Port Macquarie Hastings Council v Crowe

[2010] NSWWCCPD 93

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Port Macquarie Hastings Council v Crowe [2010] NSWWCCPD 93
APPELLANT:		Port Macquarie Hastings Council
RESPONDENT:		Allan John Crowe
INSURER:		CGU Insurance Limited
FILE NUMBER:		A1-474/10
ARBITRATOR:	Mr G Adelstein
DATE OF ARBITRATOR’S DECISION:		28 April 2010
DATE OF APPEAL DECISION:		31 August 2010
SUBJECT MATTER OF DECISION:		Section 40(2)(b) of the Workers Compensation Act 1987; section 40(2A) and (2B) of the Workers Compensation Act 1987; unreasonable rejection of suitable employment.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Bartier Perry
Respondent:		White Barnes
ORDERS MADE ON APPEAL:		Paragraph 1 of the Arbitrator’s Certificate of Determination dated 20 April 2010 is revoked and the following order made in its place:  “1. The respondent is to pay the applicant weekly compensation at the following rates pursuant to section 40 of the Workers Compensation Act 1987: $389.10 from 3 July 2009 to 30 September 2009 $396.10 from 1 October 2009 to 31 March 2010 $396.81 from 1 April 2010 to 6 June 2010.” Paragraph 2 of the Arbitrator’s Certificate of Determination dated 20 April 2010 confirmed. The matter is remitted to another Arbitrator for redetermination of any entitlement to weekly compensation from 7 June 2010 in accordance with the reasons in this decision. The appellant to pay the worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1.Allan John Crowe (‘the worker’) was employed as a park attendant by Port Macquarie Hasting Council (‘the appellant’) between 1990 and 2009. The worker received injury to his right shoulder on a number of occasions causing an absence from duties for a period of one week in August 2008. Upon his return to work a WorkCover NSW medical certificate was presented to the appellant which stated that he was fit for suitable duties as from 26 August 2008. A return to work plan was put in place by the appellant which provided work restrictions including no lifting in excess of 10 kilograms; no lifting above heart level and no use of equipment with pull starts.

2.The worker performed those duties made available by the appellant on a full time basis however suffered further injury to his right shoulder on 24 February 2009 and 11 June 2009. The worker had, in December 2008, advised the appellant that he was willing to accept termination of his employment upon the basis of a voluntary redundancy. That proposal was considered by the appellant and, on 3 March 2009, the worker was advised that a decision had been taken that his position as park attendant was to be made redundant. That correspondence indicated that Mr Crowe’s date of separation was to be 2 July 2009. The worker continued performing those duties provided on a full time basis until termination of his employment in July 2009.

3.In September 2009 notice was given to the appellant and its insurer of a claim for weekly payments by the worker in respect of his partial incapacity. A dispute arose concerning the worker’s entitlement to weekly benefits and a notice stating reasons for the dispute as to liability was forwarded to the worker’s solicitors by the appellant’s insurer on 13 January 2010. That notice, which was given in accordance with the provisions of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) disputed the worker’s allegation of incapacity and placed reliance upon the provisions of section 40(2A) of the Workers Compensation Act 1987 (‘the 1987 Act’) founded upon an assertion that the worker’s request for and acceptance of voluntary redundancy constituted an unreasonable rejection of suitable employment within the meaning of the last mentioned subsection.

4.An Application to Resolve a Dispute was registered with the Commission on 25 January 2010.

5.The matter came before an Arbitrator for conciliation/arbitration on 20 April 2010. A Certificate of Determination was issued on 28 April 2010.

THE DECISION UNDER REVIEW

6.The ‘Certificate of Determination’, dated 28 April 2010 records the Arbitrator’s orders as follows:

“The Commission determines:

1.I order that the Respondent pay the Applicant as and from 2 July 2009 to date and continuing at the statutory rate from time to time for a single male without dependants.

2.I order that the Respondent pay the Applicant's costs, to be assessed if not agreed.  On the Applicant's application I accept that it is appropriate to order an uplift of 15%, which I consider should be appropriately allowed to both Applicant and Respondent.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

7.On 25 May 2010 the appellant filed with the Commission an Application seeking leave to appeal against the decision of the Arbitrator.

ISSUES IN DISPUTE

8.The issues in dispute in the appeal are whether the Arbitrator erred in:

(a)   finding that the worker had not unreasonably refused suitable employment (section 40(2A) of the 1987 Act);

(b) failing to correctly apply the provisions of section 40 of the 1987 Act to the facts;

(c) failing to calculate entitlement to weekly payments in accordance with the provisions of section 40(2) of the 1987 Act;

(d)   awarding weekly compensation against the evidence and the weight of the evidence;

(e)   failing to correctly apply the provisions of section 43A of the 1987 Act to the facts;

(f) the manner of exercise of discretion as provided in section 40(1) of the 1987 Act, and

(g) failing to give any or sufficient reasons with respect to the manner of exercise of discretion granted by section 40(1) of the 1987 Act.

9.The above summary of the issues is taken from the written submissions provided by the appellant in support of the appeal.

ON THE PAPERS REVIEW

10.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)   If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

11.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances. 

LEAVE

12.There is no dispute between the parties concerning threshold requirements as prescribed by section 352 of the 1998 Act

13.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.

FRESH EVIDENCE

14.‘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.”

15.Both the appellant and the worker have sought leave to adduce fresh or additional evidence on this appeal. The first application in time was made on behalf of the worker when his Notice of Opposition was filed to this appeal. In response to the worker’s application, the appellant has opposed the admission of a number of documents, but has submitted that a supplementary statement by the worker dated 17 June 2010 included in the worker’s application for leave to adduce fresh evidence, should be admitted. In those submissions the appellant seeks leave to adduce further evidence being a statement from a Mr Gary Randall dated 16 June 2010 and copies of a number of photographs taken by Mr Randall on 15 June 2010.

16.In response to the appellant’s submissions concerning the admission of fresh evidence the worker has forwarded correspondence dated 23 July 2010 to the Registrar. It is acknowledged in that correspondence that the forwarding of the correspondence was “unusual” but it is said that the circumstances which have arisen concerning leave applications with respect to the admission of fresh evidence are also “unusual”. In the circumstances I consider that the worker’s correspondence should be treated on this appeal as representing supplementary submissions.

17.The worker appears to have had a change of heart and asserts in those submissions that “the appeal should be determined on the matters that were before the Commission as at the date of hearing, 20 April 2010”. It is also stated that “the respondent worker is very happy for no fresh evidence to be admitted from either side and for the matter to be determined on the documents and evidence that was before the Arbitrator at the time of the arbitration on 20 April 2010”.

