Roads and Maritime Services v Moy - [2013] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Roads and Maritime Services v Moy [2013] NSWWCCPD 12
APPELLANT:		Roads and Maritime Services
RESPONDENT:		Rodney Moy
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-5593/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		3 December 2012
DATE OF APPEAL DECISION:		15 March 2013
SUBJECT MATTER OF DECISION:		Alleged rejection and misconstruction of evidence; unsatisfactory submissions in support by the appellant; failure to comply with Practice Direction No 6; unmeritorious appeal; no prospect of success; s 345 of the Legal Profession Act 2004
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Thompson Cooper Lawyers
Respondent:	Villari Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 3 December 2012, as amended on 14 March 2013, is confirmed. 2. The appellant employer is to pay the respondent worker’s costs, assessed at $2,530 plus GST.

INTRODUCTION

This appeal concerns the assessment of a worker’s ability to earn after hip replacement surgery. Though the submissions in support of the appeal have not properly identified the grounds of appeal, the “issues” on appeal appear to be whether the Arbitrator wrongly rejected evidence, misconstrued evidence, and erroneously concluded that the worker lived in a restricted labour market. The appeal is completely without merit and, for the reasons set out below, the Arbitrator’s determination is confirmed.

BACKGROUND

The respondent worker, Rodney Moy, lives at Tarcutta in south western NSW, about a 45-minute drive from Wagga Wagga. He started work for the appellant employer, Roads and Maritime Services (formerly known as the Roads and Traffic Authority of NSW), as a labourer in May 1977. His duties involved weed spraying, filling in potholes, repeatedly climbing in and out of a truck, sitting, standing and walking. The pothole work was heavy and required him to lift buckets of pre-mix weighing about 20 kg.
On 19 December 2002, Mr Moy injured his right hip when he fell about one metre into a hole. As a result of his injury, which it is not disputed occurred in the course of his employment, he underwent a total hip replacement on 13 June 2003. He returned to work on part-time light duties in September 2003 and gradually increased to full-time pre-injury duties by 2 December 2003, which he continued until 11 November 2004, when he was certified unfit due to an “old injury flare-up”.
In March 2005, the appellant consented to pay Mr Moy lump sum compensation for a 20 per cent whole person impairment as a result of the condition of his hip. Under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition (AMA 5 Guidelines), this assessment represented a “fair” outcome from hip replacement surgery.
In 2005, William Froon, the appellant’s return to work coordinator, spoke with Mr Moy and Kate De Valentin, an occupational therapist from Wagga Wagga. Mr Moy expressed his desire to continue working, but said he had difficulty with driving, travelling, walking and standing.
Though Mr Moy expressed concerns about travelling to and from Wagga Wagga, he returned to work on light duties on 7 July 2005 at the appellant’s Wagga Wagga laboratory for eight hours per day two days per week with a lifting restriction of 5 kg and a sitting restriction of 30 minutes.
On 19 July 2005, Mr Moy approached Mr Froon, said he was not sure about continuing, and left work at 1.30 pm. Mr Moy said in his statement that driving to and from Wagga Wagga, and the sitting, in the light duties, aggravated the pain in his right hip and groin.
On 28 July 2005, Mr Moy rang Mr Froon and said that he had run off the road when driving to work that morning, having taken two tablets at 5.30 am. He said that his leg ached all the time. Mr Froon made arrangements for a colleague to drive Mr Moy to work.
Because of his ongoing pain (due to his hip replacement), Mr Moy was certified unfit from 4 August 2005 until 19 August 2005.
On 10 August 2005, Mr Froon told the worker that the appellant was trying to assist him in every way possible to return to work. According to Mr Froon, Mr Moy was of the impression that if he retired he would be well off.
On 13 January 2006, Mr Moy returned to work at the appellant’s Wagga Wagga laboratory seven hours per day two days per week. Those hours were changed to four per day, three days per week from 13 February 2006. Mr Moy said that the pain continued to keep him awake at night and he always felt tired.
On 20 February 2006, Mr Moy told Mr Froon that he would not be coming in because his leg was too painful and he had not had much sleep the previous night. He asked what he would be entitled to if he were to “throw it in”, a question he had previously raised with Mr Froon.
Ms De Valentin conducted a workplace assessment on 1 March 2006. According to Mr Froon, the purpose of the assessment was to “seek other additional duties that were suitable”, so Mr Moy could return to full-time work. While there were a number of options identified, the recommendations were not implemented. (It should also be noted that, according to Ms De Valentin’s report, most of the duties identified were at the Holbrook Depot, a 40-minute drive from Mr Moy’s home.)
On 8 March 2006, Mr Moy was placed under surveillance and observed to lift what the investigator described as a large bag of soil (which he estimated to weigh 15 to 30 kg), empty it into a wheelbarrow that he wheeled 15 metres, and use a shovel to unload the contents onto the garden. He was then seen to take other bags from the wheelbarrow and to use a shovel.
Mr Moy said that the bags he lifted on 8 March 2006 contained sawdust and weighed between 5 and 7 kg. He said that, from time to time, he could lift weights greater than 5 kg without aggravating his back pain. However, he could not lift weights such as he had to lift when working for the appellant as a labourer.
Mr Moy continued on suitable duties until 11 April 2006, when he took sick and other leave. His compensation payments ceased on 21 May 2006, notice having been served on him on 10 April 2006, and he resigned on 15 June 2006.
Payments ceased on the basis of a report of 29 March 2006 from Dr Leon Le Leu, occupational physician, who said, after having seen the surveillance evidence, that Mr Moy was exaggerating, had little motivation to return to work, and was able to gradually return to full duties as a road worker over a fairly short period of time.
On 25 August 2010, Mr Moy claimed weekly compensation from 15 June 2006 (later amended to be from 21 May 2006) to date and continuing, additional lump sum compensation in respect of an additional 10 per cent whole person impairment due to a deterioration in his hip, and hospital and medical expenses.
The insurer denied liability in a s 74 notice on the basis of a report from Dr A L G Smith, orthopaedic surgeon, dated 21 September 2010, in which the doctor asserted that Mr Moy was “fit to work in his previous occupation as a plant operator”. It also relied on reports from Dr Le Leu.
The issues at the arbitration were whether Mr Moy suffered from an incapacity and, if so, the extent of that incapacity and his entitlement to weekly compensation. The claim for additional lump sum compensation was (by consent) referred to an Approved Medical Specialist for assessment.
At the arbitration, Mr McManamey appeared for the worker and Mr P Perry appeared for the appellant. After hearing submissions from counsel, but no oral evidence, the Arbitrator found Mr Moy to have a continuing incapacity and to have an ability to earn in some suitable employment $350 per week. Deducting that amount from agreed probable earnings gave Mr Moy an entitlement to an award at the maximum statutory rate for a worker with a dependent wife. The Certificate of Determination issued on 3 December 2012, as amended by consent on 14 March 2013, is the following terms:
“1. The Respondent will pay the Applicant the following sums:-

