Rocky and Son Pty Limited v Bills
[2006] NSWWCCPD 140
•6 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rocky and Son Pty Limited v Bills [2006] NSWWCCPD 140
APPELLANT: Rocky and Son Pty Limited
RESPONDENT: Peter Bills
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC3725-05
DATE OF ARBITRATOR’S DECISION: 4 August 2005
DATE OF APPEAL DECISION: 6 July 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; adequacy of reasons.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: QBE In-House Legal to
1.02.2006; Cambridge
Integrated Services, In House
Legal from 2.02.2006.
Respondent: Nagle and McGuire.
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 4 August 2005 is confirmed.
The Appellant is to pay the costs of the Appeal.
BACKGROUND TO THE APPEAL
Peter Bills was working for Rocky and Son Pty Limited (‘the Employer’) as a plasterer when he claims he was injured, on 23 July 2002, after being blown over by a gust of wind while carrying a large sheet of plasterboard. He claims injuries to his back, neck, shoulders and psychological injury.
QBE Workers Compensation (NSW) Limited (‘QBE ’) was the Employer’s workers compensation insurer at the time of the injury. QBE acted for and on behalf of the company in the Commission proceedings until 2 February 2006 when it advised that the matter was transferred to Cambridge Integrated Services. Cambridge Integrated Services are represented by their in house legal service, however made no further submissions on the appeal (in addition to those filed by QBE).
Mr Bills sought weekly compensation and reasonably necessary medical expenses (pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’)) from QBE and liability was initially accepted. Payments were made until 9 June 2004 when QBE denied liability based on a report from Dr Rowe (Orthopaedic Surgeon) dated 27 January 2004 and a report by Dr Revai (Consultant Psychiatrist) dated 19 February 2004.
Mr Bills filed an ‘Application to Resolve a Dispute’ which was registered in the Commission on 10 March 2005. The Employer filed a ‘Reply’ to the ‘Application to Resolve a Dispute’ and the matter proceeded to Arbitration on 10 June 2005.
The most significant issue in dispute in the appeal is whether the Arbitrator gave adequate reasons for her decision, including adequate reasons for the findings of fact upon which the decision was based.
THE DECISION UNDER REVIEW
The Arbitrator gave her determination and reasons on 4 August 2005. The ‘Certificate of Determination’ records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly benefits compensation at the rate of $272.70 per week from 23 July 2004 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.The Respondent is to pay the Applicant’s section 60 expenses.
3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The Employer filed an appeal against this decision on 31 August 2005. Mr Bills filed a ‘Notice of Opposition’ to the appeal on 26 September 2005.
FAILURE TO GIVE ADEQUATE REASONS
The Employer argues that the Arbitrator erred in failing to give any reasons or any adequate reasons for the following findings:
·That the diagnosis of Mr Bills’ complaints was “in the nature of cervical, thoracic and lumbar strains with traumatic capsulitis of both shoulders”. (Ground 1)
·That “at least to some extent, psychological injury he suffered as a consequence of the incident in July 2002 continues to play some role in limiting his capacity to work”. (Ground 2)
·That “the Applicant’s injuries to his back and neck, and to a lesser extent his shoulders, have resulted in his being permanently partially incapacitated for work”. (Ground 3)
·That Mr Bills’ probable weekly earnings but for injury are $750.00 per week. (Ground 4)
·That Mr Bills could not reasonably be expected to undertake the work of an estimator. (Ground 5)
·That Mr Bills could only work 30 hours per week as a salesperson in a retail antique shop. (Ground 6)
Some submissions in support of the grounds of appeal go beyond ‘inadequacy of reasons’ and these are dealt with as they arise.
The Employer submitted the Arbitrator’s decision was correct and should be affirmed.
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’); Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311). Rule 73 provides that:
“(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside the Employer must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21). The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6. To this end, the role of the Arbitrator within the informal and expeditious dispute resolution scheme offered by the Commission is relevant. The reasons of the Arbitrator should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang (1996) 185 CLR 259).
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Employer argues that an oral hearing is required as:
·The parties will be able to deal with the competing submissions in a more satisfactory way than exchanging written submissions.