18.The worker’s submissions do not explicitly state that the earlier application seeking leave to adduce fresh or additional evidence is withdrawn. It is open to inference that the worker has abandoned that application. The difficulty which arises from that implied abandonment is that the appellant had earlier submitted that the worker’s statement dated 17 June 2010 should properly be admitted in evidence on the appeal. The appellant submits that the  balance of the documents, which may generally be described as records concerning the worker’s efforts to obtain employment since the date of termination of his employment, would, if admitted, cause prejudice to the appellant.

19.The worker’s statement concerns events which have occurred since the making of the Arbitrator’s determination. Those events include detail of work performed by him between 7 and 17 June 2010. The statement particularises the hours worked by the worker who was engaged by a Mr Peter Turner as a “casual”, “at the rate of $50.00 per hour including all insurances and tax etc”.

The worker’s application seeking leave to adduce fresh or additional evidence

20.I assume, for present purposes, that the worker is pressing his application concerning the admission of those documents relating to his efforts to obtain employment. The documents relate to three such applications seeking employment and it is clear on the face of those documents that at least two of those applications were made on dates earlier than the date of hearing. In the circumstances the evidence concerning applications for a position as traffic controller and one for the position of maintenance employee cannot be said to be fresh evidence. Nor can it be said that those documents constitute additional evidence which should, in the interests of justice, be admitted in evidence on this appeal. The communication dated 13 May 2010 received by the worker from an organisation described as “Men at Work” refers to the worker’s “recent registration”. The date of that registration is not disclosed either in the correspondence or in the covering letter dated 29 May 2010 from the worker to his solicitor. In the circumstances I am unable to conclude that the worker’s dealings with Men at Work were events which may be characterised as fresh evidence. As I have concluded with respect to the other communications, the correspondence from Men at Work may not be described as further evidence which should, in the interests of justice, form part of the evidence on this appeal. Assuming, again, that the worker’s application seeking leave to adduce that evidence remains on foot, leave to have that material admitted is refused.

21.The evidence to be found in the worker’s supplementary statement dated 17 June 2010 is not subject to objection by the appellant. It may be assumed that, in the event that the worker did not press his application to have this document admitted, the appellant would wish to make an application seeking leave to adduce that evidence on this appeal. The evidence is fresh evidence in the sense that it concerns matters which have occurred since the date of the Arbitrator’s determination and the material is relevant to the issues in dispute. In the circumstances I grant leave to admit into evidence the supplementary statement of Allan John Crowe dated 17 June 2010. The content of that statement is addressed below.

The appellant’s application seeking leave to adduce fresh or additional evidence

22.The appellant seeks to adduce the statement of Mr Randall dated 15 June 2010 and copies of eight photographs taken on 12 June 2010. Mr Randall’s statement does not reveal his occupation, however it is reasonable to infer from its contents that he is either an employee of, or contractor to, the appellant. The statement relates to Mr Randall’s observations of a person who identified himself as the worker carrying out labouring work involving paving at the intersection of Munster and Williams Streets, Port Macquarie. It is stated by Mr Randall that the photographs depict the worksite and record work being carried out by the worker. The evidence of Mr Randall and the matters depicted in the photographs concern events which have occurred since the hearing conducted before the Arbitrator. The matters recorded are both relevant to the issues raised on this appeal and address factual matters which have been raised by the worker in his supplementary statement which I have earlier admitted into evidence. In the circumstances I am of the view that the interests of justice require that both Mr Randall’s statement and the photographs be admitted into evidence on this appeal and accordingly leave is granted to adduce that evidence.

EVIDENCE

23.The documentary evidence which was before the Arbitrator is described at [9] of Reasons. Omitted from that summary are those documents which were attached to an Application to Admit Late Documents received in the Registry on 8 April 2010. Those documents include clinical notes of Dr Fryatt and Dr Liaw, a medical report of Dr Bentivoglio dated 26 March 2010 and a seven page document compiled by the worker which includes two supplementary statements. The application by the worker to have those documents admitted was granted by the Arbitrator as is recorded at page 8 of transcript (‘T’). There was no oral evidence.

The worker’s evidence

24.A statement dated 5 March 2009 was attached to the worker’s application. The worker, who is 56 years of age, commenced employment with the appellant in February 1990 and as at August 2008 was employed as a park attendant. His duties included the operation of machinery such as edge trimmers, whipper snippers, blowers and chainsaws. The worker received injury on 15 August 2008 to his right shoulder. He had experienced pain and discomfort in that shoulder on earlier occasions in the course of his employment. That pain had apparently been brought on by the constant pulling of starter ropes on the machinery operated by him. The injury was reported and the worker consulted his general practitioner on 18 August 2008.

25.The worker was certified unfit for work by Dr Fryatt until 25 August 2008 and was provided with a WorkCover medical certificate making provision for his return to light duties as from 26 August 2008. Radiological investigations were conducted and the worker was referred to Dr Liaw, orthopaedic surgeon, for specialist consultation. Upon resumption of suitable duties the worker tried to avoid starting machinery however, on occasions, was required to use his left arm for that activity. The worker suffered no loss of pay whilst on suitable duties.

26.The worker stated that in late December 2008, by reason of the global financial crisis, the appellant was “job restructuring” and voluntary redundancies were being offered to employees. At that time the worker submitted an expression of interest in voluntary redundancy. That step was taken because the worker expected that his “duties at work would involve changes”. He states that “due to restructuring coming up, work would be more physically labouring and would affect my injury”. The worker had in February 2009 received further injury to his right shoulder when he was dragging storm damaged trees into a pile.

27.A letter from the appellant to the worker dated 3 March 2009 is in evidence. That correspondence was the first notification given to the worker that the Executive Group of the appellant had determined that the worker’s position of park attendant was to be made redundant. It was also stated that, following a consideration of operational needs, the decision had been taken that the date of separation would be Thursday, 2 July 2009.

28.The worker relied upon a number of supplementary statements made by him between June 2009 and November 2009. In June 2009 the worker stated that he continued to perform “selected duties” and continued to consult his general practitioner. His right arm remained “sore and tender”. He had received advice concerning surgery from Dr Liaw however no decision had been made. The worker states that he is looking for alternative work. The reason he “took the redundancy” was to “get away from the heavy work in Council”.

29.In September 2009 the worker stated that he had had no work since termination of his employment on 2 July 2009. The worker states that his “condition was exacerbated somewhat not long before I stopped work”. That injury is particularised in the worker’s application as having occurred on 11 June 2009 as he exerted effort and strain feeding a woodchipper. The worker had been looking for light work however had been unsuccessful in obtaining same.

