Star City Pty Limited v Butler
[2008] NSWWCCPD 59
•18 June 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Star City Pty Limited v Butler [2008] NSWWCCPD 59 | |||||
| APPELLANT: | Star City Pty Limited | |||||
| RESPONDENT: | Scarlett Butler | |||||
| INSURER: | Star City Pty Limited (self insurer) | |||||
| FILE NUMBER: | WCC7463-07 | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 January 2008 | |||||
| DATE OF APPEAL DECISION: | 18 June 2008 | |||||
| SUBJECT MATTER OF DECISION: | Sections 38, 38A and 40 of the Workers Compensation Act 1987; whether the evidence supported the finding of incapacity; adequacy of reasons. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | George Mallos, Lawyer | ||||
| Respondent: | Steve Masselos & Co, Solicitors | |||||
| ORDERS MADE ON APPEAL: | Time to appeal the Arbitrator’s determination dated 7 January 2008 is extended until 5 February 2008. The decision of the Arbitrator dated 7 January 2008 is confirmed. The Appellant is to pay the costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
On 5 February 2008 Star City Pty Limited (‘the Appellant/Star City’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 7 January 2008.
The Respondent to the Appeal is Scarlett Butler (‘the Respondent/Ms Butler’).
The Respondent is presently 65 years of age. In January 2001 she commenced employment with the Appellant in the position of electronic gaming representative.
She worked between 66 and 75 hours per fortnight, shift work, on a permanent part-time basis. The Respondent’s duties varied but mainly involved the operation of electronic poker machines located on the main gaming floor.
The main gaming floor was a smoking area and the Respondent claimed that the air in this area “… was always heavily smoke-laden, especially at night”.
The Respondent claims that on or around 27 December 2003 she awoke during the night with difficulty breathing. She consulted her general practitioner, and was diagnosed with respiratory problems.
On or around 16 January 2004 the Respondent’s general practitioner certified her unfit to work in any smoke filled area in the Appellant’s premises. The Respondent resumed work with the Appellant performing administrative work five hours per day, one to two days per week.
Liability was initially accepted by the Appellant (in its guise as self insurer) however by letter dated 15 July 2004, the Appellant advised the Respondent that her claim was denied from 28 July 2004 on the grounds that “… [the] work is no longer a substantial contributing factor to your condition, your work aggravation has now ceased”.
On 2 October 2007, the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits of compensation from 28 July 2004 to date and continuing together with medical and related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
The parties attended a conciliation/arbitration hearing on 28 November 2007. No oral evidence was given, but both parties’ submissions are recorded in the transcript of that date.
Briefly, the Arbitrator found in favour of the Respondent awarding her weekly benefits pursuant to section 38 of the 1987 Act and thereafter the maximum statutory rate for a single worker pursuant to section 40 of that Act up to 18 May 2007.
It is from this decision that the Appellant seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 January 2008 records the Arbitrator’s orders as follows:
“1.The Respondent to pay to the Applicant weekly benefits compensation at the rate of $534.40 for a 26 week period from 28 July 2004 pursuant to section 38 and thereafter at the maximum statutory rate for a single worker pursuant to section 40 up to 18 May 2007.
2.The Respondent to pay the Applicant’s medical and treatment expenses pursuant to section 60 upon production of accounts and/or receipts.
3.The Respondent to pay the Applicant’s costs as agreed or assessed”.
A ‘Statement of Reasons’ accompanied the Arbitrator’s determination.
LEAVE TO APPEAL
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 Act (‘the 1998 Act’)
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act however, the appeal was filed out of time contrary to the provisions of section 352(4) of that Act.
On 8 April 2008 the Appellant filed submissions pursuant to a direction dated 4 April 2008 as to why the appeal application was lodged out of time. Briefly, the Appellant explained that due to the Christmas vacation period, the ‘Certificate of Determination’ was not received until 21 January 2008. Prompt steps were taken to file the appeal within the time prescribed, but a miscalculation was made as to the date upon which the appeal was due (4 February 2008).
The appeal was filed on 5 February 2008. I note that in her ‘Notice of Opposition to Appeal’ filed on 20 March 2008, the Respondent takes no issue with the late filing of the appeal.