·They may have a very substantial future liability if there is award in favour of Mr Bills, thus natural justice and procedural fairness dictate that an oral hearing is required.
·The issues were keenly contested at the Arbitration and the parties made detailed submissions. They should have the opportunity on appeal to make oral submissions on these issues just as they did at the Arbitration.
Mr Bills’ argues an oral hearing is not required as both parties made detailed submissions at the Arbitration and the Employer has not advanced any good reasons for requiring an oral hearing.
I have before me all of the evidence and submissions that were before the Arbitrator, a transcript of the Arbitration and the parties’ submissions on appeal. The evidence and the parties’ submissions were well canvassed before the Arbitrator.
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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The threshold requirements of section 352(2)(a) and (b) of the 1998 Act are met as the award is an ongoing award for weekly compensation and the entire award is challenged on appeal.
Leave to appeal is granted.
CONSIDERATION OF THE ISSUES
Ground 1 – Diagnosis of the Injury
Mr Bills claims injuries to his back, neck, shoulders and psychological injury. The Employer does not dispute that Mr Bills suffered a work related injury on 23 July 2002 and that his employment was a ‘substantial contributing factor’ to that injury. The Employer argues that no reasons were given for the Arbitrator’s conclusion that Mr Bills’ “suffered a work related injury in the nature of cervical, thoracic and lumbar strains with traumatic capsulitis of both shoulders”.
The Arbitrator reviewed the medical evidence and, giving her reasons, found as follows:
“18. There are significant differences of opinion in the medical evidence before me as to the correct diagnosis, if any, of the Applicant’s physical injury. However, on balance I am satisfied that the Applicant has suffered an injury to his neck and back as claimed, and to a lesser extent his right shoulder. While Dr Mills’ conclusion that the Applicant has suffered no permanent impairment as assessed under WPI is binding on me and the parties, that conclusion does not in itself mean that the Applicant did not suffer an injury. It is simply one of the factors that I am entitled to consider in making my determination. Nor does the absence of a clear diagnosis mean that the Applicant has not suffered an injury. On balance I accept the diagnoses and conclusions by Dr Searle and Dr Speldewinde as noted above, and I do not find the differences in their description of the injury of any great significance. I note that Dr Davis agreed that the Applicant suffered soft tissue injuries in both the cervical and thoracic spine, although in his opinion there were also injuries to the cervical and thoracic joints. In his many WorkCover certificates the Applicant’s treating General Practitioner, Dr Neil Starmer, indicated diagnoses of ‘soft tissue injuries to the back’, ‘neck strain/thoracic spine strain’ and ‘muscle tear thoracic/shoulder/neck’. Even Dr Rowe acknowledges that ‘it would be reasonable to accept that he suffered a strain of the right shoulder region and perhaps the back and perhaps a bruise of the left hip region.’ Taking this evidence as a whole, I find that at the least, the Applicant suffered a work-related injury in the nature of cervical, thoracic and lumbar strains with traumatic capsulitis of both shoulders.”
The Employer asserts that the Arbitrator’s conclusion does not contain any reasoning while Mr Bills submits that the reasons are not inadequate and assert that it might be said that Arbitrator has “gone to greater than necessary lengths to analyse” the medical evidence.
Mr Bills relied on evidence from Dr Searle (Consultant Orthopaedic Surgeon), Dr Davis (Injury Management Consultant, Occupational Medicine), Dr Starmer (General Practitioner), Dr Speldewinde (Consultant in Rehabilitation, Pain and Musculoskeletal Medicine). Relevant extracts of their evidence follows:
·Dr Speldewinde (report of 30 October 2002) – “Peter Bills has a right lower cervical and right mid thoracic spinal strain”. Dr Speldewinde sought to review Mr Bills in two months.
·Dr Speldewinde (report of 17 December 2002) – “the recent cervical slide x-ray is normal, and the thoracic spine x-ray shows some mild wedging at T7-T9 of uncertain age.”
·Dr Searle (report 24 November 2003) – “the injury at work on 23/7/02 caused cervical and thoracic and lumbar ligament strains and traumatic capsulitis of both shoulders” - 25% whole person impairment having reached maximum medical improvement.