30.In November 2009 the worker stated that he continued to see Dr Fryatt however he had no plans to undergo surgery as had been discussed in medical reports received by his solicitor.

31.There is in evidence a copy of a facsimile communication from the worker to his solicitor sent on 4 March 2010. That document records efforts made by the worker to contact employers in the Port Macquarie area concerning employment. Those employers had been nominated as prospective employers of the worker in a report relied upon by the appellant which had been compiled by an organisation known as Intervene Assessment Services Pty Ltd (‘Intervene’). The worker records in that document that none of the individuals named in the report compiled by Intervene could be contacted at eight organisations nominated in the report. The worker’s requests for employment did not result in any offers being made by any of those organisations contacted.

32.There was in evidence a further copy of correspondence from the worker addressed to his solicitor, undated, which summarised the worker’s numerous communications with organisations in the North Coast area that had been nominated by Intervene in a Revised Labour Market Research Report dated 23 March 2010. The worker records that he contacted eight organisations, none of whom had work available. The worker left his particulars and forwarded a resume to a number of these organisations, however at the date of the correspondence he had heard nothing concerning any offers of employment.

33.The worker relied upon a medical report of Dr John Fryatt dated 18 December 2009. In that report Dr Fryatt records that the worker has been treated by him concerning his right shoulder injury since 18 August 2008 and that there had been an exacerbation of that injury on 24 February 2009 and again on 11 June 2009. Reference is made in that report to consultations  arranged with Dr Liaw and the conduct of an MRI examination. Dr Fryatt states that the MRI revealed a tear lesion of the articular surface and the supraspinatus tendon, also a 5mm tear of the infraspinatus tendon. Also revealed on that MRI were a number of changes of osteoarthritis of the acromioclavicular joint and a tear of the anterior superior labrum of the glenoid. Dr Fryatt also records that, upon repeated clinical examination, the worker demonstrated persistent spasm and stiffness of the right shoulder especially on abduction. It was Dr Fryatt’s opinion that the worker, by reason of his disability, will need work “that avoids activity requiring the right arm to be raised above shoulder height, heavy lifting or repetitive heavy use of the right arm”.

34.The worker relied on a number of medical reports prepared by Dr Liaw. Reference is made in a report of 29 September 2009 to the findings of the MRI of the worker’s right shoulder. Dr Liaw notes his advice both as to non-operative and operative treatment. Surgery which is described in that report is arthroscopic subacromial decompression and mini open rotator cuff and labral repair. Dr Liaw noted that the worker was keen to “continue with non-operative treatment”. The view was expressed that the worker needed to avoid repetitive overhead activities and avoid heavy lifting.

35.The worker relied upon copies of numerous WorkCover NSW medical certificates, a number of radiological studies and a copy of the MRI report above noted. Reference, where relevant, is made to these documents below.

36.The worker has tendered in evidence the clinical records produced by both Dr Fryatt and Dr Liaw. Those records include a number of documents which have been summarised above. The clinical records, where relevant, are referred to below. There is also in evidence a report by Dr John E C Bentivoglio dated 26 March 2010. Dr Bentivoglio was qualified by the worker’s solicitor to provide a medico-legal opinion for the purposes of this litigation. Dr Bentivoglio recorded a history of injury and the worker’s subsequent treatment. Dr Bentivoglio’s diagnosis was that of partial tearing of the infraspinatus tendon, a complete tear of the supraspinatus tendon together with a labral tear. The opinion was also expressed that the worker “will never get back to his full pre-injury duties. He needs to avoid activities that require him to regularly use his right upper limb and particularly when using at or above shoulder height region”. Dr Bentivoglio proceeded to assess a nine per cent upper extremity impairment which, it is stated, equates to a five per cent whole person impairment. Dr Bentivoglio confirmed that the worker was the holder of a heavy vehicle driver’s licence but that in the past he had only ever driven light rigid vehicles up to about five and a half tonnes. He had never driven heavy rigid vehicles. The worker reported to Dr Bentivoglio that he did not feel as though he could cope with driving heavy vehicles. Restrictions concerning driving trucks included the need for power steering and avoidance of the worker pulling himself up into the cabin using his right upper limb. The view was expressed “although theoretically [the worker] could do some truck driving, I believe [he] would be fairly limited in what he could manage”. Dr Bentivoglio further noted that the worker has few transferrable skills.

Appellant’s evidence

37.The Reply filed on behalf of the appellant had attached a large number of documents some are which are copies of documents which have been relied upon by the worker as summarised above. Included was a copy of the notice given by the insurer to the worker’s representatives pursuant to section 74 of the 1998 Act. The issues raised as being matters in dispute has been summarised at [3] above.

38.The appellant relied upon the report of Dr John R Watson, orthopaedic surgeon, who had been qualified by the appellant’s solicitors to provide an opinion for the purposes of this litigation. Dr Watson conducted an examination of the worker on 18 December 2009 and his report records a history of the subject injury including details of the exacerbations which occurred in February 2009 and June 2009. Dr Watson noted that the worker had been made redundant and ceased employment on 2 July 2009. The report also included a history of treatment received by the worker, detail of his present symptoms and findings on examination. That report also recorded the radiological studies which had been conducted including the MRI dated 14 September 2009. It was Dr Watson’s opinion that he would “not place any restrictions on (the worker). He should undertake all of his commitments to (the appellant)”. Dr Watson proceeded to state that he believed “[the worker] could undertake all suitable duties that he was undertaking prior to accepting a voluntary redundancy which came into place on 2 July 2009”. The view was also expressed that the worker was capable of performing a full 38 hour week. Dr Watson was expressly asked to provide an opinion concerning the worker’s capacity to perform work on the open labour market. Dr Watson stated in his report that the worker “could undertake any job that he would wish to do on the open market”. It was noted in the report that the worker was attempting to find employment driving trucks and Dr Watson expressed the view that he considered such work to be appropriate. Dr Watson later observed in that report that he believed the worker could “return to his previous occupation working as a park attendant for [the appellant] or undertake any other duties that he would wish to do such as truck driving”.

39.The appellant relied upon the contents of correspondence addressed to the appellant’s solicitors which had been forwarded by Ms Oirschot the Organisational Development Manager employed by the appellant. That letter enclosed copies of certain documents including material relevant to the appellant’s offer of voluntary redundancy which was made to the worker. That correspondence notes that the appellant had received a letter from the worker in December 2008 requesting that he be considered for voluntary redundancy. It is noted that the worker was not one of those staff selected to receive an offer of voluntary redundancy who had been contacted at an earlier time by the appellant. Included among the enclosures with Ms Oirschot’s correspondence was a pro-forma letter dated 15 December 2008 which, it is said, had been forwarded to those staff members whose positions had been earmarked as being the subject of redundancy. That document outlines the reasons for the proposed reduction in staff numbers, the serious financial difficulty experienced by the appellant by reason of the global financial crisis and other factors. Seventy positions in all were identified.

