when her oral evidence is considered in total, having particular regard to the transcript (page 2 line 57 to page 3 line 33). Further the Arbitrator did not call into question Mr Podmore’s evidence as a whole, rather the Arbitrator accepted her evidence and having done so she was required to accept Ms Podmore’s assertion that she was not fit to work 30 hours per week.
Mt Warrigal Care’s submissions
In summary Mt Warrigal Care submits that the Arbitrator properly applied the five step process required by section 40 of the 1987 Act and the medical evidence in making the award. In so doing the Arbitrator correctly determined that Ms Podmore’s earnings but for the injury were $667.11 and from 4 April 2005 she was able to work at least 30 hours per week and therefore capable of earning $550.80 per week. In making the necessary subtraction the Arbitrator correctly entered the award of $116.13 per week from 4 April 2005.
Ms Podmore informed Dr Revai that she enjoyed her work at Mayne Health. Further Ms Podmore’s oral evidence supports a finding that she only reduced her hours of work from 30 hours per week in August 2005 because the additional hours made available to her ceased when the permanent full time worker returned from leave. Accordingly, by her own account Ms Podmore was capable of working 30 hours per week, she undertook this work without complaint and her evidence in this regard posts dates the medical evidence of Drs Bodel and Deveridge by some two years. Accordingly the overwhelming inference available to the Arbitrator was that had the full time workers not resumed their job, Ms Podmore would have continued indefinitely to work 30 hours per week.
Further whether or not the Arbitrator found Ms Podmore’s evidence “unconvincing” it is not a matter that calls for the intervention of an appellant tribunal (Abalos v Australian Postal Commission (1990) 171 CLR 167 at p179). Ms Podmore has failed to demonstrate that the Arbitrator’s decision is affected by some legal factual or discretionary error (Allesch v Maunz (200) 2003 CLR 172) and where the weight accorded to the evidence by the Arbitrator is challenged interference, by a presidential member should only occur where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully (Knight v Eyles Nominees Pty Ltd [2004] NSWWCCPD 73). The Arbitrator’s reasons adequately set out her material findings of fact and the evidence upon which those findings are based; the relevant law and its application to the facts and there is nothing to indicate that the Arbitrator failed to exercise her duty fairly to lawfully determine the application. Therefore the decision of the Arbitrator must be confirmed.
Ms Podmore’s evidence
In her statement dated June 2005 Ms Podmore set out her employment and educational history and confirmed the manner in which her injury was sustained. Ms Podmore stated that she did not work following her cessation of employment with Mt Warrigal Care in October 2003 until January 2005 when she commenced work with INS as a respite care worker which required her to “sit with” people while their partner was unavailable. The work was intermittent and her duties were restricted “to avoid lifting, showering and the like.” She continued in this role until April 2005 when she took up casual employment with Mayne Health collecting blood and taking ECG’s. As it relates to the matters raised on appeal Ms Podmore’s oral evidence may be summarised as follows:
· she is employed casually for on average 20 - 25 hours by Mayne Health as a blood collector (transcript page 1 line 48) and these hours have increased for a period of three to four weeks (transcript page 19 lines 23 -24) to 30 to 33 hours over five days (transcript page 2 line 40) as a result of the temporary absence of a full time employee;
· prior to taking on the additional hours for the period of time they were to be made available she discussed the increase in hours with her doctor;
· her pain increased during the period of increased hours and she experienced difficulties “doing the job” and does not think that she could perform the role on a full time basis. However she did not consulted her general practitioner during that time in respect of the increased pain;
· she tried very hard to obtain the casual position and would be happy to continue this work as long as her back allows;
· she had previously undertaken limited respite care work for INS which did not require showering or nursing dementia patients;
· following her employment with Mayne Health she was offered work by INS, about one year ago, particularly in Sydney and she declined the offer as she could not manage both positions;
· she has not discussed the possibility of working two jobs with her doctor because she tried increasing her hours previously and could not manage;
· she told Dr Revai, psychiatrist that she enjoyed her work at Mayne Health;
· in that role she had difficult lifting boxes of up to 10 kilograms, and
· she had seen the video footage of herself lifting groceries into the boot of her car.
