Priest v Southern Cross University
[2005] NSWWCCPD 111
•20 September 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Priest v Southern Cross University [2005] NSW WCC PD 111
APPELLANT: Anthony John Priest
RESPONDENT: Southern Cross University
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER: WCC2854-04
DATE OF ARBITRATOR’S DECISION: 12 August 2004
DATE OF APPEAL DECISION: 20 September 2005
SUBJECT MATTER OF DECISION: Weekly benefits, ongoing incapacity; effect of redundancy payment; reasonable medical expenses.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Somerville Laundry Lomax Solicitors
Respondent: Mulcahy Lawyers
ORDERS MADE ON APPEAL: 1. Order 1 of the decision of the Arbitrator, dated 12 August 2004 is revoked and the following Orders are made in its place:
That the Respondent pay the Applicant weekly benefits at the rate of $489.25 per week from 1 July 2003 to 30 August 2003 pursuant to section 36 of the Workers Compensation Act 1987.
That the Respondent pay the Applicant weekly benefits at the rate of $254.41 per week from 31 August 2003 to 30 September 2003, pursuant to section 40 of the Workers Compensation Act 1987.
2. The decision of the Arbitrator, dated 12 August 2004, is otherwise confirmed.
3. No order as to the Costs of the Appeal.
BACKGROUND TO THE APPEAL
Anthony John Priest was variously employed by the University of New England- Northern Rivers, and then Southern Cross University (‘the University’), from 1984 until 15 August 2003. The University of New England subsequently became the Southern Cross University. He was a Groundsman and his duties included manual work, including lifting of furniture and other objects, and gardening. In 1991 he became a ‘stores officer’ with duties including receipting and distributing stores that arrived at the University, including furniture and copy paper. He claims that he injured his back in an incident involving moving a heavy printer, in 1993. In 2002 he was transferred to duties on the ‘Gatehouse’.
Mr Priest claims to have injured his back at work, initially in 1993 and with later aggravations of pain and incapacity for work in 1999, 2000 and 2002 and June 2003. Mr Priest made a claim for permanent impairment compensation for his back injury and in April 2002 he consented to the Compensation Court of NSW making orders that he receive compensation for 10% permanent impairment of his back, 3 % permanent loss of efficient use of his left leg, 3% permanent loss of efficient use of his right leg and $4,500.00 in compensation for pain and suffering.
Mr Priest claimed continued weekly compensation benefits as a result of an injury arising out of or in the course of his employment with the University between 23 June 2003 and 1 July 2003. The ‘injury’ claimed is an aggravation of degenerative disc disease of his lower back.
Mr Priest has also claimed reasonable medical expenses in relation to the injury.
The University has denied liability for Mr Priest’s claim and relies upon medical evidence that his injury is constitutional rather than work related.
Mr Priest took voluntary redundancy from the University on 15 August 2003.
On 9 February 2004 Mr Priest filed an application to resolve his dispute in the Workers Compensation Commission. GIO Workers Compensation (NSW) Ltd is the workers compensation insurer for the University and they acted for and on behalf of it in the Commission proceedings.
A Commission Arbitrator held a conciliation and arbitration of the dispute on 12 August 2004. The parties were not able to come to an agreed settlement therefore the Arbitrator determined the matter. He gave oral reasons for his decision on that day and issued the following orders:
“1. That the Respondent [Southern Cross University] pay the Applicant [Mr Priest] weekly benefits at the rate of $489.25 per week from 1 July 2003 to 15 August 2003
2.Award for the Respondent in respect of the claim for medical expenses
3.That the Respondent pay the Applicant’s costs as agreed or assessed
4.That the Application was complex”
Mr Priest now appeals against those orders. He argues that the Arbitrator’s decision should be revoked and a new order made granting him ongoing weekly compensation and medical expenses.
The University wants the Arbitrator’s orders confirmed.
ISSUES IN DISPUTE
The issues in dispute in the appeal may be summarised as follows:
·Was the Arbitrator wrong to find that Mr Priest was not entitled to weekly benefits compensation following 15 August 2003?
·Was the Arbitrator wrong to make an award in favour of the University in relation to medical expenses?
JURISDICTION
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 appeal was not initially filed in accordance with the requirements of the Workers Compensation Commission Rules 2003 and was returned to Mr Priest’s legal advisers to rectify defects. It was later re-filed.
Mr Priest disputes the whole of the Arbitrator’s orders and claims that his proper entitlement, if calculated from 1 July 2003 to date and continuing is ‘at issue on the appeal’. I accept that this is the case.
