Smith v Pius X Aboriginal Corporation
[2007] NSWWCCPD 194
•12 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v Pius X Aboriginal Corporation [2007] NSWWCCPD 194
APPELLANT: Mark Anthony Smith
RESPONDENT: Pius X Aboriginal Corporation
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER: WCC164-07
DATE OF ARBITRATOR’S DECISION: 17 April 2007
DATE OF APPEAL DECISION: 12 September 2007
SUBJECT MATTER OF DECISION: Section 40(2)(a) of the Workers Compensation Act 1987; meaning of “same or some comparable employment”; reasons; inconsistent findings
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: White Barnes
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s determination dated 17 April 2007 are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator to re-determine the Applicant Worker’s entitlement to weekly compensation in the period 20 March 2006 to 7 May 2006 in accordance with the reasons in this decision.
2.Award for the Respondent Employer in respect of the Applicant Worker’s claim for weekly compensation from 8 May 2006 to date.
3.The Respondent Employer is to pay the Applicant Worker’s costs of the arbitration.”
Each party is to pay his or its costs of the appeal.
BACKGROUND TO THE APPEAL
On or about 11 May 2000 Mark Anthony Smith (‘the Appellant Worker/Mr Smith’) injured his back in the course of his employment with Pius X Aboriginal Corporation (‘the Respondent Employer/the Corporation’). At that time the Corporation employed him as a Child Care Worker.
As a result of his injury he was off work for about two weeks and was paid compensation. When he returned to work he continued on full duties. A few months after the original injury he strained his back when he was moving and cleaning some mats and he was put off work for three weeks and again paid workers compensation. He experienced further pain in his back in May and June 2001 when he was put off for about two weeks. He returned to work on light duties for two weeks and then full duties. He was stood down in October 2000 because of reasons unrelated to his injury.
Since his injury in May 2000 Mr Smith has always noticed problems and pain with his back and has had to be careful with the way he moves.
It has been difficult to put together an accurate chronology of Mr Smith’s subsequent work history in this matter because of the way the case has been prepared and presented. Doing the best I can, the following appears from the evidence. In 2002 and 2003 (exact dates are not provided in the evidence) Mr Smith worked as a Youth Worker consulting and speaking with young people.
In 2003 Mr Smith made a claim in the Workers Compensation Commission (‘the Commission’) for lump sum compensation as a result of his May 2000 back injury. That claim was referred to an Approved Medical Specialist (‘AMS’), Dr Porges, who examined him on 23 July 2003 and issued a Medical Assessment Certificate (‘MAC’) certifying Mr Smith to have a 10% permanent impairment of his back and a 10% permanent loss of efficient use of his right leg at or above the knee. In making that assessment Dr Porges considered several radiological investigations including a CT scan dated 25 July 2000 which revealed an L4/5 focal disc protrusion with displacement of the thecal sac and slight displacement of the left L5 nerve root, together with possibly extruded disc material on the right postero-lateral aspect of the disc. At Dr Porges’ request, an MRI was performed on 25 August 2003. It showed L4/5 disc bulging with mild compression of the thecal sac with no significant canal stenosis and no nerve root compression together with a small right paracentral disc protrusion at the L5/S1 level with marked displacement of the right S1 nerve root (MAC, at page four). Dr Porges also noted that Mr Smith had temporary ‘flare ups’ of his symptoms in 2000 and in May and June 2002, which he considered “were temporary flare ups rather than new injuries related to the nature and conditions of his employment” (MAC, page eight). These flare ups probably occurred in May and June of 2001 (see Mr Smith’s unsigned statement taken on 20 January 2003, paragraph 14).
On 21 October 2003 an Application for Registration of Agreement Under S66A (‘the 66A agreement’) was executed. By that agreement the Respondent Employer agreed to pay Mr Smith lump sum compensation of $6,000.00 in respect of 10% permanent impairment of his back, $7,500.00 in respect of 10% permanent loss of efficient use of his right leg at or above the knee and compensation under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In 2003 and 2004 Mr Smith worked as an Aboriginal Financial Counsellor performing administrative and clerical duties for $800.00 per week. In 2004 and 2005 he worked as a tenant advocate at the North and North West Legal Centre earning $800.00 per week.
