Ramsay Food Packaging Pty Ltd v Brown
[2006] NSWWCCPD 19
•15 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ramsay Food Packaging Pty Ltd v Brown [2006] NSWWCCPD 19
APPELLANT: Ramsay Food Packaging Pty Ltd
RESPONDENT: Erin Maree Brown
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC14356-03
DATE OF ARBITRATOR’S DECISION: 3 December 2004
DATE OF APPEAL DECISION: 15 February 2006
SUBJECT MATTER OF DECISION: Injury; Weight of Evidence; Errors of Fact; Erroneous finding of ‘total incapacity’; Section 40 Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Arnold Lawyers
Respondent: MRM Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator awarding Ms Brown weekly benefits compensation is revoked. The matter is referred to the Arbitrator for re-determination of compensation for weekly benefits in accordance with these reasons.
The Appellant is to pay the costs of the Appeal.
BACKGROUND TO THE APPEAL
1.Erin Brown worked for Ramsay Food Packaging Pty Ltd (‘Ramsay’) as a Labourer from 17 September 2001 until 1 September 2002 in the abattoir operated by the company in South Grafton. Ms Brown claims that on 3 June 2002, while working on the slaughter floor, she pushed a 100kg carcass and injured her back. She claims to have suffered from back pain ever since.
2.Ms Brown made a claim for compensation on her employer. She received weekly benefits compensation until 1 April 2003. She later made a claim for lump sum compensation for permanent impairment. Her employer’s workers compensation insurer is Employers Mutual Indemnity (Workers Compensation) Limited.
3.On 19 March 2003 the Insurer advised Ms Brown that it denied liability for her claim. Ms Brown lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 8 September 2003. The Insurer has acted for and on behalf of the employer in the Commission proceedings.
4.On 3 December 2004 a Commission Arbitrator made an award in Ms Brown’s favour, ordering that she be paid weekly benefits from 3 April 2003 to 28 November 2004 “under section 37(1)(a) of the Workers Compensation Act 1987” with “[s]uch weekly payments to continue in accordance with the provisions of the Act”. The Arbitrator also ordered that Ms Brown was entitled to be paid reasonable medical expenses and the costs of bringing her dispute to the Commission. Ramsay have appealed against the award of weekly benefits compensation in an Application received on 11 January 2005 and this is the determination of that appeal.
5.Leave is granted to extend time for filing of the appeal to 11 January 2005 (Rule 77(8) Workers Compensation Commission Rules 2003; section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
6.The parties consent to the determination of the appeal without an oral hearing. I have before me the evidence and submissions that were before the Arbitrator as well as the submissions on the appeal. 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 (pursuant to section 354(6) of the 1998 Act).
ISSUES IN DISPUTE
7.The issues in dispute in the appeal are set out in Ramsay’s submissions and may be summarised as follows:
· The Arbitrator erred in finding that Ms Brown continued to suffer any incapacity for work as a result of her work injury.
· The Arbitrator erred in finding that Ms Brown was totally incapacitated as a result of her work injury.
· The Arbitrator erred in applying section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).
8.Ms Brown submits the Arbitrator did not make an error in his decision and that the appeal should be dismissed, with costs.
ANALYSIS OF THE ISSUES
9.The basis of an appeal to the Commission from the decision of an Arbitrator is that the arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; The King Island Company Limited v Deery [2005] NSW WCC PD 1). If such an error is established, and it is such that, but for it, a different decision should have been made (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at paragraph 4), then the Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator concerned or a different arbitrator for re-determination in accordance with the decision on appeal (section 352 of the 1998 Act).
Did the Arbitrator err in finding that Ms Brown continued to suffer any ongoing incapacity for work as a result of her work injury?
10.Ramsay argue that the Arbitrator did not consider the submission that the weight of the evidence, Dr Ashwell and Dr Power in particular, supported the conclusion that Ms Brown’s ongoing injuries did not relate to the injury which occurred at the abattoir on 3 June 2002.
11.Ms Brown argues that the finding of ongoing incapacity was open to the Arbitrator.
12.The Arbitrator does not, in the written ‘Reasons for Decision’, make an express finding as to whether Ms Brown’s ongoing incapacity for her pre-injury employment is causally related to her original injury. The totality of the Arbitrator’s reasons are found at paragraphs 44 to 51 of the decision. The reasons are inadequate. They do not set out clear findings of fact and the application of the relevant law to these facts, reasoning out conflicting evidence. There are no findings on the medical evidence. Nor is there any discussion of why the Arbitrator applied section 37 of the 1987 Act.
