Star City Pty Limited v Dong
[2006] NSWWCCPD 309
•15 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Star City Pty Limited v Dong [2006] NSWWCCPD 309
APPELLANT: Star City Pty Limited
RESPONDENT: Jing Dong
INSURER:Star City Pty Limited – self insurer
FILE NUMBER: WCC354-05
DATE OF ARBITRATOR’S DECISION: 20 February 2006
DATE OF APPEAL DECISION: 15 November 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for a finding of ‘partial incapacity’; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Cutler Hughes & Harris
Respondent: McClellands
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated
20 February 2006 is confirmed.
2.Star City Pty Limited is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Jing Dong (‘Ms Dong’) was employed by Star City Pty Limited (‘Star City’) as a gaming attendant. She commenced employment at the Star City Casino in February 2000.
Ms Dong claimed that as a result of the nature and conditions of her employment at Star City between 1 January 2001 and 5 September 2002 requiring her to continuously reach forward and bend to deal and retrieve gaming pieces, she suffered injuries to her neck, back, right arm, right leg and loss of sexual function.
Ms Dong was certified unfit to work from 6 September 2002 until 23 October 2002 and thereafter certified fit to return to work on ‘light duties’. Ms Dong remained on ‘light duties’ with Star City until 8 September 2003 when her employment was terminated.
Star City Pty Limited as self insurer (‘the insurer’) initially accepted liability, and Ms Dong was paid weekly payments of compensation until 8 August 2003.
On 10 January 2005 Ms Dong lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 8 August 2003 to date and continuing, medical, hospital and related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 1 February 2005 Star City lodged a ‘Reply’ disputing Ms Dong’s entitlement to the benefits she claimed.
The parties attended a conciliation/arbitration hearing on 28 November 2005 and a Teleconference for submissions (due to insufficient time at the hearing) on 16 December 2005.
On 20 February 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a single worker with no dependants from 8 August 2003 to 30 June 2004 and from 16 January 2005 to date under s.40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the provisions of the Act.
2.That the Respondent pay the Applicant weekly compensation at the rate of $10.00 per week from 1 July 2004 to 15 January 2005 under s.40 of the Workers Compensation Act 1987.
3.That the Respondent pay the Applicant as lump sum compensation under s.66 of the Workers Compensation Act 1987 as follows (for injuries on and from 01.01.02), $11,250.00 in respect of 9% whole person permanent impairment.
4.That the Respondent pay the Applicant’s s.60 of the Workers Compensation Act 1987 Act expenses on production of accounts or receipts.
5.That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 17 March 2006 Star City filed an ‘Appeal Against Decision of Arbitrator’. Briefly, Star City submits that the Arbitrator erred in her determination of Ms Dong’s claim for benefits pursuant to section 40 of the 1987 Act. Star City submits that “… there are two aspects to a claim under s 40: Firstly, an injury which carries with it a physical restriction, and secondly, a diminution in the value of the worker’s labour … caused by that restriction.” It is Star City’s submission that Ms Dong failed to discharge her onus to establish those criteria, and accordingly that the Arbitrator’s determination that Ms Dong was “partially incapacitated” for employment was against the weight of evidence.
On 28 April 2006 Ms Dong filed a ‘Notice of Opposition to Appeal’. Ms Dong submits that the Arbitrator’s findings were consistent with the evidence before her, and that Star City has failed to demonstrate any error on the part of the Arbitrator.
LEAVE TO APPEAL
The amount of compensation the subject of the appeal satisfies the requirements of section 352(2) of the 1998 Act. The appeal was also filed within the time limits prescribed by section 352(4) of that Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Both parties submit that the matter is suitable for a determination ‘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.”
In the present case, I am satisfied that I have “sufficient information” within the meaning of section 354(6) to determine the issues raised ‘on the papers’, and that this is the appropriate course in the circumstances. I have before me the Arbitrator’s ‘Statement of Reasons’, all the evidence before her, including the transcript, the Commission files, and the detailed submissions by both parties on appeal. I have also had regard to the factors relevant to a determination ‘on the papers’ as set out in Practice Direction No. 1.
