Simpkins v Lismore & District Workers Club Ltd
[2007] NSWWCCPD 187
•29 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Simpkins v Lismore & District Workers Club Ltd & anor [2007] NSWWCCPD 187
APPELLANT: Peter John Simpkins
FIRST RESPONDENT: Lismore & District Workers Club Ltd
SECOND RESPONDENT: Lismore City Council
FIRST RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER: GIO General Limited
FILE NUMBER: WCC66-07
DATE OF ARBITRATOR’S DECISION: 26 April 2007
DATE OF APPEAL DECISION: 29 August 2007
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; meaning of “same or some comparable employment”.
PRESIDENTIAL MEMBER: Acting President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Lee Sames Egan
FirstRespondent: Ellison Tillyard Callanan
Second Respondent: TurksLegal
ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 26 April 2007 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Peter John Simpkins (‘the Appellant Worker/Mr Simpkins’) left school in about 1984, after obtaining his school certificate at the end of year 10. He completed an apprenticeship as a pastry cook in 1988 and worked in that field in temporary positions in NSW and Victoria for about 12 months. He then obtained employment as a relief manager of the bakery section at Woolworths in South East Queensland for two years. After buying a house in Casino he was transferred to Woolworths at Lismore where he worked until he was retrenched six weeks later. The exact date of his transfer to Lismore is not known.
After his retrenchment he did temporary jobs in Lismore and Casino for about six months. After completing a security course he worked full time with North East Security for about three or four years, starting in 1992. This job was as a security patrol officer and required him to drive around Lismore checking on various premises between 6.00pm and 6.00am Monday to Thursday. At the same time he started his own commercial agents business (North Coast Commercial Services) and started serving commercial documents. In addition, he started work with Lismore & District Workers Club Ltd (‘the First Respondent/the Club’) on 3 September 1994 as a “casual door steward grade 3” (‘doorman’), working Friday and Saturday nights from 6.00pm until 2.00am.
In 1995 Mr Simpkins resigned from North East Security to concentrate on his own business but he continued to work at the Club.
On 24 May 1995 Mr Simpkins was riding his motorbike home from work with the Club when he lost control and hit his back against a traffic island. As a result of his injuries he was admitted to Lismore Base Hospital where he was treated for a compression fracture to the L1 level of his spine. He returned to work for the Club on 7 June 1995 and in December 1996 he was placed on two hours per week. He resigned on 19 March 1997 and was unemployed for 11 months until he started at Berkley Challenge as a groundsman at Trinity Catholic College where he worked a split shift from 6.00am to 9.00am and 1.00pm to 6.00pm. With penalties he earned up to $600.00 per week. His duties involved lifting small school ground garbage bins and pulling a ‘wheelie bin’ on the asphalt playground. He had some trouble with the job because of his back and took days off. When Tempo took over the contract, his services were not retained.
Mr Simpkins then enrolled in a Bachelor of Social Science at the Southern Cross University but only completed 12 months of that course because he could not afford to live on Austudy. He then worked at a bottle shop in Brisbane but lasted only a few days because of back pain. His next job was driving a tractor and ‘module building’ on a cotton farm at Moree, which he was unable to continue because he had to climb up and down the side of the module builder. He then moved to another property where he was able to drive a large air-conditioned tractor knocking down cotton furrows. After one week he was put into an old ‘David Brown’ tractor but only lasted a few days because of the bouncing and turning.
In July 1998 Mr Simpkins settled his claim for lump sum compensation against the Club for $9,000.00 in respect of 15% permanent impairment of his back. The settlement was effected by way of an agreement registered under Section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’).
Mr Simpkins then returned to Lismore and started with McKee’s Engineering where he worked as a labourer and then a spray painter for six months. The job provided many lifting aids and he coped well but work ran out.
While still working with McKee’s he started with Lismore City Council (‘the Second Respondent/the Council’) on 27 June 2000 as a street cleaner (Grade 3 Skill Step 2, within the Council’s salary structure) working from 4.00am until 7.00am. He then worked with McKee’s from 7.00am until 4.00pm. The Council job involved street cleaning using a two-stroke blower. He worked with the Council until the end of July 2001 by which time he had developed problems in his arms from using the blower. He ceased work in July 2001 because of a sexual harassment claim made against him, not because of any problem with his arms or back. As a result of the sexual harassment claim Mr Simpkins made a claim for workers compensation for anxiety and depression. Liability for that claim was declined and, though he was certified fit to return to work on 3 December 2001, he did not do so. He remained on leave without pay until the Council accepted his application for voluntary redundancy on 5 February 2002.