13.The evidence before the Arbitrator was that:
· The injury occurred on 3 June 2002.
· Ms Brown reported the injury and consulted Dr Rae, her General Practitioner, on 7 June 2002. She was off work for one day.
· Ms Brown consulted Dr Rae, again on 19 June 2002 and was off work from that day until 1 September 2002. Ms Brown received weekly benefits during that time. An x-ray of Ms Brown’s spine shows no disc damage. Dr Rae diagnosed muscle spasm and ongoing muscular pain.
· Ms Brown attended physiotherapy until 6 August 2002.
· Ms Brown was certified fit for restricted duties (maximum 5kg lifting and 20 hours per week) from 19 September 2002. However she was advised that suitable duties could not be provided.
· On 1 October 2002 her employment with Ramsay Food Packaging Pty Ltd was terminated. The insurer continued weekly benefits until 1 April 2003.
· In October 2002 Dr Power, Consultant Surgeon, examined Ms Brown on behalf of the Insurer. Dr Power reported that Ms Brown suffered musculo-ligamentous strain in the lower back, and was unfit for her pre-injury duties. He recommended lifting restrictions and retraining.
· From 29 October 2002 to 26 November 2002 Ms Brown worked casually picking berries at a farm. She earnt $263.30 for five casual sessions. She found the work difficult to cope with because of back pain.
· Ms Brown continued to consult Dr Rae, who continued to certify her fit for restricted duties, however she was unable to find suitable work close to where she lived, despite registering with an employment agency and actively seeking work.
· In February 2003 Dr Power, Consultant Surgeon, examined Ms Brown for a second time on behalf of the Insurer. He reported that Ms Brown was “fit for a wide variety of occupations … even those where bending and lifting up to 5kg from floor to waist is required. Her original injury did result from a significant strain, and I believe it reasonable that she should not be exposed to similar strains again”. Dr Power considered that Ms Brown could work for 35 hours per week.
· Following the termination of weekly benefits on 1 April 2003 Ms Brown has received a youth allowance from Centrelink.
· Dr Rae certified Ms Brown fit for work, up to 8 hours per day 5 days per week, with a lifting restriction of 5kg, repeatedly throughout 2003 and 2004. On 18 July 2003 Dr Rae reported that Ms Brown could work full time (approximately 40 hours per week) with restrictions. He opined that her long-term prognosis was good and that “she should in time make a complete recovery”.
· Dr Davis, Injury Management Consultant, reviewed Ms Brown at the Insurer’s request on 14 April 2003. He reported continuing symptoms of back pain, which he considered were “clearly the result of the incident on 6 June 2002”. He opined that she could not return to her pre-injury duties because of her back and should avoid work “above shoulder height, repetitive reaching, working in confined or awkward spaces and other activities dictating static loading on her lower spine”.
· An MRI scan of Ms Brown’s back, conducted in March 2004 shows no abnormality in the lumbar spine and no disc lesion.
· Dr Ashwell, Orthopaedic Surgeon and Approved Medical Specialist, assessed Ms Brown for the purpose of her claim for lump sum compensation for permanent impairment on April 2004. He reported that he would have expected Ms Brown’s injury to have resolved within 12 to 18 months and “cannot explain her ongoing symptoms”. Dr Ashwell found no permanent impairment.
14.The evidence does not support Ramsay’s submission that both Dr Ashwell and Dr Power considered Ms Brown’s ongoing injuries did not relate to her work injury in June 2002. However it is correct that neither Dr Ashwell nor Dr Power could find any reason for the extent of Ms Brown’s ongoing symptoms of back pain. Dr Power’s October 2002 report is slightly ambiguous in that he also recommends that Ms Brown not return to her former employment because of the possibility of further back strain.
15.It is for Ms Brown to prove, on the balance of probabilities, that she continues to suffer incapacity as a result of her work injury. Her written and oral evidence is that she continues to suffer back pain. The Arbitrator accepted her as a credible witness. He had the benefit of seeing and hearing her give evidence and be questioned on that evidence. His acceptance of her evidence should not be interfered with on appeal unless it appears that the Arbitrator has exercised his discretion unlawfully or unfairly. There is nothing to suggest that is the case. The medical evidence is suggestive of a conclusion that Ms Brown suffered a musculo-ligamentous strain of her lower back, the effects of which, at least from a clinical perspective, have ceased. However there is also evidence that the effects of the injury have not ceased, namely Ms Brown’s evidence, Dr Rae’s opinion, Dr Power’s view that she should not return to her pre-injury employment and Dr Davis’ opinion that in April 2003 she continued to suffer as a result of the work injury. Having considered the whole of the evidence I am satisfied that it was open to the Arbitrator to conclude that Ms Brown suffered an injury in the course of her employment with Ramsay, that her employment was a substantial contributing factor to that injury and that she continued to suffer an incapacity for work as a result of that injury. The extent of that incapacity is, however, a matter to be determined by further careful examination of the evidence.