·Dr Davis (report 24 November 2003) – “as the result of an incident at work on 23 July 2002 Mr Bills has suffered injury to the cervical facet joints as well as the costovertebral joints in the upper thoracic spine and associated soft tissue injury in both regions” - 19% whole person impairment having reached maximum medical improvement.
·Dr Starmer (WorkCover Medical Certificates, 29 July 2002 to 3 March 2004) descriptions of the injury including “muscle injury right shoulder/back and spine” (29/7/02); “muscle tears back and shoulder” (11/9/02); “soft tissue injuries to the back” (4/6/03). There is also a later Certificate from Dr Phil Crawford, dated 2 June 2004.
The Employer relied upon the evidence of Dr Rowe (Orthopaedic Surgeon), and Dr Mills. Dr Mills was appointed as an Approved Medical Specialist in relation to earlier Commission proceedings and had issued a Medical Assessment Certificate in those proceedings in relation to a claim for lump sum compensation for permanent impairment. Relevant extracts of their evidence follows:
·Dr Rowe (report of 19 January 2004) – “It would be reasonable to accept that he suffered a strain of the shoulder region and perhaps the back and perhaps a bruise of the left hip region. In this regard his employment at that time was a substantial contributing factor. His presentation at this stage one and a half years later is not that of organic pathology and it is considered that his employment is no longer a substantial contributing factor. One wonders if his current presentation is simply not a reflection of depression related to undeclared problems in his life. This of course is the province of a psychiatrist.”
·Dr Mills (report of 28 October 2004) – 0% whole person impairment (combined values) with 0% for the cervical neck and spine, thoracic spine and right shoulder. In conclusion Dr Mills stated:
“Both Dr Davies and Searle have considered Mr Bills to meet the inclusion criteria for DRE II Cervical Spine and Thoracic Spine, and given a percentage permanent impairment of the right shoulder, due to decreased range of movement. They have each provided a different opinion as to the underlying diagnosis.
Ms Erskine (Psychologist) has made a diagnosis of a major depressive state, with Dr Revai (Psychiatrist) disagreeing. Dr Revai has also questioned the accuracy of the history given by Mr Bills.
Dr Rowe in his report has identified the presence of a non-organic component to Mr Bills’ symptom complex and considers his thoracic condition to be not work-related.
The Bone Scan of 14 November 2003 demonstrates that the vertebral fractures identified on the x-ray of 29 November 2002 are not recent. The compression fractures noted on Mr Bills’ thoracic x-ray are not recent, and this cannot be used as inclusion criteria for DRE Category II (Thoracic Spine Injury). I would thus consider Mr Bills to meet DRE Thoracic Category I (Table 15-4). This provides a Zero Percentage WPI.
I would consider Mr Bills to meet the inclusion criteria for DRE Category I Cervical Disorder. This provides a Zero Percentage WPI. This is consistent with the opinion of Dr Rowe.
On the basis of my assessment, I would consider range of movement testing to be invalid (due to inconsistencies noted above). In the absence of specific pathology, in accordance with Ch 16 of AMA 5, Mr Bills’ report of ‘shoulder’ symptoms attracts Zero Percentage WPI. This is consistent with Mr Bills’ statement that his pain does ‘not really (involve) his shoulder’.”
Having considered the above evidence I am not satisfied that the Arbitrator erred, either in finding that Mr Bills “suffered an injury in the nature of cervical, thoracic and lumbar strains with traumatic capsulitis of both shoulders” nor in failing to give adequate reasons for her finding. The finding was open to her on the evidence. She was correct to assert that the opinion of Dr Mills was not binding on her on this issue, but was evidence to be weighed along with other evidence. Her reasons disclose that she considered the whole of the evidence on this issue, that she was persuaded by the evidence of Dr Searle and Dr Speldewinde, not least because their opinions were relatively consistent. They were also consistent with the opinion of Mr Bills’ General Practitioner, Dr Starmer, who saw and treated Mr Bills most frequently. These reports, and the report of Dr Rowe, to a certain extent, persuaded the Arbitrator as to the weight of the evidence to support her finding. Her reasons adequately demonstrate the matters set out in Rule 73 and a reader could easily understand why she came to the conclusion that she did on this issue.