40.Ms Oirschot’s correspondence includes the following notation:

“There was originally no intention of offering (the worker) redundancy, therefore had he not have accepted redundancy (the appellant) would have been able to continue to provide the duties on an ongoing basis”.

41.That correspondence includes a notation that the worker’s “normal award rate” at the time of his injury in August 2008 was $760.50 for a 38 hour week. The balance of the matters addressed in that correspondence are, where relevant, addressed below.

42.An accident notification form completed by the worker addressed to the appellant dated 24 February 2009 was attached to the Reply. That notification related to a strain injury received by the worker to his right shoulder on that date whilst “moving and dragging storm damaged trees into pile”.

43.A copy of correspondence sent by the worker to the appellant dated 18 December 2008 is in evidence. That document states “To whom it may concern. I’m putting in this formal application letter so I can be considered for a redundancy package to allow someone to be redeployed into my position as Parks Attendant.  Yours faithfully Allan Crowe.”

44.The appellant relied upon copy of correspondence dated 20 January 2010 addressed to Intervene. That correspondence confirmed that Intervene had been requested to provide a labour market report. The background of the claim brought by the worker was summarised, and Intervene were provided with a copy of claim form, the appellant’s report of injury form, the report of Dr Watson dated 22 December 2009 and a copy of the worker’s driver’s licence.

45.Attached to the appellant’s Reply was a copy of a report compiled by Intervene dated 5 February 2010. This report addressed generally the subject of the duties and availability of work for qualified truck drivers. It is this report which was supplemented by the revised report dated 23 March 2010. That latter report is also in evidence and contains an endorsement in the following form:

“Please note that this report has been revised, as it was discovered that the labour market research provided was incorrect. Intervene Pty Ltd has therefore repeated the labour market research utilising another Labour Market Research Consultant to provide current information”.

46.It was not made clear at the hearing whether any reliance was placed upon the earlier report compiled by Intervene however both reports remain in evidence. The contents of those reports, where relevant, is addressed below.

THE ARBITRAL PROCEEDINGS

The worker’s submissions before the Arbitrator

47.The following matters were put in argument before the Arbitrator in support of a submission that the worker, being partially incapacitated, was entitled to an ongoing award for weekly compensation at the statutory maximum rate:

a.    The evidence of Dr Bentivoglio concerning the worker’s physical incapacity would be preferred to the views expressed by Dr Watson. Dr Watson, in expressing the view that the worker is fit for the selected duties performed by him before his retrenchment, impliedly supports the proposition that the worker has experienced ongoing physical incapacity. Dr Watson’s statement that the worker could do any job that he “would wish to do” may not be construed as an expression of opinion that the worker suffers no ongoing incapacity. Reliance was placed upon the opinion of Dr Liaw that the worker “in the long term, [will] need to avoid repetitive overhead activities, and avoid heavy lifting”.

b.   Acceptance of the worker’s partial incapacity requires a calculation of entitlement to weekly payments in accordance with the steps as found  in Mitchell v Central West Health Service (1997) 14 NSW CCR 526 (‘Mitchell’). That exercise would lead to a determination that the difference between the worker’s probable earnings but for injury and his ability to earn was a sum greater than the statutory maximum entitlement in respect of weekly benefits, and there should be an award throughout the relevant period at that maximum rate.

c. With respect to the argument raised in defence founded upon section 40(2A) of the 1987 Act it was conceded on behalf of the worker that should the Commission find that there was unreasonable abandonment of his employment the consequence would be that he would have no entitlement to weekly benefits.

d. The section 40(2A) defence is founded upon the worker’s acceptance of the voluntary redundancy. It was put that “it takes two people to tango”. The section is directed to “a circumstance where a worker takes himself away from suitable employment which has been offered”. The determination of the question of reasonableness or otherwise depends upon “all the circumstances known to [the worker] and circumstances affecting him”. Reliance was placed upon the decisions of Freightcorp v Duncan [2000] NSWCA 309 (‘Freightcorp’) and Catholic Healthcare Ltd v Perkins [2008] NSWWCCPD 22 (‘Perkins’). The worker’s evidence that he had concerns about the work he would be required to perform, taken with the established facts of “frank episodes” in which he has “hurt himself doing work”, should be taken into account when determining the reasonableness or otherwise of his action in taking voluntary redundancy.

e.    The contents of the reports from Intervene need to be evalued in the light of the worker’s own evidence concerning enquiries made by him of the organisations mentioned in the reports. The “practical reality of the worker’s prospects of employment in the labour market open to him in the Port Macquarie region is demonstrated by the responses he received to his enquiries of those organisations who were suggested by Intervene as being prospective employers. The worker’s prospects of employment need to be assessed having regard to his age, education background, vocational training and the fact that he had been employed for 20 years as a park attendant with the appellant.

The appellant’s submissions before the Arbitrator

48.The following matters were put on behalf of the appellant at the hearing:

a.    Dr Watson’s evidence should be accepted and the conclusion reached that the worker has no incapacity resulting from the subject injury. Reference was made to Dr Watson’s findings on examination and the history concerning the worker’s ability to carry out certain domestic chores.

b. The defence raised by section 40(2A) requires an examination of the evidence of the worker concerning his view that “he would not be able to continue in the work because he would be re-employed to some heavier position”. It may be concluded that the worker’s explanation for seeking and accepting voluntary redundancy was formulated after the event. The worker’s request was made in writing on 18 December 2008. The selected duties which had been provided had redundancy not occurred, would have been made available on “an on-going basis”.

c. A determination of the relevance of section 40(2A) turns on the factual circumstances of each case. The decision of Perkins may be distinguished on the facts.

d.   If the Commission’s findings lead to a necessity to determining entitlement to weekly benefits, any calculation of such entitlement would be reduced by reason of “the other medical conditions” suffered by the worker being numbness, pins and needles and burning feet.

e. Reliance was placed upon the reports of Intervene with respect to any assessment of entitlement to weekly compensation pursuant to section 40. Three areas of employment had been identified being truck driving, general truck driving and delivery driving. Such work would be within the worker’s capacity and such work, having regard to the contents of the Intervene reports, are available. If it be accepted that the worker remains capable of doing work as a delivery driver, a courier driver and a truck driver, performing the lighter aspects of such work, he would be able to earn those amounts which are set out in the Intervene reports. Those amounts are greater than his probable earnings but for injury and there would be no entitlement to weekly compensation. There was not “a great deal of controversy concerning the relevant weekly wage rate being $796.80”.