1. There will therefore be an award at the maximum statutory rate for a worker with a dependant wife up to 3 August 2012, and from 4 August 2012 in respect of a worker with no dependants, as follows:-

a.   $439.60 per week from 21 May 2006 to 30 September 2006;
b.   $447.80 per week from 1 October 2006 to 31 March 2007;
c.   $456.50 per week from 1 April 2007 to 30 September 2007;
d.   $464.60 per week from 1 October 2007 to 31 March 2008;
e.   $473.70 per week from 1 April 2008 to 30 September 2008;
f.    $481.90 per week from 1 October 2008 to 31 March 2009;
g.   $491.70 per week from 1 April 2009 to 30 September 2009;
h.   $500.50 per week from 1 October 2009 to 31 March 2010;
i.    $510.10 per week from 1 April 2010 to 30 September 2010;
j.    $516.90 per week from 1 October 2010 to 31 March 2011;
k.   $527.40 per week from 1 April 2011 to 30 September 2011;
l.    $536.40 per week from 1 October 2011 to 31 March 2012;
m.    $546.50 per week from 1 April 2012 to 3 August 2012;
n.   $432.50 per week from 4 August 2012 to 30 September 2012;
o.   $439.50 per week from 1 October 2012 to date and continuing, as adjusted.

2.I remit this matter to the Registrar for referral to an AMS on the following bases:-

i)           Date of injury: 19 December 2002
ii)          Matter for assessment: right lower extremity (hip)
iii)         Method of assessment: Whole person impairment
iv)         Evidence:
The Application to Resolve a Dispute plus attached documents,
Reply plus attached documents excluding pages 19-22.
Application to Admit Late Documents of 6 November 2012.

