Singh v Taj (Sydney) Pty Limited
[2007] NSWWCCPD 152
•7 September 2004
| WORKERS COMPENSATION COMMISSION | ||||||
| APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITARTOR FOLLOWING REMITTER FROM THE COURT OF APPEAL | ||||||
| STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in Sing v TAJ (Sydney) Pty Ltd [2006] NSWCA 330; (2007) 4 DDCR 557 | ||||||
| CITATION: | Singh v Taj (Sydney) Pty Limited [2007] NSWWCCPD 152 | |||||
| APPELLANT: | Gurminder Singh | |||||
| RESPONDENT: | Taj (Sydney) Pty Limited | |||||
| INSURER: | Gallagher Bassett Services Pty Limited | |||||
| FILE NUMBER: | WCC6776-06 | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 September 2004 | |||||
| DATE OF INITIAL APPEAL DECISION: | 30 January 2006 | |||||
| DATE OF REMITTER FROM COURT OF APPEAL: | 27 November 2006 | |||||
| DATE OF DECISION ON REMITTER: | 10 July 2007 | |||||
| SUBJECT MATTER OF DECISION: | Section 353(2) of the Workplace Injury Management & Workers Compensation Act 1998; section 40 Assessment; impact of section 253 of the Migration Act 1958. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Buttar Caldwell & Co | ||||
| Respondent: | Hicksons Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. Pursuant to section 353(2) of the Workplace Injury Management & Workers Compensation Act 1998 I make the following orders: | |||||
| (a) The Respondent is to pay to the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $70.00 per week from 9 July 2003 to date and continuing. | ||||||
| (b) Credit given to the Respondent for payments made to the Applicant between 9 July 2003 and 2 February 2004. | ||||||
| (c) The Respondent is to pay the weekly award to the Applicant in accordance with the provisions of section 53(2) of the Workers Compensation Act 1987. | ||||||
| 2. The Respondent is to pay the Applicant’s costs as agreed or assessed. | ||||||
| 3. The Respondent is to pay the Appellant’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL REMITTED
On 27 November 2006, the Court of Appeal remitted this matter to the Workers Compensation Commission (‘the Commission’) for redetermination.
Taj (Sydney) Pty Limited (‘the Respondent) succeeded before an Arbitrator of the Commission in respect of Mr Singh’s (‘the Appellant’) claim for weekly benefits on 7 September 2004.
The Appellant failed in his appeal to a Presidential member (myself) against the Arbitrator’s decision – see Singh v Taj (Sydney) Pty Limited [2006] NSWWCCPD 7 – but then succeeded in his appeal to the Court of Appeal – see Singh v Taj (Sydney) Pty Limited [2006] NSWCA 330.
In the Court of Appeal, Beazley JA (with whom Santow and Tobias JJA agreed) determined as follows:
“(i)Section 40 of the Workers Compensation Act requires at least three steps to be taken before an award for incapacity payments may be made: the calculation of what the employee would have earned but for the injury assuming the same or comparable employment; the assessment of the employee’s post-injury earning capacity; and the exercise of a discretion.
Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (followed); Australian Wire Industries Pty Limited v Nicholson (1985) 1 NSWCCR 50 (followed)
(ii) The process that engages the decision maker under ss 40(2)(a) and (b) of theWorkers Compensation Act is a hypothetical one.
Viliami v National Springs (1993) 9 NSWCCR 453 (disapproved)
(a) Under s 40(2)(a), a determination has to be made as to the weekly amounts that the worker would probably have been earning but for the injury in the same or some similar employment; in this case, the appellant’s position with the respondent. The Arbitrator erred in finding that the appellant’s probable earnings were nil.
(b) Under s 40(2)(b), a determination has to be made as to what the worker would be able to earn in some suitable employment. The appellant’s visa status was not a relevant consideration in determining suitable employment, and the Arbitrator erred in so taking it into account.
(iii)The Arbitrator’s wrong construction of the Workers Compensation Act was an error in point of law; therefore the Presidential Member’s decision was also an error in point of law.
(iv)That the appellant had no entitlement to work does not foreclose an application for weekly payments for partial incapacity. The decision of this Court in Nonferral v Taufia, which allowed such payments in relation to a previous incarnation of the Workers Compensation Act, may recommend itself to the primary decision maker; or there may be other discretionary factors.
Nonferral (NSW) Pty Limited v Taufia (1998) 43 NSWLR 312; (1998) 16 NSWCCR 130 (discussed)
(v)The further determination of this matter will depend upon the proper application of the law and upon such facts and discretionary considerations as are found to be relevant at the time of the rehearing.”
