Roman v Marchant Engineering Pty Ltd
[2005] NSWWCCPD 130
•9 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Roman v Marchant Engineering Pty Ltd [2005] NSW WCC PD 130
APPELLANT: Filadelfio Roman
RESPONDENT: Marchant Engineering Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC 6294-04
DATE OF ARBITRATOR’S DECISION: 6 September 2004
DATE OF APPEAL DECISION: 9 November 2005
SUBJECT MATTER OF DECISION: Evidence as to partial incapacity for work, sections 38 and 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Carters Law Firm
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 1 October 2004, Filadelfio Roman sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against a decision of an arbitrator dated 6 September 2004. Mr Roman was born on 10 July 1947 and is aged 58. He migrated to Australia from Chile in 1977. Spanish is his first language and an interpreter assisted at relevant times in the proceedings. The Respondent to the Appeal is Marchant Engineering Pty Ltd (‘Marchant’), by whom Mr Roman was employed as a fitter and turner from 9 October 2000.
On 9 October 2002, Mr Roman notified Marchant of a work injury involving breathing problems, a dry cough and an irritable throat, and ceased work because of the injury. He returned to work on 1 February 2003 but was unable to continue after a week. On 11 June 2003, Mr Roman lodged a claim for weekly compensation in respect of throat problems due to the nature and conditions of his employment from 9 October 2000. He sought weekly compensation in respect of lost wages of $660 per week from 26 November 2002 to date and continuing. The Insurer had paid provisional weekly compensation from 9 October 2002 to 26 November 2002 when payments were ceased. On 27 October 2003, Mr Roman commenced new employment as a fitter and turner with BSM Industries Pty Ltd on a casual basis, earning, on his evidence, $1087 gross per week.
On 19 April 2004, the Commission registered Mr Roman’s ‘Application to Resolve a Dispute’. The Application referred both to Mr Roman’s claim for weekly compensation and also to a claim for medical expenses of $1,173.88. Marchant’s ‘Reply’ was lodged on 10 May 2004. On 4 August 2004, the Arbitrator conducted a teleconference with the parties and, on 25 August 2004, conciliation having proved unsuccessful, he conducted an arbitration hearing. On 6 September 2004, the Arbitrator made the determination set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 6 September 2004, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $660 per week from 9 October 2002 to 10 February 2003 (less any amounts already paid).
2. That thereafter there be an award for the Respondent in respect to weekly compensation.
3. That the Respondent pay the Applicant’s expenses under sec.60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In his Statement of Reasons for Decision, the Arbitrator said:
“The factual position is therefore as follows:
The Applicant sustained an injury to his respiratory tract as a result of exposure to irritant gases in his employment as a fitter and turner. The Applicant sought treatment for that injury. He also sought to have an efficient mask made available to him to continue with his work with the employer – alternatively, he sought to be re-located or to do other work. He was not relocated and the masks made available to him did not prevent the irritation occurring. He then left work and remained unemployed until obtaining work as a fitter and turner in October, 2003, in a position where he remains employed at a salary well in excess of that he was earning with the Respondent.
It is clear that he was not totally incapacitated for work except for the short period after ceasing work in October, 2002, when he still had the symptoms of the injury. After February, 2003, when he ceased working with the Applicant [sic] altogether, he was at most partially incapacitated for work in an environment similar to that existing in the Respondent’s premises, but not generally for work as a fitter and turner.
Between the date he first ceased work following the medical report of Dr Sabag on 9 October, 2002, it appears that there was an expectation that the worker would be able to resume employment with the Respondent subject to the provision of the appropriate respirator, and that position continued up to the period of one week when he returned to work in February, 2003, but found that he could not do the work required and ceased working. It appears that various types of masks were tried but the Applicant said he couldn’t breathe wearing them.
Given the fact that the Applicant on his own evidence was not incapacitated for work as a fitter and turner generally (and, in fact, was probably capable of earning in excess of his then current weekly earnings if employed elsewhere), and the absence of evidence as to the circumstances under which the Applicant ‘ceased working’, and having regard to the various medical opinions, I find that the Applicant has failed to discharge the onus of proving that he was still incapacitated for work after the date he ceased working for the Respondent, namely, 10 February, 2003.”
