Ranvet Pty Ltd v Vasilevski
[2008] NSWWCCPD 81
•31 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 | |||||
| APPELLANT: | Ranvet Pty Ltd | |||||
| RESPONDENT: | Vlado Vasilevski | |||||
| INSURER: | Employers Mutual NSW Limited | |||||
| FILE NUMBER: | WCC8963-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 29 February 2008 | |||||
| DATE OF APPEAL DECISION: | 31 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Nature of a ‘review’ under section 352 of the Workplace Injury Management and Workers Compensation Act 1998; credit findings; whether the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167 applies to reviews under section 352; assessment of ability to earn; section 40(2)(b) of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Edwards Michael Lawyers | ||||
| Respondent: | Eugene Lepore & Associates | |||||
| ORDERS MADE ON APPEAL: | Paragraphs one and two of the Arbitrator’s determination of 29 February 2008 are revoked and the following order made: “The matter is remitted to a different Arbitrator for the Applicant Worker’s entitlement, if any, under section 40 of the Workers Compensation Act 1987 to be re-determined in accordance with the reasons in this decision.” Paragraphs three, four, and five of the Arbitrator’s determination are confirmed. | |||||
| No order as to costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
This appeal raises two issues. First, the Commission’s approach to credit issues on appeal to a Presidential member and, second, the proper approach to the calculation of a worker’s ability to earn under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Vlado Vasilevski started work for Ranvet Pty Ltd, a veterinary pharmaceuticals manufacturer, as a process worker in late 2002 or early 2003. His duties required him to operate machinery and manually handle heavy containers of liquids and powders.
He injured his low back whilst performing his usual duties on 1 October 2004. Employers Mutual NSW Limited, Ranvet’s workers compensation insurer, initially accepted his claim and established an injury management plan. After being off work for about three weeks, Mr Vasilevski return to work on light duties on 12 November 2004, working two hours per day, five days per week with a lifting restriction of five kilograms, and gradually returned to his pre-injury duties and hours on or about 11 April 2005.
For reasons that are disputed, Ranvet terminated Mr Vasilevski’s employment on 20 May 2005. On 10 June 2005, Mr Vasilevski’s solicitor wrote to the insurer asserting that he “appears to be entitled to weekly payments”. The insurer declined liability by letter dated 14 June 2005.
On 15 August 2006, Mr Vasilevski obtained employment as a casual process worker fixing computers with a company identified only as “D-Link”, where he earned an average of $392.00 gross per week. The evidence is that D-Link terminated his employment on 1 June 2007 because he was unable to do the work.
On 23 November 2007, Mr Vasilevski filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking weekly compensation from 20 May 2005 to date and continuing together with medical expenses and lump sum compensation in respect of a 13% whole person impairment.
In a Medical Assessment Certificate dated 25 February 2008, an Approved Medical Specialist (‘AMS’) assessed Mr Vasilevski to have a whole person impairment of 5%. It is not disputed that this loss has resulted from the injury on 1 October 2004.
The matter proceeded to arbitration on 28 February 2008 when the essential issue was whether Mr Vasilevski had any entitlement to weekly compensation and, if so, the quantum of that compensation. Mr Vasilevski was cross-examined and counsel for both parties made submissions. In an ex tempore decision, the Arbitrator found in favour of Mr Vasilevski and made the following orders in a Certificate of Determination dated 29 February 2008:
“1. That the Respondent pay the Applicant weekly compensation from 21 May 2005 to 15 February 2007 at the rate of $142.38 pursuant to the provisions of
s 40 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation from 16 February 2007, of $262.05, pursuant to the provisions of s 40 of the Workers Compensation Act 1987, to date and continuing in accordance with the provisions of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant’s expenses pursuant to s 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4. That the Respondent pay the Applicant lump sum compensation pursuant to
s 66 of the Workers Compensation Act 1987, in accordance with the Medical Assessment Certificate issued, the sum of $6,250 for a 5% Whole Person Impairment.
5. That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 27 March 2008, the Appellant Employer seeks leave to appeal and challenges the Arbitrator’s determination and orders made under section 40 of the 1987 Act.
ON THE PAPERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
There is no dispute that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)accepting, without qualification or adequate consideration, the worker’s statement that at the time of the termination of his employment he was working “with extreme difficulty” and that his back was “very painful”, when such statement was contradicted by the contemporaneous evidence;
(b)accepting the worker’s evidence when the likelihood of its being true, or substantially true, was against the evidence and the weight of the evidence;
(c)failing to properly consider the relevant evidence and the weight of the evidence regarding the worker’s true level of incapacity as at the date of the termination of his employment on 20 May 2005;
(d)making a finding as to the level of the worker’s incapacity within the meaning of section 40 of the 1987 Act that was against the evidence and the weight of the evidence;
(e)failing to make an adverse finding in respect of the worker’s credit in the face of overwhelming evidence which contradicted his assertions;
(f)failing to give any or any adequate reasons and in particular in failing to properly address and analyse the contemporaneous evidence concerning the worker’s incapacity as at 20 May 2005 and/or to explain why his evidence was preferred over that contemporaneous evidence and/or why that contemporaneous evidence was rejected;
(g)finding that the worker’s complaints to doctors following the termination of his employment with Ranvet were unlikely to be exaggerated or contrived because he had not made a claim for compensation until long after those complaints were made when evidence was in fact that a claim had been made and a solicitor consulted within weeks of the termination of 20 May 2005;
(h)failing to properly discharge her obligation to make a determination as to the worker’s ability to earn in some suitable employment as required by section 40;
(i)accepting the worker’s uncorroborated assertion of his actual earnings for a brief period as being his ability to earn in some suitable employment rather than make a proper and reasoned determination on this issue;
(j)failing to give any or any adequate reasons disclosing the basis of the determination of the worker’s ability to earn in some suitable employment and, in particular, in failing to make any findings as to the type of employment which would be considered suitable, the restrictions which ought to be placed upon the worker’s capacity to work and as to whether he was able to perform duties regarded as suitable on a full time or part time basis, and
(k)finding that the worker had any entitlement under section 40 or, in the alternative, in finding an entitlement under section 40 which was excessive having regard to the evidence and the weight of the evidence.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence on appeal.
PRELIMINARY MATTER
The Appellant Employer has prepared and filed with the appeal a transcript of the proceedings before the Arbitrator on 28 February 2008. This document is inconsistent with the Commission’s official transcript, forwarded to the parties on 28 May 2008. As a result, substantial time has been wasted in the conduct of this review as it has been necessary to check every transcript reference provided by Ranvet against the official transcript and, in respect of Mr Vasilevski’s oral evidence, to listen to the original audio recording of the proceedings to determine the correct evidence.