The Arbitrator’s decision

49.The Arbitrator, at [25] of Reasons, stated his acceptance “that as a result of these series of incidents at his workplace, he injured and then aggravated the right shoulder problem”. That finding follows a summary of the medical evidence made by the Arbitrator which highlighted the differences of opinion expressed by the worker’s medical expert witnesses and that expressed by Dr Watson whose evidence was relied upon by the appellant.

50.The Arbitrator at [25] and [26] of Reasons, addressed the argument raised on behalf of the appellant which relied upon the provisions of section 40(2A) of the 1987 Act as a defence to the claim. The worker’s submission was accepted that, by the time the worker applied for voluntary redundancy, he had real concerns as to the prospect of the appellant reducing its workforce; it would be likely, if he remained with the appellant, that he would be expected to work harder and undertake more strenuous activities. The Arbitrator, at [25.3], appears to reiterate his earlier finding of injury by way of aggravation during the course of the performance of light duties. Reference was then made to the decision in Perkins and the observation was made that the worker was “in a position not dissimilar” to the worker in that case. The similarities were identified as being that the worker’s duties offered by the employer were causing some distress and that the worker had an expectation that his continuing employment would “be increasingly robust and more difficult for him”. The Arbitrator proceeded to find that those concerns “led Mr Crowe, and not unreasonably, to seek a voluntary redundancy”.

51.The Arbitrator, upon an acceptance that his analysis and findings may be considered “speculative”, proceeded to express his reasons for the acceptance of the worker’s submission that in the case of voluntary redundancy “it takes two to tango”. The Arbitrator noted the evidence that the appellant’s Executive Group met after the worker’s communication of willingness to take voluntary redundancy and determined that the position of park attendant, that being the worker’s position, be made redundant. The Arbitrator stated “once the Executive Group made that decision, they joined and then accepted the voluntary redundancy and as such it could not be said in those circumstances that [the worker’s] conduct was unreasonable, or that he unreasonably rejected suited employment”. The Arbitrator rejected the appellant’s defence as raised in reliance upon the provisions of section 40(2A).

52.At [28] of Reasons the Arbitrator addressed the evidence as found in the reports of Intervene. A finding was made by the Arbitrator that he was satisfied that the worker had approached each of the prospective employers mentioned in those reports for the purpose of seeking employment. The Arbitrator accepted that the worker’s efforts were reasonable and that no suitable positions were in fact available in the Port Macquarie region as suggested in the reports.

53.The Arbitrator between [32] and [36] reiterated his findings as to injury, the reasonableness of his actions in accepting voluntary redundancy and found that the worker had been unable, despite reasonable efforts, to find suitable duties. The finding was made that the worker’s “actual earnings would have been at least $796.81”. A finding was made that the worker had “a residual capacity based on the preponderance of medical evidence that residual capacity does not impact on the ability to work and I find that this residual capacity is no more than $300.00 per week representing light work duties in a regional area in circumstances where (the worker) has limited education and literacy, and as such a limited range of possible suitable duties or suitable employment”. The Arbitrator rejected the appellant’s argument as to the appropriate exercise of discretion under section 40 and the appellant was ordered to pay weekly compensation to the worker as from 2 July 2009 to date of the determination and continuing at “the statutory rate from time to time for a single male without dependents”.

DISCUSSION AND FINDINGS

54.The first issue raised on this appeal concerns the correctness or otherwise of the Arbitrator’s finding that the worker’s acceptance of a voluntary redundancy in July 2009 was not conduct which constituted unreasonable rejection of suitable employment within the meaning of section 40(2A).

55.The provisions of section 40, so far as they are relevant to the appellant’s defence, are to be found in sub section 2(A) and sub-section 2(B) which provide:

“(2A)  Calculation of reduction in earnings of worker – workers rejecting suitable employment.  If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:

(a)   the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1000), and

(b)   the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1000).

(2B)  For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:

(a)a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or

(b)the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.”

56.The issue of onus of proof of matters arising for consideration when determining the availability or otherwise of a defence founded upon section 40(2A) has not been touched upon by the Arbitrator, nor has either party addressed that question in submissions . That matter has been addressed by Roche DP in the matter of Rail Corporation of New South Wales v B [2009] NSWWCCPD 81 where he expressed the opinion that “as section 40(2A) is a disentitling provision in beneficial legislation the employer carries the onus of proof”. The Deputy President, in so concluding, cited an article published in 2003 by CR Williams which placed reliance upon the decision of the High Court in Darling Island Stevedoring and Lighterage Co. Ltd v Jacobsen [1945] HCA 22; (1945) 70 CLR 635 (‘Darling Island Stevedoring’). I respectfully agree with the views expressed by the Commission and those expressed by the learned author. In Darling Island Stevedoring the High Court was considering the legislative qualification to entitlement to compensation for injuries on journeys as appeared section 7(1)(b) of the Workers Compensation Act 1926 (‘the former Act’). That qualification to entitlement concerned proof of default or wilful act on the part of the worker. It was stated by Dixon J (as he then was):

“But if the true nature of the qualification is to introduce new matter, not as part of the primary grounds of liability, but as a special exception or condition defeating or answering liability otherwise existing, then the onus of proof lies with the party setting up default or wilful act by way of answer”. (at 643).

57.The Arbitrator’s reasoning as found at [25] of Reasons concerning the defence appears to be flawed in that a conclusion was reached that, at the time the worker applied for voluntary redundancy, he had “in his mind real concerns as to” two instances of aggravation of the shoulder disability. Those proven aggravations occurred on dates in February and June 2009 and could not have been in contemplation by the worker as at the date of his application which was made in December 2008.

58.The Arbitrator’s finding at [25.1] that the worker had in mind real concerns as to the appellant “reducing its workforce” was, it seems, founded upon the worker’s undated supplementary statement which was a late document admitted into evidence at the hearing. Other matters stated in that document suggest that in mid-December 2008 the worker was, as found by the Arbitrator, concerned that he would likely be expected to work harder and undertake more strenuous activities.

59.The appellant’s argument seeks to address the state of mind of the worker as at the date he made application for redundancy. The point is made in submissions that the appellant’s position was not one that had been earmarked for elimination by way of redundancy, nor was the worker approached by the appellant concerning a redundancy. It is argued that the worker was, at the relevant time, provided with suitable work and that he had experienced no difficulties performing those duties. It is further put that the evidence is that the appellant “would have continued to provide the selective (sic) duties on an ongoing basis”. The Arbitrator’s remarks upon the decision in Perkins are challenged upon the basis that in this matter, there is “no evidence to support the finding that the appellant would have placed increased expectations on the respondent worker to perform increasingly robust tasks that would become increasingly difficult”.

