Srbinovski v Coles Supermarkets Australia Pty Ltd - [2015] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Srbinovski v Coles Supermarkets Australia Pty Ltd [2015] NSWWCCPD 66
APPELLANT:	Sophia Srbinovski
RESPONDENT:	Coles Supermarkets Australia Pty Ltd
INSURER:	Coles Group Ltd
FILE NUMBER:	A1-811/15
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	7 August 2015
DATE OF APPEAL DECISION:	24 November 2015
SUBJECT MATTER OF DECISION:	Procedural fairness; use of extrinsic material to assess worker’s ability to earn; Arbitrator’s reliance on an industrial award without prior notification to the parties; findings of fact as to the worker’s ability to earn; application of ss 35, 37 and 32A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Turks Legal
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s Certificate of Determination dated 7 August 2015 is revoked. The matter is remitted to another Arbitrator to determine in accordance with the reasons given in this decision.

INTRODUCTION

This appeal raises two issues. First, an alleged denial of procedural fairness to the appellant worker and, second, a challenge to the Senior Arbitrator’s finding that the appellant worker was fit for work in a clerical or receptionist position.
A Senior Arbitrator relied upon the rate of earnings for an entry level clerk, as published in the Clerks Private Sector Award (the Award), in order to quantify the worker’s ability to earn in suitable employment. The Award was published online by the Fair Work Commission.
The Senior Arbitrator did not disclose to the parties his intended use of the Award to assess the worker’s ability to earn and he did not give the parties an opportunity to address on the relevance of the extrinsic material. For the reasons discussed in this decision, the first ground of appeal is upheld but the second is dismissed.

BACKGROUND

Sophia Srbinovski, the appellant worker, worked for Coles Supermarkets Australia Pty Ltd (Coles), the respondent, as second-in-charge to the service manager.
In late July 2013, Mrs Srbinovski was advised that the respondent was phasing out the position of second-in-charge. Thereafter, she was rostered to work night shifts and week-ends operating a check-out register. She described the work as extremely physically arduous.
Mrs Srbinovski was continually placed on the right-facing registers and soon experienced pain in her right arm and neck. On 4 January 2014, the pain built up to an excruciating level and she felt a “snapping” in her right shoulder. Mrs Srbinovski was later diagnosed with a “partial thickness tear” of her right rotator cuff. Having worked for a period of time on restricted duties, four hours per day, five days per week, Mrs Srbinovski ceased work on 31 March 2014. She was paid weekly compensation from 31 March to 31 July 2014. Thereafter, Coles denied liability for weekly compensation.
On 17 July 2014, Coles issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Mrs Srbinovski was informed that further payments of weekly compensation would cease on 31 July 2014. She was informed that the decision was based on a medical report of Professor Miniter, orthopaedic surgeon, dated 16 May 2014. Coles provided three reasons for denying liability:
(a)“employment is not a substantial contributing factor to [Mrs Srbinovski’s] current condition”;
(b)the “subacromial impingement condition” is not work-related, and
(c)Mrs Srbinovski is “fit for return to normal hours of work”.
The s 74 notice identified comments from Professor Miniter’s report that supported its decision.
The first reason for denying liability was invalid and of no effect. As the Commission has explained in many cases, employment does not have to be a substantial contributing factor to the “current condition”. It has to be a substantial contributing factor to the injury (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725).
On 9 December 2014, the respondent issued a review notice pursuant to s 74 of the 1998 Act. In addition to the issues put in dispute in the 17 July 2014 notice, the respondent disputed injury under ss 15 and 16 of the Workers Compensation Act 1987 (the 1987 Act) and declined liability in respect of the proposed surgery in the form of arthroscopic repair of the right shoulder.
On 17 February 2015, Mrs Srbinovski’s legal representatives lodged an Application to Resolve a Dispute (the Application), seeking weekly payments of compensation from 18 January 2014 (later amended to 1 August 2014) to date and continuing. The Application also sought an order for medical, hospital and rehabilitation expenses in respect of arthroscopic repair of the right shoulder as recommended by Professor George Murrell, orthopaedic surgeon.
On 10 March 2015, the respondent lodged a Reply to the Application. It denied liability for the reasons stated in the s 74 notices.
On 24 March 2015, a Commission Arbitrator issued a Certificate of Determination – Consent Orders remitting the claim for arthroscopic repair of the right shoulder to the Registrar for referral to an Approved Medical Specialist (AMS). Dr Ian Meakin, AMS, issued a Medical Assessment Certificate on 19 June 2015, certifying that arthroscopic repair of the right shoulder was reasonably necessary as a result of the injury that occurred at work on 4 January 2014.
On 6 August 2015, the matter proceeded to a conciliation and arbitration hearing before a Senior Arbitrator. No oral evidence was called. At the conclusion of the hearing, the Senior Arbitrator delivered an extempore decision and a statement of reasons.
The Senior Arbitrator found in favour of Mrs Srbinovski on all issues. He found that the treatment recommended for Mrs Srbinovski was reasonably necessary as a result of the injury. He also found that Mrs Srbinovski was not fit for her pre-injury duties but was fit to work 30 hours per week as a clerk or receptionist. The Senior Arbitrator quantified Mrs Srbinovski’s ability to earn as a clerk by reference to an online award, the Clerks Private Sector Award.
On 7 August 2015, the Senior Arbitrator issued a Certificate of Determination in the following terms:
“1. That the respondent make weekly payments of compensation to the applicant under s37(3) of the Workers Compensation Act 1987 at the rate of $135.46 a week from 1 August 2014 to date and continuing.
2. That the respondent pay the applicant compensation under s60 of the Workers Compensation Act 1987 for the applicant’s costs incurred for the surgery proposed in the form of arthroscopic repair of the right shoulder.”
Mrs Srbinovski has appealed the Senior Arbitrator’s decision but only insofar as it relates to the quantification of her entitlement to weekly compensation. In particular, Mrs Srbinovski challenges the Senior Arbitrator’s findings regarding her ability to earn and his reliance upon the Clerks Private Sector Award concerning the earnings of clerks.
Findings on the question of injury and the disputed cost of the proposed treatment are not challenged.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of s 352 of the 1998 Act. There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