Within days of ceasing employment with the Council he started at Mike’s Real Foods, a bakery in South Lismore, where he worked for three months doing pastry cook duties. One evening in May 2002 he had a shaking episode when he was unable to go to work. He attended his local doctor, Dr Deaker, where he allegedly collapsed. He was given Prozac and allowed home. He states that he was physically struggling to do the work and that his back and arms ached.
Mr Simpkins separated from his partner in early 2004 and moved to Brisbane in mid 2004. On 1 October 2004 he started work at the Woolworths Supermarket at Carrindale shopping centre in Brisbane as a baker/pastry cook. He immediately noticed an increase in his back pain, which was exacerbated by bending, accessing ovens, lifting dough and bags of flour. Because of his back pain he asked for a reduction in his hours to 27 per week over three days. His employer agreed to this arrangement and his wage was reduced to $472.00 gross per week. Kneading dough caused his elbow pain to flare up from time to time with the pain getting better on his days off.
In the week before Christmas 2004 Mr Simpkins worked fulltime and his pain increased. In January 2005 he was transferred to a smaller Woolworths store at Camp Hill where he was the second in charge in the bakery (on ‘salary’) working in excess of 40 hours per week for $845.00 per week. After about six weeks he was (at his own request) returned to a standard baker’s job on a wage of $655.00 per week but was unable to continue and he resigned on 23 February 2005.
On 7 March 2005 Mr Simpkins settled a claim for lump sum compensation against the Council for $4,000.00 in respect of a 5% permanent loss of efficient use of his right arm at or above the elbow. His claim for lump sum compensation against the Club was settled on 3 May 2005 for $23,000 in respect of 50% loss of use of sexual organs plus compensation for pain and suffering.
In about July 2006 Mr Simpkins acquired a tow truck contract through his own company, PJ Dracic & Co Pty Ltd. This work involved him in operating a tow truck for between 20 and 84 hours per week.
On 9 January 2007 Mr Simpkins filed two Applications to Resolve a Dispute (‘the Application/s’) in the Workers Compensation Commission (‘the Commission’). The first (WCC 66-07) was against the Club alleging injury to the back and sexual organs as a result of the motorbike accident on 24 May 1995. The second (WCC 69-07) was against the Council alleging injury to his back and arms as a result of his duties requiring him to use a blower and on 12 June 2001 when he was “performing a pull start on a piece of equipment when the cord jammed”. In each of his Applications he seeks weekly compensation from 16 March 2003 to date and continuing. The claims were listed for conciliation and arbitration on 14 March 2007 when they were consolidated and heard together.
The critical issue before the Arbitrator was the correct method to be adopted in determining Mr Simpkins’ probable earnings in “the same or some comparable employment” but for his injury (section 40(2)(a)). In 1995 his earnings as a doorman with the Club were $200.00 per week. When he ceased work with the Council his earnings per week were $326.50. The Appellant Worker argued that the correct figure for probable earnings was either the rate under the Pastry Cooks’ Award or the Security Industry (State) Award.
In a reserved decision dated 26 April 2007 the Arbitrator rejected the Appellant Worker’s arguments and determined that probable earnings were $285.00 per week ($200.00 adjusted at 3% per annum for inflation) for the doorman job with the Club and $374.46 ($326.50 adjusted at 3% per annum for inflation) for the street cleaner job with the Council. He then found that at all material times Mr Simpkins has had and continues to have a capacity to earn a sum equal to or greater than either of those figures. As a result, he found that Mr Simpkins has no entitlement to compensation and he made an award in favour of each of the Respondents.
In an ‘Appeal Against Decision of Arbitrator’ filed in the Workers Compensation Commission (‘the Commission’) on 24 May 2007, Mr Simpkins seeks leave to appeal the Arbitrator’s findings and determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. No award of compensation has been made in this case but the Arbitrator’s finding would result in the Respondent Worker receiving no compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 April 2007, records the Arbitrator’s orders as follows:
“1.That matters WCC 66-2007 and WCC 69-2007 are amalgamated as matter WCC 66-2007; First Respondent, Lismore & District Workers Club; Second Respondent, Lismore City Council.
2.Award in favour of the Respondents in respect of the Applicant’s claim for weekly payments of compensation.
3.No order as to costs.”
FRESH EVIDENCE
The Appellant Worker seeks to tender a copy of the section 66A Agreement dated 30 July 1998 and registered with WorkCover on 23 September 1998. The fact that the prior claim for lump sum compensation against the Club was settled was included in the documents attached to the Reply filed on behalf of the First Respondent on 30 January 2007. As a result there is nothing to be added by tendering the Agreement as fresh evidence and I refuse that application.