The Commission acknowledges the importance of an accurate transcript of the proceedings at arbitration and goes to considerable trouble and expense to ensure that a transcript is prepared. Once an appeal is filed, the official transcript is provided to the parties free of charge and parties are then given a further 28 days from the date of the letter serving the transcript in which to finalise their grounds of appeal and/or submissions.
The practice of parties preparing their own transcript only leads to confusion and should stop. Unless otherwise stated, all transcript references in this decision are to the Commission’s official transcript. Where I have found relevant discrepancies between the two transcripts I have listened to the audio recording of Mr Vasilevski’s evidence and noted the correct evidence.
SUBMISSIONS
Ranvet submits:
(a)Mr Vasilevski returned to his normal duties on 11 April 2005 as per a certificate from his general practitioner, Dr Nguyen. His return to normal duties was supervised by the rehabilitation provider for one month and on or about 18 May 2005 his employment was terminated for reasons unrelated to his injury;
(b)by 18 May 2005, Mr Vasilevski had effectively recovered from his back injury and/or had no economic incapacity as a result of that injury. In the alternative, any residual incapacity suffered by him was minimal;
(c)Mr Vasilevski’s case depended very much on his own evidence (including his history to doctors, who based their opinions on his history) as to the extent of his incapacity and his evidence should have been rejected as either untruthful, or, at the least, grossly exaggerated;
(d)the Arbitrator based her decision almost entirely on the unequivocal acceptance of Mr Vasilevski’s evidence that he found his work with Ranvet prior to his termination “extremely difficult and very painful” (T24.1) which she appears to have considered was not contradicted by other evidence (T24.17);
(e)on the issue of whether there was contrary evidence about whether Mr Vasilevski frequently complained to his supervisor (Mr Rothery) about his pain, the Arbitrator acknowledged the supervisor’s evidence but dismissed it, without explanation, simply saying “However, the applicant still says in his statement that he found the work difficult and painful” (T28.15);
(f)the Arbitrator’s uncritical and unreserved acceptance of Mr Vasilevski’s evidence in the face of a large amount of contemporaneous evidence contradicting it, coupled with a failure to give any or any adequate reasons as to why the contradictory evidence was not considered sufficient to undermine, if not destroy, his credit, caused the determination of the case to miscarry and constitutes errors of fact, law and discretion;
(g)procedure in the Commission eschews oral evidence on oath and requires most evidence to be given by statement. In these circumstances, it is incumbent upon arbitrators to take care to satisfy themselves that the contents of statements are true, and where such truth is squarely placed in issue, careful and considered reasons must be given to explain why the basis of the attack upon the truth of a statement is rejected;
(h)Mr Vasilevski said at page two of his statement “Prior to my employment being terminated I had been complaining to my supervisor almost everyday that the work was difficult and I was having a lot of pain”. This evidence was contradicted by Mr Rothery’s evidence and it is unclear if the Arbitrator accepted or rejected Mr Rothery’s evidence. The Arbitrator failed to state why Mr Vasilevski’s evidence was not tainted by Mr Rothery’s contrary evidence or failed to say why his evidence was preferred to Mr Rothery’s;
(i)Mr Vasilevski added at page two of his statement “I kept complaining to my doctor that I was finding it very difficult”. Dr Nguyen’s clinical notes are in evidence and the following entries appear from 10 March 2005 until 24 May 2005:
“10.3.05 back feeling better – for suitable duties from Monday;
29.3.05back doing OK – for ↑ 15kg;
04.4.05Abdo pain, constipation, nausea;
11.4.05improving significantly, can lift 25kg at gym;
18.4.05general myalgia, lethargy, cough, viral URTI
28.4.05stress as employer gave him warning letter as pt didn’t wear gloves as working with chemical;
12.5.05vomiting, nasally, A – soft n-t – viral;
16.5.05in bed over weekend, diarr – gastroenteritis;
19.5.05stress as going to be terminated from work – for counselling;
24.5.05pt claims that L/B still sore all this time since back to (N) duties. Referral to Dr Kwok. Headache, sore throat – URTI”
(j)Dr Nguyen’s notes make it clear that Mr Vasilevski did not complain about his back between 29 March 2005 and 24 May 2005. Two inferences arise from this evidence: first, Mr Vasilevski was not being truthful when he said he had been complaining to his doctor and, second, that he was no longer having difficulties with his back at work. Further, the entry for 24 May 2005 suggests that the doctor was surprised about the worker making his first complaint of back pain for some time only after being terminated. The scepticism is repeated in Dr Nguyen’s report of 30 May 2006 where he said “The symptoms are relatively moderate and yet he hasn’t been able to return to his normal duties” (emphasis added);
(k)Mr Vasilevski said at page two of his statement “Eventually, my employment came to an end as my boss David had told me that they would prefer someone that could lift more than 25 kilos and I was told that I was sacked on the spot”. This statement is expressly refuted by Mr Rothery and by the documents concerning the termination of Mr Vasilevski’s employment. The first warning letter dated 5 October 2004 made it clear that concerns about Mr Vasilevski’s performance existed before his return to work following his injury. Subsequent concerns relate to absenteeism unrelated to the back injury and to quality control issues. Mr Vasilevski did not rely on his back condition as an explanation for his absences from work, but said in cross-examination “My back wasn’t sore, I was doing the job” (T10.44 of Ranvet’s transcript);
(l)Mr Vasilevski said “I found the work extremely difficult and very painful”. This assertion is refuted by Dr Nguyen’s notes and by the report from ASAP Injury Management Services (ASAP) dated 17 April 2005, which records that “Mr Vasilevski reports that he feels great confidence and assertiveness whilst completing work tasks.” A rehabilitation company called Resolutions Consulting Services Pty Ltd (Resolutions) monitored Mr Vasilevski’s return to work for one month and in its Case Closure Report dated 12 May 2005 it confirmed that he had “sustained his pre-injury hours performing his pre-injury duties” for that month. It added that when Resolutions conducted a review of Mr Vasilevski’s duties on 20 April 2005 he was “observed performing his pre-injury duties safely and effectively” and that he reported he was “confident sustaining his pre-injury duties”;
(m)the evidence establishes that Mr Vasilevski had improved considerably by mid-April 2005, was coping with a return to his pre-injury duties without complaint and proves the Arbitrator’s statement that there was “no reason to disbelieve” (T24.10) Mr Vasilevski and that there was “no evidence to contradict” (T24.17) his evidence, to be erroneous;
(n)the same material casts doubt over Mr Vasilevski’s credit;
(o)as all of the medical evidence supporting an ongoing incapacity was, to a large extent, dependent upon Mr Vasilevski’s complaints, any doubt as to the truthfulness of those complaints undermined the medical opinions on which they were based. For example, Mr Vasilevski told Dr Rivett and the AMS that he could not lift in excess of 5 kilograms, or could not do so without pain. In fact, on his return to work he had been able to lift up to 25 kilograms and had expressed confidence in so doing to the rehabilitation providers and Dr Nguyen;
(p)when the Arbitrator said at T29.8 “there is no evidence that after he was terminated he was able to find work that was equivalent in income to his former employment”, she applied the wrong test. The proper question is; what work would be suitable for the worker on the open labour market and what would he theoretically be able to earn in that employment. The Arbitrator compounded this error by simply accepting that Mr Vasilevski’s ability to earn was the amount he actually earned for a period because there was no evidence of him being capable of earning anything else (T29.29). This is a complete abrogation of the Arbitrator’s function to determine Mr Vasilevski’s ability to earn in some suitable employment;
(q)the Arbitrator failed to give reasons or make appropriate findings in respect of Mr Vasilevski’s ability to earn. It is not clear what the Arbitrator considered to be suitable employment, what restrictions should be applied in relation to such employment or whether Mr Vasilevski was capable of such employment on a full time basis;
(r)it must be assumed that the Arbitrator’s reference to “the employment industry that the applicant is qualified for” (T29.50) is a reference to factory work as a process worker/packer as this is the type of work in which Mr Vasilevski claims to have earned $392 per week. Such employment is covered by an industrial award (the Storeman and Packers General (State) Award) and the award rate for a full time permanent employee with 12 months experience was $558.70 per week from 11 October 2006 to 10 October 2007 and $578.70 per week from 11 October 2007. In his statement, Mr Vasilevski conceded that he could work 30 hours per week. Allowing the hourly rate for casual workers under the Storeman and Packers Award ($17.52) for 30 hours gives a weekly wage of $525.60, and
(s)the figure of $392 should not be regarded as an appropriate reflection of the worker’s ability to earn for any period.