Santow JA made the following observations:
“(vi)The calculation of pre-injury future earnings (step one) and post-injury future earnings (step two) assume legality in the hypothetical employment. If that assumption is contrary to the fact, s 40 of the Workers Compensation Act mandates that fiction for both steps one and two.
(vii)If the weekly payment of compensation calculated using steps one and two does not bear a proper relation to the amount of the reduction in weekly earnings, an adjustment is made in the final discretionary step (step three). This is not to be treated as automatically requiring an adjustment downwards to take account of the illegality earlier excluded from consideration.
(viii)The compensation in this case does not depend on unlawful conduct; rather, it depends upon the statutory mandate provided by s 40 of the Workers Compensation Act.
Smith’s Newspapers Ltd v Becker (1932) 47 CLR 279 (distinguished); Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 (distinguished)
(ix)Assuming nothing further changes with respect to the appellant’s immigration status, and assuming the current legal constraint on his work under that changed visa status remains the same, this of itself would not have any weight as a relevant consideration. To conclude otherwise would work an outcome not in accordance with the statutory purpose evinced by the compensation regime.”
Accordingly, my task on this remitter is to determine the amount of compensation, if any, to which the Appellant may be entitled pursuant to section 40 of the 1987 Act.
ON THE PAPERS REVIEW
In my initial decision dated 30 January 2006 I noted that both parties considered that the matter was suitable for a determination ‘on the papers’. I agreed, and proceeded to determine the appeal on that basis.
Following the decision in the Court of Appeal, I issued a number of directions to the parties, dated 15 December 2006, 6 February 2006 and 3 April 2007 directing the parties to provide further submissions on a number of issues raised in the Court of Appeal’s decision.
On 19 February 2007 the Appellant wrote to the Commission advising that “… the matter can be dealt with ‘on the papers’ taking into consideration the Applicant’s submissions”.
No further submissions on this issue have been received from the Respondent.
Given the extensive submissions now filed by both parties following the issue of my directions, together with submissions made before the Arbitrator and to the Court of Appeal, together with all the material (to which I will refer later) upon which the parties seek to rely, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Directions numbers 1 and 6 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
FRESH EVIDENCE
On 14 May 2007 the Appellant filed an ‘Application to Admit Late Documents’. These documents are as follows:
·Further submissions from the Appellant dated 4 May 2007.
·Draft statement from the Appellant (undated).
·Medical report from Dr Hari Singh Jaswall from the Grand Hospital, G.T Road, Phagwara dated 21 April 2007.
·MRI Scan from Dr Gurneet Singh Chhina dated 25 May 2007.
·Medical Certificate from Dr B.L Singh from Punjab Physiotherapy and Slim Centre (undated).
·Appellant’s Summary of Argument filed in the Court of Appeal pursuant to Part 51 Rule 4B(2) dated 21 February 2006.
On 15 May 2007, the Appellant lodged a further ‘Application to Admit Late Documents’ being a report from St George Trauma and Rehabilitation Centre by Dr Nadeem Sheikh, “Registered Rehabilitation Clinician”.
Section 352(6) of the 1998 Act provides that, in an appeal, leave is required for the admission of fresh evidence or evidence in addition to that which was before the Arbitrator.
The material now sought to be relied upon by the Appellant has been served on the Respondent.
No submissions have been made by the Respondent as to the admissibility of this material however, reference is made to it in the Respondent’s submissions dated 1 June 2007.
I do not propose to discuss at length principles relevant to the introduction of ‘fresh evidence’ in the circumstances of this particular case, given the duration of the proceedings and the Court of Appeal’s determination. It is a matter for the exercise of my discretion, and, in the interests of fairness and doing justice between the parties, I propose to admit the material with one exception.
The Appellant seeks to rely upon a typed but unsigned and undated statement. That statement purports to assert, inter alia, the amount the Appellant maintains he would be able to earn in India were he uninjured and earnings for part-time shop assistants in India. I recently considered the admissibility of such evidence, and a number of authorities relevant to that issue, in Symbion Health Limited (formerly Mayne Group Limited) v Jimmy Franks & Linfox Australia Pty Limited [2007) NSWWCCPD93. Briefly, quoting from McColl JA in South Western Area Health Service v Edmonds [2007] NSWCA 16, (‘Edmonds’) when informing itself on any matter:
“… The Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the facts in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’”.
The purported statement of the Appellant is unsigned, unauthenticated and inadmissible in accordance with the Evidence Act 1995. Again, to quote McColl JA in Edmonds (paragraph 131), such a statement does not conform “… to common law standards of admissibility designed to ensure they have probative value”.