Ground 2 – Role of Psychological Injury
The Employer submits the Arbitrator failed to give adequate reasons for finding that Mr Bill’s continued to suffer a psychological injury as a consequence of the incident in July 2002 and that it affected his capacity to work.
Before the Arbitrator were reports from Mr Erskine, Clinical Psychologist and Dr Revai, Psychiatrist on the issue of psychological injury. Relevant extracts of their evidence follows:
·Mr Peter Erskine, Clinical Psychologist, (report of 16 October 2003) – “At a psychological level he currently suffers from Major Depressive Disorder with high co-morbid levels of anxiety. He is clinically depressed, despite being on anti-depressant medication currently. There is no suicidal ideation or intent.”
·Dr Eli Revai, Psychiatrist, (report of 19 February 2004) – “I cannot satisfy myself that Mr Bills is suffering from a psychiatric disturbance these days as a consequence of the accident.” Dr Revai noted omissions in the history taken by Mr Erskine. He indicated that he could not agree with Mr Erskine’s diagnosis and stated that although Mr Erskine says that Mr Bills is on anti-depressant medication, 10 mg of Endep is not anti-depressant medication.
The Arbitrator stated that:
“19. I have also considered the evidence before me regarding the Applicant’s claim of a secondary psychological injury. The Respondent submits that I should reject this claim, relying on the opinion of Dr Eli Revai, Psychiatrist (in his report of 19 February 2004) that the Applicant is not now suffering from a psychiatric disturbance or any psychological injury as a result of the incident in July 2002. However I am not satisfied that this is the case. In this regard I accept and prefer the detailed report of Mr Peter Erskine, Clinical Psychologist, dated 16 October 2003. Mr Erskine, whom the Applicant saw on several occasions, concludes that the Applicant reports ‘a current chronic pain state’ and that he ‘currently suffers from Major Depressive Disorder with high co-morbid levels of anxiety’. He describes the Applicant as clinically depressed and notes that he was then on anti-depressant medication. Mr Erskine attributes this psychological injury to his several losses following the work-related injury. I also had the opportunity of speaking to the Applicant at the hearing and I am satisfied that, at least to some extent, the psychological injury he suffered as a consequence of the incident in July 2002 continues to play some role in limiting his capacity to work. However I accept that the Applicant’s physical injuries play the primary role in this regard.”
The Employer argued that the report of Mr Erskine pre-dates that of Dr Revai and contrary to the Arbitrator’s statement, does not disclose a number of consultations but one attendance. The evidence does not substantiate this claim. The reports prepared by Injury and Occupational Health Management dated 12 August 2003, 26 September 2003, 10 November 2003, 15 December 2003 and 10 February 2004 refer to treatment by Mr Erskine as part of Mr Bills’ injury management plan (Annexures to Mr Bills’ ‘Application to Resolve a Dispute’). The report of 10 November 2003 notes Mr Bills’ recent assessment by Mr Erskine and the report of 15 December 2003 refers to Mr Bills’ continuing counselling with Mr Erskine. By 10 February 2004, the report indicates that Mr Bills has not seen Mr Erskine since Christmas although “the meetings were useful” for Mr Bills.
The Employer also argued that the Arbitrator has not taken into account the superior qualifications of Dr Revai as a Psychiatrist. Mr Bills’ argued that the Employer did not establish that Dr Revai had superior qualifications and that a psychologist is well placed to determine the issue of psychological injury.
It is clear law that a psychologist, as any other expert witness, must not give evidence that exceeds the bounds of his or her field of expertise and, if given, such evidence will not be persuasive (R v Peisley (1990) 54 A Crim R 42; Amalgamated Television Services Pty Ltd v Marsden (2002) NSWCA 419; Central Coast Area Health Service (Gosford Hospital) v Sully [2004] NSWWCCPD 46). Ultimately qualifications of the expert are not usually the determinative factor as it is for the Arbitrator to weigh all of the evidence on its own merits, not only on the basis of who provided it.