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act);
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act);
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
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.
Mr Priest’s legal representative has requested an oral hearing of the appeal, arguing that the matter is too complex to be substantively determined on the papers. I note that the legal representative, in submissions filed with the original appeal stated that the submissions were filed without the benefit of a transcript of the arbitration and he asked that Mr Priest be permitted to file further submissions when the transcript was available. The transcript was sent to both parties on 5 October 2004 and, as at the date of this decision nearly twelve months later, no further submissions have been received.
The University agreed to the determination of the matter on the papers.
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.
CONSIDERATION
Was the Arbitrator wrong to find that Mr Priest was not entitled to weekly benefits compensation following 15 August 2003?
The Arbitrator made a number of findings, as set out in the transcript of his reasons, as follows:
·He preferred the medical evidence of Dr Harrison (who reported in 2001 and 2004), that Mr Priest’s employment had led to a number of aggravations of back pain, due “presumably” to “ some degenerate disc disease” (report of 3 May 2001).
·Following an incidence of back pain in March 2003 Mr Priest returned to work on ‘light duties’. He was off work substantially in June 2003 and returned for one week ending on 1 July 2003.
·Mr Priest suffered a further ‘flare up’ of his back pain and was unfit for work from 1 July 2003 to 15 August 2003.
·On 15 August 2003 Mr Priest accepted a voluntary redundancy from the University. The redundancy agreement included a provision that the University would not re-employ Mr Priest in any capacity or through any third party within five years of the effective date of termination.
·Mr Priest was fit for light duties after 15 August 2003 but did not seek suitable work after that date.
·Suitable duties were available to Mr Priest at the time he accepted the voluntary redundancy.
The Arbitrator does not make any explicit finding that Mr Priest suffered an ‘injury’ as that term is defined in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act), nor the nature of that injury i.e. was it an aggravation of an injury or a disease? Nor does the Arbitrator then make an express finding that Mr Priest’s employment was a ‘substantial contributing factor’ to his injury. The Arbitrator in his reasons, does not refer to the relevant provisions of the 1987 Act, other than to section 60, in relation to medical expenses.
Mr Priest argues that “. . . the Respondent should have been estopped from arguing that the employment of the worker had ceased to be a contributing factor to the workers ongoing back condition which appears to be the grounds upon which the Arbitrator made his decision”.
Mr Priest also argues that in awarding him:
“. . . a closed period of weekly payments between 1st July 2003 and 15th August 2003 the arbitrator has ignored the fact that the worker has an ongoing incapacity and accordingly, the end of the closed period reflects an artificial termination of the workers entitlements to weekly payments which is not sustainable on the facts nor under the Workers Compensation Act 1987”.
The University argues that the Arbitrator relied upon section 49(3) of the 1998 Act in coming to his decision. This section relieves the employer from the duty to provide ‘suitable work’ where the employee voluntarily leaves the employment.
It was the Arbitrator’s task to consider and weigh the evidence that was before him. He was entitled to prefer the evidence of Dr Harrison, Dr Coyne, and Dr Theodore (his treating general practitioner). While the Arbitrator might be said to have given inadequate reasons for preferring this evidence, it is possible to distill from the reasons that he considered Dr Harrison “had a better acquaintance with Mr Priest and the problems with his back than Dr Ashwell” (transcript of reasons at page 53).
Having reviewed the evidence that was before the Arbitrator and the transcript of the oral evidence given at the arbitration, I am satisfied that there was sufficient evidence to support a finding that Mr Priest suffered an ‘injury’ arising out of and in the course of his employment with the University. This injury consisted of a number of discreet aggravations of degenerative disc disease of his back. The latest injury, for which weekly compensation is claimed in this application was due to the nature and conditions of his employment with the University between 23 June 2003 and 1 July 2003. Mr Priest filed a statement dated 20 January 2004, and gave oral evidence, which the Arbitrator found credible and persuasive. As noted above there was medical evidence to support his claim to have suffered a work injury. The medical evidence of Dr Harrison and Dr Theodore support Mr Priest’s claim that the actual duties he was required to perform at work as a Groundsman, and later as a Facilities Officer at the University, were a ‘substantial contributing factor’ to this aggravation of his back condition.