In these circumstances, I am satisfied that I should extend the time for making the appeal, pursuant to Rule 3.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’).
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.”
The Appellant submits that the appeal should not be determined ‘on the papers’. The Appellant claims that, since the Respondent has filed a ‘Notice of Opposition’:
“… In such circumstances there should be an oral hearing so that the competing submissions can be the subject of further and full argument prior to the Presidential Member making a Determination.”
The Appellant further submits that:
“… If it is successful in establishing an error of law or fact a re-hearing should be conducted by the Presidential Member rather than referring the matter to another Arbitrator. The Appellant/Employer submits that it would be in the interests of justice that such a re-hearing be an oral hearing.”
The Respondent submits that “… as the only issue in dispute is a question of the amount and duration of the Applicant’s entitlement, there would in any event be no requirement of the taking of further oral submissions …” and that the matter is suitable for a determination ‘on the papers’. I note that the Appellant “… does not seek to appeal against the findings of the Arbitrator in relation to injury and s.9A”.
A copy of the transcript was forwarded to both parties by the Commission under cover of a letter dated 13 February 2008. On 9 April 2008, the Appellant filed further “Submissions in Reply”. No further submissions were made as to why an oral hearing was deemed necessary.
This issue was considered by the Court of Appeal in Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). In that case, the Appellant claimed that there was a miscarriage and/or denial of procedural fairness in my decision to deal with the matter ‘on the papers’. Mason P, in dismissing this ground of appeal, noted that (para 91) “The Commission is not a court and is not expected to function as a court …” He then stated:
“The employer submits that the Presidential member failed to give any or any adequate weight to the nature and complexity of the case. Had she done so, she would have opted for oral argument with the advantage of questioning and interaction which it offers.
(94) This submission amounts to no more than a complaint about the outcome of the exercise of the discretion. Under the section, the power is enlivened if the Commission “is satisfied that sufficient information has been supplied”. The Presidential member addressed this matter and declared that she was thus satisfied. This conclusion was well open and it has not been shown to be erroneous in fact.”
In the present case, I am not persuaded that the limited issues to be determined require an oral hearing.
Having carefully read the transcript, the extensive material before the Arbitrator, and both parties’ detailed submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Directions numbers 1 and 6 to proceed ‘on the papers’ and that this is the appropriate course in the circumstances.
THE ISSUES IN DISPUTE
The Appellant has identified four grounds of appeal as follows:
1.“The Arbitrator erred in finding as a matter of fact that as at 28 July 2004 the Respondent/Worker was incapacitated (in the economic sense) when such finding was against the evidence and the weight of the evidence.
2.The Arbitrator erred in law and/or fact in finding that the Respondent/Worker [was] seeking suitable employment as required by s.38A(2) and therefore was entitled to payments under s.38 of the 1987 Act.
3.The Arbitrator erred in fact in finding that the Respondent/Worker was only able to work 12 hours per week and earn $228.00 per week.
4.The Arbitrator erred in law in failing to give adequate reasons.”
THE REVIEW PROCESS
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. It has been succinctly summarised by Deputy President Roche in Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188, and in many subsequent decisions. I do not propose to reiterate those principles in detail. In short, the powers of a Presidential Member to revoke a decision pursuant to section 352(7) of the 1998 Act are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error, (See Allesch v Maunz (2000) 203 CLR 172), and the error must be such that, but for it, a different decision should have been made. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56).
My task is to determine whether any errors have been made by the Arbitrator in line with these principles.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Incapacity’ Issue.
The Appellant submits as follows:
“At paragraph 21 [of the ‘Statement of Reasons’] the Arbitrator notes that Dr Kaufman had noted that the Respondent’s/Worker’s symptoms were persisting despite an improvement. The Arbitrator had previously accepted Dr Kaufman’s opinion regarding injury and causation. The Appellant/Employer submits that in those circumstances the Arbitrator should have accepted Dr Kaufman’s opinion regarding the aggravation ceasing.”
The Appellant also submits, in this context, that the Arbitrator has failed to give adequate reasons for her findings and that “no other medical or lay evidence is referred to by the Arbitrator when considering this issue.”