ON THE PAPERS

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 Nos 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.

MRS SRBINOVSKI’S EVIDENCE

Mrs Srbinovski provided a signed statement of evidence dated 13 January 2015. She states that she initially commenced work for the respondent as a casual part-time employee in 1982. In 1984 she was offered full-time employment as a section manager and she ultimately obtained a role as second-in-charge to the service manager.
In 1993, Mrs Srbinovski resigned from employment with the respondent to move overseas and start a family. She returned to Australia with her family in 2004 and in March 2011 resumed her career with the respondent as a night filler, working four hours per night. She said she intended to move to work at the service desk.
In December 2011, Mrs Srbinovski was offered full-time employment. In June 2012 she successfully obtained the position as second-in-charge to the service manager. On or about 28 June 2013, Mrs Srbinovski was allegedly forced into accepting a new roster that involved working exclusively on night shifts and week-ends. She described the roster as “extremely physically arduous”.
In late July 2013, Mrs Srbinovski was advised that the respondent was “phasing out 2ICs and that [she] would be in a supervisory role only”. Mrs Srbinovski states:
“After this conversation, I was continually rostered on as an Operator at the registers, specifically on Register 10, being the busiest register in the store for up to 7 hours at a shift. This is a right sided register which effectively means you are picking up all items with your right hand, scanning them and passing this to your left hand to bag them. All the heavy lifting is done with the right hand.”
Mrs Srbinovski states that her requests to have her duties changed or rotated were refused, notwithstanding that this was contrary to company policy. She said that the pain in her right arm and neck began to build up and on 4 January 2014 she felt a “snapping” in the right shoulder and chronic neck pain. This was diagnosed as “a significant partial thickness rotator cuff tear and early frozen shoulder”.
Following the incident on 4 January 2014, Mrs Srbinovski underwent several ultrasounds of her right shoulder and undertook physiotherapy treatment. She also received a corticosteroid injection to the right shoulder. As her symptoms did not improve, her treating orthopaedic surgeon, Professor Murrell, recommended an arthroscopy to repair the rotator cuff tear in her right shoulder.
Mrs Srbinovski continues to suffer from a range of disabilities which relevantly include loss of flexion and movement in the right shoulder, continuing pain in the right shoulder, difficulty lifting heavy objects with the right hand and shoulder and difficulty undertaking overhead activities with the right shoulder/arm. She has not worked since 31 March 2014. She states she was earning $728.92 net per week at the time of her injury.

EVIDENCE OF CURRENT WORK CAPACITY

On 24 March 2014, Dr Indran Rajendram, Mrs Srbinovski’s treating general practitioner, wrote to the respondent advising that Mrs Srbinovski’s current work capacity was limited to four hours per day, five days per week with restricted duties. He recommended that Mrs Srbinovski be offered duties which require minimal abduction and external rotation of the right shoulder.
Professor Murrell prepared a report dated 23 April 2014, at the request of the respondent. Professor Murrell described Mrs Srbinovski’s work at Coles as including “repetitive right arm movements scanning and lifting groceries”. In terms of Mrs Srbinovski’s current activities, Professor Murrell recommended no lifting of more than one kilogram and no overhead work.
On 16 May 2014, Mrs Srbinovski attended on Professor Miniter at the request of the respondent. On that same day, Professor Miniter provided a report advising that Mrs Srbinovski was “fit to return to normal hours of work”. He further advised that she “should avoid register work, but is otherwise fit to perform most other activities, except for those of heavy lifting or performance of activities at or above the shoulder level”. However, he said that investigations should be obtained before he could “provide a meaningful dissertation of her work capacity”.
On 31 October 2014, Mrs Srbinovski attended on Dr Bodel, orthopaedic surgeon, at the request of her solicitor. Dr Bodel found that Mrs Srbinovski was “not currently fit for her pre-injury duties”. However, he found her “fit for permanently modified duties until such time that she has a successful response to appropriate surgery”. He advised that her current capability for work would only be part-time work.