The Appellant Worker also submits that the Commission should have regard to the previous proceedings between Mr Simpkins and the Respondents. The details of those proceedings has been set out above under ‘Background to the Appeal’ and, as it is a matter of record, will be considered in the determination of the appeal.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to make a determination as to what constituted “the same or some comparable employment” with each Respondent (‘comparable employment’);
(b)“conflating” the assessment of probable earnings with the step of determining the “same or some comparable employment” (‘comparable employment’);
(c)making factual and discretionary errors in determining probable earnings in respect of each job (‘factual and discretionary errors’);
(d)failing to consider relevant and uncontested evidence on the issue of determining “the same or some comparable employment” (‘comparable employment’);
(e)failing to properly consider the effect of Mr Simpkins’ established impairments and physical incapacities on his ability to earn in the open labour market (‘ability to earn – section 40(2)(b)’), and
(f)failing to appreciate that the first step in Mitchell involves two stages, first, the determination of the “same or some comparable employment” and, second, the determination of the amount Mr Simpkins would have earned in that employment but for his injury (‘comparable employment’).
SUBMISSIONS AND FINDINGS
The Appellant Worker has made lengthy submissions referring to his statement of 25 July 2005 and highlighting the general consequences of his injuries (see Appellant Worker’s submissions, paragraph seven). Some of those matters have been dealt with above under ‘Background to the Appeal’ and will not be repeated. The Appellant Worker’s remaining submissions are dealt with under each of the issues identified in paragraph [32] above.
Comparable Employment
The Appellant Worker submits:
a) that his position is supported by the authorities of Johnston v Commissioner of Railways (1973) 128 CLR 632 (‘Johnston’), Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 (‘Pantaleo’), NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217 (‘Forrest’), Department of School Education v Boyd (1996) 13 NSWCCR (‘Boyd’) and Lloyd v Northern Rivers Charity Racing (2001) 22 NSWCCR 577 (‘Lloyd’);
b) in order to establish comparable employment it is not necessary to:
· prove an absolute intention to progress to a certain identified form of employment;
· remain with the same employer;
· remain within the same trade, skill or qualification;
· remain in part-time or less than full-time employment.
c) in order to be “comparable” an important feature is the comparison of the physical aspects of the work. In the case of security work, comparable employment is any work involving physical attributes of standing in a fixed position, occasionally having to manhandle non-compliant or aggressive patrons and generally get in and out of vehicles to perform supervisory night work;
d) therefore, work involving the physical attributes of using one’s arms, legs and back are relevantly “comparable” to the employment at the Club. On this basis both work as a pastry cook and full-time security work can be considered to be comparable;
e) in the alternative, at least full-time security work (of a nature almost identical to the part-time work undertaken by Mr Simpkins at the time of his motor bike accident) must be comparable;
f) the same submission is put in relation to the physical nature of the street cleaning work with the Council;
g) therefore, the Arbitrator has fallen into error in determining the nature of “the same or some comparable employment” in relation to both injuries and, as a result, has fallen into error in determining the average weekly amount Mr Simpkins is able to earn in the open labour market in comparison to that comparable employment;
h) that it was not necessary for Mr Simpkins to have stayed within the Club as a security guard to consider it to be comparable employment;
i) at the time of working at the Club Mr Simpkins was also working as a private security person, attempting to develop his own business;
j) in considering “the same or some comparable employment” the Arbitrator failed to consider that at the time Mr Simpkins was working for the Council he was also working for McKee’s Engineering, and
k) Mr Simpkins is a diligent and hard working person who has attempted to make the most of his situation post-injury and his actual earnings post-injury constitute his ability to earn in suitable employment.
On this issue the First Respondent relies mainly on the submissions made by its counsel at the arbitration hearing. Those submissions may be summarised as follows:
a) Mr Simpkins has, since his injury, earned or been capable of earning his pre-injury wage. Reliance is placed on Aitken v Goodyear Tyre & Rubber Company (1946) 46 SR (NSW) 20 (‘Aitken’) where Jordan CJ said at 24:
“Thus, according to the facts of the particular case, the compensation payable for partial incapacity may range from nothing (where notwithstanding his partial incapacity the worker is shown to be, for the time being, earning or capable of earning his full pre-injury wage), to very little (where he is shown to be, for the time being, earning or capable of earning very nearly his full pre-injury wage), to the full amount provided by s.9 (where he is not shown to be for the time being earning or capable of earning anything).”
b) the authorities of Johnston and Pantaleo were decided on their own facts;
c) the evidence does not permit a conclusion that Mr Simpkins would have gone on to do full-time security work;
d) full time work as a pastry-cook is not comparable employment but is a completely different occupation;
e) not only was there no evidence that Mr Simpkins would have gone on to work under the full-time security award, the evidence pointed the other way. At page two of Mr Simpkins’ statement he refers to seeing “more potential in process serving and doing my own work rather than just on security work”, and
f) therefore, the amount for probable earnings under section 40(2)(a) was $200.00 per week.