60.The appellant’s arguments concerning  circumstances at the time redundancy was sought by the worker, have considerable force when the objective evidence, which I have attempted to summarise above, is considered. However those facts and circumstances are but part of those matters which need to be taken into account when considering the reasonableness of the worker’s actions. Putting aside, for the moment, the question as to whether the work performed at relevant times was “suitable employment” within the meaning of the 1987 Act, it becomes necessary to examine the evidence to determine the state of the worker’s knowledge at relevant times. As was stated was Davies AJA (with whom Hanley JA and Beazley J agreed) in Freightcorp “an assessment of the reasonableness of a worker’s refusal depends upon the worker’s knowledge at the relevant time.” (at [19]).

61.Having reviewed the evidence I conclude that the following matters were within the contemplation of the worker as at 12 December 2008:

(a)   Based upon knowledge gained as a long term (20 years) employee of the appellant the worker was familiar with the appellant’s management of the “return to work” programs of employees suffering the effects of work-related injury;

(b)   The worker knew that it was normal practice for incapacitated “out-door” employees to be required to work in the appellant’s office headquarters;

(c)   The worker was uncomfortable and lacked confidence in his ability to perform office work by reason of his limited experience, education and literary skills;

(d)   The worker believed that most out-door staff with injuries sent to work in the office who were unable to obtain a “full medical clearance” were put off work because of “lack of positions and work available”;

(e)   The worker knew that the appellant was in serious financial difficulty and that there was no prospect of more positions being created but, rather, staff numbers were being reduced. He was concerned that the physical demands of his position would increase over time, and

(f)    By reason of his age, his ongoing problems with his shoulder and his inability to perform his pre-injury duties the worker feared he had a limited future working with the appellant.

62.The worker’s apprehension that he may be transferred to clerical duties at the appellant’s office headquarters proved not to be correct. However, in my opinion, it is important to note that his apprehension concerning his inability to carry out the work provided by the appellant was well founded. As found by the Arbitrator, which findings are not challenged on this appeal, the worker suffered aggravations on at least two occasions during the course of 2009 before termination of employment. Those events demonstrate the reality of the worker’s assessment of his circumstances when he felt it prudent to make application for redundancy. In my view the worker’s conduct in December 2008 may be characterised as an effort to salvage that which may have been available upon redundancy in the face of the bleak prospect of suffering exacerbation in the course of the duties provided; the likely transfer to a clerical position which he feared, and the probable termination of his employment. In all the circumstances I conclude, as did the Arbitrator, that the appellant has failed to establish that the worker’s rejection of the work provided following initial injury was unreasonable.

63.The manner in which the worker presented argument before the Arbitrator and on this appeal concerning the application in section 40(2A) implies, in a number of respects, that the duties provided by the employer were not “suitable duties” within the meaning of the 1987 Act. The appellant, at all times, has asserted that those duties were in fact “suitable duties” provided in accordance with its obligation under the Act. This matter has not been fully argued and, given my conclusion as to the issue of “reasonableness”, there is no need to determine that question. Given my finding that the worker’s conduct has not been proven to be unreasonable the defence as raised by the appellant must fail.

64.The worker has raised an argument, both before the Arbitrator and in submissions on this appeal, that given the appellant’s decision to make available to the worker voluntary redundancy, it had adopted a stance whereby termination of the worker’s employment was available on those terms. That arrangement had benefit to each party and, as it was put at the hearing, “it takes two to tango” and the appellant thus has no basis for complaint founded upon the terms of section 40(2A). That argument appears to have been accepted by the Arbitrator at [26] of Reasons. On this appeal the worker has argued that the Arbitrator’s conclusion on this point is correct.

65.A similar argument was addressed in the matter of Freightcorp. Davies AJA summarised the argument with precision when he stated (at [18]) that the question raised is “whether the words ‘unreasonably discontinues that employment’ would ever encompass a voluntary retirement, which is a consensual act involving both an employer and worker”. His Honour in that matter did not need to determine that question given his earlier finding that subsections (2A) and (2B) of section 40 did not apply given the conclusion reached that there had been no employment which the worker in that matter had refused, unreasonably or otherwise. In the present matter my earlier finding concerning the appellant’s failure to establish that the worker had unreasonably discontinued the employment provided by it has the result that those earlier mentioned subsections do not apply to the present facts. Accordingly there is no need to determine the argument concerning the suggested consensual actions by the appellant and the worker concerning redundancy.

The suggested errors as to the awarding of weekly benefits pursuant to section 40 of the 1987 Act

66.There is no dispute as to the occurrence of injury as alleged by the worker. The appellant, upon reliance of the evidence of Dr Watson, argued at the hearing that, notwithstanding the occurrence of that injury, the worker had sustained no ongoing incapacity. The Arbitrator addressed the conflict to be found in medical opinions of those experts whose reports were in evidence between [22] and [24] of Reasons. Whilst there is no express statement made by the Arbitrator, it is reasonably clear that he has preferred the opinions of those medical experts relied upon by the worker whose views were that, as a result of the injury, the worker had sustained an ongoing physical restriction and that he had been rendered incapacitated for his pre-injury employment.

67.On this appeal the appellant does not repeat the argument founded upon the evidence of Dr Watson that there is no ongoing physical incapacity but rather makes complaint that the Arbitrator’s reasoning as expressed concerning the worker’s entitlement to, and the quantification of weekly benefits, were erroneous. The fundamental argument advanced is that, having regard to the evidence to be found in the Intervene reports, particularly the second report dated 23 March 2010, there should have been a finding that, notwithstanding injury, the worker was capable of earning as much, or more, than his probable earnings but for injury.

68.It is also submitted that the Arbitrator was in error in failing to carry out the calculation required by section 40(2) of [‘the 1987 Act’] and that, in particular, he had failed to apply the “five steps which must be taken in making an award under section 40 as set out in [Mitchell]”. Complaint is also made that the Arbitrator had erroneously applied the provisions of section 43A of the 1987 Act when determining the question as to what, on the evidence, constituted suitable duties. A general complaint is made concerning the manner of exercise of the discretion concerning quantification of weekly payments as provided in section 40(1), and it is suggested that the Arbitrator erred in failing to give any or sufficient reasons concerning the need or otherwise to exercise a discretion as granted by that subsection.