I note from the Arbitrator’s ‘Statement of Reasons’ that Ms Dong gave oral evidence at the hearing. No transcript of this evidence is available. The only transcript is of the Teleconference held on 16 December 2005 where both parties’ legal representatives made submissions. The Arbitrator however indicated that she would reserve her decision and consider the “recording” of the proceedings on 28 November 2005. Both parties were provided with a copy of the transcript of 16 December 2005 under cover of a letter from the Commission dated 10 May 2006.
Neither party has taken issue with the absence of a transcript of the proceedings on 28 November 2005. I note that the Arbitrator summarised the “Applicant’s supplementary evidence at hearing” at paragraphs 28 – 32 inclusive of her ‘Statement of Reasons’ such that I assume, for the purposes of this appeal, that the parties are content with the Arbitrator’s summation of Ms Dong’s evidence such that they have agreed to a determination ‘on the papers’.
THE ISSUES ON APPEAL
There is no dispute by Star City “… that the claim is properly one for compensation for partial incapacity under s.40”.
The grounds of appeal are not clearly identified, and many of Star City’s submissions simply repeat the submissions made before the Arbitrator.
Star City submits that:
“… The Appellant’s submission to the Arbitrator, that the Applicant Worker is a highly intelligent woman with little physical constraint on her pursuing work in careers she previously had engaged, was born out by the evidence and should have been accepted.”
Star City further submits that:
“… The worker did not establish that such physical limitation as she might have is productive of any diminution in her earning capacity. Rather, the evidence and findings of the Arbitrator tend to show that any diminution is attributable to the worker’s belief that she was more injured than she was … and her lack of interest in seeking work.”
As I understand it, Star City essentially claims that the weight of evidence did not support the Arbitrator’s ultimate findings as to Ms Dong’s capacity for work.
The relative weight and relevance to be given to evidence is a matter for the discretion of the Arbitrator. As Deputy President Fleming said in South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18:
“It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King (1936) 55 CLR 499 at 504 – 505; Norbis v Norbis (1986) 161 CLR 513 at 520, Re National Roads & Motorists Association Limited [2003] FCAFC 206 at [21] to [21]).”
In the present case, the question then is whether the Arbitrator erred in the exercise of her discretion as to the relevance and probative value of the evidence before her.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Physical Restriction Issue
Section 40(1) of the 1987 Act provides as follows:
“The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
The first task of the Arbitrator was to determine the nature and extent of the “injury” to Ms Dong and then to assess the level of “physical restriction” such injuries produced.
Star City makes a number of submissions on this point as follows:
·“The only physical restriction born out by the evidence was against activities requiring ‘excessive strains of the cervical or lumbar spine’ as opined by Dr Benanzio. None of the work alternatives open to the Applicant involved ‘excessive strains’. The suitable employment considered could easily be managed by regular (possibly hourly) breaks.
·A suggested limitation to five hours per day working at a computer was also made by the Applicant Worker but was said to arise from her feeling ‘ill’ rather than from her injuries. The only evidence supportive of the claimed limitation to five hours per day was the certificate of Dr Yuen … the certificates provided by Dr Yuen for the period from 15 January 2004 to 17 June 2005 … had been properly rejected as being plainly wrong [certification of total incapacity]. The Arbitrator should not have then accepted Dr Yuen’s assessment of the worker’s level of incapacity after that period. There would had been no other medical evidence supportive of this limitation, it had no foundation in the evidence.
·The evidence was that the Applicant Worker could converse in English, had tertiary qualifications … had previously taught at Technical College level, had experience advising manufacturing businesses … had skills and the physical capability to undertake computer work and was presently working, albeit in a volunteer capacity.