THE SENIOR ARBITRATOR’S FINDINGS AND REASONS

The Senior Arbitrator found (at T10.12) that Mrs Srbinovski suffered an injury to her right shoulder arising out of and in the course of her employment. He was satisfied that the employment was a substantial contributing factor to the injury. The Senior Arbitrator found (at T11.10) that the proposed surgery was reasonably necessary as a result of the injury. These findings are not challenged.
The Senior Arbitrator accepted that Mrs Srbinovski’s 2013 tax return was evidence of her pre-injury average weekly earnings (T11.14). He found that the 2013 tax return revealed Mrs Srbinovski’s annual income for the 2013 financial year to be $44,676 ($859.15 per week).
The Senior Arbitrator said that “[i]t seems to me, and I don’t think this is seriously challenged, that she has got a current capacity for work” (T11.25). He therefore commenced his assessment of her entitlement to weekly compensation by calculating Mrs Srbinovski’s pre-injury average weekly earnings under s 37 to be $687.20 ($44,676 ÷ 52 × 80%).
Given that the evidence established that Mrs Srbinovski had a current work capacity and was not presently working, the Senior Arbitrator had regard to the amount she was able to earn in suitable employment as defined in s 35 (T11–12). Referring to the definition of “suitable employment” in s 32A of the 1987 Act, the Senior Arbitrator had regard to Mrs Srbinovski’s age, her limited employment history, and the duties involved in working at the service desk (T12). He noted that when Mrs Srbinovski recommenced employment with Coles in March 2011, it was her intention to work at the service desk thereby resuming her previous career. The Senior Arbitrator inferred that this work “involved her dealing with customers, which she would’ve done, in any event, in her position of [second-in-charge], but also as dealing with things such as customer complaints, handling returns of goods and those type[s] of matters” (T12.22).
The Senior Arbitrator stated that the evidence clearly established that Mrs Srbinovski was “unfit to do work where she is required to lift weights or to work with her arms above her shoulders” (T12.28).
He had regard to Mrs Srbinovski’s evidence, which was unchallenged and which revealed that she only had a limited ability to drive for a period of 10 to 15 minutes (T12.29). The Senior Arbitrator then stated that Mrs Srbinovski lives in an area in Sydney in which there would be, within that distance, plenty of job opportunities available to her (T12.34–13.2).
The Senior Arbitrator acknowledged that the evidence was largely directed in terms of Mrs Srbinovski’s ability to perform pre-injury duties. He found that Mrs Srbinovski clearly did not have the capacity to perform her pre-injury duties (T13.9). Nevertheless, the Senior Arbitrator found (at T13.10) that Mrs Srbinovski would be:
“able to work in a clerical or receptionist position given the experience she has had as a [second-in-charge] with the respondent and also given her belief that she would be able to work in [sic] a service desk, that being evidence from the fact that it was her intention to apply for such type of position.”
The Senior Arbitrator added (at T13.18):
“…I’m satisfied that she would be able to work as a receptionist or clerical worker. The fact that she hasn’t done that before does not, it seems to me, prevent her from getting that type of work. She’s not of an age where, it seems to me, she would be unable to get that type of work. It does not matter, it seems to me, that she may have to compete with other people who are younger than her, particularly having regard to her experience of working with [the respondent], that is, that indicates that she is reliable and she would have some attributes that would make her attractive to a punitive [sic putative] employer.”
Having said that, the Senior Arbitrator found that Mrs Srbinovski would not be able to work full-time because of the limitation she has with using her right arm (T13.32). He accepted the evidence of Professor Murrell and Dr Bodel, that it is probably unlikely that Mrs Srbinovski would “be able to work fulltime currently, or at least until she has the surgery” (T14.2). He then found, “based on the evidence”, that Mrs Srbinovski “would be able to work around 30 hours a week in such [a] position” (T14.4).
The Senior Arbitrator then referred to Fair Work Australia (sic, Fair Work Commission) to ascertain the full-time wage for a level one clerk under the Clerks Private Sector Award to be $698.40 for 38 hours per week (T14.8). He then found that, “[b]eing able to work 38 [sic 30] hours a week [Mrs Srbinovski] would be entitled to .79 per cent of that amount” which he calculated to be $551.74.
In view of the pre-injury average weekly earnings figure, being $687.20, the Senior Arbitrator calculated that Mrs Srbinovski was entitled to an award of $135.46 per week (T14.14). He then made an order that the respondent pay that figure under s 37, from 1 August 2014 to date and continuing (T14.16).

LEGISLATION

Section 32A of the 1987 Act relevantly provides the following definition:
“32A Definitions
In this Division and in Schedule 3:
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)     having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)  the worker’s age, education, skills and work experience, and
(iii)  any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)  any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)  such other matters as the Workers Compensation Guidelines may specify, and
(b)     regardless of:
(i)whether the work or the employment is available, and
(ii)  whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)  the nature of the worker’s pre-injury employment, and
(iv)  the worker’s place of residence.”

Legislative Context

Rule 15.2 of the Workers Compensation Commission Rules 2011 provides:
“Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1)     evidence should be logical and probative,
(2)     evidence should be relevant to the facts in issue and the issues in dispute,
(3)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)     unqualified opinions are unacceptable.”
Practice Direction 13 – Schedule of Earnings is directed to assisting practitioners to prepare a schedule of earnings and directs attention to quantifying entitlements to weekly compensation. It provides, among other things, the following passage:
“EXPERT TRIBUNAL AND ABSENCE OF EVIDENCE
The Commission is a specialist tribunal. As such, it is entitled to draw on its general knowledge and experience in assessing the value of work done in the general labour market (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625; Akawa Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385). However, the Commission’s knowledge and experience does not extend to overseas labour markets (Raghavadev v Moonlight Mushrooms Pty Ltd [2010] NSWWCCPD 120).
In addition, the Commission may inform itself on any matter in such manner as it considers appropriate and as the proper consideration of the matter permits (s 354(2) of the Workplace Injury Management and Workers Compensation Act 1998), subject to the requirements of Pt 15 r 15.2 of the 2011 Rules.
Where there is inadequate evidence, or a lack of probative evidence, the Commission may use its knowledge of the labour market and wage rates to calculate probable earnings but for an injury, and/or to calculate a worker’s ability to earn. The Commission may also inform itself of wage rates, or annual movements in wage rates, by reference to secondary source material including, but not limited to, the Australian Bureau of Statistics website ( the Industrial Relations Commission website ( and specialist publications such as What Jobs Pay (Yorkcross Pty Limited) by Rodney Stinson (Manpower Pty Ltd v Harris [2011] NSWWCCPD 10).
The Commission will notify the parties of the matter or matters about which it intends to inform itself and the parties will have an opportunity to respond.” (emphasis added)