As noted earlier, the Appellant does not take issue with the Arbitrator’s determination that the Respondent suffered a work related injury within the meaning of section 4 of the 1987 Act namely “asthma or an aggravation of asthma” (see paragraph 17). The Arbitrator further concluded that (para 19):
“I am satisfied that Ms Butler worked in a tobacco smoke filled environment and that this contributed [to] the development of the condition of the aggravation of it causing her symptoms to develop in December 2003 … I am satisfied that Ms Butler’s employment with the Respondent as a gaming area representative was a substantial contributing factor to her injury.”
As the Arbitrator rightly stated (para 20):“The question for me to determine is whether the Applicant continues to suffer an incapacity for work as a result of her injury and the extent of that incapacity”.
She continued as follows (para 21):
“Ms Butler complains of persistent symptoms despite being away from her employment. Dr Kaufman concluded that any aggravation had ceased because Ms Butler was not continuing to be exposed to tobacco smoke. I note that Dr Kaufmann noted however that Ms Butler’s symptoms were persisting despite an improvement. There is no evidence before me to cast doubt on Ms Butler’s credibility or genuiness. I accept that her symptoms have persisted despite no longer being exposed to tobacco smoke, as did Dr Kaufman and I accept Dr Kaufman’s opinion that Ms Butler has been sensitized to tobacco smoke. Ms Butler is left with a partial incapacity in that she is only able to work in a smoke free environment. I am satisfied that any continuing incapacity is partial and that the partial incapacity is caused by her employment with the Respondent and that she was also restricted with respect to the number of hours she could work”.
As at 28 July 2004 (when liability was denied) the Respondent was working five hours per day, two days per week with the Appellant. A ‘Return to Work Plan’ implemented by the Appellant annexed to the Respondent’s Application noted that commencing Wednesday 23 June 2004 to Monday 23 August 2004 the Respondent was allocated five hours work per day for two days per week in the “finance” section, her duties including “filing invoices, photocopying invoices, sorting documents, setting up files”. That plan also noted “not to work in a smoking environment”.
Dr Gregory Kaufman, respiratory physician and allergist, provided a number of reports to the Appellant commencing 5 February 2004. In his report of 2 June 2004 Dr Kaufman reported as follows:
“Ms Butler continues to experience shortness of breath, both chronic and acute attacks. She is limited to walking about 200 – 300 metres on the level ground before needing to stop for shortness of breath … the acute episodes of breathlessness are now less frequent than previously, i.e. about once every three days or night … there has been a recurrent cough, occurring on most weeks … she has constant nasal symptoms …
Since Ms Butler has been away from the gaming floor and therefore not exposed to tobacco smoke, there has been a considerable improvement in her systems although they have not returned to their former level, i.e. prior to August 2003.
In my opinion, Ms Butler’s current problems are not related to work. There was a relationship to work when there was aggravation of the underlying complaint, i.e. asthma and rhinitis, when she was exposed to tobacco smoke.
Ms Butler is fit for relatively light physical work and sedentary work, in an environment which is free of significant quantities of respiratory irritants.
In this respect, she should not work in areas where there is likely to be exposure to tobacco smoke.
Her current area of employment would seem an appropriate accommodation. It is inadvisable that she return to her pre-injury duties.
… According to Ms Butler’s history, she is inordinately sensitive to such fumes [tobacco fumes] which cause acute exacerbations of breathlessness. Ms Butler has asthma and rhinitis. Asthma does not usually remit once it has developed in adulthood …
It is unlikely that Ms Butler could return to her duties of prior to August 2003 if smoking is permitted on the gaming floor, notwithstanding the areas of smoking restriction …
I believe that Ms Butler is suffering from a permanent impairment of the respiratory tract …
The work environment temporarily aggravated the underlying condition and that aggravation has now ceased.”
As the Respondent rightly points out in her submissions:
“There is at law no basis upon which to submit that having accepted Dr Kaufman’s opinion as to the nature of injury, the Arbitrator was bound to accept all the doctor’s opinions.”
As I said earlier, there was clear evidence that the Respondent’ s symptoms were persisting (see Dr Kaufman’s reports, the Respondent’s statement, and reports and certificates of the general practitioner, Dr Arber). Whilst the Appellant submits that Dr Kaufman did not in fact conclude that the Respondent was “sensitised to tobacco smoke” as stated by the Arbitrator, this condition could be inferred from his comments set out above.