Mr Vasilevski submits:
(a)he never used the term “with extreme difficulty”, as alleged by the Appellant Employer;
(b)counsel for Ranvet cross-examined him, but did not challenge his assertion that he found his work extremely difficult and very painful;
(c)Mr Rothery’s statement cannot be regarded as contemporaneous;
(d)the evidence from Dr Nguyen, Resolution and ASAP does not contradict his evidence;
(e)an appellate tribunal should not interfere with findings of fact made after the original tribunal made a determination where credit has been put in issue and the witness whose credit is in issue has given oral evidence;
(f)before considering whether to interfere there must first be an error. It was open to the Arbitrator to accept any part of the evidence;
(g)reliance is placed on the decision of Beazley JA (Ipp and Basten JJA agreeing) in Shellharbour City Council v Rhiannon Rigby & Anor [2006] NSWCA 308 (‘Rigby’) at [144] where her Honour said that the acceptance of evidence and the weight it is given are “peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved”;
(h)after hearing Mr Vasilevski give oral evidence, the Arbitrator accepted his truthfulness and she was entitled to do so;
(i)credit is essentially a matter for the trial judge to assess (per Beazley JA in Rigby at [216]). Reliance is also placed on Sarkem Ltd v Marafioti [2006] NSWWCCPD 235 at [24]) where Deputy President Fleming referred to and applied the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167, [1990] HCA 47 (‘Abalos’) to a review of an Arbitrator’s decision;
(j)other than by innuendo, he was not challenged in cross-examination in relation to his capacity to earn;
(k)the Arbitrator considered the evidence and concluded that he was and is partially incapacitated for work. The only evidence to the contrary is in the certificates from Dr Nguyen dated 11 and 28 April 2005;
(l)Mr Rothery’s statement did not challenge Mr Vasilevski’s assertion that he was in difficulty and pain, but only challenged the assertion that Mr Vasilevski regularly complained to Mr Rothery;
(m)there is ample evidence that Mr Vasilevski was and is partially incapacitated;
(n)the Arbitrator did not say she accepted Mr Rothery’s evidence that he was unaware of complaints of pain by Mr Vasilevski, but merely noted Mr Rothery’s evidence. She then accepted Mr Vasilevski’s evidence that he found the work difficult and painful. Therefore, whether that fact was mentioned to Mr Rothery became irrelevant;
(o)his evidence is consistent with Dr Nguyen’s records as a whole and with a person trying to do his best with an injury so as to retain his employment and work beyond his capacity. Dr Lim restricted Mr Vasilevski to a 15 kilogram limit, but assessed that restriction to be due to constitutional factors. Mr Vasilevski was trying to work beyond his means. The evidence is consistent with the Arbitrator’s finding that Mr Vasilevski was “doing his best to do his old job” (T24.8);
(p)he was not cross-examined about Mr Rothery’s evidence that he did not say that he wanted someone who could lift more than 25 kilograms. In these circumstances it is not appropriate to draw any adverse conclusion: there is merely a difference of opinion as to what was said;
(q)the assertion that his absenteeism was unrelated to his back injury was never put to him;
(r)Dr Lim, Dr Rivett and the AMS (Dr Kumar) all note a continuing back disability and his complaints of difficulty and pain are consistent with those medical findings. The Arbitrator had the advantage of observing Mr Vasilevski give evidence in a case where Ranvet raised the issue of credit;
(s)there are significant discrepancies between the ASAP and Reliance reports, and Mr Rothery’s statement. Mr Rothery said at paragraph 58 of his statement that even after Mr Vasilevski return to work with a certificate of fitness for his pre-injury duties he was kept on light duties in order to make sure his duties would not cause a further back injury;
(t)the Arbitrator had regard to the evidence and she clearly formed the opinion, based on Mr Vasilevski’s presentation before her, that he was a witness of truth. Having made that decision it was not incumbent upon her to then go through the other evidence and indicate why she rejected it. The principle issue was whether Mr Vasilevski suffered a partial incapacity and the Arbitrator concluded that he did. Her reasons were adequate for the issue she had to decide;
(u)the Arbitrator’s comment as to the timing of the making of the claim was an aside and did not form part of the basis for her conclusion;
(v)the Arbitrator was entitled, in the absence of other evidence, to rely on Mr Vasilevski’s actual earnings with D-Link as evidence of his ability to earn. Ranvet’s failure to adduce any evidence of Mr Vasilevski’s ability to earn cannot be used as a means of attacking the Arbitrator’s decision;
(w)his evidence of his earnings with D-Link does not require corroboration and the Arbitrator was entitled to rely on it;
(x)the Arbitrator noted the evidence regarding actual earnings, made findings regarding capacity and, after noting there was an absence of any other evidence, determined Mr Vasilevski’s ability to earn. That is all she was required to do in assessing the relevant amount under section 40(2)(b), and
(y)it is too late and improper for Ranvet to now claim that the section 40 assessment made by the Arbitrator should not have entitled Mr Vasilevski to an award. It is improper for Ranvet to seek to adduce evidence in its submissions as to earnings.