·In summary, the Appellant’s submission to the Arbitrator, that the Applicant Worker is a highly intelligent woman with little physical constraint on her pursuing work in careers she previously had engaged, was born out by the evidence and should have been accepted.”
Submissions in similar terms were made to the Arbitrator.
All the documentary evidence before the Commission and “taken into account” by the Arbitrator in making her determination was set out in paragraph 15 of the ‘Statement of Reasons’. In addition, Dr Mario Benanzio issued a ‘Medical Assessment Certificate’ (“MAC’) on 21 May 2006 in which he certified Ms Dong as having a 9% whole person impairment as a result of injuries to her lumbar and cervical spines. Dr Benanzio also opined, not conclusively presumed to be correct, that “…from the orthopaedic point of view the patient remains permanently unfit for activities requiring excessive strains for [sic] the cervical or lumbar spine.”
In summarising the Applicant’s medical evidence at paragraph 24 of her ‘Statement of Reasons’ the Arbitrator noted a report of Dr Alexander Woo, Orthopaedic Surgeon, dated 11 November 2002 in which he opined that Ms Dong:
“… Is not fit for her pre-injury duties, which required standing long hours with repetitive turning and use of both arms dealing and collecting chips. She is fit for duties which allow her to change her posture such as attendance to the poker machine. She is not fit for lifting more than five kilograms.”
It should be noted that at this point in time, Ms Dong was working selected duties with Star City.
Dr Conrad also provided a report dated 8 November 2002 again noting that Ms Dong was currently working about 16 hours per week in the office at Star City and “… is able to do this providing she is able to stand or sit at will, not lift anything more than five kilograms in weight and do repetitive lifting or bending.”
Dr Endrey-Walder in a report dated 17 October 2003 considered that:
“It is most unlikely that Ms Dong will ever again be considered fit for fulltime work as a gaming attendant, but some part-time work in that capacity, perhaps associated with some office work as a part of her work routine may yet be within her capabilities after appropriate physical therapy, probably best provided by a Pain Clinic.”
The Arbitrator summarised Star City’s medical evidence at paragraph 25 of her ‘Statement of Reasons’. She referred to a report of Dr Tim Anderson dated 7 October 2003 in which he opined that “at present it would be unreasonable for Mrs Dong to try to return to her previous occupation as a dealer, simply because she is not physically suited to do so. There is no reason why she should not continue with her office based occupation.”
It a later report dated 21 February 2005, Dr Anderson concluded that :
“At today’s assessment her constellation of symptoms was completely different from those which she had previously given … her current circumstances are not organic and appear very firmly to be driven by non-organic factors.”
The Arbitrator noted Dr Anderson “… expressed dismay at the treatment she had been given. He stated that she did not have a work related injury and that she had become physically de-conditioned. This was the cause of her inability to return to work”.
The Arbitrator also noted a report of Dr C Oates dated 21 June 2004 in which he opined that:
“She is not fit for her pre-injury duties as a casino dealer because of the demand for prolonged standing, with her head forward flexed for prolonged periods … she is fit for modified or suitable duties such as clerical administrative work, she could perform this on a fulltime basis provided she had the opportunity to change her posture every hour between sitting and standing and moving about … she could do other duties on a part-time basis such as shop assistant work as she would not be able to stand for a full days work … she is unfit for her pre-disability occupation as a casino dealer both part-time and fulltime. She is fit for light semi sedentary work such as clerical administrative work, receptionist, telephonist on a full-time basis.”
Thus the majority of the medical evidence, with the exception of Dr Anderson, considered that Ms Dong had “physical restrictions” which would prevent her from performing her pre-injury duties. It is not strictly true for Star City to submit that the only physical restriction was against activities requiring “excessive strains of the cervical or lumbar spine”. Dr Oates considered that Ms Dong was restricted in terms of her ability to undertake prolonged standing with the head forward flexed and stooping at the waist repeatedly.