69.The Arbitrator’s apparent finding that the physical consequences of injury had rendered the worker partially incapacitated was one open to him on the evidence and one with which I agree. The radiological evidence, in particular the MRI investigation report, clearly establishes significant soft tissue damage suffered by the worker in his right shoulder joint. That damage has had the consequence that, in the opinion of his treating doctors Dr Fryatt and Dr Liaw and in the view of Bentivoglio, he suffers significant restrictions by reason of which he is prevented from resuming his pre-injury employment. On this review I conclude that the worker has, since 2 July 2009 been partially incapacitated for work.

70.Having, it seems, made a finding as to partial incapacity the question before the Arbitrator was whether by reason of the injury the worker had any entitlement to weekly compensation. Such entitlement was succinctly addressed by Starke J in Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 (‘Williams’) ( at p 444):

“Compensation is not payable for the injury but for loss of power to earn caused by the injury, that is, for incapacity for work which results from the injury.  The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity in the future is less than it was before the injury.”

71.The appellant’s argument is that, notwithstanding injury, the worker’s earning capacity is not less than it was before injury. It is suggested that the Arbitrator has, by implication, concluded that the various jobs which were the subject of the second Intervene report were “suitable”. It is further put that the earnings of those jobs are such that there can be no suggestion that the worker’s earning capacity has been impaired by the injury. The finding  made by the Arbitrator was that “no suitable positions were in fact available in the Port Macquarie region within (sic) regard to those positions nominated by Intervene”. I do not accept the appellant’s argument that the Arbitrator had accepted that the jobs nominated by Intervene were “suitable employment”.

72.The Arbitrator has given little weight to the contents of that second report of Intervene upon the basis that, notwithstanding efforts on the part of the worker, no work had been made available to him. That approach is criticised by the appellant, however those facts are, to an extent, relevant to the determination of what constitutes “suitable employment”.

73.On this review, I find that the first report of Intervene is of no evidentiary value. I so conclude having regard to the plain statement made in the second report that the earlier report dated 5 February 2010 was “incorrect”. Having regard to the worker’s evidence concerning his enquiries based on the contents of that first report, I conclude that its contents were not only “incorrect” but had been fabricated.

74.The second report of Intervene addressed the positions of truck driver, delivery driver and courier driver. The duties of a truck driver are summarised at page two of the report. Those duties include many tasks of a heavy nature requiring full strength and dexterity. That fact and the worker’s stated inexperience in such an occupation, leads me to conclude that such work is not “suitable employment” for the worker in his incapacitated state.

75.The information provided to the worker when enquiries were made concerning availability of positions of delivery or courier driver establishes, as found by the Arbitrator, that such work was not available to the worker. One party contacted required that a driver have his own truck, van or station wagon and that he work as a “contractor”. Such a contractor was required to lift weights of up to 20 kilograms. Such work cannot be said to be within the capacity of a worker.

76.The appellant’s argument that the evidence of Intervene establishes that the worker has suffered no economic loss by reason of the injury and subsequent incapacity must be rejected. The evidence as to earnings in those occupations nominated by Intervene have no relevance to the question of entitlement to, nor quantification of, weekly benefits.

77.The appellant is correct in its submission that the steps outlined in Mitchell need to be followed when the task of quantifying entitlement to weekly payments is undertaken. I accept that the Arbitrator has not strictly adhered to those steps outlined by the Court of appeal in that matter. In the circumstances the evidence concerning entitlement requires review. This task is complicated by reason of the admission of the fresh or additional evidence concerning the worker’s earning between 7 June and 17 June 2010. That evidence is relied upon by the appellant in support of its argument that, notwithstanding injury, the worker is able to earn wages which exceed his probable earnings but for injury and is thus not entitled to an award of weekly payments.

78.The question arises as to whether, having regard to the state of the evidence, it is appropriate to re-determine the question of entitlement to weekly payments on this appeal or whether there should be an order of remitter to an Arbitrator for full redetermination. Whichever course is adopted, the fresh evidence of earnings by the worker of $50 per hour performing paving work with Mr Turner establishes, prima facie, that the worker has no entitlement to weekly benefits between 7 and 17 June 2010. However there is no evidence before the Commission concerning the nature of the contract between the worker and Mr Turner to enable a proper determination of the worker’s actual earnings during that period. Nor is there any evidence as to any income received by the worker from 18 June 2010 to date. What is not in dispute is that the worker had been unable to obtain employment between the date of his retrenchment and 7 June 2010.

79.Having regard to all the circumstances I conclude that it is appropriate to address the question of the worker’s entitlement up to 6 June 2010 but that the matter be remitted to another Arbitrator for determination of any entitlement the worker may have to weekly payments from 7 June 2010 and thereafter. Appropriate directions may be made by the Arbitrator to ensure that the parties have an opportunity to adduce any evidence which may relate to that question.

Redetermination of entitlement from date of retrenchment to 6 June 2010

80.The first step in Mitchell requires a determination of the worker’s probable earnings but for injury (section 40(2)(a)). The Arbitrator at ([37] of Reasons) has mis-described this task. Notwithstanding that mis-description, the figure of $796.81 determined by the Arbitrator is the quantum of probable earnings but for injury and I so find. That conclusion, as noted by the Arbitrator is also supported by the evidence being wage records found at page 22 of the appellant’s Reply. The appellant’s apparent concession, noted at [48e] above, and the evidence found in the wage records suggest that the figure nominated in Ms Oirschot’s letter represents the current weekly wage rate, not the probable earnings.

81.The second task is to determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment, from time to time, up until 6 June 2010. In the course of his reasons the Arbitrator spoke of “residual capacity” however on the present facts it is necessary to determine the worker’s ability to earn in terms of section 40(2)(b). When determining that sum regard is to be had to the provisions of section 43A which prescribes those matters to be taken into account when determining what is “suitable employment”.

82.The appellant in supplementary submissions, filed following the provision of the fresh evidence concerning the worker’s employment with Mr Turner in June 2010, has placed reliance upon the statement outlining that work and his earnings as supportive of its argument that “[the worker] has at all relevant times suffered no loss of earning capacity on the open labour market”.

83.The appellant’s argument that the fresh evidence establishes that the worker suffers no partial incapacity and is therefore not entitled to an award cannot be accepted. The High Court in Arnotts Snack Products Pty Ltd v Yacob (1984-1985) 155 CLR 171 (‘Arnotts’) had occasion to consider the proper construction of the words “partial incapacity” as it appeared in section 11 (1) of the former Act, the predecessor of section 40 of 1987 Act. It was stated by the majority in Arnotts:

“[T]hat the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.   Under s.11(1), an applicant’s entitlement to compensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the subsection places on the amount of compensation payable.” (at p178).