DISCUSSION AND FINDINGS
The issues in this case essentially fall under two main headings. First, the Arbitrator’s apparent acceptance of Mr Vasilevski as a truthful witness and whether a finding based on credit can or should be revoked on review (Credit Findings on Review). Second, the Arbitrator’s approach to, and assessment of, Mr Vasilevski’s ability to earn (Ability to Earn).
Credit Findings On Review
The Court of Appeal considered the nature of a review under section 352 of the 1998 Act in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]). Thus, on review, a Presidential member is not bound by an Arbitrator’s discretionary decision, but can reach his or her own conclusion.
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 (‘Chemler’) where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
29. That line of authority is also inconsistent with the kind of restriction on the powers of a Presidential member for which the Appellant contends. (See Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds [2007] NSWCA 16 at [133]- [134].)
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
In Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 (‘Duinker’), the Court of Appeal considered the approach to credit findings in section 352 reviews. Hodgson JA (Beazley and McColl JJA agreeing) delivered the judgment of the Court. After noting statements by Spigelman CJ and Basten JA in Chemler, his Honour said (at [31]):
“31 These passages in Chemler raise but do not clearly resolve two questions relevant to the present case:
(1) Does the Presidential member have to identify an error before intervening?
(2) Is the Presidential member bound to apply the Abalos principle?
32 As regards the first question, it is generally the case that an appeal court, dealing with an appeal from a first instance judge, will not intervene on a question of fact unless it is affirmatively satisfied that the decision of the first instance judge is wrong. This is particularly significant in relation to matters on which minds may reasonably differ, such as an assessment of what reasonable care requires. In relation to such matters, an appeal court recognises that minds may reasonably differ, and even if its own view, if it were approaching the matter de novo, would be different from that of the primary judge, it will not substitute its own view unless it is satisfied that the primary judge’s view is wrong, in the sense of being one not reasonably available or vitiated by some error. A question whether this approach applies in the case of a review under s 353 [sic, section 352] of the WIM Act could be significant, particularly in relation to a question whether a worker’s employment was a ‘substantial contributing factor’ to an injury, within s 9A of the Workers Compensation Act 1987. The discussion by Basten JA at par [63]-[66] in Chemler suggests that this approach would not apply, so that it would be open to a Presidential member carrying out a review under s 353 [sic, section 352] of the WIM Act to substitute his or her own preferred view on such a question, even if he or she was not affirmatively satisfied that the Arbitrator’s view was wrong. Paragraph [29] in the judgment of Spigelman CJ in Chemler also tends to support that view.
33 As regards the second question, it is clear that the Presidential member conducting such a review must apply substantive rules of law and must accord procedural fairness; but it is doubtful whether s 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. Again, the discussion in Chemler seems to suggest that it is not.”
His Honour then concluded (at [34]) that the Presidential member did not commit any error of law, even if she was obliged to identify an error before intervening, and even if the Abalos principle applied and, therefore, it was not necessary to “come to a final view on the two questions” identified.
In Cook v Midpart Pty Ltd t/as McDonalds Forster & Anor [2008] NSWCA 151 the President of the Court of Appeal said (at [10]) (Ipp and Bell JJA, agreeing), that the Court’s recent decisions in Duinker, Chemler and Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 provided “powerful support” for the proposition that “the appeal in s352 of the WIM Act [the 1998 Act] that is to be ‘by way of review’ (s352(6)) is not limited to the identification and correction of error on the part of the Arbitrator.”
There are several observations to be made about the statements in Duinker concerning the application of the Abalos principle to section 352 appeals and whether a Presidential member must first identify error before intervening. First, Hodgson JA’s statements were clearly obiter and his Honour determined the appeal on the assumption that it would have been an error of law not to apply the Abalos principle.
Second, in a different context (a claim for a review of a medical assessor’s assessment under section 63 of the Motor Accidents Compensation Act 1999), Basten JA, (at [88]) in a dissenting judgment in McKee v Allianz Australia Insurance Limited [2008] NSWCA 163, made the following statement about the context of the Chief Justice’s comments in Chemler:
“The reference to the remarks of the Chief Justice in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [30] must be understood in context. Spigelman CJ was dealing with the powers of a presidential member carrying out a review of the decision of an arbitrator on the merits, pursuant to s 352 of the Workplace Injury Act [the 1998 Act]. The question did not involve the scope of the review, but whether, having identified error, the Deputy President should have remitted the matter to the arbitrator, rather than making a finding himself upon the issue under consideration.” (emphasis added)
Third, the Court of Appeal’s reference to Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 (‘Watson’) and Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 (‘Margaronis’) in Duinker and Chemler, without apparent disapproval, suggests that cases dealing with a ‘review’ under section 36 of the Compensation Court Act 1984 (‘the Court Act’) remain relevant to determining the nature of a review under section 352 of the 1998 Act. In Duinker, Hodgson JA stated (at [26]) that whilst Watson suggested an assumption that the Abalos principle applied, it did not clearly make that assertion. His Honour added (at [27]) that the appeal in Boston was dismissed on the basis that the trial judge had applied that principle and had not erred in doing so, but, again, there was no clear statement that the principle applied.
Fourth, the following additional authorities, not referred to by the Court of Appeal in Duinker or Chemler, also considered the nature of a ‘review’ in the context of section 36 of the Court Act and whether the Abalos principle applied to such reviews: Australia Gas Light Co v Samuels (1993) 9 NSWCCR 616 (‘Samuels’), State Rail Authority of NSW v Davies (1995) 11 NSWCCR 314 (‘Davies’) or Cockatoo Dockyard Pty Ltd v Atamian (1995) 12 NSWCCR 114 (‘Atamian’).
Before considering those authorities, it is appropriate to refer to the terms of section 36(1) of the Court Act. It provided:
“36(1)Where a commissioner or registrar makes a decision or does any other act in any proceedings, the Court may, on application by any party, review the decision or act, and may make such order by way of confirmation, variation or discharge or otherwise as the Court thinks fit.”
Section 352 of the 1998 Act provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(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.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.”
There are at least two differences between section 36 of the Court Act and section 352 of the 1998 Act. First, unlike section 352, section 36 made no provision for matters to be remitted to a commissioner for redetermination, though such a power was implied from the words “otherwise as the Court thinks fit”. Second, under Part 30 of the Compensation Court Rules 1990, an application for ‘review’ was by way of notice of motion and Part 14 Rule 2 required that the notice state the grounds on which the order was sought. An appeal under section 352 is a more formal process and is by way of an Appeal Against Decision of Arbitrator (Form 9), which must include, or have attached to it, among other things, the arguments to be put in favour of review of the decision sought to be appealed (Part 16 Rule 16.2(4)(a) of the Workers Compensation Commission Rules 2006) and submissions precisely identifying the grounds of appeal (Practice Direction No 6, 15 November 2007). If anything, these differences suggest that an appeal under section 352 is a more formal process than a review under section 36.