GROUNDS OF APPEAL

It is alleged that the Senior Arbitrator erred:
(a) by failing to afford the appellant procedural fairness by relying upon extrinsic material, namely the Clerks Private Sector Award, without drawing it to her attention or the attention of her legal representatives;
(b) by misstating or ignoring or misapplying the statutory task required of him by ss 32A, 35 and 37 of the 1987 Act, and
(c) in finding that the appellant is able to work as a receptionist or a clerical worker.

DISCUSSION AND FINDINGS

Ground (a) – Did the Senior Arbitrator err by relying upon extrinsic material?

The appellant’s submissions

The appellant acknowledged that the Senior Arbitrator was not bound by the rules of evidence and that the Commission is entitled to inform itself on any matter in such a manner as it thinks appropriate: s 354(2) of the 1998 Act. However, the appellant submitted that in doing so, the Senior Arbitrator, being bound by the rules of procedural fairness, and in order to give the matter “proper consideration”, was obliged to draw the contents of the relevant material upon which he proposed to rely to the attention of the parties to enable them to examine it, read it and, if appropriate, make submissions.
It is submitted that the Senior Arbitrator did none of these things. He simply asked why the appellant could not perform the work of an entry level clerk.
The appellant further submitted that it is apparent from the question asked by the Senior Arbitrator and the fact that his decision was an extempore decision in which he referred, in precise terms, to the content of a document, that he must have had it before him during the hearing.
Even the publication of the Senior Arbitrator’s reasons does not disclose the terms of the award upon which he relied other than the weekly amount payable. The appellant submitted that it is impossible to know whether he relied only on the wage rate to which he referred or to other information within the award in making the decisions. Without the document being exhibited, it is submitted that it is impossible to know whether the recited wage rate is even correct or applicable in the circumstances or criteria apparently assumed by the Senior Arbitrator.
The appellant relies on the principles identified by Deputy President Roche in Paul Segaert Pty Ltd t/as Lidco v Narayan [2006] NSWWCCPD 296 (Narayan) at [68]. The appellant also embraces the commentary at [73] of the decision in Narayan, in particular the Deputy President’s statement that the parties are to be given a reasonable opportunity to consider the material to be relied upon. The reliance upon the previously unidentified material is an error requiring the determination of entitlement to weekly compensation to be set aside.

The respondent’s submissions

The respondent refutes the submission that the appellant was denied procedural fairness. The question of the content of the obligation to accord procedural fairness is one of practical justice: Minister for Immigration & Multicultural Affairs, Re; Ex parte Lam [2003] HCA 6; 214 CLR 1 (Lam).
The respondent submitted to the Senior Arbitrator that the appellant was capable of earning $20 per hour in suitable employment. The appellant made no submissions on that topic. The respondent does not submit that the appellant was required to make a submission as to the hourly rate, given the Commission’s specialised knowledge of relevant labour markets and wage levels: Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 (Perkins). However, it is within this context that the Senior Arbitrator referred to the relevant award rate for a clerical worker and applied this to Mrs Srbinovski.
The respondent submitted that having elected not to rely on any evidence in relation to the appellant’s capacity for employment, the appellant cannot now criticise the Senior Arbitrator’s approach to the assessment of that issue.