Accordingly, the statement of the Appellant contained in the ‘Application to Admit Late Documents’ filed on 14 May 2007 is not admitted.
ISSUES ON THE REMITTER
The question remitted requires me then to determine the amount of compensation, if any, to which the Appellant may be entitled pursuant to section 40 of the 1987 Act. It is not in dispute between the parties that the worker suffers a partial incapacity for employment. I should note at this point that, in further submissions contained in the ‘Application to Admit Late Documents’ filed on 14 May 2007, the Appellant now submits that he should “… be granted leave to amend to claim total incapacity payments in accordance with the most recent medical report of Dr Hari Singh Jaswall …” I will deal with this submission more fully below.
On 24 July 2005 the Appellant left Australia and returned to India. Consequently, a further issue has arisen namely the application of section 53 of the 1987 Act. That section provides as follows:
“53(1)If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an approved medical specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.
(2)If the incapacity is so certified or determined to be of a permanent nature, the worker is entitled to receive quarterly the amount of the weekly payments accruing due during the preceding quarter, so long as the worker establishes, in such manner and at such intervals as the Authority may require, the worker’s identity and the continuance of the incapacity in respect of which the weekly payment is payable.”
THE SUBMISSIONS
The Appellant’s Submissions
It is not disputed that the Appellant was legally employed in Australia at the time of his injury. Similarly, it is not disputed that “… although the Appellant had no entitlement to work in Australia from the time that his visa status changed, it is not a forgone conclusion that his application for weekly payments for partial incapacity under for section 40 must be dismissed.” (Per Beazley JA para 47).
In submissions filed on 30 January 2007, the Appellant submits that “… his weekly entitlements are to be determined pursuant to section 40 of [the 1987 Act] …”.
In those submissions, the Appellant claimed that “… the Applicant was receiving $485.00 per week from his employer prior to his injuries. Accordingly, the Applicant would have been earning $485.00 per week had he not been injured.”
In those submissions, the Appellant claimed that, given the level of impairments (the subject of the consent award), he has “… no ability to earn in the labour market reasonably accessible to him.” The Appellant refers to the leading decision in relation to section 40 of Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’). Reference is also made to section 43A of the 1987 Act and factors to be considered in determining “suitable employment”.
The Appellant submits that due to his disabilities, limited work experience, education and transferable skills, he has a “nil” capacity to earn and thus should be entitled to an award pursuant to section 40(2) in the sum of $485.00 per week.
I note also at this point references by the Appellant in his submissions to the decisions of Viliami v National Springs Pty Limited (1993) 9 NSWCCR 453 (‘Viliami’) and Nonferral (NSW) Pty Limited v Taufia (1998) 43 NSWLR 312 (‘Nonferral’). These decisions were also considered by the Court of Appeal in the present matter.
In my decision of 30 January 2006, I adopted the reasoning of Judge Burke as he then was in Viliami, distinguishing Nonferral on the facts.
The Court of Appeal declined to follow Vilami, adopting the approach of the Court in Nonferral which permitted payments of compensation to be made notwithstanding the ‘illegal immigrant’ status of the worker. Section 24 of the 1987 Act provides:
“If, in any proceedings for the recovery of compensation under this Act, it appears that the contract of service or training contract under which the injured person was engaged at the time when the injury happened was illegal, the matter may be dealt with as if the injured person had at that time been a worker under a valid contract of service or training contract”.
In Nonferral, the worker was successful principally because of an available labour market for him in Tonga.
In the present case, the Appellant submits that, such as in Nonferral, there is a labour market available in India for work “… as a general hand and truck driver, loading and unloading groceries from trucks … [but that] The Applicant is no longer suited for these types of duties due to his work related injuries.”
In subsequent submissions filed on 14 May 2007, the Appellant makes the following further submissions:
·under the provisions of the Migration Act 1958, the Minister has the discretion to extend a visa and “… a judicial officer or arbitrator determining a section 40 claim is entitled to assume that … it would have been granted in a case such as this where the Applicant has sustained serious injuries.”
·accordingly, the Appellant submits, it should be assumed that, in assessing the section 40 claim, that the Appellant would have remained in Australia if he had applied for an extension of his visa.
·the section 40 claim ought be determined relevant to Australian wages up until the time the Appellant left Australia. The Appellant now submits that he had a nominal ability to earn “… of a modest amount … approximately $100.00 per week …”
·the Appellant submits that “… in India he would be earning, if he were fit, an amount equivalent to $760.00 AUS per week.”
·the revocation of the Appellant’s visa is merely one factor to take into account in the exercise of the discretion in making a section 40 award.