In Samuels, a Commissioner of the former Compensation Court made an award for the respondent employer on the basis of a clear and unequivocal credit finding where the Commissioner said, “I do not believe the Applicant”. On ‘review’ (on the papers), Judge Burke reversed that finding. On appeal, Meagher JA referred to Watson and said (at 625E):
“This means that the Judge [on review] had wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist.”
Handley JA said (at 630E):
“Given the manner in which the worker conducted the review proceedings it was, in my view, simply not open to the Judge to disregard the credit based findings of the Commissioner on the critical issues in this case….The Judge did not, and in my opinion could not, find that the Commissioner had failed to use or had palpably misused the advantage he had of seeing the worker give evidence.”
In a dissenting judgment, Kirby P (as his Honour then was) held that Judge Burke’s approach was consistent with the principles in Watson, namely, having reviewed the case he substituted his own conclusion for the Commissioner’s. However, Kirby P added (at 622E) that the Commissioner’s decision was “displaced by incontrovertible evidence indicating that the Commissioner was mistaken” (emphasis added).
In Davies, the worker succeeded before a Commissioner. The employer sought a review on the ground that there were inconsistencies between the worker’s complaints of pain and disability, and the written assessment of the worker’s work behaviour by prison staff. The Compensation Court dismissed the review application and the Court of Appeal dismissed the further appeal. Clarke JA (Meagher and Handley JJA agreeing) said at 322D:
“Notwithstanding, I think that the authorities establish that in any review the judge is not fettered in any way in carrying out his or her function, except in cases where he or she is asked to conduct the review on the record.
In that case it is obviously necessary, as a matter of natural justice, to accord weight to the Commissioner’s findings on credibility in so far as they were based, expressly or impliedly, on his or her assessment of the witnesses. With that exception, and subject to the nature of the grounds relied on by the parties seeking a review, it is open to a judge to form his or her opinion on the questions submitted for consideration.
The authorities also show that a review is, in a fundamental sense, wider than an appeal and that the mere application for review does not destroy the effect of the commissioner’s decision. Unless and until it is reviewed it remains valid and operative.” (emphasis added)
In Atamian, the worker succeeded before the Commissioner on the basis of a credit finding and, on that basis, the review was unsuccessful. The Court of Appeal dismissed the employer’s appeal. Clarke JA held, at 124B:
“In the present case, the review is not expressed to be by hearing de novo…
In that context, I would understand the word ‘review’ to involve an examination or reconsideration of the decision made by the court officer followed by a consequential order of the Court. If the judge who hears the review considers that the decision is correct then no doubt the order will be one of confirmation. If, on the other hand, the decision is fundamentally flawed or is marred by one or more errors, the judge would, according to the circumstances of the case, either vary or discharge the order made and make an appropriate order in place thereof.
The section does not, however, call for a hearing de novo and therefore there is no requirement for the judge to start afresh and rehear the case completely. This is understandable for the legislature was concerned that it should be left to the supervisors, that is, the judges, to determine in what manner the review should be carried out. The alternative would have been to foist onto judges the obligation to hear de novo any matter in which a review application was filed. Such an obligation would be time consuming and costly and, in many cases, uncalled for. On the other hand, the judge may, if he or she thinks such is appropriate in the circumstances, decide to re-hear the case completely. The manner of conducting the review and the determination whether the order should stand confirmed or be varied or discharged lies within the discretion of the judge who constitutes the Court.” (emphasis added)
His Honour added, at 126A:
“…Kirby P is correct to say that the aggrieved party will need to demonstrate, prima facie at least, ‘some proper basis for disturbing the decision under challenge’ before the Court will disturb the order made by a commissioner. The concept was well put, in my opinion, by Cameron JA in City of Saskatoon v Loewen & Wiebe [1989] 2 WWR 577 at 587. His Lordship said:
‘Review is occasionally taken in popular use as meaning little more than a first instance ‘looking over’ or ‘examination’. In its legal sense, of course, it usually means more than that, as implying a formal, second instance ‘re-examination’ or ‘reconsideration’, with a view to revision or redetermination if something be found wrong or lacking.’”
And, at 127D:
“Where, however, no fresh evidence is led and the review is conducted on the record, I see no basis upon which a judge could interfere with a credit finding unless it had been demonstrated that the commissioner failed to use, or misused, the position of advantage. In other words, a review on the record is, in my opinion, subject to the same limitations as are imposed on a court of appeal by decisions of the nature of Devries. Otherwise, there would be a failure to recognise the advantaged position of the commissioner who saw and heard the witness….
Subject only to the question of credibility, the judge hearing a review is in no way bound or restricted by the decision of the commissioner although, as a matter of practice, it is not to be expected that, in the absence of good reason, the judge would set it aside.”
Meagher JA said, at 132C (after referring to Clarke JA’s decision in Davies):
“3. If a commissioner makes a finding of fact based on the credibility of a witness, the principles of Abalos v Australia Postal Commission (1990) 171 CLR 167 apply, so that a judge sitting on a ‘review’ of the case cannot, except in the most unusual circumstances, reverse such a finding if the review is conducted on a written transcript of the evidence which was before the commissioner. Not to apply this rule was Burke CCJ’s failing in Australian Gas Light Co v Samuels (1993) 9 NSWCCR 617.
4. However, it does not follow that, merely because a commissioner has made a credibility-based finding, a judge on ‘review’ is automatically, and in all cases bound by it and may never reverse it. He can. He can re-hear the case and make an independent finding of his own.”
Handley JA said, at 134G:
“I agree with Clarke JA that, on review conducted on the written record, the judge is bound by credibility-based findings of fact made by the Commissioner unless the applicant brings the case within the limited exceptions referred to in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472.”
Returning to Duinker, Hodgson JA also observed, without deciding the issue, that it was doubtful whether section 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos.
So far as is relevant, section 354 provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:(a) if it is satisfied that the proceedings have been abandoned, or
(b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c) for any other ground of dismissal specified in the Rules.
(8) …”
Whilst the new scheme is different from the previous scheme, in considering the impact of section 354 on the nature of a ‘review’ under section 352 it is instructive to consider the decision of Mahoney JA in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, where his Honour said, at 18:
“Procedure in the Compensation Court is, in general, flexible and free from basic rigidities. This is as it should be: the Court is a specialist Court whose function is to deal with a large number of claims as expeditiously as may be. Its decisions are, in my opinion, to be given according to the law but with a regard to justice and merits appropriate to the nature of the social remedy which the legislation provides. Subject to observance of the specific statutory requirements, it should, in my opinion, exercise its jurisdiction in a beneficial manner and without undue emphasis upon technicalities.”