The Second Respondent submits:
a) the Arbitrator dealt with this issue at paragraphs 17, 18 and 25 of his Statement of Reasons for Decision (‘Reasons’) and correctly applied the “test” in relation to “the same or some comparable employment” as set out in Australian Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87 (‘Elliott’);
b) there was nothing to indicate that, but for his injury, Mr Simpkins would have progressed to become a full-time employee of the Club, and
c) applying Johnston, Pantaleo and Lloyd it is essential that there be an “evidentiary foundation” (T17.32) for the assertion that you can look at Mr Simpkins progressing to be a full-time employee of the Council engaged in the activities he was engaged in or some allied activity within that occupation. In the present case there was no indication of that.
The meaning of the phrase “the same or some comparable employment” was considered by the High Court in Johnston in the context of section 11 of the Workers Compensation Act 1926 (‘the 1926 Act’), which was in substantially the same terms as section 40 of the 1987 Act. The Court considered the situation where the worker was a “cleaner, acting foreman” at the time of his injury but the trial judge found that he would have progressed to the position of an engine-driver and awarded him compensation on the basis that the wage of an engine-driver was the “same or some comparable employment”. Stephen J held at 640:
“If, in the relevant phrase of s 11(1)(a), ‘employment’ bears the meaning ‘occupation’ the reference to the worker continuing ‘to be employed in the same or some comparable employment’ means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.” (emphasis added)
At 642 his Honour concluded:
“It follows from the view which I have formed concerning the phrase ‘employed in the same or some comparable employment’ that when his Honour, having heard Johnston’s application for an award of compensation, made the findings of fact which he did, he was then required, in ascertaining the weekly amounts which Johnston would probably have been earning but for his injury, to postulate Johnston’s continued engagement in the occupation in which he was engaged when injured. On the facts as found Johnston’s occupation was that of an officer of the Commissioner employed in the locomotive branch of the Commissioner for Railways and in those circumstances his Honour was, in my view, required to act as he did and to pay regard to the promotion within his chosen occupation which Johnston would probably have received had he not been injured.” (emphasis added)
In the same case Mason J (as he then was) held at 644:
“The subsection provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury.” (emphasis added)
In Pantaleo the Court of Appeal considered the situation where a secretary became a beautician after her injury. The trial judge calculated her potential earnings as an uninjured beautician (found to be $400.00 per week) and compared them to “her earnings situation” (at 534), which he found to be $350.00 per week and he awarded the difference. The Court of Appeal set aside the decision because, among other reasons, the trial judge had not addressed whether the work as a beautician was “comparable” to that of a secretary. On that issue Glass JA (with whom Samuels JA agreed) noted at 545 that the evidence disclosed “no point of comparison” between the work of a beautician and that of a secretary.
Kirby P (as he then was) stated at 540 that:
“Where the hypothesis required by s 11(1)(a) of the Act leads to the conclusion that there is a real prospect (as distinct from a fanciful speculation) that but for the injury the worker would have moved from the same employment to some other employment, the question is then raised as to whether that other employment is ‘comparable’. Only if it is, may the earnings it attracts be taken into account in computing the first limb of the formula. Judging comparability of employment requires commonsense and experience of the labour market and its variety such as judges of the Compensation Court acquire in performing their duties. It is essentially a factual question though regard may be had to a variety of indicia of comparability in this context. It may, for example, refer to the physical attributes of the former and the hypothesized job. It may refer to the career progression that could reasonably have been expected of the worker, uninjured. It may refer to the award classifications likely to be open to a person such as the injured worker. It may refer to the range of salaries that might reasonably have been within the worker’s pre-injury achievement, as a worker; whilst the decision-maker is involved in a hypothetical exercise, the requirement of comparability keeps the speculation within practical bounds. That is its objective. It should not be read narrowly as confined to physical attributes only. Nor is the speculation to be limited strictly to the orthodox career path of uninjured workers with the respondent employers, where evidence establishes the likelihood of other career prospects. It is a matter for the application of the commonsense and experience of the decision-maker in each case.”
In Forrest the worker was a trainee-trotting driver who, at the time of her injury, was earning about $200.00 per week, most of which was spent on the horses. As a result her net income was “little or nothing” (Mahoney JA at 221A). The trial judge assessed comparable earnings by reference to the award wage of a stablehand/rider under the Strapper and Stablehands (State) Award. Adopting that method the worker’s probable earnings were held to be $360.30 per week. In upholding the decision (subject to adjustment of the calculations) Mahoney JA held at 220:
“As a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment. But that principle, to the extent that it is accepted, does not require that in every case the court must confine its attention to the same employment as that in which the uninjured applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment.”