On 12 September 2005 Mr Smith started work with the Murdi Paaki Regional Enterprise Corporation Ltd as the Western Aboriginal Tenant Advice and Advocacy Program Service Manager on a salary of $50,000.00 per annum. His contract was to run until 30 June 2008.
On 10 January 2006 he took his two-year-old son to hospital and when he bent into the back seat of his car to either assist or lift his son he noticed discomfort in his back (Mr Smith’s statement 21 July 2006, paragraph four). He remained at work until 20 March 2006 when he says he was put off (Mr Smith’s statement 21 July 2006, paragraph four). On 10 April 2006 he consulted his general practitioner, Dr Hester, because of his low back pain and was given a WorkCover ‘initial’ certificate. That certificate did not declare Mr Smith to be unfit for work but stated that fitness for work was to be reviewed on 17 April 2006. On 2 May 2006 he attended on Dr Sabir complaining of low back pain. Dr Sabir apparently works at the same medical practice as Dr Hester. On 10 May 2006 he was given a certificate by Dr Sabir declaring him to be unfit for work from 20 March 2006 until 12 June 2006. Additional certificates were provided by Dr Sabir declaring Mr Smith to be unfit for work until 24 July 2006 when he was declared fit for suitable duties for eight hours per day five days per week with a lifting limit of five kilograms and a sitting limit of “30/60” and a restriction on travelling for up to one hour at a time. In addition, Mr Smith was to avoid repetitive bending and twisting, heavy pulling or pushing.
By letter dated 18 April 2006 the Corporation’s workers compensation insurer, CGU Workers Compensation (NSW) Limited (“CGU’), wrote to Mr Smith referring to an unidentified medical certificate received by it on 13 April 2006 and advised that it had no current claim for “this date of injury”. In response to a further medical certificate forwarded by Mr Smith to CGU (again not identified in the correspondence) CGU denied his claim by letter dated 19 May 2006 on the ground that no new medical evidence supported his claim of a back injury on “1/5/00”. The letter added:
“Your workcover [sic] medical certificate states you were lifting your child from the car and this is not a work injury. The workcover [sic] medical certificate is not signed by a Doctor, you can not [sic] have the Doctors [sic] name as “not in use”.
The claim has been closed since 16/1/03 and no treatment or reports have been forwarded to us in the insuring [sic] period.”
On 8 May 2006 Mr Smith started work with Oran Accommodation and Support Services Committee Inc (‘Sturt House’) doing permanent part-time shiftwork as a support worker under the Social and Community Services Employee (State) Award (see letter 26 July 2006 from Sturt House). At paragraph two of his statement of 10 January 2007, Mr Smith said that as a consequence of his work related back pain he has only been able to work two days per week and that he was suffering a significant reduction in income as a result.
On 17 January 2007 Mr Smith’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission. In it he claimed weekly compensation in the sum of $950.00 per week from 20 March 2006 to 3 August 2006 and $380.00 per week from 4 August 2006 to date and continuing. The Respondent Employer filed its Rely on 24 January 2007.
The matter was listed for hearing before a Commission arbitrator on 13 March 2007. In a reserved decision delivered on 17 April 2007 the Arbitrator made an award for the Respondent Employer.
By an ‘Appeal Against Decision of Arbitrator’ filed on 11 May 2007 the Appellant Worker seeks leave to appeal the Arbitrator’s decision.
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.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The Appellant Worker seeks to tender two medical certificates as ‘further evidence’ on appeal. The first is from Dr Hester dated 10 April 2006 and the second from an unnamed doctor (conceded to be Dr Sabir in the Respondent Employer’s submissions at paragraph 2.4(5)) dated 10 May 2006. In respect of the certificate of 10 May 2006, the Respondent Employer concedes that it is in evidence and has been referred to by the Arbitrator at paragraph 38 of his Statement of Reasons for Decision (‘Reasons’). That concession is only partly correct. The certificate sought to be introduced on appeal seems to be a different document to the one the Arbitrator referred to at paragraph 38 of his Reasons. However, it is in exactly the same terms as the certificate that was before the Arbitrator dated 10 May 2006 save that instead of Dr Sabir’s name appearing, the words “Not in-use” appear. The certificate Mr Smith now seeks to tender adds nothing to his case that was not already before the Arbitrator. In respect of the certificate of 10 April 2006, the Respondent Employer submits that it has not previously seen it and disputes its authenticity. This submission is incorrect. This certificate was also in evidence before the Arbitrator having been admitted into evidence as part of the Application to Admit Late Documents dated 8 March 2007. In addition, the Respondent Employer’s counsel expressly referred to it at the arbitration (see T7.23).