Dr Stenning, neurosurgeon, provided a report dated 16 September 2003 in which he diagnosed long standing degenerative changes at L5/S1 level together with instability at that disc level, minor neck disability (probably due to spasm of the paravertebral muscles) and minor psychogenic features, namely “inconsistent sensory loss of the left side of her body including her face which does not respect an anatomical or physiological distribution.” Dr Stenning opined that there would not be a significant improvement in her symptoms as it was more than two years since her aggravating incident and it is quite possible that her symptoms may deteriorate; she is fit for clerical and sedentary and managerial duties. Dr Stenning concluded that Ms Podmore’s work was a substantial contributing factor to her injuries and assessed her as having a 67% permanent impairment of her back; 20 % impairment of her neck, and 5% permanent loss of efficient use of her right leg at or above the knee.
Dr Deveridge, surgeon, provided a report dated 16 December 2004 in which he diagnosed chronic cervical thoracic and lumbar strain injury with aggravation of underlying age related spondylosis; chronic soft tissue injury to her right shoulder and elbow joints, with an element of epicondylitis and opined that on balance the residual disabilities experienced by Ms Podmore are attributable to her work injury at Mt Warrigal Care. Dr Deveridge concluded that Ms Podmore was fit for part-time sedentary duties “up to about 20 hours weekly.” And certified that she had reached maximal medical improvement. Dr Deveridge assessed Ms Podmore as having a 17% permanent loss of efficient use of her right upper limb at and above the elbow, but incorporating the whole limb.
The medical evidence regarding Ms Podmore’s capacity for work after 4 April 2005 was contained in the medical certificates of Dr Haider dated 27 May; 5 July; 11 August and 13 September 2005. Dr Haider certified Ms Podmore fit for suitable duties of 25 hours per week from 4 March 2005 to 4 June 2005 and on 5 July 2005 he certified her fit for suitable duties for 35 hours per week from 4 July 2005 to 4 August 2005 “on trail period for one month to increase the hours to 35 per week”. On 11 August 2005 Dr Haider certified that Ms Podmore was “unable to manage more than 20 – 25 hours/week” and certified her fit to undertake suitable duties from 4 August 2005 to 4 September 2005. On 13 September 2005 Dr Haider again certified Ms Podmore fit to undertake suitable duties from 4 September 2005 to 4 October 2005 for 20-25 hours per week.
Mt Warrigal’s evidence
Dr Matheson, neurosurgeon, provided a report dated 27 January 2004 in which he diagnosed Ms Podmore as having a minor disc lesion of long standing not attributable to any work injury and which “could give her some back pain from time to time.” Dr Matheson concluded that in the “main [Ms Podmore suffers from] a somatised disorder.” and that she is fit to continue her work as a nurse aide provided she avoids lifting patients. In Dr Matheson’s opinion any aggravation of Ms Podmore’s symptoms has long ceased; she should be weaned of the high amount of medication she is taking; her prognosis is good; she has reached maximal medical improvement and has 0% whole person impairment. In his report dated 29 June 2004 Dr Matheson assessed Ms Podmore as having 5% permanent impairment of her back, which is not work related and 0% permanent loss of efficient use of the left leg at or above the knee.
Dr Machart, orthopaedic surgeon provided a report dated 17 February 2004 in which he diagnosed chronic lumbosacral disc degeneration not caused by the work incidents described. However, in his opinion the work incidents caused a temporary aggravation of the chronic disc lesion and there is a significant amount of non-organic illness behaviour. Dr Machart opined that Ms Podmore is fit “for full-time employment, light duties, i.e. work which does not involve heavy lifting or repetitive bending and her whole person impairment was assessed as 10% which represented “constitutional degenerative changes.” In his further report dated 31 January 2005 Dr Machart concluded that the reported disabilities are not consistent with the work injury described and Ms Podmore is “fit for pre-injury duties, with the advice that she should seek help when lifting. She should probably not be lifting anything heavier than 15 kgs. She is fit to work with these restrictions.”
The Functional Capacity Evaluation Report provided by ARC Rehabilitation and Risk Management Services Pty Ltd (‘ARC’) dated 9 November 2004 was provided following an assessment conducted on 3 November 2004. The report concluded that Ms Podmore displayed overt pain behaviour; an exaggeration of her limitations; inconsistencies in her performance and Ms Podmore has the capacity to perform a range of sedentary and semi-sedentary work such as blood sample collector or medical receptionist and:
“She did not exhibit the capacity to return to her pre-injury duties as an assistant in nursing at a nursing home; but would not be recommended to return to this type of employment nevertheless due to the truncal instability and the weakened trunk musculature, which would predispose her to injury with involvement in regular manual handling, such as is required in a home nursing home facility.”