Given the above statement, it seems arguable that section 354 merely codified what, largely, was already the practice in the Compensation Court and what was, in part, expressed in section 17 of the Court Act.
Section 17 of the Court Act provided, so far as is relevant:
“Decisions of the Court
17(1) A decision of the Court in any matter shall be upon the real merits and justice of the case.
(2)The Court shall not be bound to follow strict legal precedent.
(3)Subject to Part 4 of this Act, a decision or proceeding of the Court shall not:
(a) be vitiated by reason of any informality or want of form; or
(b)…”
Thus, like the Commission, the Compensation Court had a statutory duty to base its decisions upon the merits of the case. Its decisions were not to be vitiated by reason of any informality or want of form. Whilst the Compensation Court was not bound to follow strict legal precedent, as a matter of practice, it invariably did.
Like the Compensation Court before it, the Commission is bound to apply “rules of law” in arriving at its decisions and section 354 has not “released” it from that obligation (per McColl JA (with whom Giles JA and Tobias JA agreed) in SouthWestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [88], (2007) 4 DDCR 421).
One of the main differences between proceedings in the Compensation Court and the Commission is that many of the cases determined by the Commission are determined without oral evidence being called. In that situation, a Presidential member will often be in as good a position as an Arbitrator to determine all issues, including credit issues.
It seems to me, however, to be implicit in section 354 that a party who, having given oral evidence before an Arbitrator, succeeds with a claim on the basis of a favourable credit finding (express or implied), is entitled, as a matter of fairness, to the benefit of that finding in a review done by a Presidential member who has not seen or heard the party give evidence. Nevertheless, such a finding may be challenged on ‘review’ in the circumstances identified in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (‘Fox’) and similar cases (see Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 (‘Whisprun’) at [98] and [99]).
I therefore draw the following conclusions from the above authorities:
(a)a review is not a hearing de novo (per Clarke JA in Atamian at 124 and Gleeson CJ (Handley JA agreeing) in Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 292F);
(b)a party seeking a review under section 352 must set out the grounds on which the Presidential member will be asked to review the Arbitrator’s decision (per Clarke JA in Davies at 323A), and must demonstrate “some proper basis for disturbing the decision under challenge” (per Kirby P in Watson at 205D) before a Presidential member will disturb an order made by an Arbitrator;
(c)a review on the merits is a different process to an appeal and the matters which may be considered and the manner in which they are considered are somewhat wider and a matter for the discretion of the Presidential member (per Bryson JA in Zheng at [38]), but the powers on review are not so wide as to treat the primary decision as if it did not exist (per Meagher JA in Samuels at 625E);
(d)a Presidential member conducting a review under section 352 must decide whether the original decision is wrong, or must decide what is the true and correct view (per Spigelman CJ in Chemler at [30]);
(e)it is not open on review for a Presidential member to disregard an Arbitrator’s credit based findings, where those findings are based on oral evidence (per Handley and Meagher JJA in Samuels; Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D and Clarke JA in Atamian at 127D), but such findings are not immune from challenge (Fox at [28] and [29] and Whisprun at [98] and [99]);
(f)subject to the nature of the grounds relied on by the party seeking a review and subject to the question of credit based findings where oral evidence has been given, it is open to a Presidential member to form his or her opinion on the questions submitted for consideration (per Clarke JA (Meagher and Handley JJA agreeing) in Davies at 322D; Clarke JA in Atamian at 127G);
(g)if the Presidential member considers that the Arbitrator’s decision is correct, the Arbitrator’s decision will be confirmed (per Clarke JA in Atamian at 124 and Spigelman CJ in Chemler at [30]);
(h)if the Presidential member considers the decision is “wrong” (per Spigelman CJ in Chemler at [30]), the decision will be revoked and will either be re-determined by the Presidential member or remitted for re-determination by the same or a different Arbitrator, in the Presidential member’s discretion according to the circumstances of the case (per Santow JA in Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [28]), and
(i)if the decision is “marred by one or more errors” the Presidential member will, depending on the nature of the error, and his or her view of what the correct decision should be, either confirm or revoke the order made and make an appropriate order in its place (per Clarke JA in Atamian at 124).
In the present case, the Arbitrator did not make an express finding as to Mr Vasilevski’s credit, but it is clear that, having heard him give oral evidence, she accepted his evidence. Impliedly, she accepted him as a witness of truth. Whilst the Arbitrator’s findings are entitled to respect, they do not prevent me from drawing my own inferences and conclusions from the evidence, subject to the principles stated in Fox and Whisprun. As the High Court’s joint judgment in Fox emphasises (at 126-127 [25]):
“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.” (citations omitted)
The Court added at 128 [28] and [29]:
“…the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ‘incontrovertible’, an appellate conclusion may be reached that the decision at trial is ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ‘not shrink from giving effect to’ its own conclusion.” (citations omitted)
Having regard to the above authorities, I do not accept Mr Vasilevski’s submission that an appellate tribunal should not interfere with findings of fact made by an Arbitrator where credit was put in issue and the witness whose credit was challenged gave oral evidence. A credit based finding may be challenged, but only in the circumstances explained by the High Court in Fox and Whisprun.
In respect of Mr Vasilevski’s evidence that he found his work difficult and painful, the Arbitrator said at T24.9 that she had no reason to disbelieve him. She then noted his evidence that he claimed to have complained to his supervisor (Mr Rothery) that the work was difficult and there was no evidence to contradict his statement. At that stage of her decision, counsel for Ranvet interrupted to point out that Mr Rothery’s evidence completely “disavows any complaints” (T24.35). The Arbitrator noted that Mr Rothery’s statement “does say that he didn’t receive any complaints of back pain” (T25.46), but then did not deal with that apparent conflict in the evidence, simply dismissing it by saying that “the applicant still says in his statement that he found the work difficult and painful” (T28.15).
The Arbitrator erred in saying that there was no reason to disbelieve Mr Vasilevski. The incontrovertible evidence is that between 10 March 2005 and 19 May 2005, Mr Vasilevski attended on his general practitioner on nine occasions. On the first two visits in that period, the doctor’s notes record that Mr Vasilevski’s back was “feeling better” and “doing OK”. Over the next seven visits, there was no mention of his back until 24 May 2005 (four days after his employment had been terminated). On that occasion the entry is “pt claims that L/B still sore all this time since back to (N) duties”. These entries are clearly contrary to Mr Vasilevski’s evidence in his statement that he complained to his doctor that he was finding work very difficult. This evidence strongly undermined Mr Vasilevski’s claims and provided a compelling reason for not believing him. The Arbitrator failed to properly consider and weigh this evidence.
