Rural Development & Management Pty Ltd v Banks

[2006] NSWWCCPD 208

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Rural Development & Management Pty Ltd v Banks [2006] NSWWCCPD 208

APPELLANT:  Rural Development & Management Pty Ltd

RESPONDENT:  Terrence Sidney Banks

INSURER:QBE Workers’ Compensation (NSW) Ltd

FILE NUMBER:  WCC 11040-04

DATE OF ARBITRATOR’S DECISION:          26 October 2005

DATE OF APPEAL DECISION:  29 August 2006

SUBJECT MATTER OF DECISION:                Weight attributed to the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: In-House Legal Department, QBE Workers’ Compensation (NSW) Ltd

Respondent: Savage Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant, Rural Development & Management Pty Ltd, is to pay the costs of the Respondent, Mr Banks, in this appeal.

BACKGROUND TO THE APPEAL

1. On 23 November 2005, Rural Development & Management Pty Ltd (‘RD&M’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 26 October 2005. The Respondent to the appeal is Terrence Sidney Banks. RD&M’s workers compensation insurer is QBE Workers’ Compensation (NSW) Ltd (‘QBE’).

1. Mr Banks was born on 5 June 1970 and is aged 36. He is married with two dependent children aged 12 and 10. On 26 November 2001, he commenced employment with RD&M as a Senior Vineyard Operator. He noticed symptoms in his wrists in August 2003 and notified his employer. On 14 October 2003, RD&M terminated his employment and, on 21 November 2003, Mr Banks lodged a claim for workers compensation. On 22 December 2003, QBE denied liability on the basis that his employment was not a substantial contributing factor to his injury which, in any event, was a “constitutional problem genetically pre-determined”.

1. Mr Banks had carpal tunnel surgery for his right hand on 3 November 2004 and for his left hand on 17 February 2005. On 31 March 2005, Mr Banks was certified fit for light duties, and since then he has obtained some short-term casual work.

1. On 20 July 2004, the Commission registered Mr Banks ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation and for medical, hospital or related expenses. Mr Banks identified his injury as “carpal tunnel in both wrists” due to the nature and conditions of his employment between 26 November 2001 and 14 October 2003, in particular, “constant and repetitive vine work including pruning”. On 17 August 2005, RD&M filed its ‘Reply’.

1. On 12 October 2004, the Arbitrator conducted a teleconference with the parties, following which he referred the issue of the aetiology of Mr Banks’ condition to an Approved Medical Specialist (‘AMS’) for assessment. This was deferred to allow Mr Banks time to recover from carpal tunnel surgery, and the AMS, Dr William Bye, Orthopaedic Surgeon, subsequently examined him on 16 May 2005. Dr Bye’s Medical Assessment Certificate (‘MAC’) was issued by the Commission on 28 June 2005. Dr Bye diagnosed “bilateral carpal tunnel syndrome with median nerve compression at the wrist” and “left ulnar nerve entrapment in Guyon’s canal at the left wrist”. Dr Bye said:

“My view is that the aetiology of both wrist problems relates to his work activities on account of the very high forces subjected to the proximal palm region of both hands, in this case due to the action of the secateurs with forced repetitive flexion of the fingers more likely to produce flexor teno synovitis, narrowing of the carpal tunnel and forced flexion of the wrist which also causes significant narrowing of the carpal tunnel, thereby provoking the carpal tunnel syndrome. I have indicated that his symptoms are more in evidence on work days and that I was unable to implicate any constitutional and non work factors that might provoke the condition. This is contrary to the comments made by Dr Murray Stapleton. The nerve compression symptoms are not an injury but a constitutional problem genetically pre-determined. My views appear to be supported by Dr Anthony Beard and Dr Sophia Lahz...

I have indicated that there were no constitutional factors in evidence and no genetical pre-determination in-so-far as the carpal tunnel capacity appeared to be within normal limits. There was no evidence of aggravation of a previous or underlying condition.”