In Boyd the worker sustained two injuries to his left eye whilst working three days per week as a permanent part time employee. The trial judge accepted his evidence that he intended to seek casual work similar to that he engaged in prior to the accident and assessed his probable earnings at $50.00 per week more than he in fact earned with the employer. On appeal the Court of Appeal held that the trial judge was entitled to accept and take into account the worker’s evidence that he intended to continue to seek casual work. At 291 Beazley JA (Priestley and Handley JJA agreeing) said, “if in a given case the Court accepts, as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of section 40.”
In Lloyd the worker was a novice casual jockey who was injured when she fell from a horse during a race. The trial judge accepted evidence that, but for her injury, she would have fulfilled her wish to become a qualified electrician. He assessed her entitlement under section 36 of the 1987 Act by reference to the Strappers and Stablehands Award and her entitlement under section 37 of that Act by reference to the Electricians (State) Award. It is notable that the judge in that matter was wrong when he said at 587 that the Court of Appeal upheld the trail judge’s decision in Pantaleo. The employer’s appeal in Pantaleo was upheld and the matter was remitted to the Compensation Court for further consideration.
In my view none of the above cases provide Mr Simpkins with any assistance. Each turned on its own facts. The worker in Forrest was a teenager who, because of her youth and inexperience, was earning next to nothing at the time of her injury. In those circumstances it was held to be appropriate to have regard to the Strapper and Stablehands (State) Award. The passage quoted at [42] above from Forrest is particularly relevant and applicable. It emphasises that a court will ordinarily have regard to what the worker would have earned in the employment in which he or she was engaged at the time of the injury rather than some other employment. In my view, none of the unusual circumstances that existed in Forrest or Lloyd are applicable in the present matter.
The decision of Kirby P in Pantaleo provides some guidance. His Honour spoke about the situation where there is a real prospect (as distinct from a fanciful speculation) that but for the injury the worker would have moved from ‘the same’ employment to different employment. In that event the question arises as to whether that different employment is comparable. However, one does not have to consider the different employment unless the evidence establishes that there was a real prospect that the worker would have moved to that different employment. In the present matter there was no evidence of Mr Simpkins’ intentions, save for a vague comment in his statement that he saw “more potential” in process serving rather than just “security patrol” work. If anything, this statement tends to indicate that he did not intend to return to full time security work, though it is certainly not free from doubt. Whilst there may have been an argument open to Mr Simpkins that the income from his process serving business could be taken into account to determine his probable earnings under section 40(2)(a) of the 1987 Act (see Hill v Bryant [1974] 2 NSWLR 423), there was no evidence of what hours Mr Simpkins spent working in his process serving business while he worked at the Club, nor was there any evidence of what, if any, income he received from that activity. In any event, the Appellant Worker did not present his case in that way. At T4.53 the following submission was made on behalf of Mr Simpkins:
“So our basic submission to you or our primary submission is that you, firstly, are not constrained to look at his earnings as a part‑time security guard; secondly, you’re not constrained to look at his earnings as a security guard at all; and, thirdly, and more specifically, you are entitled to consider a whole range of discretionary factors that would encompass a whole range of employment that you could find would be the same as some comparable employment for the purpose of section 40.”
At T5.23 it was submitted:
“So our primary submission, then, is that the same or some comparable employment in this man’s circumstances should be that of a pastry-cook/baker, based on his fundamental first trade and job.”
In my view there is no reasonable comparison between the physical attributes of a pastry cook and those of a doorman or a street cleaner. Nor I do not accept that full time security work is comparable to the work of a part time doorman. In addition, there was no evidence of any likely career progression with either the Club, the Council or any other employer. The evidence does not support a finding that if Mr Simpkins had remained in “the same or some similar occupation as that in which he was engaged when injured” (per Stephen J in Johnston at 640), his wage would have been of the order now submitted by him.
The authority of Johnston does not assist Mr Simpkins. In that case the evidence established that the worker would have progressed to become an engine-driver. Having regard to that evidence the trial judge was required “to act as he did and to pay regard to the [worker’s] promotion within his chosen occupation.” There was no evidence that Mr Simpkins would have progressed his career or returned to work as a pastry cook had he remained uninjured.