·the Appellant submits that, in relation to section 53 of the 1987 Act, that “… the injury and incapacity is permanent. In addition, the Appellant submits that, in light of the report of Dr Hari Singh Jaswall dated 21.4.07, that he should now be regarded as “totally incapacitated” and should receive “… an award of statutory payments from 1 January 2007 to date and continuing.”
·consequently, the Appellant submits that he should receive an award pursuant to section 40 from the date of cessation of payments “… taking the worker’s prior earnings as probable earnings and allowing a nominal amount for actual earnings of $50.00 to $100.00 per week from that date up until the date the worker left the jurisdiction…”
·thereafter, the Appellant submits that his probable earnings would be approximately $760.00 per week and that his ability to earn would be the same nominal amount, such that an appropriate section 40 award would follow.
The Respondent’s Submissions
The Respondent prepared submissions dated 23 February 2007 and 1 June 2007.
As I said previously, the Respondent concedes that the Appellant was legally employed at the time of his injury but that “… he lost his ability to work legally in Australia when his visa status changed.”
The Respondent also concedes that “… The Court of Appeal has determined that purely because the Applicant had no entitlement to work (no work visa) an application for weekly payments for partial incapacity was not prevented.”
The Respondent submits that the evidence discloses that at the time of injury, the Appellant was earning $400.00 net per week, and that with CPI increases of 3% each year, in 2007, he would be earning “approximately $477.62 net per week i.e, approximately $573.00 gross per week.”
The Respondent rightly points out that there is simply no evidence to substantiate the Appellant’s claim that he would be earning $760.00 AUS gross per week and that “… the figure of $573.00 gross per week is more accurate”.
The Respondent submits that the Appellant would be able to earn that amount for a number of reasons, as follows:
·The most recent WorkCover certificate from Dr Kodsi, the Appellant’s treating general practitioner, dated 25 March 2004 certified the Appellant fit for suitable duties eight hours per day, five days per week with some sitting and standing restrictions.
·The report of Dr Nadeem Sheikh from St George Trauma and Rehabilitation Centre dated 7 May 2007 identified suitable occupations such as light cleaning work, quality control inspector, process worker/machine operator, kitchen hand, ticket collector or car park attendant. The Respondent submits that, in those occupations, the Appellant could earn in the vicinity of $495.00 to $550.00 per week.
The Respondent submits “The Court of Appeal have said that the exercise of discretion must take into account the fact that the Applicant was unable to work in Australia after July 2005 …”. Consequently, it is the Respondent’ submission that the Appellant ought receive no compensation after the section 40 “steps” are taken or, alternatively, the Appellant would be entitled to an award of between $23.00 and $78.00 per week.
The Respondent takes issue with the Appellant’s claim that his injury and incapacity is “permanent” and is thus not entitled to receive payments overseas pursuant to section 53 of the 1987 Act.
It is the Respondent’s submission that it is unlikely that the Appellant, “… with minor neck and back impairment and a minor right arm loss from an injury dating back to 2002 [sic] who had extremely minimal restrictions over 2004 would remain incapacitated on a permanent basis”.
The Respondent has cited a number of decisions in support of its submission that the Appellant has no entitlement to any weekly payments, to which I will refer in more detail below.
In short, the Respondent submits that the Appellant should receive no entitlements or at best, a nominal sum dating from the date his visa status changed (9 July 2003) up until the date he left Australia, ie, 24 July 2005. The Respondent submits that:
“The worker failed to comply with the requirements of s.53: There is no evidence that the worker received certification of any kind; There is no evidence that the incapacity is permanent. The terms of s.53 are mandatory, and must apply in the circumstances to disentitle the worker to weekly payments from 25 July 2005.”
THE RELEVANT EVIDENCE
The Section 40 Issue
I accept the Respondent’s submission that there is no evidence to substantiate the Appellant’s claim that, but for injury, he would be able to earn the equivalent of $760.00 AUS per week. This allegation was made in the Appellant’s unsworn and undated statement which I have rejected. Moreover, it is in stark contrast to the Appellant’s earlier submission that, but for injury, the Appellant “would probably have been earning $485.00 per week”.
The evidence discloses that, shortly before payments ceased, the Appellant was receiving weekly compensation at the rate of $400.80 per week. I accept the Respondent’s submissions that with appropriate increases, that translates to approximately $573.00 gross per week in 2007.
In line with the decision of the Court of Appeal in this matter, I am required to consider three principle factors: Firstly, the amount the Appellant would have earned but for the injury assuming the same or comparable employment; secondly, make an assessment of the Appellant’s post injury earning capacity; and thirdly, calculate an appropriate award with reference to various discretionary factors.