Further, the evidence from Resolutions (the rehabilitation provider) also squarely contradicts Mr Vasilevski’s claims. This evidence is particularly relevant because its representative (Mr Barron) conducted a review of Mr Vasilevski’s duties on 20 April 2005 when he was “observed to be performing his pre-injury duties safely and effectively”. Rather than recording that Mr Vasilevski complained of having difficulty and pain at work, Mr Barron recorded that Mr Vasilevski “reported greater confidence in his lower back and in his manual handling techniques and was confident in sustaining his pre-injury duties”. Whilst the Arbitrator referred to the evidence from ASAP that Mr Vasilevski had improved and had been upgraded to a pre-injury duties certificate (T23.38), she failed to consider the evidence from Resolutions, but, apparently, relied on an unqualified acceptance of Mr Vasilevski’s evidence.
The alleged complaints to Mr Rothery require closer analysis. Mr Vasilevski stated that prior to his employment being terminated he had been complaining to his supervisor almost everyday that the work was difficult and that he was having a lot of pain. Counsel for Ranvet submitted at the arbitration that Mr Rothery’s evidence completely disavowed any complaints by Mr Vasilevski. Mr Rothery’s evidence is in a statement dated 14 December 2007. At paragraph 61 of that statement, he said:
“As I have said earlier in this statement, if I had been made aware of any employee, including Vlado complained [sic] of any injury to me, I would have immediately told them to see their Doctor and would not have allowed them to remain at work where that injury might be aggravated.”
As observed in Mr Vasilevski’s submissions, Mr Rothery’s statement does not directly address Mr Vasilevski’s evidence about complaints of having difficulty and pain after the return to work on normal duties, but merely referred to what he would have done if Mr Vasilevski had complained to him of an injury. However, the Arbitrator said of this evidence, in an interpretation favourable to Ranvet, that the “statement does say that he didn’t receive complaints of back pain” (T25.46). That was one inference from Mr Rothery’s statement, though it seems highly unusual that Mr Rothery did not expressly deal with Mr Vasilevski’s allegation that he had complained almost everyday that the work was difficult and that he was having a lot of pain. After a further exchange with Ranvet’s counsel, and after reading paragraph 61 from Mr Rothery’s statement, the Arbitrator said (at T26.50) “So he’s saying that he didn’t have any awareness that he was having difficulties – right – and at no time did he continue to work in his normal duties or that he wanted to see if he could lift heavy weights”. The Arbitrator then said (at T28.15), in apparent acceptance of Mr Vasilevski’s evidence, but without consideration of the issues raised by the contrary evidence, “However, the applicant still says in his statement that he found the work difficult and painful. He complained to his doctor. I accept that was after his employment came to an end. However, he then went on – he says he continued to look for suitable work without success.”
A further difficulty with Mr Rothery’s evidence is his statement at paragraph 58 that when Mr Vasilevski came back after he had been certified fit for pre-injury duties he was kept on light duties “in order to make sure his duties would not cause a further back injury”. This evidence is inconsistent with most of the other evidence in the case and, in particular, with the evidence of the rehabilitation providers who claim to have seen Mr Vasilevski doing his normal duties. If Ranvet kept Mr Vasilevski on light duties after he was certified fit for his pre-injury duties, that fact would significantly undermine the employer’s case. Whether this influenced the Arbitrator is unclear as her reasons do not explain the basis on which she accepted Mr Vasilevski’s evidence.
Nevertheless, Ranvet’s complaint is that the Arbitrator did not consider or attempt to consider the conflict between Mr Rothery’s evidence and Mr Vasilevski’s claims. Such an analysis required a consideration of all of the evidence to determine, on the balance of probabilities, which version was correct. The Arbitrator did not do that but merely set out part of Mr Rothery’s evidence and then concluded, in an apparently unreserved acceptance of Mr Vasilevski’s evidence, that “the applicant still says in his statement that he found the work difficult and painful”. In light of Mr Rothery’s evidence, the entries in the general practitioner’s notes, and the evidence from the rehabilitation providers, the Arbitrator had to carefully consider the veracity of Mr Vasilevski’s claims and weigh his evidence against the other evidence to determine its reliability and plausibility. She did not do that.
The evidence from Dr Nguyen, the rehabilitation providers, and Mr Rothery make Mr Vasilevski’s evidence, that he worked with difficulty and pain, “glaringly improbable” and “contrary to compelling inferences” in the case. At the least, this evidence required the Arbitrator to carefully examine and consider Mr Vasilevski’s evidence to assess its veracity. She did not do that. I do not accept Mr Vasilevski’s submission that the evidence from Dr Nguyen, Resolution and ASAP does not contradict his evidence. Clearly, it does.
Ranvet’s argument that Mr Vasilevski did not rely on his back condition as an explanation for his absences from work but said, “My back wasn’t sore, I was doing the job” (T10.44 of Ranvet’s transcript), is incorrect. The official transcript records Mr Vasilevski’s evidence (at T10.50) as “Even though my back was still sore I was still doing the job” (emphasis added). In view of this discrepancy in the two transcripts, I have listened to the audio recording of the evidence. The official transcript is correct.
In respect of the circumstances of Mr Vasilevski ceasing work, the Arbitrator noted his evidence that he was told he was terminated because he could not properly carry out his job (T23.55). This evidence does not appear in either transcript but the audio recording confirms that the Arbitrator’s statement is correct. The evidence in the official transcript on this point starts at T11.43:
“Q. See, what I’m putting to you is that you never told your employer at the time of your termination in May of 2005 that you couldn’t comply with company policy because of low back pain. That’s what I’m suggesting to you. What’s your response?
A. All different. What I said to you before: if I can’t do the job properly ‑‑Q. No.
A. – that’s what they asked of me. If I can’t do the job properly and that, I can’t perform the job.Q. Right.
A. That's true.Q. Right.
A. That’s why I got [inaudible].” (emphasis added)
The highlighted answer above is incomplete. In the audio recording, Mr Vasilevski said, “That’s why they got rid of me”. Nevertheless, this assertion was contrary to Mr Rothery’s clear evidence and the written material as to the circumstances surrounding the termination of Mr Vasilevski’s employment. This evidence, together with the evidence from Resolution, makes Mr Vasilevski’s assertion “glaringly improbable”. The Arbitrator failed to acknowledge that fact and failed to consider the impact of this evidence or properly assess Mr Vasilevski’s evidence in light of the contrary evidence.
It is also argued that the Arbitrator erred in finding that Mr Vasilevski’s complaints to doctors following the termination of his employment with Ranvet were unlikely to be exaggerated or contrived because he had not made a claim for compensation until long after those complaints were made. This submission is incorrect. The Arbitrator did not use the terms “exaggerated” or “contrived” in her reasons. She said (at T28.40) that “the medical evidence consistently, even after the period of termination, shows that the applicant continued to complain of pain. He didn’t make a claim for compensation at that time.” She erred in saying that Mr Vasilevski had not made a claim for compensation “at that time” because his solicitor had made a claim for compensation in a letter dated 10 June 2005. However, this error is of no consequence, as the Arbitrator did not draw the conclusion attributed to her by Ranvet in its submissions on appeal.