The ARC Vocational Assessment Report dated 15 November 2004 concluded that Ms Podmore was genuinely interested in returning to the workforce; prepared to broaden her job seeking activities and expressed a preference for work as a blood sample collector. The report did not recommended restricted hours of employment.
A further report from ARC dated 7 November 2005 was also in evidence and this report set out suitable employment categories and pay rates for full and part time hours.
Dr J O’Neill, neurologist provided a report dated 16 December 2005 in which he diagnosed Ms Podmore as having chronic severe narrowing and degenerative desiccation of the L5/S1 disc with contained gas. Dr O’Neill stated that her symptoms referable to the work injury should have settled spontaneously and she has no neurological dysfunction arising from the cervical spine. Dr O’Neill concluded that there was a major psychosomatic component to Ms Podmore’s continuing complaints. Dr O’Neill opined that:
“it would be inadvisable for her to continue manual work of the type which may be required of an Assistant Nurse. With the further passage of time, I believe she would be fit for fulltime work as a blood collector (emphasis added).”
The Medical Assessment Certificates
Following his examination of Ms Podmore on 2 September 2004 Dr Bodel, assessed Ms Podmore’s permanent impairment of the neck and back and permanent loss of efficient use of the right leg at or above the knee as set out at paragraph eight of these reasons. The AMS was also asked to comment on Ms Podmore’s capacity for work and in reply Dr Bodel stated:
“This lady is not totally incapacitated for work. She should be capable of at least part time light duty work with a 10 kilogram lifting limit. She must avoid repetitive bending. She should be able to work at the moment at about 20 hours per week. With improved paraspinal muscle tone and fitness and work hardening she may be able to upgrade to full time work with restrictions on bending and lifting.”
Following his examination of Ms Podmore on 8 February 2006 Dr Bodel assessed Ms Podmore’s right arm at or above the elbow as referred by the Arbitrator. The history set out in the MAC as it relates to the issues raised on appeal was that following a non-work related injury Ms Podmore returned to work with Mayne Health in December 2005 and found the workload “quite heavy” causing her increasing pain in the right shoulder, as a result she consulted Dr Haider. At the time of examination she reported working “up to about 65 hours per fortnight at the moment but feels more comfortable with about 40 hours per fortnight.” Dr Bodel commented that he had considered the video surveillance and opined that her restricted range of movement on examination was not inconsistent with her clinical findings or the video tape footage. Dr Bodel diagnosed a mild rotator cuff injury to the right shoulder as a result of her work injury and provided an assessment of 10% permanent loss of efficient use of her right arm at or above the elbow as a result of the injury sustained on 18 March 2001 and a further 2% permanent loss of efficient use of her right arm at or above the elbow as a result of the nature and conditions of her employment from 1989 to 18 March 2001.
ARBITRATOR’S DECISION
The Arbitrator found that Ms Podmore had suffered impairment to her back, right arm and right leg as assessed by Dr Bodel in his MAC dated 2 September 2004 arising from her injury sustained on 18 March 2001. The Arbitrator also found that Ms Podmore was entitled to payments in accordance with section 38 of the 1987 Act following her termination of employment and weekly compensation pursuant to section 40 of the 1987 Act during the period in which she was retraining and actively seeking suitable employment but unable to secure that employment. In determining the award pursuant to section 40 for the period 4 April 2005 to 30 June 2005 the Arbitrator found that “Mrs Podmore had increased her hours to 30 hours per week in light duties, clerical work prior to October 2003. She was therefore capable of 30 hours per week in suitable employment some three years ago and prior to Dr Deveridge’s assessment in 2004”. On that basis the Arbitrator opined that it was unclear why Ms Podmore’s recommended hours should have been reduced. The Arbitrator noted Ms Podmore’s admission that she had been offered respite care work of a sedentary nature by a previous employer, INS and she declined this offer because she did not feel se could manage it. The Arbitrator noted that Ms Podmore had not increased her intake of analgesia during the period of increased hours which occurred in March/April 2006 or consulted her general practitioner regarding an increase in her symptoms. The Arbitrator referred to Ms Podmore’s latest WorkCover medical certificate dated 13 September 2005 in which she was certified fit for 20-25 hours per week and found that there was no current evidence that she cannot manage 30 hours and that there was no current evidence to support the restriction to 30 hours. The Arbitrator then found that Ms Podmore could work at least 30 hours per week and that suitable work “is available to her” which would increase her earnings to $550.80 per week. Accordingly the Arbitrator subtracted Ms Podmore’s earnings in suitable employment, being $550.80 from her earnings but for the injury, being $667.11 as agreed by the parties; declined to exercise her discretion pursuant to section 40(1) of the 1987 Act and made the award of $116.30 per week from 4 April 2005 to date and continuing pursuant to section 40.