At paragraphs 28 to 32, the Arbitrator summarised Ms Dong’s oral evidence at the hearing. The Arbitrator stated at paragraph 29:
“… She worked setting up manufacturing business in China. This involved evaluating products and introducing people who are interested in the product to the suppliers. She acknowledged that she still had a lot of contact with people in China … she also acknowledged that she had a Masters Degree in textiles and that she had taught mechanical drawing at Technical College level in China. Ms Dong agreed that she could use a computer … she acknowledged that she could be a shop assistant and that she had applied for a job as a slot machine attendant.”
At paragraph 32, the Arbitrator stated: “In answer to a question about her use of the computer, the Applicant said that she could use the computer for five hours per day at the most, in the afternoons. She had stopped using it for about three months because she became ill when using the computer for extended periods.”
Again, Star City’s submission to the effect that Ms Dong could only work five hours a day at a computer because she felt ‘ill’ rather from her injuries is inaccurate. Certainly the evidence, as summarised by the Arbitrator, was that Ms Dong stopped using a computer “for about three months” but her evidence was certainly to the effect that she could use a computer for five hours per day.
There is no doubt that the evidence disclosed that Ms Dong certainly had a number of skills, but as Ms Dong properly outs in her submissions, many of those skills and qualifications were obtained in China in a non-English speaking context and:
“… There is no evidence that the worker is in any way familiar with the regulatory requirements for establishing textile businesses in Australia, notwithstanding that she may have ‘thought about trying’ to assist Chinese companies setting up business in Australia.”
The thrust of Star City’s submissions is that the Arbitrator “should” have accepted its submission that Ms Dong is a “highly intelligent woman with little physical constraint on her pursuing work in careers she previously had engaged …” These submissions were considered by the Arbitrator in some detail commencing at paragraph 48 of her ‘Statement of Reasons’. At paragraph 49 the Arbitrator stated:
“I note that the Respondent asserts that the Applicant has not been incapacitated for work as a result of her injuries since 25 July 2003. In declining liability the Respondent relied upon the report of Dr Douglass dated 18 July 2003. That report is not in evidence before me”.
The Arbitrator went on in paragraphs 50 and 51 as follows:
“The Applicant’s evidence has always been to the contrary, asserting a partial incapacity for the majority of the time since her injury and total incapacity for a period during 2004 – 2005 … Dr Benanzio … stated that from an orthopaedic point of view Ms Dong remains permanently unfit for activities requiring excessive strains of the cervical or lumbar spine. This is at odds with the opinions expressed by Dr Anderson on behalf of the Respondent. However, I note that Dr Anderson was also of the view that the Applicant’s condition was not work related. This is clearly not correct, as evidenced by the AMS’ independent opinion, contained in the MAC and the Applicant’s medical evidence. While there may be some unexplained symptomatology, the overwhelming medical evidence is that the Applicant is not fit for her pre-injury duties as a result of her injury and it is clear that the Applicant has some partial incapacity and is entitled to compensation to an extent.”
This conclusion was entirely open to the Arbitrator on all the evidence before her. As I said previously, most of the medical evidence placed some physical restrictions on Ms Dong’s ability to undertake not only her pre-injury duties but work in the labour market generally.
The Arbitrator’s conclusions on this issue were consistent with the weight of evidence, both medical and lay.
The Diminution in Value of the Worker’s Labour Issue
Star City submits that:
“… The worker did not establish that such physical limitation as she might have is productive of any diminution in her earning capacity. Rather, the evidence and findings of the Arbitrator tend to show that any diminution is attributable to the worker’s belief that she was more injured than she was … and her lack of interest in seeking work”.
Ms Dong gave evidence that in the period June 2004 to January 2005 she returned to China. In her statement dated 14 November 2005 Ms Dong stated “during the second half of 2004, I decided to go back home to try and seek some alternative treatment remedy. I was away in China between July and December 2004.” There was no evidence that Ms Dong had sought employment whilst in China.