1. On 9 August 2005, the Arbitrator conducted a further teleconference with the parties and, on 23 September 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. The Arbitrator’s decision, dated 26 October 2005, is set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 26 October 2005, records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly compensation pursuant to Sections 36, 37 and 40 of the Workers Compensation Act, 1987 as follows:

• From 22 December 2003 to 9 April 2004 at the rate of $585.00 per week pursuant to Section 36 of the Act.

• From 10 April 2004 to 3 November 2004 at the rate of $526.50 per week pursuant to Section 37 of the Act.

• From 4 November 2004 to 8 December 2004 at the rate of $585.00 per week pursuant to Section 36 of the Act.

• From 9 December 2004 to 17 February 2005 at the rate of $526.50 per week pursuant to Section 37 of the Act.

• From 18 February 2005 to 24 March 2005 at the rate of $585.00 per week pursuant to Section 36 of the Act.

• From 25 March 2005 to 4 April 2005 at the rate of $526.50 per week pursuant to Section 37 of the Act.

• From 5 April 2005 to 29 May 2005 at the rate of $526.50 per week pursuant to Section 40 of the Act.

• From 30 May 2005 to 5 June 2005 the sum of $77.50 pursuant to Section 40 of the Act.

• From 6 June 2005 to 12 June 2005 the sum of $179.00 pursuant to Section 40 of the Act.

• From 13 June 2005 to 19 June 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 20 June 2005 to 26 June 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 27 June 2005 to 3 July 2005 the sum of $200.25 pursuant to Section 40 of the Act.

• From 4 July 2005 to 10 July 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 11 July 2005 to 17 July 2005 the sum of $270.00 pursuant to Section 40 of the Act.

• From 18 July 2005 to 24 July 2005 the sum of $101.25 pursuant to Section 40 of the Act.

• From 25 July 2005 to 31 July 2005 the sum of $15.15 pursuant to Section 40 of the Act.

• From 1 August 2005 to 7 August 2005 the sum of $244.20 pursuant to Section 40 of the Act.

• From 8 August 2005 to 14 August 2005 the sum of $273.00 pursuant to Section 40 of the Act.

• From 15 August 2005 to 21 August 2005 the sum of $198.00 pursuant to Section 40 of the Act.

• From 22 August 2005 to 28 August 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 29 August 2005 to 4 September 2005 the sum of $292.20 pursuant to Section 40 of the Act.

• From 5 September 2005 to 11 September 2005 the sum of $289.80 pursuant to Section 40 of the Act.

• From 12 September 2005 to 18 September 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 19 September 2005 to 25 September. 2005 the sum of $320.00 pursuant to Section 40 of the Act.

• From 26 September 2005 to date and continuing at the rate of $320.00 per week pursuant to Section 40 of the Act.

Such weekly payments to continue in accordance with the provisions of the Act.

2. That the Respondent pay the Applicant's expenses under Section 60 of the Workers Compensation Act 1987 on production of Tax Invoices and/or receipt.

3. That the Respondent pay the Applicant's costs as agreed or assessed.”

1. In his ‘Statement of Reasons for Decision’, the Arbitrator noted that Mr Banks’ claim is for total incapacity from 22 December 2003 until 1 April 2004, partial incapacity from then until 3 November 2004, and total incapacity from 4 November 2004 until 31 March 2005, following the carpal tunnel surgery performed by Dr Anthony Beard, Hand Surgeon. The Arbitratror found that there was evidence that Mr Banks had “suffered problems in his left shoulder up to 7 years ago” (paragraph 29) but there was no evidence of symptoms in the left shoulder, arm and hand over the next 7 years. The Arbitrator said (paragraph 31):

“my impression of the Applicant is that he is a witness of credit and the fact that he continued to use secateurs over a period of 7 years without displaying any problems with his wrists nor it appears seeking any medical treatment is a factor which I take into account when assessing his credit.”