DISCUSSION AND FINDINGS
Did the Arbitrator err in applying section 40(2)(b) of the 1987 Act?
The determination of the average weekly amount the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury pursuant to section 40(2)(b) of the 1987 Act has been considered in a number of decisions relevant to the matters raised on appeal including Aitken; Ludowic; Pira; Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’); Layton; Metal Manufacturers Limited v Gagovski [2006] NSWWCCPD 267; Pied Piper Pre-School Association (Wallerwang) Incorporated v Woolsey [2004] NSWWCCPD 5 (‘Pied Piper’) and, Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 (‘Nicholson’).
Aitken, at pages 109-110, provides authority “that if the partially incapacitated worker is earning something his actual earnings must prima facie be taken as the basis” (emphasis added) of the assessment to be conducted in accordance with section 40(2)(b) of the 1987 Act and “If, however, it is proved that his actual earnings are not the proper test, because it is for some reason unconnected with his earnings which makes them lower than they should be, the alternative, what he is able to earn must be adopted.” This line of authority has been followed in a number of decisions including Ludowic. In that case the Court of Appeal, concluded that:
“... the preferable construction is that which has been repeatedly stated in the decisions of this Court. It is that where the worker is earning, the average weekly amount produced thereby is normally to be taken as the par (b) component of the equation. It is only otherwise where the decision-maker concludes that the worker is able to earn more than that sum in some suitable employment. Then, but then only, is a notional sum taken into account. It is subject to the maximum provided in par (b) itself. It is also subject to determinations as s 40(1A) and s 40(2) provide.
Parliament included the reference to what the worker “ is earning” for a purpose. The phrase cannot be ignored. The earnings are not mere evidence of what the worker is “able to earn”. In fact, if the worker is “earning” that will normally be the end of the inquiry. It is only if, for some reason, that amount, where it exists, or existed, is suggested to be an under-estimate or a false measure of the worker’s ability to earn that the alternative inquiry will be embarked upon. [Kirby P at 593]”
The authority provided in Ludowic was more recently considered by the Court of Appeal in Pira. The facts of the present case are compellingly aligned with those before the Court in Pira. In that case the worker suffered a compensable injury; was incapacitated for a period of time and after returning to work she was retrenched. Some years later she undertook retraining and secured part-time work as an assistant nurse working only 10 hours per week with some overtime. The trial Judge assessed what the worker was able to earn after her retrenchment and prior to her employment at the nursing home but held that he was not required to make an assessment of her ability to earn following her employment because her actual earnings were known. On appeal the employer argued that the trail Judge should have ignored the actual earnings and assessed the worker’s entitlement by reference to her ability to earn. The Court considered the authority provided in Aitken and in applying the test enunciated by Chief Justice Sir Frederick Jordan at page 22 in that case held that:
“The critical point argued by the appellant was that because the respondent [worker] had taken employment, as it were, at the time with a nursing home and because the employer had offered her only limited hours of work, it followed that the actual earnings which she received were, to quote the words of Sir Frederick Jordan, “compulsorily reduced by something unconnected with the injury or general earning power”. However, that submission overlooks the evidence which made it clear that the respondent works only limited hours and sought not to work longer because if she did so her knee became painful.
It follows that it cannot be said that the restriction of working hours was, in truth, compulsorily reduced by something unconnected with the injury. Indeed, the restriction of working hours was related to the injury. It follows that the principal submission advanced in my opinion fails (emphasis added) [Cole JA at 91].”