I do not accept the Appellant Worker’s submission that the Arbitrator failed to make a determination of what constituted “the same or some comparable employment”. At paragraphs 17 to 21 inclusive (in respect of the work with the Club) and paragraph 25 (in respect of the work with the Council) of his Reasons, the Arbitrator considered the Appellant Worker’s submissions and the relevant authorities. At paragraph 21 the Arbitrator said:
“These circumstances do not allow a finding of fact that Mr Simpkins had the intention to pursue his trade as a pastry cook or as a full-time security guard. There is also no evidence that Mr Simpkins would probably have advanced to higher paid work within the Club. Therefore I cannot substitute the pastry cooks award, security industry award or any other area of his experience and training as the probable earnings in place of the actual pre-injury earnings with the Club, on the above authorities.”
In my view the above passage makes it clear that the Arbitrator accepted that the appropriate comparable employment was the employment of a doorman and the relevant wage was the wage applicable to that position. That finding was open on the evidence and discloses no error. I agree with it.
In respect of the Council, the Arbitrator found at paragraph 25 of his Reasons:
“For the same reasons and authorities outlined above for the back injury there is no basis for substituting the Security Industry (State) Award as the probable earnings in place of the ‘Actual rate Paid Gr3 Skill Step 2’ shown in the Council’s schedule in its letter of March 7 2007. There is no evidence of an imminent upgrade of earnings at the Council or in any other area of experience that on the above authorities would amend the probable earnings but for injury.”
The clear inference from the above passage is that the Arbitrator accepted that the appropriate comparable employment was the employment of a street cleaner and the relevant wage was the wage applicable for that employment.
I do not accept that the Arbitrator “conflated” the assessment of probable earnings with the step of determining the “same or some comparable employment”. None of the circumstances referred to by Kirby P in Pantaleo or by Stephen J in Johnston have been established on the evidence so as to justify a departure from the principle that the Commission should ordinarily have regard to what a worker would have earned in the employment in which he or she was at the time of the injury rather than in some other comparable employment (per Mahony JA in Forrest). There was no evidence to justify the Arbitrator doing anything other than what he did.
I do not accept the Appellant Worker’s contention that the Arbitrator failed to consider relevant and uncontested evidence on the issue of determining the “same or some comparable employment”. The fact that Mr Simpkins has skills and qualifications as a pastry cook and as a security officer does not, in the absence of evidence that he intended to progress his career in those fields, dictate that those qualifications must be used to determine probable earnings in circumstances where his pre-injury employment still exists and where that employment was part time. In Elliott Sugerman JA held at 92, in the context of section 11 of the 1926 Act, that:
“It [section 11] prescribes a maximum, such that it would not avail a partially incapacitated worker by way of obtaining increased compensation to establish that, but for the injury, he would have been able to earn in the general labour market, or in some other and more remunerative occupation, more than he would probably have earned had he continued to be employed in the same or some comparable employment.”
His Honour added that the purpose of section 11 was to “prescribe a maximum by reference to the hypothesis stated and not by reference to the potential earnings of the worker, if uninjured, in some other field.” The Arbitrator determined that the evidence did not allow a finding of fact that Mr Simpkins had the intention to pursue his trade as a pastry cook or as a full-time security guard (Reasons, paragraph 21). Given that finding, the Arbitrator’s conclusion that the appropriate probable earnings were those for the work of a part time doorman and a part time street cleaner discloses no error. There was no basis for him to then consider other more remunerative occupations that Mr Simpkins was not performing at the time of his injuries. Unlike the situation in Boyd, there was no evidence of Mr Simpkins’ intentions in respect of other employment. The Arbitrator’s approach discloses no error and I agree with it.
Last, the point is also raised by the Appellant Worker that he worked with McKee’s Engineering at the same time he worked with the Council. That fact may well have been a relevant consideration had the issue of concurrent employment been raised and argued before the Arbitrator but it was not raised and cannot now be raised on appeal. In any event, notwithstanding very detailed and carefully prepared wage schedules, there is no evidence of Mr Simpkins’ earnings with McKee’s Engineering in 2001.
Factual and Discretionary Errors
I do not accept the Appellant Worker’s submission that the Arbitrator made factual or discretionary errors in determining probable earnings for each job. It is argued that two alternative wage schedules were tendered but the Arbitrator only referred to one, namely, “that being that the probable earnings should be based on comparable employment of a pastry cook (decision paragraph 17)” (Appellant Worker’s submissions, paragraph 9.3). At paragraph 17 of his Reasons the Arbitrator referred to Mr Simpkins’ submissions as follows:
“Mr Simpkins submits that the probable earnings but for the back injury should be based on the Pastry Cooks’ Award or the Security Industry (State) Award as adjusted, and not the amount of $200 being earned at the Workers Club at the time of injury.”
It is clear therefore that the Arbitrator did have regard to the Appellant Worker’s alternative submissions.