The Arbitrator accepted that the Respondent was a credible witness and accepted the veracity of her evidence. Whilst the Appellant submits that “… this was not a relevant consideration in coming to an [sic] conclusion about whether or not Dr Kaufman’s opinion be accepted”, it was certainly a relevant consideration for the Arbitrator to take into account having regarding to the totality of the evidence.
It is perhaps timely at this point to consider two other matters raised by the Appellant on the issue of incapacity. The Appellant notes that “the Arbitrator does not set out all of the documents which were in evidence” and that the Arbitrator has failed to give adequate reasons for her findings on incapacity since “no other medical or lay evidence is referred to by the Arbitrator when considering this issue.”
This latter issue was recently considered by the Court of Appeal in Duinker v St Vincent De Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127. Counsel for the Appellant in that case submitted that the Arbitrator’s failure to refer to a particular medical report, apart from simply listing it, “… was not a deficiency of reasons, having regard to the limited nature of the duty of an Arbitrator to give reasons.” (Para 41).
Hodgson JA stated as follows (para 43):
“… I am prepared to accept that, having regard to the task given to Arbitrators by the WIM Act and the provisions of s.294(2) of the WIM Act and Rule 15.6 of the Rules, it would not have been an error of the kind identified in Mifsud v Campbell (1991) 21 NSWLR 725 for the Arbitrator in this case not to have referred specifically to the opinion of Dr O’Neill …”
The Appellant’s argument failed on the basis of the content of the report of Dr O’Neill.
In the present case, it is clear that the Arbitrator had regard to all the medical evidence before her. At paragraph 7 she referred to reports of Dr Burns, a consultant physician qualified by the Respondent. At paragraph 9 she referred to the report and certificates of Dr Arber, the Respondent’s general practitioner. Dr Kaufman’s reports were referred to in various paragraphs of the ‘Statement of Reasons’. Thus I do not accept the Appellant’s assertion that the Arbitrator failed to refer to all of the medical evidence.
In relation to the reports of Dr Burns, the Arbitrator noted (para 7):
“Dr Burns stated in his opinion Ms Butler did not have asthma, and he stated he was not convinced her condition was related to her work with the Respondent but he conceded that if the infection in her bronchii did not begin until 27 December 2003 then she could well have recurrent coughing as a result of inhalation of environmental smoke at work. He considered she was unfit to work from 27 February 2003 because she was too breathless to work and not fit for her pre-injury work.
In his report dated 12 May 2005 Dr Burns stated, on reflection, on the balance of probabilities that Ms Butler’s inhalation of environmental smoke in her work place likely caused the development of her infection but this was difficult to prove 100%”.
Dr Arber provided a number of medical certificates in addition to his report dated 14 October 2004. Those certificates, as the Arbitrator noted (para 9) certified the Respondent “… fit to work in a smoke free environment only from 22 December 2003 indefinitely.”
I note also the reference by Dr Kaufman in his report of 5 February 2004 to the Respondent’s consultation with Dr Vandenberg, a respiratory physician. No report from that doctor was available. Reference is also made by Dr Kaufman in his report dated 2 June 2004 as follows:
“Three weeks ago, she was referred to a respiratory physician, Dr Hibbert, (having previously seen Dr Vandenberg, as reported in my initial letter). He has requested various tests …
In his report of 22 December 2004 Dr Burns noted as follows:
“She has been seeing Dr Arber … who referred her to a chest specialist, Dr Michael Hibbert … He noted air flow limitations … he thought she had asthma.”
Similarly, no reports from Dr Hibbert were available.
In my view, there was ample evidence before the Arbitrator that the Respondent continued to be incapacitated as at 28 July 2004. There is no doubt that she was working limited hours in a difference environment (see the Return To Work Plan). Dr Kaufman’s opinion that any work aggravation had ceased, notwithstanding his acceptance of a continuation of symptoms, was solitary and in marked contrast to the evidence of Dr Burns, Dr Arber and the Respondent herself.