3. The respondent is to pay the applicant’s costs as agreed or assessed. I certify this matter as being complex and order an uplift of 15% applicable to both parties.” (emphasis included in original)

The appellant has challenged the Arbitrator’s findings and the award based on those findings.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 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 Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

ISSUES IN DISPUTE AND THE APPELLANT’S SUBMISSIONS

The submissions in support of the appeal, prepared by Mr D Cooper, solicitor, and Mr P Perry, barrister, were unsatisfactory in that, in breach of Practice Direction No 6, they did not properly identify the grounds of appeal, but alleged that the Arbitrator “fell into the following errors:
“a. Error of Fact;
b. Error of Law.”
The Commission has repeatedly reminded the profession of its obligation to clearly and succinctly identify the grounds of appeal, and to address submissions to those grounds, and it is unacceptable that that was not done in this appeal.
The submissions then referred to the following parts of the medical evidence from Dr Smith, Dr Le Leu and Dr Van Der Rijt.
Dr Smith said:
“I would have thought that he could work full-time on select duties. He would be unable to work, because of the total hip replacement on the right, in heavy repetitive manual labouring occupations. I would have thought a plant operator would be within his capacity.”
Dr Smith added that the surveillance confirmed his opinion on Mr Moy’s fitness.
Dr Le Leu saw Mr Moy on 6 October 2005 and 8 March 2006. In respect of the surveillance evidence, Dr Le Leu said:
“The material from 7 and 8 March 2006 was even clearer. Although [Mr Moy] told me he does very little gardening now – generally just watering – he is shown doing extensive digging with a long handled shovel and then emptying a wheelbarrow containing earth into the area where he had been digging. The Mean [sic] work is probably very similar to that he would be doing on normal duties. He has also been shown walking extensively without any apparent limp and also climbing steps without any faltering.”
Dr Le Leu’s impression (as reproduced in the submissions) was:
“[Mr Moy’s] performance digging in the garden suggests that he would be able to gradually return to full duties as a road worker over a fairly short time. In addition, his very free spinal flexion indicates that, whatever the medical imaging, his back function remains good.”
Dr Van der Rijt reported on 14 November 2005:
“Further, [Mr Moy’s] inability to attend his recent selected duties work program appear inconsistent. The results of investigations do not suggest an underlying condition which would prevent him driving a motor vehicle from Tarcutta to Wagga [sic], nor do they suggest the presence of a condition which would prevent him sitting to undertake selected duties. He does explain to me that he was able to stand and move about as symptoms dictated.”
It was stated that the only reasons for rejecting the evidence from Dr Smith and Dr Le Leu were at [45] and [46] of the decision and “yet there is nothing in the two paragraphs that provides any reason for rejecting the views of those doctors” and, in those circumstances, “an error is disclosed in the rejection”.
It was submitted that [45] “contains a finding by Dr Smith concerning the existence of what Dr Smith identified as a Trendelenburg dip to the right, which is quite gross” (emphasis included in the submission). It was then submitted:
“13. Transparently, it was in the full knowledge of the existence of a Trendelenburg dip that Dr Smith came to the conclusion cited above. Dr Smith, an orthopaedic surgeon, it must be concluded, did not regard the existence of an abnormal gait as inconsistent with the capacity to work as a plant operator.
14.    Yet the arbitrator regarded the existence of the abnormal gate [sic] as a basis, indeed it would seem the only basis, for the rejection of Dr Smith’s opinion.
15.    To reject an opinion on this basis amounts to an error of law: Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 (Hancock) at [90] per Beazley JA.
16.    No application had been made to cross-examine Dr Smith. It might have been put to him that his conclusion that the worker was capable of full-time work was inconsistent with the abnormal gait. Alternatively, the worker, who had Dr Smith’s report from the time of the sec 74 Notice (26 October 2010) might have adduced evidence to the effect that Dr Smith’s opinion was unsustainable. No such evidence was produced, notwithstanding the fact that the worker’s solicitor had qualified Dr Giblin, also an orthopaedic surgeon, to provide a report, which Dr Giblin did on 4 April 2012 (ARD 25). In Hancock at [140] Tobias JA pointed to the inappropriateness of rejecting a medical opinion in the absence of any challenge to that opinion.”
Next, it was submitted that the Arbitrator “fell further into error in coming to his conclusion concerning the worker’s capacity to earn” because (at [56]) he “demonstrated that he was influenced in coming to his conclusion that [Mr Moy’s] home was in Tarcutta, New South Wales, 45–50 minutes [sic] drive from Wagga Wagga”. This factor ought to have been considered by the Arbitrator, but was not, against the acknowledged fact that the appellant had (suitable) work available on a full-time basis for Mr Moy. This evidence “ought to have, but did not, bear on the issue of [Mr Moy’s] capacity to earn in the open labour market readily available to him” (Collins v Days Transport Service Pty Ltd (1999) 18 NSWCCR 116 (Collins)).
Before the Arbitrator was a surveillance report from Mr Bunworth recounting his observations of Mr Moy in March 2006. On 8 March 2006, Mr Moy was seen driving a vehicle (negating any suggestion that he would be in difficulty driving between Tarcutta and Wagga Wagga), and engaged in “moderately vigorous activity between 9.09 am and 9.50 am (reply 69–71)”. A capacity to work in that way was, in the view of Dr Le Leu and Dr Smith, consistent with a capacity to work in “moderate duties for a full-time week, and that necessarily entailed a capacity to earn well in excess of that assessed by the arbitrator”.
The submissions concluded:
“It is submitted, it is clear from the decision that the Arbitrator has:
·Wrongly rejected opinion evidence
·Concluded erroneously that [Mr Moy] was in a relevantly restricted labour market,
·Misconstrued the evidence from Mr Froon, from Dr Smith, from Dr Le Leu, and from Mr Bunworth, and failed to observe the dictates of appeal courts regarding the manner in which evidence was to be treated (in particular Hancock).”
The appellant’s submissions in reply, apparently prepared by Mr Cooper, raised two additional points: first, the fact that Mr Moy was performing light duties when he stopped work, which was an appropriate matter for the Arbitrator to take into account, and, second, the surveillance evidence.
As to the first new point, the appellant submitted that the employment available to Mr Moy was the employment it had provided to him and that, but for his decision to resign, Mr Moy could have continued to work in suitable employment “without economic loss”, and this was an appropriate matter for the Arbitrator to take into account.
With regard to the surveillance report, the appellant’s complaint was that the Arbitrator “should have had, but did not have, reference to the unchallenged report in his assessment of [Mr Moy’s] capacity”.
I will deal with the issues under four headings: first, opinion evidence and misconstruction of the evidence, second, the restricted labour market, third, light duties, and last, the surveillance evidence.