It is not clear from the Arbitrator’s decision whether he considered that Mr Priest had not sought ‘suitable employment’ (defined in section 43A of the 1987 Act) simply as a result of accepting voluntary redundancy from his position at the University, or by not actively seeking other employment on his own account, or indeed for both reasons. The parties refer to section 40 of the 1987 Act in order to determine Mr Priest’s entitlement to compensation, if any.
On the evidence before the Arbitrator there are four periods of claimed incapacity that may be distinguished. They are:
· From 1 July 2003- 15 August 2003, which is the subject of the Arbitrator’s order;
· From 15 August 2003 to 30 August 2003;
· From 31 August 2003 to 30 September 2003 where Mr Priest claims a capacity to work only 12 of his usual 25 hours per week, and
· From 1 October 2003 to date and continuing.
It is not disputed that Mr Priest has, in fact, not been ‘suitably employed’ since 15 August 2003, with the University or with another employer. Section 38 of the 1987 Act provides that if a worker is partially incapacitated for work as a result of an injury and is not suitably employed by the employer who is liable to pay compensation for that injury, then he or she is to be compensated as if his or her incapacity were total. However this provision does not apply to a worker during any period of partial incapacity, unless he or she is actually seeking ‘suitable employment’. The fact that Mr Priest had accepted voluntary redundancy does not of itself extinguish his entitlement, if any, to benefits pursuant to section 38.
Section 38A of the 1987 Act details when a worker is determined to be seeking ‘suitable employment’. The Arbitrator found that the University had ‘suitable duties . . available’ to Mr Priest after 15 August 2003. In my view the Arbitrator could equally have found that the University did not have an obligation to provide suitable employment because Mr Priest had voluntarily left the employment (section 49(3) of the 1998 Act). However the evidence supports the fact that, even if ‘suitable employment’ were ‘available’ within the University, it could not be offered to Mr Priest employment after 15 August 2003, nor could he accept ‘suitable employment’ with the University, because the terms of the agreement to take a redundancy payment prevented this. As Mr Priest was, by his own choice, no longer employed by the University, his entitlement falls to be determined by the application of section 40 of the 1987 Act.
The five steps which must be taken in making an award under section 40 of the 1987 Act are set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 at 529 (discussed in Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56). They are:
“1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)) …
2. To determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A…3. To subtract the figure derived from 2. from the figure derived from 1, (section 40(2))
4.To decide whether and to what extent the reduction calculated as above, bears such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1))
5.To make an award in the amount arrived at in Step 4.”
1 July 2003 to 15 August 2003.
The Arbitrator awarded Mr Priest $489.25 per week, being the weekly amount claimed in his application to the Commission. As the amount of this weekly award is not challenged on appeal I presume it to be accepted that Mr Priest was considered totally incapacitated for work during this period, that this was his ‘current weekly wage rate’ for the relevant period 1 July 2003 to 15 August 2003, and it was within the first twenty six weeks of his incapacity (section 36 of the 1987 Act).
16 August 2003 to 30 August 2003
It appears from the reasons that the Arbitrator based his determination of the dates of the closed period award entirely on the fact that the redundancy was taken on 15 August 2003. This is not correct and I agree with Mr Priest’s submissions on the appeal, that it appears to be an arbitrary date when considered against the evidence of Mr Priest’s incapacity for work.
The WorkCover Certificates submitted evidence that Mr Priest remained partially incapacitated for work at that time. There appears to be a gap in the periods covered by the WorkCover Certificates. There is a certificate which certifies him totally unfit for work from 1 July 2003 to 3 August 2003, then another certificate, dated 18 August 2003 that certifies him fit for work, with restrictions, for twelve hours per week from 31 August 2003 to 30 September 2003. The Arbitrator has made an award up to 15 August 2003, which leaves the period 16 August 2003 to 30 August 2003 unaccounted for, in terms of WorkCover Medical Certificates or an award of weekly benefits.
Mr Priest, in his statement dated 20 January 2004, claims to have been unfit for work until “the end of August 2003”. Dr Ashwell examined him on 25 August 2003 and considered him fit for work.
On balance I accept Mr Priest’s evidence that he remained totally incapacitated for work until the end of August 2003. The report of Dr Ashwell is at odds with the reports of Dr Theodore, Mr Priest’s long time General Practitioner, who had seen him numerous times during this period and was very familiar with his condition.
Mr Priest is entitled to an award of $489.25 for total incapacity, pursuant to section 36 of the 1987 Act, from 16 August 2003 to 30 August 2003.