1. The Arbitrator found the MAC contained a well-reasoned opinion as to causation, and accepted “the opinion of the AMS as to the aetiology of the Applicant's medical condition”. By contrast, the Arbitrator commented that the opinion of Dr Sophia Lahz, Rehabilitation Physician (report dated 25 March 2004), and that of Dr Murray Stapleton, Hand, Plastic and Reconstructive Surgeon (report dated 17 December 2003), were not sufficiently well-reasoned (paragraph 33).

1. The Arbitrator noted that the AMS, Dr Bye (paragraph 36):

“36. ... reports that the Applicant was fit for sedentary work duties only with a minimum of manual repetitive wrist and finger flexion and contraction. The opinion further states that the Applicant should commence manual duties under the supervision of a Rehabilitation Counsellor starting at short hours per day, short days per week and building up in proportion to his capabilities. There is no evidence from either party as to the long-term work capacity of the Applicant. The only relevant evidence is from the treating Orthopaedic Surgeon who states that the Applicant's condition "is rather recalcitrant to treatment and tends to recur whenever they return to the fine but forceful physical requirements of this industry."

37. In all the circumstances I find that the Applicant's ability to work is limited to approximately 3 to 4 hours per day on a limited 4 - 5 day week and it is generally agreed that his income from this type of work or other casual work available to him would be in the order of $15.00 per hour and as such I find that he has a capability of earning approximately $265.00 per week.”

1. The Arbitrator found that Mr Banks’ probable weekly earnings but for the injury had he continued working in the same or some comparable employment were $585.00. The Arbitrator then addressed the five steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’), determining an ongoing award of $320.00 per week from 26 September 2005, pursuant to section 40 of the 1987 Act.

ISSUES IN DISPUTE

1. RD&M submits the Arbitrator erred in law and fact: in the weight he attributed to the evidence, in his fact finding, and in failing to give proper reasons for his decision. The parties’ submissions on these issues are discussed below.

ON THE PAPERS REVIEW

1. 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.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties. Mr Banks’ solicitors submit the matter can be decided ‘on the papers’, while RD&M submits the matter requires an oral hearing because “important issues such as injury and the operation of section 9A” [of the Workers Compensation Act 1987 (‘the 1987 Act’)] are involved” and because the appeal “involves a close analysis of the evidence”. However, I can see no need for oral submissions given detailed written submissions from both parties and a transcript of the arbitration hearing, for which I note, both parties were represented by counsel. I am therefore 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.

1. Neither party sought to adduce fresh evidence.

LEAVE

1. 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), I am satisfied that the compensation at issue, namely the ongoing weekly compensation claimed by Mr Banks together with medical, hospital or related expenses, exceeds $5,000 and constitutes 100% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.

DISCUSSION

1. 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, RD&M 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] NSWWCCPD 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. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73, at paragraph 40, should be borne in mind:

“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”

1. RD&M has identified a number of grounds of appeal, which I will address in turn.

Grounds 1 and 2: whether Mr Banks is a “witness of credit”

1. RD&M submits the Arbitrator erred in accepting Mr Banks as “a witness of credit”. The basis for this submission seems to be that the Arbitrator chose to accept Mr Banks’ evidence that he had not experienced any problems with his left shoulder, arm and hand in the previous seven years since the shoulder problem he experienced following the birth of his daughter in 1996 resolved. RD&M acknowledged there was no medical evidence that Mr Banks had sought treatment for his wrists during these years but pointed to the statement of Neil Fletcher, the Managing Director of RD&M, dated 27 November 2004, who said that Mr Banks had told him his sore wrists were due to a previous injury, and to the history taken by Dr Beard (report dated 29 October 2003) who stated, “Mr Banks initially had problems with his left hand some seven years ago but had no significant problems until approximately seven months ago when the left hand symptoms recurred”.