Ms Dong’s initial treating general practitioner was Dr Ven Tan. He had provided a number of medical certificates commencing on 5 September 2002. This evidence was dealt with by the Arbitrator at paragraphs 52 to 55 of her ‘Statement of Reasons’. At paragraph 52 she stated:
“I note the medical certificates issued by Dr Ven Tan from 5 September 2002 show a pattern of initial total incapacity (during which the Applicant was paid weekly compensation) up to 26 September 2002 and from that time, the Applicant was certified as fit for suitable duties, initially for three hours per day, three days per week, increasing by 25 November 2002 to five hours per day, five days per week … this pattern continued until 15 January 2004.”
At paragraph 53 the Arbitrator stated:
“On 15 January 2004, having changed her nominated treating doctor to Dr John Yuen but seeing Dr Papamickos on 15 January 2004, the Applicant was suddenly certified as totally unfit … the certification of total unfitness continued until after her return from China and until 17 June 2005. From 18 June 2005 Dr Yuen has certified the Applicant as fit for suitable duties for five hours per day, three days per week.”
At paragraph 54 the Arbitrator stated:
“The only evidence I have to explain this change in certification is that contained in the Applicant’s statement. She said that she ‘was suffering shoulder pain, referred pain into both arms and very bad headaches.’ At this time, the Applicant had not worked for approximately four months … and was certainly not engaged in any work activities that would lead to any exacerbation of her condition. The Applicant’s own evidence is also that she was away in China from July 2004 to December 2004, a period during which she was certified as totally unfit but never reviewed by her treating doctor. I can find no reason for the certification on 15 January 2004 that she was totally unfit … during this entire period, from 15 January 2004 to 17 June 2005 I reject the medical certification of total unfitness because there was little monitoring of the Applicant’s condition, no reason for a sudden exacerbation of the condition and no increased treatment offered during this period. I find that the Applicant was partially incapacitated for work during this period as well.”
Again, this conclusion was entirely open to the Arbitrator on the evidence before her. Star City submits: “This change in certification was rightly the subject of adverse comment by the Arbitrator … however, it is explicable in terms of the worker’s exaggerated belief in her own level of disability, as found by the Arbitrator.”
In determining that Ms Dong had been partially incapacitated for work from 8 August 2003 “to the present and ongoing”, the Arbitrator then considered “the extent of compensation the Applicant should receive pursuant to section 40 of the 1987 Act.” She then set out in some detail the ‘five step process’ to determine this issue in accordance with the principles set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527.
The parties agreed that Ms Dong’s probable earnings from 8 August 2003 to 30 June 2004 were $965.93 per week, from 1 July 2004 to 30 June 2005, $1,099.92, and from 1 July 2005 to date and continuing, $1,032.54.
The Arbitrator provided detailed reasons on the issue of what Ms Dong would be able to earn in some suitable employment in accordance with the requirements of section 40(2)(b) of the 1987 Act. These are set out in paragraphs 61 to 84 inclusive of her ‘Statement of Reasons’. At paragraph 67, the Arbitrator noted Ms Dong’s educational achievements obtained in China. She noted that “… the Applicant has worked as a teacher, a gaming assistant, a dealer and a checkout operator at a supermarket. More recently, she has volunteered as sandwich maker at a hospital.” Star City submits that:
“The Worker had little evidence of any job applications over a period of more than two years. There was no satisfactory explanation of this. She is clearly capable of doing work and is presently doing so, although her evidence suggests this is to satisfy Centrelink requirements … With no evidence of any attempts at other work, notwithstanding the clear capacity the worker has for other work, and with evidence supportive of other causes of any inability to realise her capability for well remunerated work, the Arbitrator should have found the onus the worker bore to show some loss had not been satisfied.”
As the Arbitrator pointed out at paragraph 74:
“I have had the advantage of observing the Applicant giving evidence. She was able to understand English but preferred to answer most questions through the interpreter. She acknowledged that there were jobs that she could perform but she had been unsuccessful in obtaining any employment at all.”