DISCUSSION

Opinion evidence and misconstruction of the evidence

The appellant’s submissions are untenable and are rejected.
The submission that the Arbitrator rejected the evidence from Dr Smith and Dr Le Leu because of reasons stated at [45] and 46] was patently wrong. After referring to Dr Smith’s opinion set out at [28] above, the Arbitrator said:
“45. This opinion of course has to be read in the light of the findings by Dr Smith on examination which were:-

‘Clinical examination demonstrates he can walk with a cane. He has a Trendelenburg dip to the right, which is quite gross.’

46. Mosby’s Medical, Nursing and Allied Health Dictionary 5^th Edition at page 1647 defines a Trendelenburg gait as:-

‘An abnormal gait associated with a weakness of the gluteus medius. It is characterised by the dropping of the pelvis on the unaffected side of the body at the moment of heel strike on the affected side.’” (emphasis included in original)

These paragraphs merely set out part of Dr Smith’s findings on examination. The submission that these paragraphs contain the Arbitrator’s reasons for rejecting Dr Smith’s evidence demonstrates that the authors of the submissions had not read the decision. The Arbitrator said (at [47]) that he rejected the views of Dr Smith and Dr Le Leu “regarding [Mr Moy’s] ability to earn”. His reasons for doing so are found at [31], [33], [48], [49] and [50]. The appellant referred to none of these paragraphs in its submissions.
Dealing with Dr Le Leu’s evidence, the Arbitrator said that that evidence was “stale” ([48]), his reports having been obtained in 2005 and 2006. Even so, in the circumstances, he found the doctor’s opinion “unacceptable”. Dr Le Leu’s reason for declaring Mr Moy able to gradually return to his pre-injury duties “were based on a hitherto unremarked exaggeration by [Mr Moy], only after seeing the surveillance material” ([48]).