In this matter the Arbitrator weighed the evidence of Mr Erskine, Clinical Psychologist and Dr Revai, Psychiatrist on its merits. She expressly considered that evidence in conjunction with the evidence of Mr Bills himself, whom she heard and observed give oral evidence. She was entitled to do so and did not err in weighing all of the evidence on the issue of psychological injury. While her reasons are not extensive on this issue, I am satisfied, on balance, they disclose why she arrived at her conclusion. It is clear that she considered Mr Bills’ oral evidence credible and persuasive, and to accord with Mr Erskine’s observations and opinion, and that she gave greater weight to Mr Erskine’s evidence because of his more significant dealings with Mr Bills over time.
The Arbitrator did not err in failing to give adequate reasons in relation to her findings on the psychological injury suffered by Mr Bills.
Ground 3 – Partial Incapacity
The Employer submits the Arbitrator erred in law when she failed to give adequate reasons for the decision that Mr Bills’ injuries have resulted in a permanent partial incapacity for work. It submitted that any current incapacity is no longer related to the injury of 23 July 2002; alternatively, any incapacity is minimal and should result in a very limited award.
The Arbitrator reviewed the evidence on incapacity as follows:
·the WorkCover Certificates from about January 2003, which indicated that Mr Bills was fit for suitable duties with the restrictions of: no more than 20 hours per week; no running; minimal stairs and a 5 kilogram lifting limit (in certain Certificates);
·Dr Davis’ conclusion that Mr Bills is permanently unfit for return to work as a plasterer because he requires permanent restrictions with regard to reaching, work above mid chest level, lifting and carrying, working in confined areas, forceful work and activities dictating a static loading in his upper spine;
·the fact that Dr Searle concurs with Dr Davis although finds slightly different restrictions;
·the contrasting conclusion by Dr Rowe that Mr Bills was fit for light duties such as his current work in the antique shop; and
·comments from a Return to Work plan of 10 February 2004 indicating Mr Bills was unenthusiastic about a physical upgrading program.
The Arbitrator then concluded:
“22. Having considered all the evidence I am satisfied that the Applicant remains unfit for his pre-injury duties as a plasterer/gyprock plasterer, which has been his occupation for most of his life. He has worked for others and has been self-employed, but I accept that he has few other life skills. In my view, the Applicant’s restrictions for work remain essentially as last certified by Dr Starmer, and as outlined by Dr Searle and Dr Davis. As a result I accept that the Applicant’s injuries to his back and neck, and to a lesser extent his shoulders have resulted in his being permanently partially incapacitated for work.”
Dr Starmer, in his last WorkCover medical certificate, dated 3 March 2004, indicated that Mr Bills was fit for suitable duties from 3 March 2004 to 3 June 2004 with a 5-kilogram lifting limit. This was followed by a WorkCover medical certificate from Dr Phil Crawford of 2 June 2004 which certified Mr Bills as fit for restricted return to work (4 hours per day at desk) involving no lifting heavier than 5 kilograms; the avoidance of repetitive bending and lifting; the avoidance of repetitive use of the affected body part and prolonged standing, walking or sitting.
The Arbitrator gave clear and adequate reasons for preferring the medial evidence as to Mr Bills’ incapacity. The overwhelming weight of the evidence supported the finding that Mr Bills remained incapacitated for work in his previous occupation.
Ground 4 – Probable Weekly Earnings
The Employer argues the Arbitrator erred in law by failing to give adequate reasons for the finding that Mr Bills’ probable weekly earnings, but for injury, are $750.00 per week (step one of the five steps required to make an assessment of entitlement pursuant to section 40 of the 1987 Act as discussed in Mitchell v Central West Area Health Services (1997) 14 NSWCCR 527).
Before the Arbitrator, it was agreed that Mr Bills’ earnings with the Employer were $30 per hour which, based on a 30-hour week, would lead to earnings of $1,140 per week, although he had only worked for a short period before the injury.
The Arbitrator concluded that:
“In the end, and on the evidence before me, I accept the Applicant’s contention that his probable earnings but for injury are in the region of $700.00 to $800.00 as calculated on the basis of his earnings over the past several years within the building industry. On balance I accept the figure of $750.00 as the Applicant’s probable weekly earnings but for injury. I therefore reject the Respondent’s submission that I should find that the Applicant’s probable weekly earnings but for injury are about $550.00 per week.”