The Arbitrator summarised the resolution of the issues in dispute as follows:
“Weekly Benefits Claim:
• Between 9 October, 2000, and 9 October, 2002, Filadelfio Roman received an injury to his upper respiratory tract arising out of or in the course of his employment as a fitter and turner with Marchant Engineering Pty Ltd.
• The Applicant was partially incapacitated for work as a result of his injuries from 9 October, 2002, and remained partially incapacitated for work of the type being offered by his employer thereafter subject to the provision of an appropriate mask or respirator.
• The Applicant’s probable weekly earnings, but for the injury, had he continued to be employed in the same or comparable employment, are $660 per week.
• During the Applicant’s period of partial incapacity for work from 9 October, 2002, the average weekly amount he was earning or would be able to earn in some suitable employment from time to time after the injury was in excess of $660 per week.
• He did not seek suitable employment until September, 2003 when he was able to obtain it, commencing work on 27 October, 2003. He had the capacity to earn in excess of the amount he was earning with the Respondent if he had kept his job.
• The Applicant is therefore entitled to weekly payments for the period of partial incapacity for work from 9 October, 2002 to 10 February, 2003 of $660 per week.
• The Applicant has already been paid compensation of an unknown amount for the period 9 October, 2002 to 25 November, 2002.
• The Applicant is not disentitled to weekly benefits because of an unreasonable failure to comply with the requirements of workplace injury management.”
The Arbitrator also found it reasonable that the Respondent pay the Applicant’s medical expenses in respect of treatment from Dr Sabag and Dr Katzen, as detailed, which he found were reasonably necessary for the compensable injury.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether Mr Roman was partially incapacitated for work from 11 February 2003 to 26 October 2003.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties. Mr Roman’s solicitors submit that there should be an oral hearing because of the complexity of the issues involved including the detailed factual issues in dispute. Marchant submits that the matter “can be dealt with swiftly on the papers without the need for a formal hearing”. Having considered these submissions, 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. With regard to section 352(2), the amount of compensation at issue, according to Mr Roman’s solicitors, is approximately $22,440, being $660 per week from 10 February 2003 to 27 October 2003. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
FRESH EVIDENCE
Fresh evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence,
-a copy of the new evidence,
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
In their submissions, Mr Roman’s solicitors state:
“In the light of the Arbitrator’s comments, the Applicant intends to call additional evidence from the Applicant’s union representative of the Applicant’s attempts to return to work and the circumstances surrounding the cessation of his employment. The assistance provided by the Applicant’s union representative in attempting to negotiate a return to work with a suitable mask is mentioned in the Applicant’s written statement.”
No other explanation or submission has been received from Mr Roman’s solicitors in relation to this proposed new evidence. Having reviewed the evidence before the Arbitrator, the transcript of the arbitration hearing, and the Arbitrator’s Statement of Reasons, I am not satisfied on the basis of the above statement from Mr Roman’s solicitors that failure to allow the calling of the proposed new evidence would cause a substantial injustice to Mr Roman. I also note that Marchant might need to obtain further evidence to meet the case put, and that this would further delay resolution of the matter. Leave is therefore denied.
SUBMISSIONS
Mr Roman’s solicitors submit that the Arbitrator erred in determining that Marchant was only liable for weekly payments up to 10 February 2003. Mr Roman contends he was incapacitated for work until 27 October 2003 and should have been awarded weekly payments up until that date. When he attempted a return to work in February 2003, he was unable to continue working because he was unable to breath wearing the various masks provided.
Mr Roman’s solicitors submit that the Arbitrator seems to have assumed that Mr Roman should have found work as a fitter and turner in another entity immediately after 10 February 2003, and made no mention at this point of the entitlements of a partially incapacitated worker pursuant to sections 38, 38A and 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). Moreover, the Arbitrator referred to an absence of evidence as to the circumstances under which Mr Roman ceased working. Yet, this was covered in Mr Roman’s written statement and also in his oral evidence.
Marchant notes the Arbitrator found that Mr Roman had failed to discharge the onus of proving that he was still incapacitated for work after 10 February 2003. Marchant submits that no error in the Arbitrator’s decision has been demonstrated and the appeal should be dismissed.