Did the Arbitrator err in finding that Ms Brown was totally incapacitated as a result of her work injury?
16.Ramsay argues that the Arbitrator’s decision on the extent of Ms Brown’s incapacity to work was against the weight of the evidence. In particular, the Arbitrator noted the medical evidence of ‘restricted duties’; the availability of suitable duties; Ms Brown’s attempts to obtain suitable work; her inability to find suitable work and her incapacity to perform her pre-injury duties. Ramsay submits “it is not open to the Arbitrator to conclude . . . that notwithstanding her medical certificates, she is totally incapacitated for work and her incapacity is due to injury in the course of employment”.
17.Ms Brown submits that, notwithstanding her own “doctor certified her fit for suitable or restricted duties” it was open to the Arbitrator, on the whole of the evidence, “to find her totally incapacitated”.
18.It can be seen from the summary of the evidence set out above that there was considerable medical and other opinion on the extent of Ms Brown’s incapacity for work. Ramsay is correct to state that the Arbitrator did not address the correct issue in his reliance upon Bruce v Grocon Limited (1995) 11 NSWCCR 247. The factors referred to in the extract from that decision are contained in the definition of ‘suitable employment’ in section 43A of the 1987 Act and are relevant to the calculation of entitlement under sections 38, 38A and 40 of the 1987 Act. There is nothing in the reasoning of that decision that compelled the Arbitrator to find Ms Brown totally incapacitated. This was a question of fact to be determined on the evidence.
19.Ms Brown did not claim to be totally incapacitated. The medical opinions of Dr Rae, Dr Davis and Dr Powell did not find her to be totally incapacitated. Dr Rae, her General Practitioner who knew her best and saw her frequently considered that she was fit for suitable duties of up to 8 hours per day for 5 days per week, with only a lifting restriction of 5kg.
20.There is no evidence to support the Arbitrator’s finding that Ms Brown was totally incapacitated for work as a result of her injury, from 1 (or 3 as stated by the Arbitrator) April 2003 and continuing. The Arbitrator erred in making this finding. The evidence supports a finding that Ms Brown was partially incapacitated for work on and from 1 April 2003. There is near complete agreement in the medical reports that Ms Brown should not return to the heavy work at the abattoir because of the previous serious strain to her back and the heavy nature of the work.
Did the Arbitrator err in applying section 37 of the Workers Compensation Act 1987?
21.Ramsay argues that it was not open to the Arbitrator to apply section 37 of the 1987 Act to Ms Brown’s claim and that the case had been argued by both parties on the basis that section 38 and/or section 40 of the 1987 Act applied.
22.The application of section 37 relies upon the Arbitrator’s finding of total incapacity. On review of the Arbitrator’s decision I have found that Ms Brown is partially incapacitated for work. It is clear from reading the evidence and submissions that Ms Brown’s entitlement, if any, falls to be calculated pursuant to section 40 of the 1987 Act. It follows that the Arbitrator erred in the determination of Ms Brown’s entitlement pursuant to section 37 of the 1987 Act.
23.The payment of weekly compensation, where a worker is partially incapacitated, is governed by sections 38, 38A and 40 of the 1987 Act. There is no dispute that Ramsay was unable to provide Ms Brown with suitable duties. Ms Brown has received her section 36 entitlement (26 weeks) and has received some, but not all, of her entitlement pursuant to section 38. It was agreed between the parties that Ms Brown’s pre-injury earnings, had she remained employed at the abattoir, were at the level of Grade 2 of the Federal Meat Award, namely $459.20 per week. Pursuant to section 38 of the 1987 Act she is entitled to 80% of that amount or the statutory rate, whichever is greater, after the first 26 weeks. 80% of $459.20 is $367.36 per week. Both parties submitted to the Arbitrator that 80% of Ms Brown’s ‘current weekly wage rate’ would likely be less than the statutory rate. However the statutory rate for 2004 varied from $323.00 per week, effective from 1 April 2004, to $328.90 per week, effective from 1 October 2004. Ms Brown has claimed a remaining section 38 entitlement (“until about August” 2003) however neither party has provided a schedule that details the dates at which her various statutory entitlements crystallize.