Mr Bills’ argues the Arbitrator was provided with an agreed schedule of his gross earnings for several years prior to the accident. The Arbitrator appears to have used a combination of these agreed figures, Mr Bills’ actual earnings at the time of injury and the parties’ submissions, to make her finding.
The Employer submitted the Arbitrator should find that Mr Bills could earn “approximately $550 per week but for the injury. It argued that he:
“would have kept working and earning moneys much the same as he earned during the four years, that is, the years 30 June 1998, 30 June 1999, 2000 and 2001, and perhaps make some slight upward adjustment in respect of that figure of $443 to allow for some inflation and also to allow for the fact that the applicant might have found work in the year ending 30 June 2003 and worked on a more consistent basis than he had for the 12 months previously”.
Having considered the parties’ submissions and the Arbitrator’s reasons, it is readily apparent that the Arbitrator chose the median figure between the $700 and $800 proposed by Mr Bills. In my view the evidence presented by both parties to support an argument as to probable earnings was very poor. It consisted largely submissions based on guesswork on the part of the legal representatives. The determination of this issue is notoriously difficult, with a broad discretion left to the Arbitrator, as it was to the Compensation Court (Akawa Aust Pty Ltd v Cassells (1995) 25 NSWCCR 385). However, the discretion must be exercised on the basis of the evidence, not on the basis of assumed knowledge. The Arbitrator set out the evidence that was before her in relation to the issue. She noted that Mr Bills was with the Employer for only three days pre-injury and on that basis she considered it necessary to look at his pre-injury earnings over a longer period of time. While her reasons as to the amount of $750 are not adequate to explain how she arrived at this figure, I am not satisfied that her finding is an error.
The ‘starting point’ for the calculation of Mr Bills’ probable earnings was the amount he was ‘in fact’ earning at the time of the injury. From this, other relevant circumstances must be taken into account. Mr Bills was able to earn $1,140.00 for a 38-hour week with the Employer however he worked for the Employer for only three days prior to injury. Prior to the injury he had worked for several years in the building industry and, on the basis of his tax returns, his gross earnings from 1999 to 2000 ranged from $357 to $528. At times he worked for wages and he also did contract work. In 2002 he suffered from ill health and his tax return shows income under $10,000 and an overall net loss. The Employer submitted that, allowing for an adjustment for inflation, Mr Bills probable earnings, but for the injury, would have been $550, based upon his earnings for the four years prior to the injury. Mr Bills’ submission that his probable earnings were $700 to $800 is based upon a number of factors, namely; that in addition to his taxable income he had the benefit of ‘expenses’ from contract work in previous years, that inflation would have affected an increase in his probable earnings and that he was in fact earning up to $1,140.00 with the Employer. Taking the amount of $1,140.00 as a starting point and accepting the factors submitted by Mr Bills, it is my view that the figure of $750 arrived at by the Arbitrator is fair and reasonable and is supported by the evidence.
On review of the evidence this finding, in my view, should not be disturbed because the inadequacy of the Arbitrators reasons is not such that the Arbitrator has failed to exercise the statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
Ground 5 – Earning Capacity (Work as an Estimator)
The Employer submits the Arbitrator erred in law when she failed to give reasons for the finding that Mr Bills could not reasonably be expected to undertake the work of an Estimator. The Employer argues that Mr Bills gave oral evidence that he could work as an estimator and had been looking for that work. He allegedly had limited his options for finding work by simply relying on his contacts. Alternatively, Mr Bills is capable of working 40 hours per week (not 18 to 22) and thus can earn $636.00 per week, at the shop assistant hourly rate, which is greater than his probable weekly earnings of $550.
Mr Bills submitted that he had capacity for suitable duties 18 to 22 hours per week, with the appropriate hourly rate being that of a shop assistant ($15.91 per hour under the Shop Employees (State) Award). He argued the Employer has not presented any evidence regarding the suitability of the duties of an Estimator, given his physical restrictions, and had not presented evidence of the pay rates that would apply.