1. Mr Banks’ solicitors note that, at paragraphs 30 to 31 of his Statement of Reasons, the Arbitrator “set forth matters relevant to a deliberation as to credit and such constitute a fair dealing on the issue and does not demonstrate any error”. Mr Fletcher’s factual statements were not the subject of cross-examination at the hearing. By contrast, Mr Banks, who was cross-examined, was not challenged except as to the history recorded by Dr Beard.

1. I have reviewed the Arbitrator’s Statement of Reasons, the transcript of the hearing, the relevant medical evidence, Mr Banks’ statement of 16 August 2005, and that of Mr Fletcher. I am not satisfied there is any substance to the first two grounds of appeal. The Arbitrator identified and discussed the relevant evidence and formed a view on the basis of that evidence. There is, in my view, no basis for me to interfere with his findings.

Ground 3: causation

1. RD&M submits the Arbitrator “erred in law and fact in accepting the opinion of the Approved Medical Specialist (Dr Bye) regarding aetiology and incapacity”. It contends there is a fundamental flaw in the AMS’s opinion because he appears to have assumed that Mr Banks’ problems commenced in August 2003 and deteriorated as a result of his continuing to perform pruning work. Moreover, the AMS appears to have been under the impression that Mr Banks’ employment was terminated because of his injury. RD&M points to Mr Fletcher’s account of events.

1. Mr Banks’ solicitors submit that the Arbitrator was entitled, on the evidence, to accept the AMS’s opinion as to the aetiology, having correctly addressed the evidence and fairly weighed it.

1. I note that, at paragraph 32 of his Statement of Reasons, the Arbitrator acknowledges that the medical evidence in relation to causation is conflicting and sets out his reasons for preferring the opinion of the AMS, Dr Bye, to the opinions of Dr Stapleton and Dr Lahz (referred to in paragraph 9, above). I am not satisfied that the Arbitrator made any error in this regard. In relation to the termination of Mr Banks’ employment, Dr Bye does not record that Mr Banks’ employment was terminated because of his injury, but I agree, although not clear, that it is possible that Dr Bye may have made this connection. In the light of the Arbitrator having Mr Fletcher’s statement as to the circumstances of Mr Banks’ employment being terminated (because RD&M lost the contract for the management of a vineyard in respect of which Mr Banks was the vineyard manager), and this issue being addressed by RD&M’s counsel at the arbitration hearing (transcript page 16), the Arbitrator was made aware of these circumstances and there is no indication that the Arbitrator believed otherwise (Statement of Reasons paragraph 23). In the circumstances, if Dr Bye was under a mistaken impression as to the termination of Mr Banks’ employment, I am not satisfied that anything turns on this.

Ground 4: adequacy of reasons

1. RD&M submits the Arbitrator failed to give proper reasons regarding the Mr Banks’ credit and the opinions of the AMS. Mr Banks’ solicitors reject this and submit the Arbitrator gave adequate reasons for his findings.

1. This ground has been canvassed in discussing grounds 1 to 4, and I am not satisfied that there is an inadequacy in the Arbitrator’s reasons sufficient to demonstrate that he “has failed to exercise his or her duty to fairly and lawfully determine the application”: Mayne Hospital Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6, at paragraph 48; see also YG & GG v Minister for Community Services [2002] NSWCA 247.

Ground 5: whether Mr Banks was at any time totally incapacitated

1. RD&M submits the Arbitrator erred in concluding that between October 2003 and April 2005 Mr Banks was totally incapacitated. It submits that during the period between December 2003 and April 2005, Mr Banks was fit to undertake some work, and was able to earn at least $450.00 per week during that period. Mr Banks’ solicitors reject this and point to the Arbitrator’s discussion at paragraphs 35 and 36 of his Statement of Reasons, noting that no error or unfairness in the Arbitrator’s reasoning has been demonstrated by RD&M.