EVIDENCE
Mr Roman provided a statement dated 6 March 2004. He stated that during the manufacture of post driving hammers in the course of his work at Marchant, a gas was released from the hardened steel, and also dust came off the steel. As a result, he developed “soreness of the throat, a dry cough and difficulty breathing” and, on 9 October 2002, he stopped work because of this. His union representative attempted to negotiate with Marchant for him to return to work with the assistance of a suitable face mask, but when he tried to return to work on 1 February 2003, the mask provided was not suitable, he was only able to work for a week and was unable to continue working without a mask.
At the arbitration hearing, Mr Roman gave evidence that the mask provided “a bit of protection to the air, but there was a bit coming in through the side … the toxins or the gases would keep coming in”. In cross-examination, Mr Roman agreed the mask provided was a solid mask of some description. During the first two years he worked for Marchant, he had worn a paper mask that he had provided himself. Mr Roman said he was able to undertake fitter and turner work for BSM Industries Pty Ltd “because they are light, small jobs … and they don’t have any hardening work … that’s where the gas comes from”. He said he first started looking for work around the 21 September 2003, “[a]bout 27-28 September, or after October” (arbitration hearing transcript page 8).
Mr Roman provided medical reports from his general practitioner, Dr Juan Sabag (principal report dated 29 May 2003), from Dr Bernard Katzen, Ear Nose and Throat Surgeon (principal report dated 19 March 2003), to whom he was referred by Dr Sabag, and from Dr Kenneth Howison, Ear Nose and Throat Surgeon (dated 1 October 2003), who prepared a report at the request of Mr Roman’s solicitors.
Dr Sabag said:
“The diagnosis is irritation of the upper respiratory tract involving pharynx and larynx and oesophagitis caused as well by the toxic irritants of the fumes that he was exposed to. These have subsided gradually after avoiding contact with those substances.”
Dr Sabag said Mr Roman could return to work at any time “to any job that doesn’t exacerbate or trigger once again his illness”. WorkCover Medical Certificates from Dr Sabag dated 10 February 2003 and 21 February 2003 were also provided. Both certificates diagnose an upper respiratory tract irritation and state that Mr Roman should wear a mask when exposed to irritant gas. However, the certificates state, nevertheless, that he is fit for his pre-injury duties.
Dr Katzen stated:
“Clinically, I was not able to find any positive findings on the patient in the form of irritation of the larynx, pharynx or upper respiratory tract airway. X-rays reveal nothing abnormal … I believe now that it has settled into a personality problem of the patient saying one thing and his employer saying another. My advice is for him to get a respirator and for him to continue on with where he is working.”
Dr Howison concluded:
“I feel that Mr Roman has sustained an irritation of the upper respiratory tract due to the above described irritative gas [released from the hardened steel]. I can offer no explanation as to why he is now irritated by chemicals and fumes when this was not previously the case. Certainly no permanent damage has been caused. I note that Mr Roman himself feels that he could return to his employment provided he was able to use a satisfactory respirator …
I feel that Mr Roman would be able to return to his previous employment provided he has an adequate respirator.”
Marchant provided a report from Dr Julian Lee, Thoracic Physician, dated 27 November 2002. Dr Lee stated:
“There is a disturbing absence of objective evidence or documentation to support this man’s claim to have developed a work-related condition. The nature of his job suggests that any irritative effect of fumes and dust on his throat was likely to have been transient and certainly not responsible for the ongoing and worsening symptomatology which he describes.”
Dr Lee said there was “no evidence to indicate the development by the worker of an identifiable work-related disorder”, and he was fit to resume his previous duties without restriction. I note, as the Arbitrator recognised, that Dr Lee examined Mr Roman on 22 November 2002, approximately six weeks after he had ceased work. If the irritative effect of the fumes and dust was transient as the other medical evidence also suggests, then, as the Arbitrator commented, “it is not surprising that Dr Lee found no objective evidence to support the Applicant’s claim”.