In relation to the first step, having regard to all of the evidence before me, I accept the Appellant’s submission that, at the time of his injury in April 2000 he was earning $485.00 gross per week. The Respondent submits that, as at 2007, the Appellant’s probable earnings would be $573.00 per week. Accordingly, I am of the view that, having regard to all the evidence, the appropriate amount that the Appellant would have earned but for his injury in the same or some comparable employment is $540.00 per week.
Weekly benefits were paid up until 2 February 2004 although it is noted that the Appellant’s visa status changed on 9 July 2003.
The next step to consider is to determine the weekly amount that the Appellant is earning or would be able to earn in suitable employment having regard to a number of factors set out in section 43A of the 1987 Act. Both parties have made detailed submissions on this issue, and there is a considerable amount of medical and other evidence both before the Arbitrator and included in the Appellant’s ‘Application to Admit Late Documents’.
As I said earlier, it is not disputed by the parties that the Appellant has a 12.5% impairment of his neck, 7.5% impairment of his back and a 5% loss of use of his right arm at or above the elbow. Contrary to the Respondent’s assertion, I do not regard these entirely as “minor” however, these assessments must be considered in the context of the Appellant’s capacity for employment. A finding of permanent impairment is merely a factor to consider in assessing the evidence overall as to a worker’s capacity to earn.
I have considered all the medical and radiological reports to which the Appellant has referred in his letter to the Commission dated 30 April 2007, together with the material before the Arbitrator and in the “late documents”.
I note that in his certificate dated 25 March 2004 (some six weeks after weekly payments ceased) Dr Kodsi certified the Appellant fit for 40 hours work per week with some restrictions on sitting, standing and walking. In a report dated 21 July 2005, Dr Kodsi made reference to a number of motor vehicle accidents the Appellant had suffered on 25 August 2003, 10 November 2003 and 25 August 2004 which allegedly “aggravated” his injuries. For example, Dr Kodsi states that the Appellant “… had Cortizon [sic] injections in his right elbow, which showed some improvement, but after the first car accident his symptoms start to come back again in his right shoulder.” As to the accident on 10 November 2003 when the Appellant’s car was apparently struck from behind, Dr Kodsi stated “… This accident further has increased his previous injuries.”
Dr Kodsi nonetheless considered that the Appellant had sustained soft tissue injuries to his neck and back, but made no comment as to his capacity for employment … Dr Kodsi simply noted that: “I believe that Mr Singh is going overseas on 24 July 2005, and he will need to continuing taking his medications with regular review.”
A “rehabilitation” report prepared by Ms Simone Edwards on 27 April 2001 noted that there was some improvement in the Appellant’s condition from the time of his initial assessment in September 2000. Observations were made as to the Appellant’s “frequent overt pain behaviours such as grimacing and groaning etc throughout the assessment” and his “… low level of motivation towards his exercise programme …” At that stage, the Appellant was assessed as fit for work “… where he is able to sit and stand freely and which involves moderately repetitive heavy lifting up to 7kg.”
A CT Scan of the lumbosacral spine dated 5 June 2000 disclosed “… no evidence of focal disc prolapse or nerve root entrapment”. A CT of the cervical spine on 31 May 2000 demonstrated “… mild posterior disc protrusions at Level C3 and C4/5.
Dr Tai-Tak Wan reported on 24 September 2001 that “it will be difficult for him to return to full-time, normal duties work. But a part-time position will be beneficial for his future rehabilitation and pain management.”
The Appellant also relied upon several reports from Dr Ishrat Ali, Consultant Psychiatrist. In his most recent report of 17 June 2005, Dr Ali opined that “… some of his symptoms have improved but most of them are still present …” Dr Ali noted “his fear of driving is less but he still has fear”. One assumes that that problem related to the motor vehicle accidents referred to by Dr Kodsi and not to the injury the subject of this claim. Dr Ali recommended that the Appellant “… received treatment for his symptoms including medication and counselling”.
In the ‘Application to Admit Late Documents’ filed on 14 May 2007, the Appellant has included a number of medical reports. In short, the certificate from Dr B L Singh (undated) refers to “… my treatment of physiotherapy since 5 July 2006 til [sic] date and he still required [sic] the same treatment for six months more …” Interestingly, that report is described as “not valid for medico-legal purpose”.
There is also an MRI of “the L/S spine” dated 25 April 2007 purportedly showing “postero-centrally bulging L3-4 disc causing wavy contouring of the thecal sac with S/O bilateral nerve root effacement” with a similar finding at the L5-S1 disc “with no encroachment of both exiting nerve roots”.