Earlier, at paragraph 72, the Arbitrator stated:
“While it is true that the Applicant sought work as she was required to do while she was on Newstart allowance, she last worked on 8 August 2003. She has submitted evidence of her attempts to find work as a sales assistant at David Jones and as a games machine operator at the Epping Club. She has also applied for jobs on-line as a receptionist and office assistant. She did not pursue any job opportunities whilst she was in China for six months in 2004.”
In the absence of a transcript of Ms Dong’s evidence, it is difficult to evaluate the Arbitrator’s comments in this regard. Nevertheless, nothing in Star City’s submissions suggests that the Arbitrator’s statement of the evidence in this respect was incorrect, rather, the submissions focus on Star City’s interpretation of the evidence and, as a consequence, the conclusions the Arbitrator should have drawn.
The Arbitrator noted at paragraphs 75 and 76 as follows:
“I am of the view that the Applicant does have a capacity for some work if she was so minded … the Applicant submitted that she was capable of working in accordance with the medical certificates. These showed a capacity for work of a maximum of 25 hours during the period since her injury …”
The Arbitrator noted the Respondent’s submission, at paragraph 77, that:
“… The Applicant was a highly intelligent woman and that she had accepted that she could work at a computer for as long as five hours per day. She had shown an ability to adapt to new technology and that she should be able to find work and adjust to her degenerative condition. In the submission of the Respondent the Applicant is not suffering from any incapacity for work as a result of her injury.”
Star City reasserts this position on appeal. Star City submits that since at least July 2004 when Ms Dong returned to China, she has been capable of fulltime work. The Arbitrator considered this submission at paragraphs 78 to 83 of her ‘Statement of Reasons’. At paragraph 78 she stated as follows:
“The Applicant is educated to tertiary level. She has held jobs in New Zealand and Australia. She has also held responsible positions in China. She has some English, although her language skills are less than perfect. However, she is able to converse and to understand most things that were put to her in the hearing. She has not been able to find a job since 2003, but part of the reasons that has to be the Applicant’s belief that she was more injured than she was. She did not receive treatment on a regular basis and she did not get well as a result. With only 9% Whole Person Impairment the Applicant could have been expected to return to the work force a lot sooner than she has. The Applicant’s treating doctor, Dr Yuen, has certified her fit for suitable duties for five hours per day, three days per week …”
The Arbitrator then went on to consider the opinions of Dr Benanzio, Dr Anderson and Dr Oates and concluded at paragraph 82:
“On a review of the above evidence, I find that the Applicant is capable of working five hours per day, five days per week. I find that she has been able to do this amount of work from 8 August 2003 and note that at that time, she was performing selected duties to that level. She is therefore able to work 25 hours per week…”
Given the varying medical opinions as to Ms Dong’s capacity to undertake employment generally, this conclusion was open to the Arbitrator on the evidence before her. There is nothing in the Arbitrator’s reasons to suggest that she failed to take into account relevant and material considerations or failed to exercise her discretion fairly and according to law in accordance with the authorities to which I have referred. The Arbitrator’s reasons clearly set out the matters she found to be persuasive in both the medical evidence and Ms Dong’s evidence such that she was entitled to reach the conclusion she did on this issue.
Star City takes issue with the Arbitrator’s finding that Ms Dong was able to earn $20.00 per hour. This amount, Star City submits, is “too low”. Star City submits that:
“The Applicant was employed as a dealer. The evidence establishes that the Applicant has an ability to earn in the labour market as a professional consultant or, at the least, skilled computer operator. If it is accepted that she has a diminished capacity to work, it is submitted that the diminution only relates to the amount of work she can do, not the value of her labour. Rather, the Appellant submits the appropriate hourly rate should be the same as she would have received with the Appellant, namely $22.17.”