DISCUSSION AND FINDINGS
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Roman must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
One of the difficulties in this case is the brevity of Mr Roman’s solicitors’ submissions. As stated above, at issue is whether Mr Roman was partially incapacitated for work between 11 February 2003 and 26 October 2003. While his solicitors are critical of the Arbitrator’s reasoning, and the fact that he made no mention of sections 38, 38A and 40 of the 1987 Act in relation to partial incapacity, I am not persuaded by their submissions that the Arbitrator made any legal, factual or discretionary error in his decision that would justify my interfering with his decision. In my opinion, a review of the evidence supports the Arbitrator’s finding that Mr Roman was partially incapacitated for work from 9 October 2002 until 10 February 2003. The Arbitrator found that from 11 February 2003, Mr Roman was generally fit for work as a fitter and turner. As Mr Roman’s medical evidence states, it was the particular conditions of his work at Marchant involving gas fumes and dust that seems to have caused the irritation of his upper respiratory tract. In the absence of such conditions or with the benefit of a suitable respirator, Mr Roman was fit for work as a fitter and turner.
I note the Arbitrator’s comment about the absence of evidence as to the circumstances under which Mr Roman ceased working. Having reviewed the evidence, I agree with that comment. There appears to have been no evidence before the Arbitrator beyond Mr Roman’s evidence as to his attempt at a return to work proving unsuccessful because the mask provided by his employer was unsuitable (“the toxins or gases would keep coming in” at the side of the mask provided), and that he could not continue working without a mask. There is no evidence as to what other masks might have been suitable and why, after he stopped working at Marchant, he did not seek alternative employment until September 2003. I note that Dr Katzen refers to “a personality problem of the patient saying one thing and his employer saying another”. However, as I said above in relation to Mr Roman’s solicitors’ statement that they would call fresh evidence as to the circumstances surrounding his attempt to return to work and the cessation of his employment, I am not satisfied that leave to admit such evidence should be given.
While I agree the Arbitrator should have referred to the applicable provisions of the 1987 Act in his decision, it seems likely from a reading of the arbitration hearing transcript (page 15) that he found liability in respect of the period 9 October 2002 to 10 February 2003 was in respect of total incapacity for work pursuant to section 36 of the 1987 Act. I note that pursuant to section 36(1), weekly payments for the first 26 weeks “shall be the amount of the worker’s current weekly wage rate”. Pursuant to section 36(2), this is determined in accordance with section 42 of the 1987 Act. The discussion recorded in the arbitration hearing transcript (page 16) indicates that the relevant award rate was then $525.20. There is no explanation as to why the Arbitrator made an award of Mr Roman’s actual weekly wage of $660. There is, however, no challenge to clause 1 of the Arbitrator’s decision dealing with this period.
In respect of the period from 11 February 2003, even if Mr Roman had been found by the Arbitrator to be partially incapacitated for work, Mr Roman’s oral evidence at the arbitration hearing was that he did not seek alternative work until late September 2003. I would not, therefore, be satisfied on the evidence that Mr Roman was seeking suitable employment during this period (sections 38(4) and 38A) so as to be entitled to weekly payments under section 38 of the 1987 Act. In any event, at the arbitration hearing, Mr Roman’s counsel did not seek to rely on section 38, but instead sought an award under section 40 of the 1987 Act.
An application of section 40 to the period 11 February 2003 to 26 October 2003, requires a consideration of the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). With regard to step one, the Arbitrator found Mr Roman’s “probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, are $660 per week”. With regard to step two, the Arbitrator found Mr Roman “was probably capable of earning in excess of his then current weekly earnings if employed elsewhere”. As noted above, there was no evidence before the Arbitrator as to why Mr Roman did not begin looking for work until late September 2003, especially in the light of the medical evidence that he was fit for his pre-injury duties if he could avoid exposure to the gases/fumes causing the irritation of his upper respiratory tract. Thus, with regard to step three, there was no reduction in earnings requiring consideration of steps four and five.
In my view, the fact that the Arbitrator did not consider more closely the application of sections 38, 38A and 40, is clearly a reflection of his not being satisfied that Mr Roman was incapacitated for work after ceasing work for Marchant on 10 February 2003. Essentially, there was a lack of probative evidence before the Arbitrator to persuade him otherwise.
Mr Roman’s solicitors having not demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error, the Arbitrator’s decision must be confirmed.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Robin Handley
Acting Deputy President
9 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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