For some time since the injury Mr Bills had been self-employed as a sales assistant in a small antique shop, from which he has not earnt any income. It was conceded that Mr Bills could be taken to earn an amount calculated, on the basis of his current hours of work, at an appropriate hourly rate.
The Arbitrator reviewed the evidence and found as follows:
“26. In the Case Closure Report of June 2004 it was suggested that the Applicant might be able to undertake a work trial as an Estimator, but liability was denied prior to locating an appropriate employer for such a trial. I accept the Applicant’s submission that despite adopting this suggestion the Respondent has not submitted any evidence regarding the specific duties of such a position given the Applicant’s restrictions, nor has the Respondent submitted evidence regarding the pay rates that would apply. On the present evidence I am not satisfied that the Applicant could reasonably be expected to undertake the work of an Estimator within the gyprock plastering industry, or any other job within that industry.”
It is clear the Arbitrator accepted the submission that the Employer had failed to provide sufficient evidence to support a finding that Mr Bills could work as an Estimator. In particular, there was no evidence of the specific duties or pay rates. The Arbitrator must make the determination of the average weekly amount Mr Bills is earning or would be able to earn in some suitable employment from time to time after the injury (Step 2 in Mitchell v Central West Area Health Services (1997) 14 NSWCCR 527) on the basis of the evidence. The nature of the evidence that may be relevant to this issue was canvassed in Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSWWCCPD 5. The Arbitrator was correct to consider that it was necessary, given the medical evidence as to the restrictions to be imposed upon Mr Bills in the workplace, to have persuasive evidence of the nature of the duties of an Estimator. Without this is was a hollow claim that Mr Bills could fulfil this role, despite his stated enthusiasm to find this type of work and to see if he could make an income from it.
The Arbitrator’s reasons on this issue are adequate. She has taken into account relevant considerations and the weight of the evidence that was before her and she has not erred in doing so.
Ground 6 – Earning Capacity (Hours of Work)
The Arbitrator found that:
“27. . . . the Applicant’s present work as a sales person in a retail antique shop is properly within his restrictions, but I am not satisfied that he could presently undertake those duties on a full-time basis as suggested by the Respondent. The Applicant has suggested a maximum of 22 hours, but I am of the view that the Applicant could undertake a maximum of 6 hours per day 5 days per week being 30 hours per week. On the basis of the casual hourly rate for a shop assistant in accordance with the Award, the Applicant would then be able to earn $477.30 per week and I am of the view that this is about right. I therefore determine that the correct amount for the purposes of section 40(2)(b) is $477.30 per week.”
The Employer argues that no evidence is referred to in support of this finding and that the Arbitrator has failed to give adequate reasons. It argued Mr Bills could work 40 hours per week.
Mr Bills had submitted to the Arbitrator that he could work 18 to 22 hours per week. He submits the Arbitrator was entitled, on the evidence, to reject the parties’ submissions and come to a finding that was within the range submitted by them.
The Arbitrator’s conclusions on this issue (at paragraph 27 of the reasons as set out above) do not refer to the evidence in detail, but in my view she has done so earlier in the reasons. I accept Mr Bills’ submission that the Arbitrator gave a detailed account of the medical evidence. She found that Mr Bills had restrictions on his ability to work due to the nature of his injury. She also considered that he had been working to set up his own business, although the evidence does not clearly address how many hours per week this involved. The Arbitrator’s task was to weigh all of the evidence, including the oral evidence of Mr Bills and the medical evidence. In doing so she was not obliged to accept the submission of one or other party. The Arbitrator did not err in finding that Mr Bills could work for up to thirty hours per week, on the basis of the whole of the evidence. In my view she could have given more expansive reasons for her findings, referring to the particular evidence she found persuasive, and why. However, when her reasons are read as a whole I am not satisfied, on balance, that they are sufficiently inadequate that the decision should be disturbed. I am satisfied that, had the reasons been more expansive, the findings would have been the same, and I would have made the same findings on review.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The award of costs in an appeal is governed by section 345 of the 1998 Act. In this matter the Employer has been unsuccessful and should bear the costs of the appeal.
Dr Gabriel Fleming
Deputy President
6 July 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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