In applying the authority provided in Pira the Arbitrator was required to considered Ms Podmore’s actual earnings unless it was proved by Mt Warrigal Care that her actual earnings were not the proper test, because there is some reason unconnected with her earning power which made them lower than they should be. The Arbitrator’s reasons outline the basis upon which she determined Ms Podmore’s earnings in suitable earnings at paragraphs 34 to 37. The Arbitrator noted that Ms Podmore declined additional work from INS on the basis that she “Could not manage it.” because of the resultant increase in pain as set out at paragraph 34 of the reasons. The Arbitrator referred to Ms Podmore’s latest medical certificate dated 13 September 2005 certifying her fit for 20-25 hours per week and found that there is no “current evidence that she can not manage 30 hours”. The Arbitrator then made the award for the period 4 April 2005 and continuing with reference to Ms Podmore’s ability to earn and not her current earnings. On my assessment the Arbitrator’s reasons do not demonstrate that she found a reason unconnected with Ms Podmore’s injuries or general earning power which would require her to depart from prima facie test set out in Aitken and followed in Pira. The reasons clearly refer to Ms Podmore’s reported increase in pain when working 30 hours per week and whilst the Arbitrator found that Ms Podmore had not increased her use of analgesia or consulted her general practitioner the reasons do not, in my view indicate that Ms Podmore’s evidence was not accepted by the Arbitrator. Further the reasons do not demonstrate that the Arbitrator considered the evidence in support of a finding that Ms Podmore’s actual earnings were not the proper test thus meeting the threshold enunciated in Aitken and required to enliven consideration of Ms Podmore’s ability to earn in suitable employment. Accordingly I am satisfied that the Arbitrator erred in applying section 40(2)(b) of the 1987 Act.
If I am wrong in my application of the authorities I also consider that the Arbitrator’s determination that Ms Podmore could work 30 hours per week from 4 April 2005 contrary to the medical certificates provided by Dr Haider which certified her fit for 20-25 hours per week from March 2005 until October 2005 with the exception of a one month trial period from July to August 2005 in which she worked 30 hours per week. The assessment of the amount that the worker could earn in some suitable employment is a question of fact to be determined on the basis of logically probative evidence (North Broken Hill Ltd v Tumes[1999] NSWCA 309). In my view the Arbitrator’s finding that Ms Podmore could work for 30 hours per week from 4 April 2005 does not accord with the medical evidence. Further there was in my view limited evidence upon which the Arbitrator could base her finding that suitable employment was available to Ms Podmore for a total of 30 hours per week as Ms Podmore’s evidence referred to work being available, particularly in Sydney a year prior to the hearing. In my view the Arbitrator’s decision demonstrates error in failing to make a decision based on logically probative evidence and this failing constitutes an error of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 see also discussion in Pied Piper at paragraphs 54-57). Additionally I do not consider that the Arbitrator’s reasons are sufficient to convey to the parties who are familiar with the case the basis for the decision and in my view this inadequacy sufficiently demonstrates that the Arbitrator failed to exercise her statutory duty, to fairly and lawfully determine the application (Cargill Meat Processors Pty Limited v Clark[2005] NSWWCCPD 7).
Redetermination of the Application
Having found error sufficient to revoke the decision I will now proceed to redetermine the application as it relates to the award from 4 April 2005.
The parties agree and I accept that Ms Podmore’s earnings but for the injury are $667.11 per week from 4 April 2005. For the reasons set out I do not consider that the evidence is sufficient to depart from the prima facie assessment of Ms Podmore’s actual earnings from 4 April 2005 as I am not satisfied on the evidence that Ms Podmore actual earnings are reduced for some reason unconnected with her earning power. Ms Podmore gave evidence that additional hours of work increased her symptoms. This is consistent with the account contained in Dr Bodel’s MAC dated 1 March 2006. Ms Podmore also gave evidence that she had trialled an increase in hours previously and her symptoms had been such that she was unable to manage the additional hours. This evidence accords with the medical certificates provided by Dr Haider for the period July/August 2005. Ms Podmore also gave evidence that during her increase in hours in April 2006 she had again experienced an increase in her level of pain. Further the report of Dr O’Neill dated 16 December 2005 supports a finding that Ms Podmore was not fit for full time duties as a blood collected as he concluded that with the passage of time Ms Podmore would be fit for full time duties as a blood collector. In my view the evidence is sufficient to establish that Ms Podmore has demonstrated a willingness to take on additional hours of work within her capabilities and I accept her evidence and that contained in Dr Haider’s medical certificates in this regard. I am also persuaded that Ms Podmore has over time increased her hours from the 20 hours per week recommended by Dr Bodel in 2004 by some four hours per week.