Dr Kaufman’s opinion as to ‘injury’ which, as the Appellant points out, was accepted by the Arbitrator as “… strong and persuasive evidence of at the very least an aggravation caused by work …” was supported by Dr Arber and indeed, by inference, Dr Hibbert as referred to in the report of Dr Burns.
‘Injury’ and ‘Incapacity’ are quite separate issues, the latter being essentially subjective. Having accepted a particular doctor’s opinion as to ‘injury’, it is appropriate for an Arbitrator to consider all the evidence, both lay and medical, in determining the issue of ongoing ‘incapacity’.
In these circumstances, I am not persuaded that the Appellant has demonstrated that the Arbitrator’s finding on this issue was “… against the evidence and the weight of the evidence”. The Arbitrator’s reasons were adequate in the context of her task, and appropriate reference was made to the totality of the evidence before her.
As to whether there was any ‘economic’ incapacity, I will deal with this issue more fully below.
The Section 38 Issue
The Appellant makes the following submission:
“… The Respondent Worker is in fact not ready, willing and able to accept an offer of suitable employment from the Employer. Her Witness Statement dated 29 January 2007 does not give any such evidence. The Respondent/Worker did however submit a number of medical certificates … a number of certificates were provided which varied in relation to the number of hours each week and also varied in relation to a restriction to working in a smoke free environment. The Appellant/Employer submits that the provision of these Certificates do not of themselves constitute a basis for making a finding under s.38A(2)(a).
The Appellant/Employer submits that there was no evidence that the Worker had requested suitable employment apart from the certificate referred to above … There was no evidence that the Worker was taking reasonable steps to obtain employment from some other person. A perusal of paragraphs 10 and 11 of her Witness Statement reveal that the Respondent/Worker regards herself as being effectively totally incapacitated”.
The Appellant concludes:
“In paragraph 22 of the SRD the Arbitrator states: ‘It is apparent from the circumstances …(that) the Worker has taken reasonable steps to obtain suitable employment from some other person’. The Appellant/Employer submits that no such circumstances were shown to exist and that this finding is an error of law.”
The Appellant’s own evidence makes it clear that as at the date liability was denied, the Respondent was working approximately 10 hours per week in the “finance” department, apparently a smoke-free environment.
In her statement dated 29 January 2007 annexed to her Application the Respondent stated as follows:
“I was given work in the office doing administrative work. I was only working five hours per day, one to two days per week and I was managing these duties well.”
In a certificate dated 23 June 2004, Dr Arber certified the Respondent fit for suitable duties from 23 June 2004 – 23 August 2004, five hours per day, two days per week.
Section 38 of the 1987 Act makes provision for payments of compensation to partially incapacitated workers not suitably employed.
Section 38A(1) “… provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A …”
Section 38A(2) is in the following terms:
“(2) General requirements.
The worker is not to be regarded as seeking suitable employment unless:
(a)The worker is ready, willing and able to accept an offer of suitable employment from the employer; and
(b)The worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work …
(c)The worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer; and
(d)The worker is taking reasonable steps to obtain suitable employment from some other person …”
Section 38A(3) provides as follows:
(3)Notice of requirement relating to obtaining suitable employment from other person.
The requirement under sub-section (2)(d) does not apply unless the worker has been notified of the requirement in accordance with this sub-section.
Such a notice:
(a)Must be given in writing by the insurer or self insurer concerned; and
(b)Must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38 …”
It may be reasonably inferred from the Respondent’s statement that she was in fact ready, willing and able to accept, and continue in, the suitable employment provided by the Appellant within the finance department. It is also clear from the evidence that the Respondent provided a number of medical certificates to the Appellant. Whilst it is true, as the Appellant points out, that these certificates “varied” in relation to the number of hours each week, there is no doubt that the certificates placed restrictions on the Respondent’s working conditions and complied with the requirements of section 38A(2)(b).
In my view, if the evidence supported a finding of partial incapacity at the time liability was denied (which I believe it did), and the Respondent complied with the provisions of section 38A, she was entitled to the benefits proscribed by section 38 notwithstanding any change in certification as to the hours she was deemed fit to work each week. Dr Kaufman’s acknowledgment of her physical restrictions in June 2004 combined with Dr Arber’s certification that the Respondent was only fit to work in a “smoke free environment” was sufficient evidence that the Respondent suffered a partial incapacity for employment.