The application to rely on further evidence is refused because the relevant material is already in evidence.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 April 2007, records the Arbitrator’s orders as follows:
“1.That there is an award to the Respondent for weekly payments of compensation pursuant to sections 36, 37 and 40 of the Workers Compensation Act 1987 for the period 20 March 2006 to date and continuing provided the Applicant continues to earn in excess of $605.63 per week average in any future suitable employment as from 13 April 2007.
2.That there is no order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to recognise and give significant weight to his findings of fact made at paragraphs 31 to 34 and 60 to 67 inclusive of his Reasons;
(b)failing to recognise and give significant weight to the absence of medical evidence from the Respondent Employer dealing with the period in or after March 2006;
(c)failing to give significant weight to the MAC;
(d)failing to give significant weight to the settlement of the lump sum compensation in 2003;
(e)failing to award compensation in the absence of any material admitted into evidence to justify the omission;
(f)placing undue weight on ‘the initial medical certificate’ being backdated to 20 March 2006;
(g)failing to make an award in favour of Mr Smith from 20 March 2006 despite making a finding to that effect in paragraph 44 of his Reasons and despite such finding being inconsistent with the finding at paragraph 45 of his Reasons;
(h)failing to make an award in favour of Mr Smith for his partial incapacity despite overwhelming and uncontradicted evidence that left the way open to make such an award;
(i)having no sufficient regard to the authorities referred to or the chronology of Mr Smith’s employment and career path, and
(j)seeking to make findings as to Mr Smith’s future entitlements to weekly compensation.
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.
SUBMISSIONS AND FINDINGS
The Appellant Worker submits:
(a)no medical evidence was adduced by the Respondent Employer dealing with the claim from 20 March 2006;
(b)the Arbitrator was not bound by “who the comparables were at the time of the original injury” (T13.50);
(c)the authorities of NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217 (‘Forrest’), Lloyd v Northern Rivers Charity Racing (2001) 22 NSWCCR 577 (‘Lloyd’), Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 (‘Pantaleo’) and Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 (‘Summerson’) support his argument;
(d)Mr Smith’s career in child care “broke down” and he moved away from that area and has not resumed that style of work;
(e)Mr Smith’s taxable income for the financial year ending 30 June 2004 as an Aboriginal Financial Counsellor was $37,345.00 or $718.17 per week and for the financial year ending 30 June 2005 was $42,667.00 or $820.52 per week and in September 2005 he started work on $50,000.00 per annum or $961.53 per week;
(f)Mr Smith has been “progressing [in] a new and different career path” (Appellant Worker’s submissions, paragraph 2.7.17(h));
(g)the qualitative shift in his career path has been such as “to warrant no longer considering the likely earnings [he] would have earned as a low skilled care worker” (Appellant Worker’s submissions, paragraph 2.7.18);
(h)the Arbitrator accepted there was a partial incapacity but he did not “embrace and discharge his obligations to consider the submissions put on behalf of” Mr Smith (Appellant Worker’s submissions in Reply, paragraph 23);
(i)there is a need to specifically consider the position as to capacity to earn by reference to circumstances over and above the actual earnings at the date of the original injury whilst working in child care and to give reasons;
(j)there was no reasoning by the Arbitrator as to why he had no regard to Mr Smith’s changing pattern of earnings and capacity to earn since his days in child care;
(k)the Arbitrator did not seek to apply the authorities to the facts, and
(l)the Arbitrator was in error in not tracking through the relevant medical history. The obligation was on the Arbitrator to seek to draw inferences from the available evidence and make findings.