The Arbitrator agreed (at [48] and [49]) with Mr McManamey’s submission that there was nothing observed (by the investigator, Mr Bunworth) that was inconsistent with Mr Moy’s then condition, when he was still employed on light duties. He noted that there was an argument about whether the investigator was correct when he asserted that Mr Moy had handled soil, which Mr Moy described as sawdust.
The Arbitrator said (at [49]) that the duration of the observations was so short that, even had the material been soil, Mr Moy’s handling of it was not inconsistent with his overall capacity to do the light duties he was then allocated. In any event, noting that there had been no suggestion that Mr Moy was a dishonest man, the Arbitrator accepted Mr Moy’s account and said that the investigator had been too far away to have any reliance placed on his conclusion. The Arbitrator also rejected Dr Le Leu’s opinion because it was inconsistent with his earlier report, and disclosed a lack of impartiality in the assessment of the surveillance material.
The Arbitrator’s reference to the Dr Le Leu’s earlier report was to his report of 6 October 2005 (which was wrongly dated, as it related to an examination on 8 March 2006), in which he said that Mr Moy was a “fairly matter-of-fact man of 51” who walked with a pronounced right-sided limp, could bear weight on his right foot but was less stable, and had a markedly decreased range of movement of the right hip. The doctor’s reference to the reduction in stability was a comparison to an earlier examination in October 2005.
In his report of 29 March 2006, Dr Le Leu said, after seeing the surveillance material, that Mr Moy was exaggerating, consciously or unconsciously, and that he could gradually return to full duties as a road worker. The Arbitrator said (at [31]) that the doctor did not explain the apparent inconsistency in his earlier report, where he found Mr Moy to be “fairly matter-of-fact”, nor did he explain how his findings on examination were consistent with his opinion as to capacity. As there appeared to be an internal contradiction, the Arbitrator said an explanation was called for. I agree.
The 6 October 2005 report from Dr Le Leu reproduced a bone study report by Dr Mark Stednyckj. Dr Stednyckj said there was increased uptake about the acetabular component of the right hip joint replacement, which “in the absence of clinical findings indicating sepsis, suggests loosening”. There was also increased uptake related to the intratrochanteric region and the tip of the right femoral component, which “may indicate early loosening”.
The Arbitrator said (at [33]) that, as Dr Le Leu had reproduced Dr Stednyckj’s opinion, and had noted the clinical signs on examination, Dr Le Leu needed to elaborate more on why he thought Mr Moy was fit to return gradually to pre-injury duties. Without any comment from Dr Le Leu, the Arbitrator felt that, at least prima facie, that doctor accepted Dr Stednyckj’s findings. That finding was open and discloses no error.
Dealing with Dr Smith’s evidence, the Arbitrator noted the doctor’s opinion that Mr Moy had a “good result” from the hip replacement, that Mr Moy was “manufacturing physical signs”, and that, in the absence of any complications with the replacement, Mr Moy had a 20 per cent whole person impairment.
The Arbitrator said (at [50]) that he was unable to accept Dr Smith’s opinion because that opinion – that Mr Moy could return to his previous occupation as a plant operator – stood “in stark contrast to his findings on examination”. Those findings included the finding that Mr Moy walked with a cane and had a Trendelenburg dip to the right, that is, an abnormal gait characterised by the dropping of the pelvis on the unaffected side of the body (see the passages quoted at [43] above).
The Arbitrator added (also at [50]) that it may be that Dr Smith was not fully aware of the range of activities of a plant operator living in Tarcutta working on the roads, and that was clearly a factor in his rejection of his evidence. The Arbitrator also referred to the fact that Dr Smith described the result from the hip replacement as “good” when, under the AMA 5 Guidelines, a 20 per cent whole person impairment indicates only a “fair” result.
Last, the Arbitrator noted that Dr Smith had not referred to the evidence that the hip replacement was loosening. Though Mr Moy’s qualified specialist (Dr Giblin) had also failed to refer expressly to that fact, Dr Giblin said that further surgery could not be excluded.
The above reasons, not referred to in the appellant’s submissions, comprehensively explained why the Arbitrator did not accept the evidence from Dr Smith and Dr Le Leu. Neither his approach nor his conclusion demonstrates any error.
The above analysis demonstrates that, contrary to the appellant’s submissions, the Arbitrator did not reject Dr Smith’s opinion because of the existence of the abnormal gait; he rejected it because the doctor’s opinion on fitness was inconsistent with his findings on examination and because the doctor was not aware of the range duties required of a plant operator. Those reasons were perfectly sound and do not disclose any error.
The submission that, based on Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 (Hancock), the rejection of Dr Smith’s evidence amounted to an error of law was unsupported by any reasoned argument. In Hancock, Beazley JA quoted part of the decision under appeal, where it was stated that the treating specialist had failed to explain the basis for his conclusion and had therefore failed to satisfy the second limb in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita), and said, at [90]:
“With respect to his Honour, this passage does not fully replicate Dr Summersell’s opinion in these two reports. In each, Dr Summersell stated that, in his opinion, he suspected that ‘the subcutaneous changes are present due to a recent fall that [the appellant] had due to the pre-existing instability of his knee’. This opinion provided the scientific basis for the conclusion he reached in the respective reports, that the injury sustained in the work incident was responsible for the current condition of the appellant's knee. Accordingly, there was no failure to comply with the second limb of Makita. His Honour's finding to the contrary thus constituted a wrong application of legal principle and also amounted to an error in point of law.” (emphasis included in original)
As there is no Makita point in the present case, the reference to Hancock was erroneous. There is no suggestion that the Arbitrator failed to fully replicate, or refer to, the relevant parts of Dr Smith’s evidence.
The reference to the failure to cross-examine Dr Smith was specious. There was no need to cross-examine Dr Smith. It was open to the Arbitrator to deal with the medical evidence on the reports presented, and his rejection of Dr Smith’s evidence was open to him and disclosed no error.
The reference to the observations of Tobias JA at [140] in Hancock was equally without merit. In that passage, his Honour referred to (implicit) findings made (by the primary judge in that case) that “at least in part, reflected adversely on” the treating specialist’s credibility and integrity and those “problematic” aspects of the reports “called out for an explanation and the doctor was not given an opportunity to provide that explanation”.
Nothing even approaching the issue referred to by Tobias JA in Hancock arises in the present case. The issue was Mr Moy’s fitness for work. There was no issue about the credibility of Dr Smith. Dr Smith expressed an opinion that did not sit with his findings on examination. His opinion that Mr Moy was fit to work as a plant operator was inconsistent with the evidence of the physical requirements of the pre-injury duties and Mr Moy’s restrictions on examination. The Arbitrator was entitled to consider those matters in assessing Dr Smith’s evidence.
The appellant made no submissions about Dr Van der Rijt’s evidence (see [32] above) and its relevance to the appeal has not been explained. The authors of the appellant’s submissions appear to have merely included everything they thought would advance the appellant’s case, regardless of its relevance to the appeal. Mr Perry made no reference to Dr Van der Rijt’s evidence at the arbitration and, if it is argued that the Arbitrator erred by failing to refer to that doctor’s evidence, it is not open to argue on appeal that an Arbitrator erred in failing to refer to matters not argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111 (Bell) at [22] and [30]).