Mr Vasilevski made a number of complaints in his submissions that counsel did not put certain matters in cross-examination. This submission fails to acknowledge that cross-examination in the Commission is only allowed by leave. Whilst leave was granted in this case, the Arbitrator only allowed it after considerable resistance and after debate on the issue (see T2.39 to T5.31). In the end, it is unclear on what issue counsel had leave to cross-examine. The debate ended with the Arbitrator allowing some cross-examination, but then saying (at T5.31) “Not too long, though.” In these circumstances, I do not accept Mr Vasilevski’s submissions on this issue.
Ability to Earn
On the question of Mr Vasilevski’s ability to earn, the Arbitrator failed to apply the correct test when she said at T29.8 “there is no evidence that after he was terminated he was able to find work that was equivalent in income to his former employment”. The test for incapacity is conveniently summarised in the text Workers Compensation in New South Wales, second edition, by C P Mills, where the author said, at 285:
“The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.” (emphasis added)
In Alexander v Ashfield Municipal Council, CA 78/81, 27 October 1982, Hutley JA observed:
“Capacity is diminished, even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of injury.”
The Court of Appeal quoted the above passages, with apparent approval, in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155.
The Arbitrator also failed to acknowledge the difference between actual earnings and ability to earn, but merely accepted, without giving an adequate explanation, that Mr Vasilevski’s actual earnings of $392 per week between 16 August 2006 and 1 June 2007 represented his ability to earn under section 40(2)(b) of the 1987 Act. When a worker is employed, his or her actual earnings will be prima facie evidence of ability to earn (Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20). However, once that employment ceases, the Commission is then required to determine what the worker is able to earn in suitable employment in the labour market which is reasonably accessible (Hamilton v Shelton Iron, Steel and Coal Co (1926) 96 LJKB 295 at 301, applied in Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693). Neither Mr Vasilevski’s earnings with D-Link or with Ranvet in the weeks leading up to 20 May 2005 necessarily represent his ability to earn in the open labour market. The Arbitrator was required to assess that figure having regard to all the evidence and the terms of section 43A of the 1987 Act. Section 43A provides:
“43A Suitable employment
(1) 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.”
In assessing Mr Vasilevski’s ability to earn the Arbitrator said at T29.28:
“The evidence is that the applicant has been able to work in lighter duties earning $392 per week, and without evidence that actually assesses him as in a section 40 report or any other evidence that says that he’s capable of earning a higher wage, then I find that his ability to earn in light of his incapacity is $392 per week, and the applicant has, in fact, claimed that amount for the whole of the period.”
At T29.47, she added:
“Just in terms of the finding which I might not have made clear that I’ve found that the applicant’s ability to earn in suitable employment is $392, the considerations for that particular finding are clearly in the employment industry that the applicant is qualified for what is his ability to earn within that employment field, and, as I’ve said, the fact that he was, in fact, earning the 392, there’s no evidence that he could or was able to earn a different figure, and that’s how I’ve made a finding that his capacity to earn in suitable employment is $392 per week.”
Whilst I agree that the evidence is far from ideal, an Arbitrator’s statutory duty is to conduct a section 40 calculation according to the principles set out in the authorities referred to above with particular regard to the matters in section 43A of the 1987 Act. She did not do that and, for this reason alone, leaving aside the credit issues, the decision must be set aside and the matter re-determined.
Ranvet argues that the Arbitrator’s reference to “the employment industry that the applicant is qualified for” is a reference to factory work as a process worker/packer in which Mr Vasilevski claims he earned $392 per week. The Storeman and Packers General (State) Award, it is submitted, covers that employment and applying the casual rate of pay for a storeman ($17.52 per hour) for 30 hours per week gives a weekly wage of $525.60. I do not accept that submission. The evidence is that the work with D-Link was “as a process worker fixing computers which was fairly light” (Mr Vasilevski’s statement, page two). This statement is confusing as it suggests the work was merely light process work but, on the other hand, it seems unlikely that that was the case as it also involved fixing computers, which is definitely not typical storeman and packer work. Therefore, the Storeman and Packers Award is most unlikely to be the appropriate award against which Mr Vasilevski’s ability to earn should be measured. Though there may be some cases where award rates can be raised for the first time on appeal, I agree with Mr Vasilevski’s submission that the proper time to raise the issue of award rates in the present matter, where Mr Vasilevski may well wish to call evidence and make submissions about the appropriateness of the relevant award, was before the Arbitrator, not on appeal.
Ranvet also challenges the Arbitrator’s reliance on the figure of $392 as evidence of Mr Vasilevski’s actual earnings, in the absence of corroboration. This challenge is without foundation and I reject it. Whilst it is always preferable for actual earnings to be established by the tendering of wage records and/or tax returns, if that evidence is not available an Arbitrator may rely on oral evidence, especially where that evidence is unchallenged.
I have carefully noted Mr Vasilevski’s persuasive submissions, supported by Dr Rivett and, to an extent, by Dr Lim, that the evidence supports a finding that he remains partially incapacitated as a result of his proven work injury. Dr Lim’s opinion that Mr Vasilevski’s back condition is constitutional and not related to his work injury is not sustainable in light of the AMS’s certification. The AMS also provides support for Mr Vasilevski’s claim of continuing symptoms and restrictions as a result of his injury and assessed him to have a 5% whole person impairment. The question remains, however, what is the proper assessment of his entitlement to weekly compensation, if any, as a result of his injury and consequential impairment. For the reasons set out above, that matter has not been properly assessed.
CONCLUSION
It follows that the Arbitrator’s decision cannot stand and must be revoked. If it is possible, it is usually preferable for a Presidential member to re-determine a matter on appeal. However, in light of the credit issues involved in the present matter, and as Mr Vasilevski gave oral evidence, it is not appropriate that I conduct the re-determination. The only fair course is to remit the matter to a different Arbitrator, for re-determination, in accordance with the reasons in this decision.
In view of the credit issues involved, it may be necessary for Mr Vasilevski to be cross-examined, but the extent of that cross-examination will be a matter for the Arbitrator.
DECISION
Paragraphs one and two of the Arbitrator’s determination of 29 February 2008 are revoked and the following order made:
“The matter is remitted to a different Arbitrator for the Applicant Worker’s entitlement, if any, under section 40 of the Workers Compensation Act 1987 to be re-determined in accordance with the reasons in this decision.”
Paragraphs three, four, and five of the Arbitrator’s determination are confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
31 July 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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