31 August 2003 to 30 September 2003
The Arbitrator referred, without making a clear finding, to medical evidence that Mr Priest was fit to resume suitable duties for approximately 12 hours per week from 31 August 2003 to 30 September 2003. Prior to this Mr Priest was working 25 hours per week. As noted above there are no submissions before me that challenge the fact that Mr Priest was earning $489.25 per week for 25 hours per week as a general hand or ‘Facilities Officer’ at the University prior to his injury. There is evidence however that from 31 August 2003 to 30 September 2003 Mr Priest could only work 12 hours per week.
As noted above Mr Priest submitted a WorkCover Medical Certificate, which states that he is fit for suitable duties, with lifting and other restrictions, for twelve hours per week from 31 August to 30 September 2003.
Mr Priest was in fact not earning anything in that period. He accepted his redundancy payment of around $40,000 on 15 August 2003. At that time he was, and remains, the primary carer for his four young children. He said that since accepting the redundancy payment he had been available and looking for work but nothing had “come up”. He looked for work by talking to friends and attending an employment agency. He has not registered with any agency as a person looking for work. He has not applied for any jobs since his redundancy. He agreed in oral evidence that he had seen jobs advertised for positions “in service stations” but had not applied for any because the times conflicted with his family responsibilities.
In my view the evidence supports a finding that Mr Priest would have been able to earn $234.84 (being $19.57, his hourly rate x 12) from time to time, in suitable employment from 31 August 2003 to 30 September 2003.
Applying section 40 to the assessment of his incapacity results in the following entitlement:
1.The weekly amount Mr Priest would probably have been earning if uninjured (section 40(2)(a)) is $489.25. This was Mr Priest’s pre-injury earnings.
2.The average weekly amount that Mr Priest would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)) is $234.84 ($19.57, his hourly rate x 12).
3.This leaves an amount of $254.41 as potentially Mr Priest’s entitlement, subject to the discretion to reduce this amount.
4.It is not proper in the circumstances of the case to reduce this amount (section 40(1)).
5.The award for the period 31 August 1003 to 30 September 2003 is $254.41 per week.
1 October 2003 to date and continuing
The medical evidence addressing Mr Priest’s incapacity for work, if any, after 30 September 2003 appears to reflect the nature of his injury, namely a lower back condition that is subject to aggravation, as Dr Harrison notes, “from time to time”.
In his statement dated 20 January 2004, Mr Priest stated that “at the moment my back feels reasonably stable”- though he also reported ongoing pain in the mornings and late evenings and restrictions on his movement. The latest medical report filed by Mr Priest was that of Dr Harrison, dated 16 February 2004. Dr Harrison stated that Mr Priest was in a ‘static’ situation, vulnerable to aggravations of back pain. He considered that he would be troubled by this ‘from time to time’ and accepted Mr Priest’s account that he could carry out light duties, such as that of gatekeeper, which he had at the University, “with ease”. Dr Ashwell, reporting on 25 August 2003, considered that Mr Priest was fit for only light duties, but full-time, as a ‘Groundsman, Storeman or Gate Operator’ on and from that date. Dr Parkington opined on 31 March 2003, that Mr Priest was capable of light duties.
From 31 August 2003 to 30 September 2003, Mr Priest was only able to do ‘light’ duties for 12 hours per week. However he claims to have stabilised since then and the medical evidence supports the conclusion that the injury occasioned by the episode of aggravation to his back in June 2003 had ceased. I find that Mr Priest had an ability to earn in ‘suitable employment’ on and after 30 September 2003.
‘Suitable Employment’ available to Mr Priest could be for no more than twenty five hours (his pre-injury hours) per week, with limitations on lifting, twisting and bending. The work that Mr Priest undertook at the University was unskilled and consistent with his physical restrictions. In particular he sought out the position as the ‘Gatekeeper’ because he viewed it as suitable employment. The amount he was earning at the University, prior to his injury on 23 June 2003, is a reflection of his ability to earn in suitable employment.
In 2003 Mr Priest was 40 years old. He had been carrying out general, unskilled work for a number of years. He agreed that he could continue to do this type of work, with restrictions, and that he also has clerical and computer skills. The labour market reasonably accessible to him was geographically located where he lived, in Lismore, NSW. By his own oral evidence he was aware of ‘suitable employment’ advertised locally and potentially available to him after he accepted his redundancy payment but he did not take any steps to apply for it. In addition to Mr Priest’s family commitments he began full time study for a double degree at University in 2004.
In my view the evidence of Mr Priest and the whole of the medical evidence support a finding that Mr Priest was able to work twenty five hours in suitable employment from 1 October 2003.