The restricted labour market

The submission that the Arbitrator should have considered that Mr Moy had suitable full-time work available to him with the appellant is unsupported by any evidence and is unsustainable. It is extraordinary that the submission was even made.
As Mr McManamey submitted on appeal, the most that can be said about the availability of work with the appellant is that Mr Froon said that on 1 March 2006 a workplace assessment was carried out to seek additional suitable duties, so that Mr Moy could return to full-time work. However, those recommendations were never implemented and there is no evidence of the availability of work with the appellant after March 2006. In any event, as discussed at [73] below, the additional suitable duties identified were all in the context that Mr Moy was only fit to work for four hours per day, three days per week.
Moreover, there is no medical evidence that the recommendations were in fact suitable for Mr Moy. At the time he stopped work, Mr Moy was doing light duties for four hours per day, three days per week. Even on those duties, he was unable to work on 20 February 2006 because his leg was too painful. His evidence was that he resigned because of his condition and that he was “not coping with the light duties [he] had been doing in Wagga Wagga”. This strongly suggests that the “suitable” duties were aggravating his condition and that they were not suitable.
In determining Mr Moy’s ability to earn, the Arbitrator had regard to the evidence from Dr Giblin, which he accepted, and said, at [56]:
“[Mr Moy] lives at a remote address where the nearest major town of Wagga Wagga is some 45–50 minutes [sic] drive away. His formal educational experience ceased in his second year at high school and the applicant has been a labourer ever since. Within the restrictions nominated by Dr Giblin there is very little work that would be available to a 56 year old person with the applicant’s few transferrable skills.”
The Arbitrator’s reference to Mr Moy living at a remote address with the nearest major town being 45–50 minutes’ drive away was appropriate. Collins gives the appellant no support. That decision is authority that the expression “general labour market reasonably accessible to the worker” in s 40(3)(a) of the Workers Compensation Act 1987 (the 1987 Act) (prior to the amendments introduced by the Workers Commission Legislation Amendment Act 2012) means the labour market reasonably accessible to the worker in the geographical area in which the worker lives.
The geographical location in which Mr Moy lives is Tarcutta, a remote area with the nearest major town 45–50 minutes’ drive away. Given Mr Moy’s evidence of the difficulty he experienced with prolonged sitting, it was appropriate that the Arbitrator had regard to the fact that Mr Moy lived at Tarcutta.
The Arbitrator’s approach discloses no error.