1. It is clear from the cited paragraphs in his Statement of Reasons, that the Arbitrator relied on medical certificates in finding that Mr Banks was totally unfit for work for the period 22 December 2003 to 9 April 2004, and (paragraph 23) on WorkCover certificates for the following year to April 2005. The Arbitrator relied, further, on Mr Banks’ statement as to his capacity for work. Mr Banks also said that he was unable to obtain approval from QBE for carpal tunnel surgery and had to wait “in the public health waiting list for this surgery” (statement, paragraph 30). As noted above, this surgery was performed by Dr Beard on 3 November 2004 (the right hand) and on 17 February 2005 (the left hand). The Arbitrator allowed a period of five weeks following surgery on each hand, referring to Dr Bye’s opinion, formed three months after the second surgery, that Mr Banks should return to work on a graduated basis. In my view, there was sufficient evidence to support the Arbitrator’s findings with regard to Mr Banks being totally incapacitated for work during this period. I therefore reject this ground of appeal.

Ground 6: Mr Banks’ ability to earn after April 2005

1. RD&M submits the Arbitrator erred in finding that Mr Banks is able to earn only $265.00 per week in the period after April 2005. It states he has been able to earn up to $569.00 per week and the Arbitrator should not, therefore, have decided Mr Banks’ ability to earn was only $265.00 per week which is well below his true earning capacity.

1. Mr Banks’ solicitors note the evidence before the Arbitrator was that Mr Banks’ intermittent employment (he first managed to obtain casual employment on 30 May 2005) yielded varying amounts of income. Having regard to Mr Banks’ ability to generate an income in the labour market reasonably available to him, and having regard to the totality of the evidence, Mr Banks’ solicitors submit that the Arbitrator’s conclusion was fair and reasonable and does not demonstrate any error.

1. Mr Banks provided details of his earnings from casual work in the period up to and including 19 September 2005. He gave evidence that he had looked for work conscientously, and had not “knocked back or refused” any work (transcript page 5). His counsel submitted to the Arbitrator that there was “no evidence to suggest that he’s not mitigating his loss to the best of his ability. He’s taking all the work he possibly can find” (transcript page 12). The work that Mr Banks had been able to obtain was casual and seasonal work. Counsel for RD&M submitted the Arbitrator should take into account Mr Banks’ recent casual earnings in finding, based on those earnings, that he was able to earn about the same as or more than his probable earnings but for the injury.

1. The Arbitrator based his finding on Mr Banks’ ability to work on the opinion of the AMS, Dr Bye, that Mr Banks should undertake a graduated return to work “starting at short hours per day, short days per week and building up in proportion to his capabilities” (Statement of Reasons, paragraph 36). He found that Mr Banks’ “ability to work is limited to approximately 3 to 4 hours per day on a 4 – 5 day week”, and that his casual earnings from such work would be in the order of $15.00 per hour (Statement of Reasons, paragraph 37, quoted above at paragraph 10). The Arbitrator therefore found Mr Banks was capable of earning approximately $265.00 per week.

1. I note that a worker’s actual earnings are prima facie evidence of the worker’s ability to earn: Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20. Mr Banks lives at Canowindra in rural mid-western NSW where employment opportunities are limited (section 40(3)(a)). Despite looking for work conscientiously, and taking the work he has been able to find, which has not been disputed, Mr Banks has been unable to find regular ongoing employment and his earnings fluctuated significantly over the period 30 May 2005 to 19 September 2005. The Arbitrator’s finding of $265.00 per week in relation to section 40(2)(b) works out to approximately 17½ hours a week. In view of the fact that Mr Banks’ recent earnings were casual and largely seasonal, and in the light of the graduated return to work recommended by the AMS, I am not satisfied that the Arbitrator made any error in making his finding.

1. In conclusion, RD&M have failed to substantiate any of their grounds of appeal, and the Arbitrator’s decision must therefore be confirmed.

DECISION

1. The Arbitrator’s decision is confirmed.

COSTS

1. The Appellant, Rural Development & Management Pty Ltd, is to pay the costs of the Respondent, Mr Banks, in this appeal.

Robin Handley

Acting Deputy President  

29 August 2006

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.

ASSOCIATE