Dr Hari Singh Jaswall, “Consultant Ortho Surgeon Grand Hospital Phagwara” prepared a report dated 20 April 2007. He noted that the Appellant consulted him on 10 October 2005 “… complaining of S bachache [sic] and pain in the neck …” Dr Jaswall’s diagnosis was “AC.LS.strain and AC strain of cervical spine”. In Dr Jaswall’s opinion, “he is totally unfit to do any work.”
The report of Dr Nadeem Sheikh from St George Trauma and Rehabilitation Centre dated 12 May 2007 provides a “Functional Capacity Evaluation and ADL Assessment for section 40 report”. The report was apparently based on a telephone interview with the Appellant on 8 and 9 May 2007 “followed by a web based video interview on 11 May 2007 to observe client’s physical disabilities/limitations and pain behaviour in performing different movements and tasks”.
Dr Sheikh concluded that the Appellant “would be fit for a very light duty job up to 12 to 15 hours a week only with lifting restrictions of 5kg.” Dr Sheikh identified the following occupations as potentially suitable:
· light cleaning work;
· quality control/quality assurance inspector;
· process worker/machine operator;
· kitchen hand;
· ticket collector/car park attendant.
Several of those occupations he described as difficult to obtain and not entirely suitable given the Appellant’s physical restrictions.
Average earnings in those occupations range from $444.00 per week (fulltime) to $550.00 per week.
Dr Sheikh considered that the Appellant required ongoing physiotherapy, rehabilitation counselling, ongoing pain management and a rehabilitation programme.
The Respondent has not had an opportunity to have the Appellant medically examined since he returned to India in July 2005.
The more recent medical material relied upon by the Appellant would suggest a deterioration in his condition when considering the opinion of Dr Kodsi in March 2004 as to his capacity for employment and physical restrictions. The Appellant claims that he has not undertaken employment since ceasing work with the Respondent. This situation is not explained however, the motor vehicle accidents referred to by Dr Kodsi may well be of relevance.
The report of Dr Jaswall is in stark contrast to that of both Dr Sheikh and the earlier reports of Dr Kodsi and Ms Edwards.
Dr Sheikh’s report is a little difficult to interpret. On the one hand, he has identified “suitable vocational options for Mr Gurminder Singh based on analysis of his education background, work history, transferable skills and current physical and psychological status.” He then identified five occupations but stated that “after investigating the above occupations some of them were eliminated as unrealistic options …” because of various factors including the Appellant’s physical capacity. The employment outlook for a ticket/car park attendant Dr Sheikh described as “poor” because it involved long periods of sitting or standing and that “these positions are also rarely available in the open job market.” It seems then that the position of quality control/quality assurance examiner was identified as the most suitable, in terms of its physical demands however, Dr Sheikh stated that “… considering his psychological symptoms and also taking into account that he does not have any manufacturing industry experience or relevant qualification … can be potential barriers to gain an entry as such position/employment”.
The other occupations identified by Dr Sheikh as potentially “suitable” also had similar restrictions upon them.
The occupations identified by Dr Sheikh he indicated returned approximately $13.00 to $13.50 per hour part time. Given the nature of the Appellant’s physical restrictions, I am of the view that he would certainly be fit for employment as a ticket/car park attendant or as a quality control/quality assurance examiner. Given the Appellant’s background in the transport industry driving taxis and trucks and in his own business selling scooter and motorcycle spare parts as well as panel beating, this latter occupation would seem particularly suitable. Dr Sheikh noted that “it is possible to work as a quality assurance inspector without formal qualifications”. He also considered that that occupation “is physically suitable for Mr Singh”.
I note the Respondent’s concession that it does not consider the Appellant would in fact be fit for duties as a cleaner or process worker as set out in Dr Sheikh’s report.
My task is to determine what the Appellant would be able to earn if he were here and available to work. As the Court of Appeal pointed out in this case, “the process that engages the decision maker under ss40(2)(a) and (b) of the Workers Compensation Act is a hypothetical one”. The entitlement to compensation does not depend upon unlawful conduct: It depends on the statutory mandate of section 40, thus the “hypothetical” nature of the task required to be undertaken pursuant to sections 40(2)(a) and (b) of the 1987 Act.
What I am required to consider in the exercise of my discretion is, “… the realities of the case”. The reality is that since 9 July 2003 the Appellant has been precluded from employment in this country. It seems to me that he would be restricted to performing part-time “illegal” work. I note in his statement before the Arbitrator the Appellant claimed that:
“If I was not injured … I would still be working despite my immigration status. I am aware of a lot of other people in my community that have had their visa status changed. These people in order to survive still find work for cash such as farming and restaurant work …”.