The Respondent Employer submits:
(a)the Arbitrator considered all the evidence and provided comprehensive and detailed reasons for his decision;
(b)the Arbitrator found that Mr Smith’s actual earnings were greater than his probable earnings if uninjured and therefore declined to make an award in his favour;
(c)the Arbitrator was concerned about the backdating of the medical certificate of 10 May 2006 and the fact that Mr Smith failed to disclose his employment which commenced on 8 May 2006;
(d)the Appellant Worker’s submission that his career path had changed is tenuous at best and misleading at worst. The Arbitrator considered that submission and correctly dismissed it;
(e)the Arbitrator was entitled to find that at the time of his injury Mr Smith was employed as a Child Care Worker and that the award rate for that job ($605.63 per week) was the appropriate rate for probable earnings if uninjured;
(f)it being agreed that Mr Smith’s actual earnings were $755.64 per week it follows that he has no entitlement to weekly compensation as his actual earnings exceed his probable earnings but for injury;
(g)in his statement of 10 January 2007 Mr Smith said he started work at Sturt House on 4 August 2006. In his statement of 21 July 2006 he said he had not worked since 20 March 2006. In fact, Mr Smith’s employment with Sturt House started on 8 May 2006;
(h)in his statement of 10 January 2007 Mr Smith said that he had only been able to work two days per week at Sturt House. Time sheets indicate that for the period from 11 May 2006 until 14 February 2007 Mr Smith worked up to five shifts per week on at least four occasions, four shifts per week on 12 occasions, three shifts per week on 13 occasions and two shifts on 10 occasions giving an average of 3.43 shifts per week. Thus Mr Smith’s ability to work has not been restricted as he alleged and he has a demonstrated ability to work for up to five shifts per week;
(i)the inconsistency between Mr Smith’s original statements and the employment records was a proper matter for evaluation by the Arbitrator;
(j)Dr Sabir provided the only medical evidence purporting to restrict Mr Smith’s hours of work after 25 October 2006. Those certificates did not reveal the basis for the restriction, but in any event do not seem to apply to the present situation where Mr Smith is performing clerical work with no heavy bending or carrying;
(k)the only other evidence suggesting that Mr Smith’s ability to earn in clerical work is restricted is from Mr Smith and that evidence has been shown to be unreliable and inaccurate;
(l)the Arbitrator set out a complete chronology and noted that though Mr Smith was certified totally unfit for the period 20 March 2006 until he was certified partially incapacitated from 24 July 2006, in fact he started work with Sturt House on 8 May 2006. Accordingly, the Arbitrator was entitled to use his discretion when assessing the reliability of the medical certificates from Dr Sabir, especially for the period after 8 May 2006;
(m)the Arbitrator was entitled to refrain from awarding compensation for the period from 20 March 2006 to 8 May 2006, as he was not satisfied Mr Smith had discharged the onus of proof, and
(n)since his injury in May 2000, Mr Smith has consistently displayed a capacity to earn greater than his pre-injury earnings.
THE ARBITRATOR’S REASONS
In a detailed and considered decision the Arbitrator’s main findings were:
(a)Mr Smith injured his lumbar spine in May 2000 and that injury produced the impairment and loss certified in Dr Porges’ MAC (Reasons, paragraph 30);
(b)since May 2000 Mr Smith has suffered “episodic or exacerbating incidences” [sic] that have aggravated his still unresolved back condition and that has led to various periods of incapacity (Reasons, paragraph 31);
(c)the latest exacerbation occurred on or about 10 January 2006 which caused a flare up in Mr Smith’s back to the extent that he claimed incapacity for employment from on or about 20 March 2006 (Reasons, paragraph 32);
(d)the effects of the injury of May 2000 have never resolved (Reasons, paragraph 33);
(e)Mr Smith’s current back injury “remains related to the 11 May 2000 incident and not [a] ‘novus actus’ as submitted by the Respondent” (Reasons, paragraph 33);
(f)the medical certificate declaring Mr Smith unfit from 20 March 2006 is dated 10 May 2006 and no explanation was given as to why that certificate was backdated (Reasons, paragraph 38);
(g)Mr Smith started work with Sturt House on 8 May 2006 but his statements of 21 July 2006 and 10 January 2007 were both inconsistent with this date (Reasons, paragraphs 41-43 inclusive);
(h)whilst Mr Smith “may have been totally incapacitated from 20 March 2006 to 8 May 2006”, due to the unexplained backdating of the certificate of 10 May 2006 and the fact that he commenced work with Sturt House on 8 May 2006 the Arbitrator “did not intend to award total compensation for that period” (Reasons, paragraph 44);
(i)Mr Smith continues to suffer from a number of abnormalities in his low back attributable to his work injury on 11 May 2000 and that he remains partially incapacitated for employment from 8 May 2006 to date and continuing (Reasons, paragraph 46);
(j)uninjured, Mr Smith would be earning $605.63 per week as a Child Care Worker under the Miscellaneous Workers Kindergarten and Child Care Centre (State) Award (‘the Child Care Award’) (Reasons, paragraph 59);
(k)Mr Smith’s actual earnings from 8 May 2006 have been $755.64 per week (Reasons, paragraph 57). As a result, no economic loss has been demonstrated and Mr Smith has no entitlement to weekly compensation “from 6 [sic] May 2006 to date and continuing” (Reasons, paragraph 60), and
(l)after considering the precedents put forward by Mr Smith the Arbitrator was satisfied that “upon the differences in facts in the various cases, that the decision in this matter does not offend any principle or principles enunciated therein” (Reasons, paragraph 62).