24.Section 40(1) of the 1987 Act provides that the payment is to be “an amount not exceeding the reduction in the worker’s weekly earnings” but “is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case”. Section 40(2) provides for the calculation of “the reduction” as the difference between “the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment” (section 40(2)(a)) and “the average weekly amount which the worker is earning, or would be able to earn in some suitable employment” (section 40(2)(b)).
25.Subsection 40(3) provides that:
“The determination of the amount that an injured worker would be able to earn in some suitable employment 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.”
26.Section 43A(1), provides, relevantly, as follows:
“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.”
27.The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires that the finder of fact undertake a five-step process being:
1. Determination of the weekly amount the worker would probably have been earning if uninjured;
2. Determination of the amount that the worker is earning or would be able to earn subject to subsection 40(3) and section 43A;
3. Subtraction of the figure in 2 from the figure in 1;
4.Exercise of the discretion contained in subsection (1) of section 40 (being a discretion to reduce the amount otherwise payable, not increase it); and
5. Make an award in the amount arrived at by step 4.
28.Mitchell was applied by the Commission in Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56. The Arbitrator should have applied section 40 of the 1987 Act and made findings where appropriate in respect of each of the Mitchell steps.
29.I find the determination of Ms Brown’s entitlement pursuant to section 40 of the 1987 Act is as follows:
Step 1. It was agreed between the parties that Ms Brown’s pre-injury earnings, had she remained employed at the abattoir, were at the level of Grade 2 of the Federal Meat Award, namely $459.20 per week.
Step 2. Ms Brown’s earning capacity post-injury is affected by the restrictions imposed as a result of her injury. Ms Brown cannot return to heavy work such as the abattoir. Dr Rae continues to recommend a lifting restriction to 5kg. However he considers Ms Brown is fit to work up to 40 hours per week.
Ms Brown completed year 10 of high school and has also attended TAFE. She tried to obtain office work before eventually seeking employment at the abattoir. She has a Certificate III in Business Office Administration. In addition to the abattoir she has previously worked briefly as a casual sales assistant at Donut King and as a checkout operator at Best and Less. She tried to obtain work after the injury, namely at Blueberry Farms Australia, but could not continue. She is registered with an employment agency but has not been successful in finding work. Ms Brown gave evidence of looking for jobs as a condition of her Centrelink payment, but of being unsuccessful. She lives in a rural area.
I agree with the submission made by Ramsay, on appeal, that there is insufficient evidence to “determine what is a proper deduction in the weekly earnings in the circumstances of this case”. It was Ms Brown’s legal representative’s obligation to bring evidence of the matters listed in section 43A(1) of the 1987 Act before the Arbitrator. At this point there is no evidence of the labour market reasonably accessible to Ms Brown, other than vague statements about Grafton, made from the bar table at the arbitration. Ms Brown is a young woman who, with the potential for further training and rehabilitation (as recommended by her doctors), will hopefully be able to obtain some form of useful employment. The fact that she was unable to do so following her injury is unlikely to mean that she will never work again. If her entitlement is to be reduced according to her capacity to earn, then better evidence of that issue is required. This is the key issue in this particular case. The types of evidence that go to this issue were discussed in Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSW WCC PD 5 namely;
• reports addressing the worker’s capacity to find work, considering her age, skill, education and experience;
• labour market data about the particular geographic region or industry;
• evidence of application for employment and inability to be successful;
and
• evidence of any specific barriers to employment relevant to the particular worker.
Step 3. The subtraction of the figure derived from Step 2 cannot be ascertained
because of insufficient evidence.
Step 4. Similarly a final figure cannot be determined.
Step 5. The award must be the lesser of the calculation made according to the above
steps or the maximum statutory award for a single person as adjusted from
time to time.
30.Adjustments will need to be made for payments made, income earned and Centerlink payments. The parties should do these detailed calculations. In essence the orders made by the Arbitrator need to be amended to reflect the remainder of Ms Brown’s section 38 entitlement and a clear assessment and statement of her section 40 entitlement (not section 37) under the 1987 Act. The matter will be remitted to the Arbitrator for determination in accordance with these reasons.
DECISION
31.The decision of the Arbitrator awarding Ms Brown weekly benefits compensation is revoked. The matter is referred to the Arbitrator for re-determination of compensation for weekly benefits in accordance with these reasons.
COSTS
32.The Appellant is to pay the costs of the appeal (section 345 of the 1998 Act).
Dr Gabriel Fleming
Deputy President
15 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT, WORKERS COMPENSATION COMMISSION.
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