I accept the Appellant’s submission that there is no evidence that the Respondent was taking reasonable steps to obtain employment from some other person. However, it must be said that there is no evidence whatsoever that the Appellant has complied with the requirements of section 38A(3) in advising the Respondent of her obligations.
I do not accept the Appellant’s submission that the Respondent’s statement suggests that she regards herself as being “effectively totally incapacitated”. In that statement, the Respondent describes an episode of severe symptoms requiring hospitalisation in November 2006 but then stated that: “The problem seems to have resolved from 12 November 2006”. The Respondent then states: “I am concerned about my future”. Reference is then made to her plans for the future. Although there is no overt statement as to her intentions regarding future employment, this does not, and in my view, cannot, imply “total incapacity”.
The Appellant takes issue with the Arbitrator’s comments in paragraph 22 of her ‘Statement of Reasons’. The Appellant’s submission is misguided. In paragraph 22 the Arbitrator merely recites the provisions of section 38 noting that:
“… compensation is not so payable unless the worker is ready, willing and able to accept an offer of suitable employment, the worker has provided the requisite medical certificate and has requested the employer to provide suitable employment or it is apparent from the circumstances the worker is ready, willing and able and the worker has taken reasonable steps to obtain suitable employment from some other person”.
The Arbitrator’s statement in this paragraph does not constitute a “finding” that the Respondent had taken reasonable steps to obtain suitable employment from some other person. The “circumstances” to which the Appellant refers is in my view merely a reference to section 38A(2)(c) which states that “… it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer”.
The Respondent’s statement clearly indicates that this was the case.
The Arbitrator found as follows:
“(23)I note that Ms Butler was certified fit for suitable duties, that is working in a smoke free environment on restricted hours and that she was provided with such suitable employment by the Respondent which on her own evidence, she was managing. These duties were withdrawn on the basis that further liability was declined …
(24)There is nothing before me to cast doubt on Ms Butler’s credit and accordingly, I am satisfied that she had a continuing partial incapacity beyond 27 July 2004 and that she provided medical certificates to the Respondent as required certifying her fit for suitable duties. No further suitable duties were provided and he [sic] employment was terminated. I am satisfied that Ms Butler was ready, willing and able to carry out suitable employment if provided as she was indeed carrying out such suitable employment at the relevant time. I am satisfied that Ms Butler is entitled to weekly benefits compensation from 28 July 2004 for a 26 week period. Beyond that, she is entitled to weekly benefits compensation pursuant to section 40.”
Given the failure by the Appellant to comply with the requirements of section 38A(3), and the Respondent having clearly complied with the requirements of section 38A(2) this ground of appeal must fail.
The Section 40 Issue
The Appellant submits that the Arbitrator’s finding that the Respondent was able to work 12 hours per week was “… against the evidence and the weight of the evidence and that the Respondent/Worker was at relevant times fit to engage in fulltime work in a smoke free environment”.
The Arbitrator dealt with the claim for benefits pursuant to section 40 of the 1987 Act at paragraphs 25 to 33 of her ‘Statement of Reasons’. The Arbitrator’s findings as to the Respondent’s ability to earn were based on certificates provided by Dr Arber. As the Appellant rightly pointed out previously, those certificates varied in relation to the number of hours per week the Respondent was certified as fit to work. It is however important to consider those certificates in sequence. Dr Arber commenced to certify the Respondent fit for suitable duties in March 2004. His certificates up until 23 August 2004 certified her fit for five hours per day, two days per week. However, a certificate dated 26 July 2004 certified her fit for seven hours a day, five days per week “work in smoke free environment”. A similar certificate was issued on 5 August 2004 and 11 October 2004. In a certificate dated 13 December 2004, Dr Arber certified the Respondent fit for six hours a day, two days per week to be reviewed on 13 March 2005. Certificates dated 13 May 2005, 7 September 2005 and 7 January 2006 maintained similar restrictions. In what appears to be the last certificate provided by Dr Arber dated 10 April 2006, Dr Arber merely stated that the Respondent was “fit for suitable duties from 7 April 2006 to 7 October 2006.”