Next, it is argued that the Arbitrator failed to consider the Appellant Worker’s submissions regarding employment as a full-time security guard. I do not accept this submission. At paragraph 19 of his Reasons the Arbitrator said, in the context of the Respondents’ submissions, “there is no evidence for example that Mr Simpkins would have been a full-time security guard.” At paragraph 21 the Arbitrator found “these circumstances do not allow a finding of fact that Mr Simpkins had the intention to pursue his trade as a pastry cook or as a full-time security guard.” This finding was open on the evidence. In addition, at the arbitration it was submitted that Mr Simpkins “holds security licences, or has held security licences” (emphasis added) (T4.48). In his statement of 25 July 2005 Mr Simpkins said at page 10 that he has other skills and qualifications “such as a truck driver, forklift operator or traffic controller.” He made no mention of currently holding a security licence and the evidence would not support a finding that Mr Simpkins has been qualified for that work at any time since the commencement of the claim in March 2003. Therefore, regardless of the Arbitrator’s other findings, it would not have been open to find that Mr Simpkins’ probable earnings uninjured were those appropriate for a security guard.
Ability to Earn – Section 40(2)(b)
The Appellant Worker submits that the Arbitrator failed to consider:
a) the symptoms and difficulties caused by the back injury in respect of each employment undertaken after the injury;
b) Mr Simpkins attempted to return to his trade;
c) the back injury impacted on Mr Simpkins’ capacity to work as a security guard in either a part-time or full-time manner;
d) that the existence of a 15% impairment of the back must impact upon Mr Simpkins’ employability in the open labour market where he is qualified only for trades and labour related work;
e) Mr Simpkins’ attempts to return to work of a pastry cook, and
f) Mr Simpkins’ obvious pre-injury and post-injury work ethic when considering what the probabilities were in relation to full-time security work.
In respect of the ‘capacity to earn’ issue the Arbitrator dealt with that (so far as the back was concerned) at paragraphs 22 and 23 of his Reasons. He accepted that the medical evidence was consistent with Mr Simpkins’ statement “as to the restrictions arising from his back injury” and that there were some things Mr Simpkins cannot do, “such as heavy lifting” (Reasons, paragraph 22). He then correctly posed the question to be determined as: whether the injury created a partial incapacity for Mr Simpkins in the open labour market.
In dealing with that question the Arbitrator noted that Mr Simpkins conceded (through his solicitor) that if the Club earnings of $200.00 per week were “the basis of the probable earnings but for injury then no entitlement [for weekly compensation] would arise” (Reasons paragraph 23). The basis for this comment by the Arbitrator is found at T3.54 where Mr Simpkins’ solicitor said:
“We would concede that if that is what this Commission is restrained to find as the same or some comparable earnings, or the earnings in the same or some comparable employment, as section 40 requires, we would have little or no entitlement to an economic incapacity arising under the section. In other words, we would concede that Mr Simpkins has a weekly capacity to earn in excess of $200 per week. However, the applicant’s case ‑ and, with respect, we say it is entirely consistent and supported by the authorities ‑ is that the Commission is not constrained to look at the job the applicant was doing at the time, look at the earnings in that job and say that’s what he’s stuck to in terms of comparable earnings for all time.” (emphasis added)
In his Reasons (at paragraph 23) the Arbitrator then adjusted the $200.00 per week by 3% per annum to give a figure of $285.00 per week for probable earnings. He then noted the wage schedules showed Mr Simpkins earnings “have been much higher than the probable earnings” and, whilst there had been periods of no employment, those periods did not reflect a partial incapacity. The Arbitrator then found:
“The capacity to earn the same or greater than the probable earnings but for injury is constant taking all the evidence into account. The injury to the back does not appear to me to restrict Mr Simpkins to the extent that there is any loss of earning capacity on the open labour market as a result. I find Mr Simpkins has not suffered partial incapacity for the purposes of s40 of the 1987 Act as a result of the 1995 back injury.”
Whilst it would have been preferable if the Arbitrator had found a specific amount for Mr Simpkins’ ability to earn, it is hardly surprising (given the concession noted at [63] above) that the Arbitrator dealt with this issue in the way he did. In the light of that concession I do not believe it is now open to challenge the Arbitrator’s approach to section 40(2)(b) on appeal. The Arbitrator was satisfied that at all material times Mr Simpkins had a capacity to earn the same or more than he would have earned had he remained in the same employment with the Club. That finding was well supported by the evidence and discloses no error. However, the Arbitrator’s statement that “the injury to the back does not appear to me to restrict Mr Simpkins to the extent that there is any loss of earning capacity on the open labour market as a result” (emphasis added) may indicate an error. If the Arbitrator intended to find that there was ‘no incapacity (in a physical sense) on the open labour market’ such a finding would have been inconsistent with the accepted evidence about Mr Simpkins’ restricted ability to engage in heavy lifting. On balance, however, I believe the better view is that the Arbitrator found that there was no relevant economic loss on the open labour market. That finding was consistent with the earlier findings in paragraph 23 of the Arbitrator’s Reasons and was open on the evidence.