Discussion

The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits (s 354(2) of the 1998 Act). However, this power is subject to the general principles of procedural fairness: Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15 and Narayan at [46].
It is well settled that fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice: Lam, Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335.
In Muin v Refugee Review Tribunal [2002] HCA 30; 190 ALR 601 McHugh J stated (at [123]) that natural justice requires that:
“a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.” (footnote omitted)
I accept the appellant’s submission that the exchange that took place between the Senior Arbitrator and counsel for the appellant at the arbitration hearing regarding Mrs Srbinovski’s suitability for work as a receptionist or clerk, taken together with the Senior Arbitrator’s ultimate reliance upon the award provisions for a person working in such a position, suggest that it was highly likely that the Senior Arbitrator had access to the award provision during the course of the arbitration hearing. The fact that the Senior Arbitrator quoted from the award provision in an extempore decision tends to confirm that view.
As the appellant submitted, the practical injustice in this case is that the Senior Arbitrator’s reasons do not disclose the terms of the award on which he relied other than the weekly amount payable. Further, as she also contended, it is impossible to know whether the Senior Arbitrator relied only on the wage rate to which he referred or other information within the award in making his decision. Without the document being exhibited or even examined, it is impossible for the appellant to know whether the recited wage rate is even correct or applicable to the circumstances or criteria assumed by the Senior Arbitrator.
I do not accept the respondent’s submission that there is no practical injustice because the appellant was fully aware that the Senior Arbitrator would have to assess the appellant’s capacity for employment and the appellant elected not to rely on any evidence in relation to that issue or make submissions.
Mrs Srbinovski’s counsel, Mr Stockley, provided detailed submissions as to the meaning of suitable employment as defined in s 32A of the 1987 Act. He expressly eschewed the proposition that an assessment of Mrs Srbinovski’s ability to earn in suitable employment could be achieved by “plucking some particular class of occupation in an abstract way”. Mr Stockley also submitted that by reason of her age, education, skills and work experience, Mrs Srbinovski was unsuitable for employment in an entry level clerk job for a school leaver.
The respondent further submitted that there was no practical injustice because, contrary to its submission that Mrs Srbinovski was capable of earning $20 per hour, the Senior Arbitrator assessed her entitlement by identifying an amount of $18.38 per hour as her ability to earn in suitable employment. Therefore, there cannot be a denial of procedural fairness to allow a more beneficial conclusion to be drawn. I reject that submission. Even though the Senior Arbitrator’s assessment of Mrs Srbinovski’s ability to earn may have been slightly more beneficial than the respondent’s submission, it does not overcome the practical injustice identified by Mr Stockley discussed at [51] of this decision.
As Deputy President Roche discussed in Narayan (at [73]), whilst s 354(2) permits the Commission to “inform itself on any matter in such manner” as it thinks fit, it does not give Arbitrators carte blanche to consider any material that they may consider of interest to an issue in dispute. The broad terms of s 354 are constrained by r 15.2 as set out above. In addition to the requirements that the evidence be logical, probative and relevant to the facts in issue, and issues in dispute, when seeking to inform themselves on matters, Arbitrators have a duty to comply with the rules of natural justice and procedural fairness. That is, they must give all parties in the case a reasonable opportunity to consider the material. As the Deputy President noted, the Commission’s power to inform itself should be used “sparingly and cautiously”.
The respondent’s reliance on Perkins is misplaced. In that case Deputy President O’Grady made the observation that whilst the Commission is a specialist or expert tribunal with particular knowledge or expertise of relevant labour markets and wage levels, its specialist knowledge or expertise does not extend to filling gaps in the evidence concerning the establishment of a causal nexus between employment and a diagnosed disability. It did not concern a case such as the present, namely, a case where an Arbitrator informed himself about, and relied on, an award without informing the parties of his intention to do so and without giving them an opportunity to be heard or call evidence.
In any event, the Deputy President’s observations may be seen as an overstatement of the principles involved. There will be many cases where, applying commonsense, an inference of causation can be drawn in the absence of expert medical evidence explicitly supporting such a conclusion (MMI Workers Compensation (NSW) v Kennedy [1993] NSWCC 26; 9 NSWCCR 482).
Whilst the Commission is not bound by the rules of evidence and it may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Commission permits, the Senior Arbitrator should have informed the parties that he intended to rely on the award provision and should have afforded the parties an opportunity to make submissions in relation to it and, if necessary, call evidence on it. His failure to do so was, in my view, a failure to accord procedural fairness and a breach of the Commission’s own practice direction.
It follows that ground (a) must be upheld.

Grounds (b) and (c) – Erroneous application of the weekly compensation provisions