84.The evidence establishes that, notwithstanding conscientious efforts made by the worker to obtain employment in the labour market available to him, he remained unemployed for a period of almost 12 months following retrenchment. The fresh evidence establishes that he has apparently had the good fortune to secure work which, on the face of the evidence, is more renumerative than his pre-injury employment. Proof of that fact is not determinative of the question as to the existence or otherwise of partial incapacity. As was stated in Arnotts, when reference was made to the decision of the High Court in Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585:

“In Thompson, where the concept of “incapacity for work” in the context of s.9 of the Act – the principle provision providing for payment of weekly compensation – arose for consideration, the majority of the Court (Latham CJ, McTiernan, Fullagar and Kitto JJ) decisively rejected the proposition that the receipt post-injury of the same or higher wages than those received pre-injury denied the existence of partial incapacity for work”.

85.The Commission’s task is to assess the worker’s ability to earn in suitable employment. The appellant correctly directs attention in the course of submissions to the provisions of section 43A when complaint is made concerning the Arbitrator’s reasoning when determining entitlement to weekly compensation. The meaning of the term “suitable employment” is defined in section 43A(1) which provides:

“For the purposes of Sections 38, 38A and 40:

suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:

(a)the nature of the worker’s incapacity and pre-injury employment;

(b)the worker’s age, education, skills and work experience;

(c)the worker’s place of residence;

(d)the details given in the medical certificate supplied by the worker;

(e)the provisions of any injury management plan for the worker;

(f)any suitable employment for which the worker has received rehabilitation training;

(g)the length of time the worker has been seeking suitable employment;

(h)any other relevant circumstances.” 

86.Section 43A(1) includes provisions which reflect judicial thinking as has been expressed from time to time in past decades concerning the meaning of “suitable employment” in the context of the Workers Compensation legislation. Having regard to that provision, the evidence establishes that the nature of the worker’s incapacity is a significant restriction as to the efficient function of his dominant right shoulder joint. His pre-injury employment was that of park attendant which effectively involved moderately arduous physical labour. The worker is presently 56 years of age and has limited education, limited literacy skills, no trade qualifications and has worked in his labouring capacity for the appellant for the past two decades. He resides in Port Macquarie, a moderately large regional town in northern New South Wales, and he has the restrictions which have been expressed in the evidence of those medical practitioners called on his behalf in these proceedings. It is reasonable to conclude, having regard in particular to the worker’s age, work experience and physical restrictions, that suitable employment would involve limited physical exertion and no requirements as to specialised skills. By reason of his educational background, clerical work or the like would not be included as being such employment. The availability of such work, having regard to all the circumstances and in particular his residential location, is limited and his level of competitiveness, by reason of the injury and its consequences cannot be said to be great. The worker’s prospects in the open labour market available to him have been demonstrated in the past and it is known that such work was sought for a period of almost 12 months before a position was secured. I infer that, notwithstanding his fitness for such suitable employment, the state of the labour market available to him would not afford a constant opportunity of employment and that such work would be intermittent. Having regard to all the evidence, including the fresh evidence concerning his earnings whilst working with Mr Thompson, I conclude that the worker’s ability to earn in his incapacitated state is in the sum of $400 per week.

87.The next step in the calculation of entitlement requires the subtraction of the figure calculated in step 2 from that calculated in step 1. That difference is $396.91. That difference is in excess of the statutory maximum payable until an adjustment which was made on 1 April 2010.

88.The next step in the process of calculation and entitlement is to determine whether there are any grounds upon which the discretion granted by the provisions of section 40(1) should be exercised to reduce the figure which has been calculated in the last mentioned step. At the hearing the only argument put was that the general practitioner’s clinical notes demonstrated that the worker suffered from other ailments concerning his feet, and that those matters should be taken into account when considering exercise of the discretion. That evidence is inexact and there is no suggestion in those notes that the condition for which he was treated is in any way incapacitating or operates as a handicap to his employability on the open labour market available to him. The submissions on this appeal appear to seek to elaborate the argument as to exercise of the discretion. It is put that the Arbitrator erred “in accepting that the worker’s limited attempts to apply for work identified in the second of the Intervene reports constitutes reasonable and conscientious efforts”. The argument is not entirely clear. However, it seems that the appellant is suggesting that failure on the part of the worker to seek suitable work is a factor to be taken into account in the course of the exercise of the calculation. Such may be relevant where a worker is seeking to place reliance upon section 38 of the 1987 Act, however it is of no relevance to the task of assessment of entitlement pursuant to section 40. I have earlier found on this review that the worker has conscientiously sought suitable employment, and in that respect I agree with the conclusion of the Arbitrator. As earlier stated, the worker’s failure to secure employment is one factor to be taken into account when determining his ability to earn.

89.I am not persuaded that there are any relevant matters that need to be taken into account on the facts as proven to vary the quantum of the worker’s entitlement pursuant to section 40 as earlier ascertained. It may be seen that my findings concerning the worker’s entitlement up until 6 June 2010 differ in some respects to those findings made by the Arbitrator. In the circumstances, in particular having regard to the foreshadowed order of remitter noted at [80] above, the Arbitrator’s order made in paragraph 1 of his Certificate of Determination must be revoked.

90.The unusual circumstances of the present case have not prevented the determination of those matters put in issue on the appeal however, by reason of the presentation of the fresh evidence concerning the worker’s earnings in June 2010, the Commission is unable to determine whether the worker has any entitlement to ongoing weekly payments. It is therefore necessary to remit the matter as I have foreshadowed. It will become necessary, and an appropriate direction is made hereafter, to afford the parties an opportunity to adduce that evidence relevant to the worker’s earnings and ability to earn sufficient to enable the Arbitrator to make appropriate factual findings.

DECISION

91.Paragraph 1 of the Arbitrator’s Certificate of Determination dated 20 April 1010 is revoked and the following order made in its place:

“1.The respondent is to pay the applicant weekly compensation at the following rates pursuant to section 40 of the Workers Compensation Act 1987:

$389.10 from 3 July 2009 to 30 September 2009
$396.10 from 1 October 2009 to 31 March 2010
$396.81 from 1 April 2010 to 6 June 2010”.

92.Paragraph 2 of the Arbitrator’s Certificate of Determination dated 20 April 2010 confirmed.

93.The matter is remitted to another Arbitrator for redetermination of any entitlements to weekly compensation from 7 June 2010 in accordance with the reasons of this decision.

COSTS

94.The appellant to pay the worker’s costs of the appeal.

Kevin O’Grady

Deputy President  31 August 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