If the Arbitrator’s approach to section 40(2)(b) was in error (and I do not believe it was), I do not believe the error was one that, but for it, a different result would have been reached. If the matter were to be re-determined by me I would have no hesitation in finding, for the reasons stated below, that Mr Simpkins’ capacity to earn as a result of his back injury has at all material times since March 2003 been at least $650.00 per week as a casual driver or tow truck operator. As a driver Mr Simpkins earned $842.00 per week between 15 May 2005 and 17 July 2005. However, that figure may not be a realistic representation of his ability to earn because it does not allow for intermittency of employment and the difficulty Mr Simpkins may experience in obtaining and retaining employment. As a tow truck operator Mr Simpkins’ income has fluctuated between $402.50 per week in July 2006 and $2,388.62 in the week ending 18 February 2007. Taking this evidence into account together with all the medical evidence and Mr Simpkins vast experience in many different careers, I feel the appropriate finding of his ability to earn on the open labour market accessible to him is $650.00 per week. That figure is well above the figure for probable earnings found by the Arbitrator of $285.00 per week and is also above the Security Industry (State) Award for full time security work. As a result, Mr Simpkins has no entitlement to weekly compensation.
In respect of the claim against the Council the Appellant Worker relies on the submissions set out at [61] above but makes the following additional submissions:
a) even a 5% loss of efficient use of the right arm at or above the elbow, taken alone, must have an impact upon Mr Simpkins’ employability in the open labour market where he is qualified only for trades and labour related work;
b) the pre-existing back condition must be taken into account when assessing Mr Simpkins’ overall incapacity resulting from his injury with the Council;
c) the symptoms in Mr Simpkins’ arms have impacted all forms of post-injury employment attempted;
d) whilst the entitlement to compensation in respect of the arm injury arises only from that injury, the Council must take the worker as it finds him. He already had a physical incapacity as a result of his back injury and the additional incapacity arising from the arm injury must be considered when assessing incapacity on the open labour market, and
e) it is manifestly unjust to consider Mr Simpkins’ right arm injury and ignore the effect of the back injury in his overall presentation.
On the issue of ability to earn, the Arbitrator found that Mr Simpkins stopped work with the Council for reasons unrelated to his arm injury. I do not understand this finding to be challenged on appeal. In assessing Mr Simpkins’ ability to earn the Arbitrator had regard to the Medical Assessment Certificate (‘MAC’) from Dr Bodel, which assessed a permanent loss of efficient use of the right arm at or above the elbow of 5% but nil permanent loss of efficient use of the left arm at or above the elbow. The Arbitrator correctly noted that the question was whether the injury had resulted in a partial incapacity on the open labour market.
He then found that Mr Simpkins had no incapacity for the work he performed with the Council. He also found that the injury to Mr Simpkins’ right arm did not appear to have restricted Mr Simpkins “to the extent that there was any loss of earning capacity. I find that Mr Simpkins has not been partially incapacitated for the purposes of s40 of the 1987 Act as a result of the injury to his right arm” (Reasons, paragraph 27). The Arbitrator then found Mr Simpkins’ capacity to earn to be equal to or greater than the probable earnings but for injury over the periods claimed, so the loss was nil (Reasons, paragraph 28).
I reject the argument that the Arbitrator failed to consider Mr Simpkins’ impairments and physical incapacities. The Arbitrator made express reference to the evidence of Dr Bodel in the MAC but found that there was no “loss of earning capacity” (that is, no economic loss) as a result of the impairments and restrictions noted by Dr Bodel. That finding was open on the evidence and discloses no error.
Whilst it may be argued that the Arbitrator should have made a specific finding of Mr Simpkins’ ability to earn as a result of his injury with the Council, I do not believe that that omission (if it was an error) makes any difference to outcome in the circumstances of the present matter. If I were to re-determine the matter I would have no hesitation in finding, taking into account all of the evidence, that Mr Simpkins’ ability to earn as a result of his injury with the Council (bearing in mind his back impairment) would be $650.00 per week as a casual driver or tow truck operator (see [66] above). In other words, the incapacity resulting from the injury with the Council has had no measurable impact on his ability to sell his labour in the labour market available to him. This figure ($650.00 per week) is well above the figure found for probable earnings and, as found by the Arbitrator, results in Mr Simpkins having no entitlement to weekly compensation.
DECISION
The Arbitrator’s determination dated 26 April 2007 is confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting President
29 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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