Light duties

The appellant’s submission that, but for resigning, Mr Moy could have continued working (for the appellant) without loss was not a point made by Mr Perry at the arbitration. Mr Perry submitted at the arbitration that Mr Moy was fit for his pre-injury work (T12.5) and, in the alternative, “bearing in mind the clear availability and the readiness of the employer to provide suitable employment up until the time of the resignation”, that the Arbitrator would not award in excess of $200 per week (T12.26–31). Mr Perry did not say how he arrived at that figure.
The submission on appeal that Mr Moy could have continued working on light duties “without economic loss” was made without reference to the evidence and was wrong. The evidence was that, at the time he resigned, Mr Moy was working four hours per day for three days per week. As noted at [65] above, the recommendations discussed by Mr Froon were never implemented and there is no evidence of the availability of work with the appellant after March 2006.
Moreover, I note from the report prepared by Ms De Valentin on 3 March 2006, in which the recommendations were raised, that her recommendations were based on an acceptance of Mr Moy’s restrictions of four hours per day for three days per week with no suggestion that he could work full-time. Allowing 12 hours per week at Mr Moy’s award rate in 2006, gives $321.48 (assuming an award for a 38-hour week of $989.86), which is less than the finding the Arbitrator made of Mr Moy’s ability to earn.
It follows that the Arbitrator did not err in failing to refer to a matter that was never put (Bell). More importantly, the submission made on appeal was without substance and not supported by the evidence.
In view of the appellant’s surprising submissions, I make the following additional observations. Even if Mr Moy had been performing full-time light duties at the time he resigned, and was being paid at his pre-injury rate, and therefore suffering no economic loss, that would not have prevented the making of an award in his favour at the maximum statutory rate for a worker with a dependent wife.
Under s 40, once a worker has ceased earning, then, in assessing his or her ability to earn (applying the legislation as it stood prior to the recent amendments), the Commission must determine the worker’s ability to earn as a worker “in the open labour market” (Steggles v Aguirre (1988) 12 NSWLR 693 at 699A, citing Starke J in Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431 at 444).
The Arbitrator correctly determined Mr Moy’s ability to earn in the open labour market and, on the available evidence, his assessment of Mr Moy’s ability to earn to be $350 per week was open and disclosed no error.