Having regard to the totality of the evidence, I am of the view that the Appellant would be capable of performing at least 20 hours per week earning $13.50 per hour, ie, $270.00 per week. In making this assessment, I have had regard to the factors set out in section 43A of the 1987 Act, together with the various medical opinions.
Having determined that the Appellant would be able to earn in some suitable employment the sum of $270.00 per week, irrespective of the status of his visa, I am then required to consider the discretion vested by section 40(1). The difference in the amounts set out in steps 1 and 2 does not bear a proper relation to the amount of the reduction in weekly earnings, such that an adjustment is required in step 3.
Section 40(1) states as follows:
“The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
This issue was considered by Burke J as he then was in Taufia v Nonferral (NSW) Pty Limited & Anor (1995) 12 NSWCCR 431, a decision upheld by the Court of Appeal in Nonferral to which I have referred previously.
Briefly, Mr Taufia arrived in Australia on a visitor’s visa and commenced work without permission. He suffered an injury and, whilst in receipt of voluntary payments of compensation, was then arrested and deported to Tonga. He brought proceedings for lump sum and weekly benefit compensation. Judge Burke determined that probable earnings, uninjured, were $380.00 a week, and that Mr Taufia’s capacity to earn was $300.00 per week. Of the difference of about $80.00 per week, in the exercise of his discretion, his Honour reduced that amount to $25.00 per week In considering the exercise of his discretion, he quoted from the dictum of McHugh JA in Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 as follows:
“Compensation for lost earnings as the result of work injuries remains the primary purpose of the statute. Money which was not likely to be earned cannot be regarded as lost earnings for that purpose”.
His Honour went on as follows:
“This court is endeavouring to compensate the Applicant for the actual loss that is likely to follow from the effects of his injury and not just the hypothetical difference revealed by the operation of the formula provided in the section. That difference is to be adjusted to reflect the realities of the case. Having regard to the circumstances of the Applicant being precluded from employment in this State, working in an economy which returns considerably lower wages but recognising that he yet has a disability which would affect him in that environment, it seems to me that the figure suggested above [$25.00 per week] appropriately reflects those realities.”
The employer appealed. In Nonferral, the majority (Cole JA and Stein JA) held that there was no implied statutory prohibition in section 83 of the Migration Act 1958 which prohibited illegal entrants from working in Australia per se. The object of section 83(2) was to prohibit illegal entrants working in Australia without permission in writing of the Secretary. Stein JA, quoting from Kirby P (as he then was) in Hurst v Vestcorp Limited (1988) 12 NSWLR 394 stated as follows (para 9):
“The president also stressed that the courts must take care to avoid the under discriminating operation of the law of illegality [17]. He said: ‘Regard must be had to the consequence of applying the law of illegality to the particular case; the absurdities thereby produced; the far reaching results and particularly any illogical or inconvenient results which would follow [18]’”.
Stein JA went on at paragraph 17 as follows:
“Another theme in cases on statutory illegalities is to consider the consequences. That is, that the court should not find an implied prohibition in a statute if it would lead to an unjust, unreasonable, inconvenient or absurd result …”
Thus the Court of Appeal determined that the Arbitrator and I fell into error in following the reasoning adopted by Burke J in Viliami to the effect that the Appellant was precluded from earning anything, injured or uninjured, and thus not entitled to a weekly payment.
There have been a number of decisions in both the former Compensation Court and Court of Appeal where the Courts have exercised the discretion to reduce a worker’s entitlement to compensation because of an inability to earn caused by various factors, not just a statutory prohibition as in the Migration Act.
In Kesen v Luke Singer Pty Limited (1989) 5 NSWCCR 298, the trial Judge, having found the worker partially incapacitated, declined to enter any award during the period the worker had returned to Turkey to visit his father. On appeal, the court held:
“What seems to us to be the clearest error of law appearing in the passage from his reasons set out above is his assumption that a weekly payment of nothing is a weekly payment. The subsection [s11(1) 1987 Act] requires that if partial incapacity is found, a weekly payment is to be made.”
The Court noted that, of the ‘five step’ approach adopted in Mitchell, “the discretion involves making a judgment in which the step (3) figure is an essential ingredient. Without a step (3) figure, the discretion cannot be exercised.”
In Hirst v Illawarra Health Service (2000) 21 NSWCCR 82, Neilson J as he then was entered an award of $10.00 per week during a period of the worker’s pregnancy. His Honour noted that “… the mere fact of being pregnant and the fact of subsequent motherhood does not disentitle a lady to compensation for partial incapacity” but that “clearly, pursuing the process of giving birth to a child and breast feeding it or otherwise nursing it in its early years is an activity incompatible with employment.” Accordingly, His Honour took that factor into account in considering the exercise of his discretion pursuant to section 40 of the 1987 Act.