The appellant’s submissions

The appellant submitted that the evidence did not support the Senior Arbitrator’s finding that she is able to work as a receptionist or a clerical worker.
Given the manner in which the dispute was raised in the s 74 notice, namely a threshold liability question, the only evidence marshalled by the appellant on that issue was that of a medical nature going to her functional capacity. That is, there was no evidence in the nature of a vocational assessment or a description of her pre-accident duties other than that contained in her statement and the medical histories.
The starting point for an assessment of an entitlement to weekly payments of compensation is s 32A of the 1987 Act and a consideration of whether the injured worker has “no current work capacity” within the meaning of the definition section. That in turn invites consideration of whether or not she had an ability to return to work “either in the worker’s pre-injury employment or in suitable employment”.
In terms of Mrs Srbinovski’s incapacity by reference to the medical evidence, the appellant concedes that the medical evidence from Drs Bodel, Rajendran, Murrell and Miniter supported the Senior Arbitrator’s finding that she could not perform her pre-injury duties as a register operator, that her lifting capacity was somewhere between 1 kg (Dr Murrell) and “not heavy” (Dr Miniter) with no overhead work.
The next part of the suitable employment definition was a consideration of age, education, skills and work experience. The appellant further submitted that the Senior Arbitrator made no observation regarding Mrs Srbinovski’s age although the chronology made clear that having commenced work at the age of 15, she had only a basic secondary education. It is submitted the Senior Arbitrator presumably did not consider these factors.
The evidence did not reveal what her duties as a second-in-charge to the service manager entailed. However, the appellant accepts that it was open to the Senior Arbitrator to infer that this work “involved her dealing with customers, which she would’ve done, in any event, in her position of 2IC, but also as dealing with things such as customer complaints, handling returns of goods and those types of matters”.
However, she submitted that the evidence merely demonstrated that Mrs Srbinovski had sufficient skill and experience as a check-out operator to perform some of the supervisory functions related to that role. What the Senior Arbitrator did not record was that Mrs Srbinovski’s job as second-in-charge involved work that was “extremely physically arduous”. The appellant submitted that the evidence did not support a finding that Mrs Srbinovski had ever performed clerical work or had the necessary skills to perform such a role.
Otherwise, the appellant did not have the benefit of any of the matters identified in part (a) of the definition of suitable employment namely, return to work planning, injury management, occupational rehabilitation services or other matters.
The appellant submitted that the Senior Arbitrator erred by finding that Mrs Srbinovski was able to work in a clerical or receptionist position on the available evidence. It submitted that there was nothing to suggest that she had the transferable skills requisite for either of those occupations.
It is submitted that the Senior Arbitrator “tempered” his finding on suitable employment by finding that Mrs Srbinovski was capable of working 30 hours per week in such a position. However, it is submitted that there was no reasoned basis for this conclusion having regard to the evidence of Dr Rajendram, Professor Murrrell and Dr Bodel. Further, that the assessments undertaken by those doctors had to be seen in the context of the injury management and rehabilitation obligations of Coles and cannot be seen as an assessment of Mrs Srbinovski’s capacity for work beyond her employment with Coles.
The final part of the Senior Arbitrator’s approach was to ascribe the sum of $551.74 per week as a value to Mrs Srbinovski’s work capacity, being 79% of the Clerks Private Sector Award, by concluding this is the amount “she would be entitled to” (14.12). In doing so, it is submitted that the Senior Arbitrator erred in two respects.
First, it is submitted that the Senior Arbitrator erred in the use of the extrinsic material, which is the subject of the first ground of appeal. Second, the Senior Arbitrator assessed Mrs Srbinovski’s ability to earn by reference to the number of hours she could perform in a position, whereas s 35 directs attention to “the amount the worker is able to earn in suitable employment”.
The statutory test to be applied pursuant to s 35 involves a hypothetical assessment without reference, by dint of s 32A, to the availability of work and the available market. Nevertheless the statutory test requires the decision maker to consider the worker’s ability to earn in that hypothetical employment.
It is submitted that Mrs Srbinovski’s ability to earn in the hypothetical employment as a clerk part-time is nil because it is not suitable employment. At the time of the hearing the appellant was not working. The appellant hypothesised that the reason Mrs Srbinovski is not undertaking such work is not because she is unwilling to work or because of her geographical location in suburban Sydney, it is because clerical work is not suitable employment.

The respondent’s submissions

No complaint has been raised by the appellant that the Senior Arbitrator failed to consider the medical or other evidence. Indeed, the appellant has accepted that on the available evidence it was open to the Senior Arbitrator to conclude that Mrs Srbinovski was unfit for work involving lifting weights or work with her arms above her shoulders.
In terms of the Senior Arbitrator’s assessment of Mrs Srbinovski’s ability to earn, the appellant has conceded that it was also open to him to conclude that Mrs Srbinovski’s prior work experience and skills “involved her dealing with customers…dealing with things such as customer complaints, handling returns of goods and those types of matters”.
The appellant’s complaint is that the evidence did not support a finding that Mrs Srbinovski was able to perform a clerical or receptionist job. The respondent submitted that that was the precise submission that was made and rejected by the Senior Arbitrator at the arbitration.
The Senior Arbitrator correctly identified the statutory definition of the meaning of suitable employment in s 32A. Further, it is submitted that the Senior Arbitrator applied those factors to his assessment of Mrs Srbinovski’s ability to earn based on the evidence before him (T12–13).
It is also submitted the Senior Arbitrator’s findings were open to him and that he was clearly trying to do the best he could with the limited evidence available to him to assess Mrs Srbinovski’s entitlement to compensation: NSW v Moss [2000] NSWCA 133.
The Senior Arbitrator should not be criticised for doing the best he could on the evidence tendered and the way the case was run (Moriarty-Baes v Office Works Superstores Pty Ltd [2015] NSWWCCPD 28 (Moriarty-Baes)).
The Commission was entitled to apply the Commission’s specialist knowledge of labour markets and wage rates with the evidence, limited as it was. In doing so, the Senior Arbitrator did not err by finding Mrs Srbinovski was capable of work as a clerical worker. For the same reason it was open to the Senior Arbitrator to find that Mrs Srbinovski could obtain employment for 30 hours per week.
The Commission is not bound by the rules of evidence. It is required to draw its conclusions from material that is satisfactory, in a probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material (Moriarty-Baes at [136]). Given the competing views as to Mrs Srbinovski’s capacity (i.e. between full-time or part-time) the Senior Arbitrator was entitled to find she had a capacity to work a 30 hour week.