Under ‘Summary’ the Arbitrator restated his conclusions and added at paragraph 66, “Mr Smith suffered an exacerbation or manifestation of his unresolved 11 May 2000 injury on or about 10 January 2006 and was totally incapacitated by the exacerbation from 20 March 2006 to 7 May 2006”.
DISCUSSION AND FINDINGS
The fact that the Respondent Employer did not tender any medical evidence dealing with Mr Smith’s claim from March 2006 was not critical to the determination of the matter. The Arbitrator accepted Mr Smith’s medical evidence on injury and accepted that he sustained injury to his low back at work with the Corporation on 11 May 2000 and that that injury continued to cause symptoms.
Mr Smith failed in respect of the period between 20 March 2006 and 8 May 2006 (‘the first period’) because of the “unexplained backdating of the WorkCover Certificate of 10 May 2006” (Reasons, paragraph 44) and because he started work on 8 May 2006, a date that was inconsistent with the evidence in his statements. However, the difficulty with the Arbitrator’s decision is that his finding that Mr Smith “was totally incapacitated by the exacerbation from 20 March 2006 to 7 May 2006” (Reasons, paragraph 66) was inconsistent with his finding at paragraph 44 that he did “not intend to award total compensation for that period”. If the Arbitrator was satisfied that Mr Smith suffered an “exacerbation or manifestation of his unresolved 11 May 2000 injury” (Reasons, paragraph 66) and that Mr Smith was not working from 20 March 2006 as a result of that exacerbation or manifestation, if follows that Mr Smith may be entitled to an award of weekly compensation in the period from 20 March until 8 May 2006 depending on what findings are made as to his capacity to earn in that period. Whilst it may well have been that the Arbitrator felt that the incapacity in that period resulted solely from the exacerbation and not from the work injury that conclusion was not open given the Arbitrator’s other findings on injury and causation, which were favourable to Mr Smith. It may be that the Arbitrator was simply not satisfied on the evidence that Mr Smith was totally incapacitated in that period. If that was the case then, consistent with the Arbitrator’s other findings, he should have assessed Mr Smith entitlement under section 40 of the 1987 Act in that period by applying the steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 526.
Whilst the Arbitrator was concerned about the backdating of the medical certificate and the inconsistencies in Mr Smith’s statements and the evidence that he started work with Sturt House on 8 May 2006, those matters did not, given the Arbitrator’s other findings on injury and causation, justify the Arbitrator’s failure to consider Mr Smith’s entitlement to weekly compensation in the first period. The Arbitrator was required to assess the impact of the injury on Mr Smith’s ability to earn in the labour market reasonably accessible to him. He did not do that. Instead, he declared that he did “not intend to award total compensation for that period”. This involves an error as the Arbitrator has failed to determine Mr Smith’s claim according to the terms of the 1987 Act.
In view of the obvious credit issue that arises from the inconsistency between Mr Smith’s statements and the documentary evidence concerning when he started work with Sturt House on 8 May 2006 and the issue about the state of the medical evidence in the first period, it is not appropriate that I re-determine this part of the claim. Though it is regrettable, it is necessary for this part of the claim to be re-determined by a different arbitrator in accordance with the reasons in this decision.