In exercising my discretion, I must consider the consequence of the Appellant’s “illegality” in calculating his entitlements. It is appropriate that I exercise my discretion if there would be a disproportionately high level of weekly compensation if the simple calculation resulting from steps 1 and 2 were taken.
Taking all these matters into account, in the exercise of my discretion, it seems to me that the appropriate sum to award in all the circumstances of this case is $70.00 per week.
It is appropriate to note at this point the Appellant’s assertion, in his further submissions filed on 14 May 2007 that “… in India, he would be earning, if he were fit, an amount equivalent to $760.00 AUS per week”. I have already rejected the Appellant’s statement for the reasons stated but in any event, as Burke J said in Nonferral:
“In addresses, I suggested to the parties that I did not see the conversion to Australian dollars of the actual earnings in Tonga as an adequate means of dealing with the quantification of the entitlement under section 40. I was more inclined to view the proper approach as evaluating what such work, done in New South Wales, would be valued at and thus establishing the ‘actual’ earnings or ability to earn … No average worker in Tonga could aspire to earnings of the degree achieved in New South Wales. If the approach was just to compare actual money returned in Tonga against probable earnings uninjured in Australia, there would always be a massive difference”.
In summary, adopting the “three steps” approach identified by the Court of Appeal in this matter, I make the following findings:
(a)Pursuant to section 40(2)(a), the amount the Appellant would probably have earned but for injury since 9 July 2003 is $540.00 per week.
(b)Pursuant to section 40(2)(b) the weekly amount that the Appellant would be able to earn in suitable employment is $270.00 per week.
(c)The difference remaining is $270.00 per week. In the exercise of my discretion, having regard to the matters to which I have referred, that figure should be reduced to $70.00 per week.
Accordingly, the Appellant is entitled to an award pursuant to section 40 of the 1987 Act at
the rate of $70.00 per week from 9 July 2003.
The Section 53 Issue.
Section 53(1) of the 1987 Act provides as follows:
“If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless an Approved Medical Specialist certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
This section was considered by Bishop J as he then was in Harvey v Fli-Way – AFA International Pty Limited (1994) 10 NSWCCR 51 (‘Harvey’). His Honour noted that since the Court of Appeal decision in Slack v Crop Equities Pty Limited (1985) 9 NSWLR 231, “… It is possible for the conditions of section 53(1) to be attended to after the Applicant ceases to reside in the jurisdiction thereby entitling the payment of compensation for the period that has already past.” His Honour went on: “The fact that such incapacity on the open labour market may not at the present time reflect in economic loss for the purposes of section 40 is not in my view material.” In other words, section 53 refers to incapacity in the medical not the economic sense.
In Harvey, Bishop J determined that the worker suffered from a permanent loss of efficient use of her left leg “… which in my view constitutes evidence of incapacity of a permanent nature”.
In the present case, the parties entered into a consent award on 12 April 2002 in respect of the Appellant’s claim for lump sum entitlements pursuant to section 66 and 67 of the 1987 Act. The losses set out therein, to which I have referred earlier, were deemed to be permanent.
The Respondent submits that the Appellant has failed to comply with the requirements of section 53 since there is no evidence that the Appellant received certification of any kind nor any evidence that the incapacity is permanent.
It is clear that the Appellant has not obtained certification of his status from an Approved Medical Specialist as provided for in section 53 of the 1987 Act. However, that section also empowers the Commission, in the alternative, to determine that “the incapacity for work resulting from the injury is likely to be of a permanent nature”.
Having regard to all the medical evidence before me and in particular to the “permanent impairment” awards, I am satisfied that the evidence is sufficient to determine that the Appellant’s incapacity for work is likely to be of a permanent nature.
As a consequence, the Appellant is entitled to receive weekly benefits from 9 July 2003 to date and continuing, notwithstanding his departure to India on 25 July 2005.
DECISION
1. Pursuant to section 353 (2) of the Workplace Injury Management & Workers Compensation Act 1998 I make the following orders:
(a)The Respondent is to pay to the Applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $70.00 per week from 9 July 2003 to date and continuing.
(b)Credit given to the Respondent for payments made to the Applicant between 9 July 2003 and 2 February 2004.
(c)The Respondent is to pay the weekly award to the Applicant in accordance with the provisions of section 53(2) of the Workers Compensation Act 1987.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
10 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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