Discussion

I do not accept the appellant’s submissions.
The appellant’s characterisation of the s 74 notice as only raising a “threshold liability question” is not an accurate statement of the issues in dispute. The s 74 notice not only raised a causation issue and a s 9A defence, it raised the issue of whether the appellant was “fit for return to normal hours of work”.
That was sufficient to put the appellant on notice that if she established liability it would be necessary for her to satisfy the Senior Arbitrator that she was entitled to an award of compensation under ss 35 and 37 of the 1987 Act. That put incapacity and the quantum of any potential award in issue.
The case was presented and argued on that basis. The Senior Arbitrator identified the issues in dispute. He said (at T1.32 of the hearing transcript):
“It’s conceded, as I understand it, that it is disputed on the basis of sections 9A and section 33 and section 60, that is, whether employment was a substantial contributing factor to the injury, whether, if so, any incapacity arises from the injury, and whether the surgery proposed is treatment that is reasonably necessary as a result of the injury…” (emphasis added)
Mr Stockley did not raise any objection to the Senior Arbitrator’s characterisation of the issues. Indeed, he engaged in a robust debate with the Senior Arbitrator (T11.19 –T14.12) regarding the quantification of any potential award in Mrs Srbinovski’s favour. At no point in the proceedings did he argue that the only issue before the Commission was a threshold liability issue. No application was made to the Senior Arbitrator to adjourn the proceedings to allow further evidence or submissions on the issue of suitable employment. It is evident from the transcript of the proceedings that Mr Stockley was content for that issue, and the quantification of any award, to be determined by the Senior Arbitrator.

In the alternative, if quantification of Mrs Srbinovski’s entitlement to weekly compensation was not in dispute, as Mr Stockley appears to contend on appeal, given the way the case was presented and argued, the Senior Arbitrator impliedly granted leave for it to be disputed.
This issue would not have arisen if the s 74 notice was drafted with more precision. As the Commission has said on many occasions an employer’s obligations under s 74 are not satisfied by a document that leaves “the worker to work out exactly which issues are disputed” (Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 at [45] quoted with approval in Fairfield City Council v Arduca [2015] NSWCA 166 at [35]).
As the appellant submitted, a starting point in an assessment of entitlement to weekly payments is s 32A and a consideration of whether or not the injured worker has no current work capacity within the meaning of the definition in the section. That, in turn, invites a consideration of whether or not the worker has an ability to return to work “either in the worker’s pre-injury employment or in suitable employment”.
The Senior Arbitrator considered the nature of Mrs Srbinovski’s incapacity by reference to the medical evidence (T12.5). Having considered the evidence of Drs Bodel, Rajendran, Murrell and Miniter, the Senior Arbitrator concluded that Mrs Srbinovski was unfit to do work “where she is required to lift weights or work with her arms above her shoulders” (T12.30). Neither party has challenged that finding.
The submission that the Senior Arbitrator made no observation about Mrs Srbinovski’s age is not correct. The Senior Arbitrator stated (at T12.16) that “[Mrs Srbinovski] was born in May of 1967. That makes her 48 years of age currently”. The Senior Arbitrator made a further reference to Mrs Srbinovski’s age (at T13.22) where he concluded that her age would not preclude her from obtaining work as a receptionist or clerical worker.
Although the evidence did not reveal what the duties of a second-in-charge to the service manager entailed, the appellant concedes that it was open to the Senior Arbitrator to infer that the work involved dealing with customers, dealing with customer complaints, handling return of goods “and those types of matters”.
I do not accept the submission that it was not open to the Senior Arbitrator to conclude that Mrs Srbinovski’s work experience with Coles, even in her work as a second-in-charge, equipped her with the skills to perform the role of a clerk or receptionist. That was precisely the submission that was made before the Senior Arbitrator and rejected. The Senior Arbitrator gave the following reasons for that conclusion:
(a)   Mrs Srbinovski’s experience as a second-in-charge with Coles;
(b)   Mrs Srbinovski had formed the belief that she had the necessary skills to be able to work at a service desk, that being evident from the fact that it was her intention to apply for such a position (T13.13);
(c)   the fact that Mrs Srbinovski had not previously worked as a clerk or a receptionist did not prevent her from undertaking such work (T13.21);
(d)   Mrs Srbinovski’s age would not preclude her from such work even if it meant she had to compete against younger applicants (T13.23), and
(e)   her experience working with Coles indicated that she was reliable and that she would have the attributes that would make her more attractive to a punitive (sic, putative) employer (T13.28).
In addition to the reasons given by the Senior Arbitrator there is other evidence which supports his conclusions. Mrs Srbinovski occupied the position of second-in-charge to the service manager for a period, which is unspecified, between 1984 and 1993 and again for one year from June 2012 to June 2013. She told Dr Bodel that her role was to supervise all the checkouts. The role was known as the “front end controller”. Mrs Srbinovski would go on to the checkout herself when the store was busy. She was also required to assist in any way she could at the front end of the supermarket to keep it operating efficiently. Given the supervisory responsibilities she had and the initiative she was required to exercise, it is reasonable to infer, as the Senior Arbitrator did, that the skills derived from that work would equip her to undertake the duties of a clerical worker.
In correspondence between Coles and Professor Murrell on 10 April 2014, Coles sought the doctor’s opinion regarding Mrs Srbinovski’s capacity for a return to work on restricted duties. The letter states:
“We ask this as the store has advised they would be able to accommodate light duties for her for instance in the office with light administrative duties such as filing or answering phones.”
For reasons which are not explained, Professor Murrell did not address Mrs Srbinovski’s capacity for such work, other than to restrict duties to a lifting limit of one kilogram and no overhead work, as I have indicated. However, with the benefit of a detailed knowledge of Mrs Srbinovski’s experience and skills, Coles’ willingness to entertain the possibility of her performing light administrative duties, such as filing or answering phones, is evidence which supports the Senior Arbitrator’s finding that she has the skills to work as a receptionist or in a clerical capacity.
As has been conceded by the appellant, no evidence in the nature of a vocational assessment or a description of the appellant’s pre-injury work, other than that contained in her statement and the medical histories, was available to the Senior Arbitrator.
For the reasons identified by the Senior Arbitrator, and for the additional reasons I have given, it was open to the Senior Arbitrator to find, doing the best he could from the limited evidence available, that Mrs Srbinovski had acquired sufficient transportable skills to equip her to do the work of a receptionist or clerical worker.
The appellant correctly observed that the Senior Arbitrator’s assessment of Mrs Srbinovski’s ability to earn was tempered by a finding that she could only work for 30 hours per week. The appellant submitted that there was no reasonable basis for that conclusion. I reject that submission.
There was a broad range of opinions amongst the treating and qualified doctors as to Mrs Srbinovski’s ability to work full-time. Dr Bodel opined that she was fit for permanently modified duties until such time as she had a successful response to surgery, indicating that her capacity was only for part-time work. He did not offer an opinion regarding the number of hours that she could work.
Mrs Srbinovski’s treating general practitioner, Dr Rajendran, opined that Mrs Srbinovski’s capacity for work was limited to four hours per day, five days per week, provided that work involved minimal abduction and external rotation of the right shoulder.
The treating surgeon, Dr Murrell, opined that Mrs Srbinovski was not fit for work that involved lifting more than one kg and overhead work. He also offered no opinion regarding the numbers of hours Mrs Srbinovski was capable of working.
Dr Miniter assessed that Mrs Srbinovski should avoid register work but was otherwise fit to perform most other activities, provided she avoided heavy lifting or work above shoulder level. Subject to those restrictions, he considered she was fit for normal hours.
The Senior Arbitrator noted the range of views and concluded that Mrs Srbinovski would not be able to work full-time. That was consistent with the evidence of Drs Rajendran and Bodel. Having regard to the whole of the evidence, the Senior Arbitrator concluded that Mrs Srbinovski would be able to work around 30 hours per week in a suitable position. Given the range of views as to Mrs Srbinovski’s capacity, it was clearly open to the Senior Arbitrator to find that Mrs Srbinovski’s ability to work was limited to 30 hours per week in the positions that he identified. That finding does not involve error.
The appellant argued that the commentary from the doctors had to be assessed in the context of the injury management and rehabilitation obligations of a reasonable employer and that those assessments cannot be seen as an assessment of her capacity beyond her employment with Coles. I accept that the opinions expressed by the doctors were expressed with a view to Mrs Srbinovski’s capacity for work with Coles, but the opinions expressed were not limited to such work. The opinions expressed were in sufficiently general terms to give the Senior Arbitrator an insight into the nature of the physical limitations on Mrs Srbinovski’s ability to work in general. Having regard to those limitations, it was open to the Senior Arbitrator to identify other forms of suitable employment that Mrs Srbinovski would be capable of performing.
The appellant submitted that Mrs Srbinovski’s ability to earn in the hypothetical employment as a clerk is nil, because the employment is not suitable. I reject that submission for the reasons that were given by the Senior Arbitrator as discussed and for the additional reasons I have identified.
The appellant further submitted that there were three possible reasons to explain why Mrs Srbinovski is not currently working: namely, that clerical work is not suitable; clerical work is unavailable, or that Mrs Srbinovski is not prepared to perform suitable work. She submitted that the most likely explanation is the fact that clerical work is not suitable employment. That submission is entirely speculative and is not supported by reference to the evidence or any reasoned argument. For the reasons that have already been given, it was open to the Senior Arbitrator to conclude that clerical work was suitable employment in the circumstances of this case.
For these reasons, grounds (b) and (c) fail.