The second period concerns Mr Smith’s entitlement to weekly compensation from 8 May 2006 to date and continuing. The dispute in respect of this part of the claim relates to the meaning of the term “same or some comparable employment” in section 40(1)(a) of the 1987 Act. The Appellant Worker’s argument is that the Arbitrator was not bound by “who the comparables were at the time of the original injury” (T13.50). Reliance is placed on the authorities listed at [31(c)] above. For the reasons set out below, I do not believe the authorities cited support Mr Smith’s argument.
In addition, it is argued that the Arbitrator gave no reasons as to why he had no regard to Mr Smith’s changing pattern of earnings. To succeed in having the decision set aside on this ground it must be demonstrated not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
In the present matter the Arbitrator made only an oblique reference to the authorities relied on by the Appellant Worker at the arbitration and stated that he was satisfied “based upon the differences in facts in the various cases, that the decision in this matter does not offend any principle or principles enunciated therein” (see Reasons at paragraph 62). The Arbitrator did not identify the factual differences between the authorities cited and Mr Smith’s matter. Nor did he consider or discuss the relevant principles stated in those authorities and how they applied to or were distinguishable from the present matter. In these circumstances the Arbitrator was in error in failing to give adequate reasons for his conclusion that the occupation of a Child Care Worker was the appropriate measure of Mr Smith’s ability to earn if uninjured and this part of the decision must be re-determined. As this part of the claim does not raise any credit issues, I am in as good a position to re-determine this question as an arbitrator and that is the course I propose to adopt.
The meaning of the phrase “the same or some comparable employment” was considered by the High Court in Johnston v Commissioner of Railways (1973) 128 CLR 632 (‘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 accepted evidence 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 Department of School Education v Boyd (1996) 13 NSWCCR 289 (‘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 the light of such a fundamental error it is difficult to put any weight on the decision of Lloyd. In any event, Lloyd is clearly distinguishable on its facts. In the present matter there was no evidence of Mr Smith’s intended or likely career progression at the time of his injury.
In assessing a worker’s probable earnings but for injury under section 40(2)(a) of the 1987 Act, I draw the following principles from the above authorities:
(a)as a matter of principle, the Commission looks at the worker’s probable earnings in the employment in which he or she was employed at the time of injury (the pre-injury employment) (per Mahoney JA in Forrest at 220);
(b)in assessing probable earnings in the pre-injury employment it is appropriate to have regard to how the worker “would have fared in his occupation had he not been injured” (per Stephen J in Johnston at 640);
(c)a worker’s statement about his or her intention to engage in other comparable employment in the future is relevant and may be taken into account in determining probable earnings (Boyd);
(d)if there was a real prospect (as distinct from a fanciful speculation) that a 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’ (per Kirby P in Pantaleo at 540);
(e)in some cases the factual circumstances will make it appropriate to have regard to earnings in ‘comparable’ employment in place of the same employment (per Mahoney JA in Forrest). Such circumstances arose in Forrest where the worker’s pre-injury earnings were “little or nothing” because of the unusual circumstances in which she was engaged. It will also be appropriate to consider comparable employment where the pre-injury occupation has ceased to exist (per Stephen J in Johnston at 641), and
(f)determining whether employment is comparable to pre-injury employment will require a comparison of a variety of indicia of comparability. It will include, but will not necessarily be restricted to, consideration of the following: the physical attributes of the pre-injury employment with the alleged comparable employment; the likely career progression that could have been expected had the worker remained uninjured; award classifications, or the range of salaries that might reasonably have been within the worker’s pre-injury achievement, as a worker (per Kirby P in Pantaleo at 540).
In my view none of the above authorities provide Mr Smith 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 [47] 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, unless circumstances make it appropriate to have reference to other ‘comparable’ 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 was 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. It is not sufficient to merely point to better-paid post injury employment. In Australian Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87 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.”
In the present matter there was no evidence of the kind called in Boyd and Johnston about Mr Smith’s prospects of or intention to progress his career at or about the time of his injury. Nevertheless, as Mr Smith did in fact work in different occupations after his injury the question arises as to whether any of those occupations can be said to be ‘comparable’ to that of a Child Care Worker.