The surveillance evidence

The submission that the Arbitrator should have had “reference to the unchallenged” surveillance report was based on the false premise that he failed to consider that report and the incorrect assumption that it was unchallenged. This submission (again) failed to have regard to the evidence or the Arbitrator’s decision.
The first point is that the surveillance report was not “unchallenged”. Mr Moy disputed the allegation in the surveillance report that he lifted soil weighing between 15 and 30 kg, saying that he lifted sawdust weighing between 5 and 7 kg. The Arbitrator accepted Mr Moy’s evidence, noting that there had been no challenge to his honesty.
Second, the Arbitrator considered the surveillance report in detail. He said:
(a)     nothing observed (by Mr Bunworth) was inconsistent with Mr Moy’s then condition, when he was still employed on light duties ([48] and [49]);
(b)     he accepted Mr Moy’s evidence that he lifted sawdust and not soil ([49]), and
(c)     the duration of the surveillance was so short that, even if Mr Moy had lifted soil, his handling of it was not inconsistent with his overall capacity to do the light duties allocated ([49]).
Third, the appellant’s submission that Mr Moy had been engaged in “moderately vigorous activity between 9.09 am and 9.50 am” (on 8 March 2006) was inaccurate and misleading. The surveillance demonstrated the following activities between 9.09 am and 9.50 am on 8 March 2006:
(a)     at 9.09 am, Mr Moy wheeled a garbage bin to the front of his house;
(b)     between 9.15 am and 9.28 am, he lifted what Mr Bunworth described as a “large bag of soil” weighing between 15 to 30 kg (which Mr Moy said, and the Arbitrator accepted, was sawdust weighing between 5 and 7 kg) and emptied it into a wheelbarrow, which he then wheeled 15 metres and emptied onto the garden with a shovel;
(c)     between 9.23 am and 9.28 am, Mr Moy watered the freshly-laid sawdust and chatted with a neighbour;
(d)     between 9.28 am and 9.33 am, he wheeled a wheelbarrow to his utility and lifted another bag of sawdust onto the barrow, and wheeled it to the front garden, spreading it directly from the bag onto the garden. He again used a shovel to compact and arrange the garden;
(e)     between 9.33 am and 9.35 am, he watered the garden;
(f)      at 9.35 am, Mr Moy placed the empty soil bags into the garbage bin, spoke to his neighbour, and then returned to his home;
(g)     at 9.38 am, Mr Moy walked from his home to his neighbour’s home and spoke to the neighbour until 9.44 am, when he walked down the road to retrieve his dog and returned home;
(h)     at 9.45 am, Mr Moy walked to a shed at the front of his yard and removed clippers before disappearing from view, and
(i)      at 9.50 am, he was seen walking in and out of view while pruning shrubs. How long this continued is not known.
The conclusion that Mr Moy lifted sawdust and not soil was based on the fact that the appellant had not challenged Mr Moy’s credit and the distance from which the surveillance was conducted. Though there was no precise evidence of that distance, the Arbitrator’s acceptance of Mr Moy’s evidence was open to him.
Given the short time during which Mr Moy engaged in the above activities, his evidence of the weight of the bags, the fact that he lifted only two bags, and the fact that the activities were not outside the restrictions placed on him by his general practitioner, the conclusion that nothing in the surveillance was inconsistent with Mr Moy’s condition was open to the Arbitrator and disclosed no error. It follows that I do not accept that the activities involved were “moderately vigorous”, as the appellant has submitted on appeal.
I should add that the surveillance observed Mr Moy walking with what Mr Bunworth described as a “slight limp” at 3.52 pm on 8 March 2006. This observation was consistent with Mr Moy’s evidence that his hip pain causes him to limp and Dr Le Leu’s finding on examination. Therefore, if anything, the surveillance provided corroboration of Mr Moy’s evidence of his continuing restrictions.
As with several of the other submissions made by the appellant, this submission lacked substance, misrepresented the Arbitrator’s reasons, and misrepresented the evidence.

CONCLUSION

This appeal was completely without merit and had no prospect of success. It should not have been filed.
The appellant’s submissions either misrepresented or ignored the Arbitrator’s reasons, misrepresented or ignored the relevant evidence, referred to authorities that had no relevance to the issues, and made several assertions that were demonstrably false. Moreover, in breach of Practice Direction No 6, the appellant failed to properly identify the grounds of appeal and make submissions on those grounds.
The appellant’s legal representatives are reminded that an appeal filed without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct by a legal practitioner (s 345 of the Legal Profession Act 2004; Beale v Walgett District Hospital [2009] NSWWCCPD 60).
Scheme agents are reminded that they have an obligation to act as model litigants. That means more than acting honestly and in accordance with court rules, and more than lawyers acting in accordance with ethical obligations; they must be a “moral exemplar” (Queensland v Allen [2011] QCA 311 at [79]–[81]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [38], [39], and [40]–[42]). A model litigant should not pursue appeals unless it believes that it has reasonable prospects of success, or the appeal is otherwise justified in the public interest.
As the present appeal had no prospect of success, and was not in the public interest, it is difficult to see why the appellant’s legal representatives should be entitled to recover any costs associated with it.

It is also difficult to understand the basis on which Mr Cooper (or his employed solicitor, Ms Mason) certified that there were reasonable prospects for believing on the basis of provable facts and a reasonably arguable view of the law that the appeal had reasonable prospects of success. In view of the conclusion I have reached about the lack of merit of this appeal, the matter will be listed for submissions on why it should not be referred to the Legal Services Commissioner to investigate whether the filing of the appeal amounted to unsatisfactory professional conduct or professional misconduct under the Legal Profession Act 2004.

DECISION

The Arbitrator’s determination of 3 December 2012, as amended on 14 March 2013, is confirmed.

COSTS

The appellant employer is to pay the respondent worker’s costs, assessed at $2,530 plus GST.

Bill Roche

Deputy President
15 March 2013

I, KATHRYN CAMP, 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