CONCLUSION

In quantifying Mrs Srbinovski’s ability to earn, the Senior Arbitrator relied upon extrinsic materials, namely the rate of earnings of a level one clerk pursuant to the Clerks Private Sector Award. The Senior Arbitrator’s failure to draw to the attention of the parties his intended reliance upon the Award or to provide them with an opportunity to make submissions or call evidence in relation to its application to quantify Mrs Srbinovski’s ability to earn was, in the circumstances of this case, a breach of procedural fairness.
It follows that the Senior Arbitrator’s determination of 7 August 2015 must be revoked and the matter remitted to another Arbitrator to re-determine.
However, the challenge to the Senior Arbitrator’s finding that Mrs Srbinovski is fit for the work as a receptionist or a clerical worker failed. When the matter is re-determined that finding must stand and is not open to further challenge.
The following additional findings have not been challenged and are not open to further challenge:
(a) that Mrs Srbinovski suffered an injury to her right shoulder arising out of and in the course of her employment;
(b) that Mrs Srbinovski’s employment was a substantial contributing factor to the injury, and
(c) for the purpose of the application of s 37 of the 1987 Act, Mrs Srbinovski’s pre-injury average weekly earnings amounted to $687.20 (80 per cent of her pre-injury average earnings).
The remittal to another Arbitrator is for the limited purposes of quantifying Mrs Srbinovski’s ability to earn as a part-time clerical worker or receptionist. At the further hearing of the matter the parties will have the opportunity to seek leave to rely on any additional evidence on that question, and that question only, and to make further submissions on that issue. It will then be open to the Arbitrator to make final orders subject to the above mentioned matters.

ORDER

The Arbitrator’s Certificate of Determination dated 7 August 2015 is revoked. The matter is remitted to another Arbitrator to determine in accordance with the reasons given in this decision.

Judge Keating
President

24 November 2015

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.