However, I note that in that latter certificate Dr Arber also stated that the Respondent “has reached maximum medical improvement and is fit for permanently modified duties …” In my view, it may be appropriately inferred that restrictions set out by Dr Arber in the preceding 10 months or so would be maintained given that “maximum medical improvement” had occurred.
It is the Respondent’s submission that, because of the Respondent’s “… prior experience working with computers and as a cashier” she has been fit to perform work for 40 hours per week “… in a smoke free environment …” during the relevant period, and that she was capable of earning at least her pre-injury earnings with the Appellant.
That submission does not appear to have any evidentiary basis. Even Dr Kaufman, although of the view that the Respondent’s current problems were not work related, nonetheless placed restrictions on her capacity for work. Indeed he noted, as at June 2004, that “her current area of employment would seem an appropriate accommodation”. At that stage, the Respondent was working approximately 10 hours per week in line with the certificates of Dr Arber to which I have referred previously. Dr Arber’s certificates covering the period from July to December 2004 were during the period the Respondent was accepted by the Arbitrator as entitled to benefits pursuant to section 38 of the 1987 Act and for the reasons stated previously, the Respondent was entitled to those benefits notwithstanding that Dr Arber certified her fit for 35 hours work per week.
This is an issue of fact, and the Arbitrator’s findings were consistent with the evidence before her. At paragraph 31 she stated:
“The Applicant would therefore be able to earn in some suitable employment an amount of $228.00 per week on the basis that she was only be [sic] able to work about 12 hours per week at the relevant time. I note the Applicant has had prior experience as a cashier and also worker [sic] with computers. I am satisfied that given her extensive experience in employment Ms Butler would have been able to earn bout [sic] $19.00 per hour at the relevant times in some suitable employment. The restriction was only that she work in a smoke free environment and there are many such places of employment”.
Having determined that weekly earnings but for injury were $668.00 per week (an amount not challenged on appeal) the difference entitled the Respondent to the maximum statutory rate for a single worker pursuant to section 40 of the 1987 Act.
The Arbitrator made reference to the Court of Appeal decision in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 and set out in detail the “five steps” to be taken in assessing an award pursuant to section 40 of the 1987 Act, and I can see no error in her determination on this aspect of the Respondent’s claim.
Whilst I accept, as the Appellant points out in its submissions in reply filed on 10 April 2008 that the Respondent was certified as fit “… for a full working week in at least four WorkCover medical certificates …”, these were produced during the time the Arbitrator found the Respondent entitled to section 38 benefits. The later certificates, read in context, were in line with the Respondent’s own evidence, and provided a proper basis for the Arbitrator’s ultimate determination as to her entitlements pursuant to section 40 of the 1987 Act.
The Adequacy of Reasons Issue
I have dealt with this ground of appeal in my review of the ‘incapacity’ issue since it was raised by the Appellant in that context. No other submissions are made by the Appellant on this issue either in the Appeal Application or Submissions in Reply.
In Submissions in Reply, the Appellant claims that “… the Arbitrator does not provide any reason as to why this apparently logical and probative evidence [Dr Kaufman’s opinion] is not accepted”.
The Arbitrator accepted Dr Kaufman’s diagnosis and findings as to ‘injury’. Her reasons for rejecting his views on ‘incapacity’ are set out in paragraph 21 of the ‘Statement of Reasons’ and reflect her acceptance of both the Respondent’s and indeed Dr Kaufman’s evidence as to persisting symptoms.
This was clearly evidence the Arbitrator was entitled to accept notwithstanding Dr Kaufman’s subjective opinion that any aggravation of her condition caused by work factors had ceased.
Whilst it is well established that Commission Arbitrators are not required to give lengthy written reasons to comply with the 1998 Act and the Rules, they must nonetheless adequately disclose the basis of their findings on material questions of fact.
In the present case, I am satisfied that the Arbitrator’s ‘Statement of Reasons’ was both thorough and detailed and clearly identified the grounds upon which her findings of fact were based.
CONCLUSION
The Appellant has failed to demonstrate that the Arbitrator erred either in fact or law on the grounds recited.
DECISION
The decision of the Arbitrator dated 7 January 2008 is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
18 June 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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