As a Child Care Worker Mr Smith’s duties involved “cleaning, supervising children, programming, planning and monitoring” (see document headed ‘Mark Smith’ and date stamped 19 October 2006, attached to the Application). In the Child Care Award tendered in evidence, a Child Care Worker means “a carer appointed by the employer to contribute to [and] assist in the implementation of the child care program” under the general direction of a supervisor. Mr Smith’s post-injury occupations and duties were described in his statement of 21 July 2006 as follows:
(a)Youth Worker: consulting and speaking with young people;
(b)Aboriginal Financial Counsellor: administrative, clerical/office work;
(c)Tenant Advocate: office consultation and clerical work, and
(d)Western Aboriginal Tenant Advice and Advocacy Program Service Manager: office and clerical work.
I do not believe that any of Mr Smith’s post injury occupations can be fairly described as ‘comparable’ to his work as a Child Care Worker with the Respondent Employer. Each involved totally different duties, training and qualifications. Even if the occupation of a Youth Worker could be said to be comparable to that of a Child Care Worker (and I do not believe it is), there is no evidence of the earnings of a Youth Worker. The Appellant Worker’s submissions expressly note that Mr Smith progressed in a “new and different career path” (Appellant Worker’s submissions, paragraph 2.7.17(h)) after leaving the Respondent Employer and that there had been a “qualitative shift” in his career path. I agree. I do not believe there is any comparison between Mr Smith’s pre-injury employment as a Child Care Worker and his subsequent employment. Therefore, for the reasons set out above, the Arbitrator was correct to find Mr Smith’s probable earnings but for his injury under section 40(2)(a) of the 1987 Act were those of a Child Care Worker as per the Child Care Award tendered in evidence. That amount was $605.63 per week.
There was no dispute that Mr Smith’s actual earnings under section 40(2)(b) of the 1987 Act since 8 May 2006 were $755.64 per week. As a result, Mr Smith has suffered no economic loss and has no entitlement to compensation from 8 May 2006 to date. His entitlement to compensation in the future will depend on the circumstances and evidence at the time any further claim is made.
COSTS OF THE ARBITRATION
The Appellant Worker seeks costs of the arbitration regardless of the outcome on appeal. It submits that the Respondent Employer’s Reply put in issue: injury, substantial contributing factor and incapacity. At the arbitration it also strongly argued the issue of causation on the ground that the incident on 10 January 2006 was a novus actus. The Respondent Employer lost the issues of injury, substantial contributing factor and causation before the Arbitrator and Mr Smith’s entitlement to compensation for the first period is to be re-determined. In these circumstances Mr Smith was put to proof on several substantive issues on which he succeeded and it is appropriate that he recover his costs of the first arbitration, regardless of the outcome of the re-determination, and that is the order I have made below.
DECISION
Paragraphs one and two of the Arbitrator’s determination dated 17 April 2007 are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator to re-determine the Applicant Worker’s entitlement to weekly compensation in the period 20 March 2006 to 7 May 2006 in accordance with the reasons in this decision.
2.Award for the Respondent Employer in respect of the Applicant Worker’s claim for weekly compensation from 8 May 2006 to date.
3.The Respondent Employer is to pay the Applicant Worker’s costs of the arbitration.”
COSTS OF THE APPEAL
Costs on appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member are governed by section 345 of the 1998 Act which provides:
“345 Costs penalties where appeal is unsuccessful
(1) On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is unsuccessful on the appeal, the Commission is to order that the appellant’s costs on the appeal are not to be paid by any other party to the appeal, and
(b) …
(2) …
(3) If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid. (emphasis added)
(4)…”
The Appellant Worker has only succeeded with his appeal so far as it relates to the period of weekly compensation from 20 March 2006 to 7 May 2006. If at the re-determination Mr Smith recovers an award for that period at the maximum rate (his current weekly wage rate for a Child Care Worker, namely, $605.63 per week) he will still be “considered to be unsuccessful on the appeal” as the new determination will not result in a change in his favour of “at least $5,000.00”. As the Arbitrator awarded no compensation, the 20% provision has no application on appeal. However, the Appellant Worker has failed to meet the $5,000.00 threshold and is therefore “considered to be unsuccessful on the appeal” and is not entitled to costs of the appeal. The proper order as to costs of the appeal is:
“Each party is to pay his or its costs of the appeal.”
Bill Roche
Deputy President
12 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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