Taking these matters into account, the application of section 40 of the 1987 Act to the period from 1 October 2003 and continuing is as follows;
1.The weekly amount Mr Priest would probably have been earning if uninjured (section 40(2)(a)) is $489.25.
2.The average weekly amount that Mr Priest would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)) is $489.25.
3.This leaves an amount of $nil as potentially Mr Priest’s entitlement, subject to the discretion to reduce this amount.
4.This leaves no role for the exercise of discretion to reduce the award.
5.The award for the period 1 October 2003 and continuing is $nil.
I note that even if there had been evidence to find that Mr Priest was not able to earn any, or a lesser amount in ‘suitable employment’ from time to time following his injury, I would exercise the discretion to reduce his entitlement to $nil for the following reasons; his failure to take any steps to seek suitable employment following his redundancy, his unavailability for work because of his full-time study and his extensive family responsibilities.
Mr Priest is therefore not entitled, on the application of section 40 of the 1987 Act, to a continuing award of weekly compensation after 30 September 2003.
Was the Arbitrator wrong to make an award in favour of the University in relation to medical expenses?
Mr Priest, in his ‘Application to Resolve a Dispute’ stated that he sought a “General Order” for “treatment costs and pharmaceutical expenses”. There was no evidence filed in relation to such claims for past expenses.
The Arbitrator observed that future “physiotherapy needs” would depend upon the condition of Mr Priest’s back. He considered that as Mr Priest would no longer be working for the University, any future “flare ups”, which I take to refer to aggravations of his back injury, would therefore be unrelated to his employment with the University. The Arbitrator makes no reference to the Compensation Court Order as to Mr Priest’s permanent impairment to his back and legs, in relation to future medical expenses.
Mr Priest submits that the Arbitrator erred in making the Order for the University in relation to medical expenses pursuant to Section 60 of the 1987 Act. He argues that such Order ignores the award of permanent impairment compensation made by the Compensation Court, by consent, in 2002. This Order however related to a prior injury and the fact of this Order in itself, in the absence of a specific claim for medical expenses, is not justification for the making of an order pursuant to section 60 of the 1987 Act.
The University submits that there is no power to make an order for section 60 expenses into the future and it purports to rely upon the decision of the President of the Commission, Justice Sheahan, in Water Taxis Combined Pty Limited and Harbour Taxi Boats Pty Limited v Wells [2004] NSW WCC PD 30.
The 1987 Act provides for compensation for medical expenses only after they are incurred and properly verified. Section 60 is an indemnity provision (NSW Sugar Milling Co-op v Manning (1998) 44 NSWLR 442). It is therefore not appropriate for an Arbitrator to make an order pursuant to section 60 of the 1987 Act for a specified sum, based upon likely future costs.
In my view the Arbitrator did not err in his determination that Mr Priest was not entitled to a general order for medical expenses. There were no receipts or invoices for medical expenses in evidence. A general, future order in relation to such expenses is meaningless because, even with the benefit of an award, it will be incumbent on Mr Priest to provide evidence of his expenses, the fact that they were ‘reasonably necessary’ and their relationship to a compensable injury, at the time of making any future claim on the University for reimbursement.
DECISION
Order 1 of the decision of the Arbitrator, dated 12 August 2004 is revoked and the following decision is made in its place:
That the Respondent pay the Applicant weekly benefits at the rate of $489.25 per week from 1 July 2003 to 30 August 2003 pursuant to section 36 of the Workers Compensation Act 1987.
That the Respondent pay the Applicant weekly benefits at the rate of $254.41 per week from 31 August 2003 to 30 September 2003, pursuant to section 40 of the Workers Compensation Act 1987.
The decision of the Arbitrator, dated 12 August 2004, is otherwise confirmed.
COSTS
I note that the Arbitrator invited the parties legal representatives to submit that the matter before him was ‘complex’, and therefore a higher rate of costs was applicable. I do not believe the matter is complex and indeed it was capable of resolution on the day of the arbitration, and by oral reasons. Nevertheless this aspect of the Arbitrator’s decision is not disputed on appeal.
Sections 341 and 345 of the 1998 Act govern the costs of the appeal. The Appellant has been ‘unsuccessful’ on the appeal in that the decision has not resulted in a change in his favour in the amount awarded of at least $5000.00 (section 345(3)). The appropriate order is therefore ‘no order as to costs’.
Dr Gabriel Fleming
Deputy President
20 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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