I also note that sections 40(2A) and 40(2B) of the 1987 Act were not raised before the Arbitrator nor on appeal and in my view these provisions do not have application in circumstances where the evidence is that Ms Podmore had receive an offer of casual work which may or may not be determined to be ‘suitable employment’.
In applying the authority provided by Ludowic I am required to consider Ms Podmore’s average weekly earnings. In doing so I have regard to Ms Podmore’s oral evidence of increase in hours to 30–33 hours per week over three to four weeks as set out above and the evidence contained in Dr Bodel’s MAC that at the time of his examination on 8 February 2006 that Ms Podmore was temporarily working up to 65 hours per fortnight. I also have regard to correspondence dated 29 March 2006 from Narelle McKenzie, Area Manager Illawarra & Nowra, Symbion Health that Ms Podmore’s average weekly hours are 23.64 hours and her average weekly wage is $434.03. I also note that the average weekly wage appears to be calculated from the period of commencement on 4 April 2005 to end March 2006, in this regard I accept that the calculation includes a period of eight weeks in which Ms Podmore did not work because of a non work related injury. I accept this evidence as the most accurate account of earnings for the period 4 April 2005 to 30 June 2005. Accordingly for this period I find Ms Podmore’s earnings in suitable employment to be $434.03.
However from 1 July 2005 I have also considered Ms Podmore’s year to date earnings contained in a payslip advice for the period 27 February 2006 to 12 March 2006 which confirms the hourly rate of $18.35 set out in Ms McKenzie’s correspondence but provides a slightly higher income for that period. Additionally the pay slip reveals a year to date income of $17,201.04 at 12 March 2006, being an average of $477.81 per week and I note that this figure more accurately reflects Ms Podmore’s wages schedule which claimed $495.00 per week from 1 July 2005 (as confirmed at page 32 of the transcript where it was also conceded that Ms McKenzie’s correspondence did not reflect the additional hours worked by Ms Podmore at the time of the hearing). Given the fluctuations in hours and in applying the evidence as best I can the most accurate account of earnings available is, in my view set out in her pay slip. Accordingly I find that Ms Podmore’s actual earnings are $477.81 per week with reference to her year to date payments for the period 1 July 2005 and continuing. I am satisfied, on balance that Ms Podmore’s average weekly earnings are $477.81 per week from 1 July 2005 to date and continuing.
In undertaking the process set out in Mitchell I find as follows:
·Step 1 – Ms Podmore’s earnings but for the injury are $667.11
·Step 2 – Ms Podmore’s average earnings in suitable employment are $434.03 for the period 4 April 2005 to 30 June 2005 and $477.81 for the period 1 July 2005 to date and continuing.
·Step 3 – in subtracting the amount calculated at Step 2 from that contained at Step 1 I find the difference to be $233.08 per week from 4 April 2005 to 30 June 2005 and $189.30 per week from 1 July 2005 and continuing.
I am now required to consider the exercise of discretion contained at Step 4 in determining the appeal. I am not persuaded that “supervening illnesses or injuries” manifest in this case to further reduce the mathematical calculation arrived at in Step 3 (‘Nicholson’). I see no other reasons to apply my discretion and I find the amounts set out at paragraph 51 be the ‘proper’ figure in all the circumstances of this matter. Accordingly I enter an award for Ms Podmore of $233.08 per week from 4 April 2005 to 30 June 2005 and $189.30 from 1 July 2005 to date and continuing.
Conclusion
I therefore conclude that the Arbitrator was in error in applying section 40(2)(b) of the 1987 Act and in failing to provide adequate reasons for her decision.
DECISION
Paragraph four (d) of the Arbitrator’s decision dated 26 April 2006 is revoked and the following orders made in its place:
“(i) $233.08 per week from 4 April 2005 to 30 June 2005, and
(ii) $189.30 per week from 1 July 2005 to date and continuing in accordance with section 40 of the Workers Compensation Act 1987.”
Paragraphs one, two, three, four (a), (b), (c) and five of the Arbitrator’s decision of 26 April 2006 were not raised on appeal and are confirmed.
COSTS
The Appeal having been successful I order the Respondent to pay the Appellant’s costs.
E Tydd
Acting Deputy President
7 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF E TYDD, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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