This was dealt with by the Arbitrator at paragraph 82. She stated:
“I note that her wages schedule has her hourly rate commencing at $19.69 and moving to $22.17 per hour if she had continued to work with the Respondent. As this work is not available to her, I assess her hourly rate at $20.00 per hour, taking into account her level of education and her consistent record of employment to 2003”.
Again, this is a matter of discretion for the Arbitrator. Contrary to Star City’s submissions, there was no evidence that Ms Dong had the ability to work in the labour market as a “professional consultant” or “skilled computer operator”. Certainly the evidence was to the effect that Ms Dong had considerable computer skills, but was limited, as a result of her injuries, in the amount of hours in which she could undertake such employment.
Given that the weight of medical evidence suggested that Ms Dong as unfit for her pre-injury duties, it was appropriate for the Arbitrator to find that, “… as this work is not available to her …”, the value of her labour should be “assessed” at $20.00 per hour.
In its submissions, Star City relies upon the decision of Judge Neilson in the former Compensation Court in Summerson v Alcan Australia Limited (1994) 10 NSWCCR 571 (‘Summerson’). That decision is relied upon as authority for the proposition that the worker bears the onus to establish firstly that there is an injury which carries with it a physical restriction and secondly, a diminution in the value of the worker’s labour or ability to obtain other employment caused by that restriction. His Honour said this:
“The Applicant bears the onus of proving the amount to which he is entitled under section 40 … as I have said, and I repeat, the question of quantification is very difficult. However, I am persuaded by the submissions … that the appropriate way of looking at the case is that the Applicant’s ability to get jobs … is reduced … Therefore, the number of jobs which she could hold down has been reduced. That reduction means that if the Applicant finds herself unemployed, it is harder and would take longer to obtain suitable employment …”
A classic test of ‘incapacity’ is contained in Ball v William Hunt & Sons Limited (1912) AC 496, where Lord Loreburn says in reference to an English worker’s compensation statute:
“In the ordinary and popular meaning which we are to attach to the language of this statute, I think there is incapacity for work when a man as a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity for work when such a defect makes his labour saleable for less than it would otherwise fetch.”
Summerson is in essence authority for the proposition that the test to apply in determining whether a worker is partially incapacitated is that of whether a worker is physically unable to do some of the things which uninjured the worker could do, and, further, that the incapacity affects a worker’s ability to sell his or her labour in the relevant labour market.
“Partial incapacity” was described by Mason, Wilson, Deane and Dawson JJ in Arnotts Snack Products Pty Limited v Yacob (1985) 155 CLR 171 at 178 as follows:
“The concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work.”
As Mahoney P said in Lawarra Nominees Pty Limited v Wilson (1996) 25 NSWCCR 206, unreported Court of Appeal 29 November 1996:
“The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work: Arnotts Snack Products Pty Limited v Yacub (1983) 155 CLR 171 at 177. That principle has been applied frequently by this court .. partial incapacity involves the physical incapacity for doing some but not all of such work … normally, a court in determining whether a worker is totally or partially incapacitated will, in a practicable sense, ordinarily consider two questions: What is the relevant labour market … and of that kind of work, what is he physically able to do … It involves the assessment of a capacity for work having regard to the realities of the labour market in which he is to be engaged.”
In the present case, the evidence suggested that Ms Dong had certainly made some attempts to obtain employment. At the time of the hearing before the Arbitrator, she was working in a voluntary capacity as a sandwich maker at a hospital. It is also fair to say that the evidence suggested that Ms Dong’s ability to obtain “suitable employment” was reduced. For example, Dr Oates, qualified on behalf of Star City, considered that Ms Dong would have difficulties with employment requiring prolonged standing. Dr Benanzio considered that she was restricted in undertaking activities requiring excessive strain on the cervical and lumbar spine. Dr Ven Tan, Ms Dong’s initial treating doctor, opined in his report of 16 September 2002 that Ms Dong “… was able to perform office duties of five hours per day and five days per week.”
Thus the evidence supported the contention that Ms Dong did indeed suffer a “reduced physical capacity” and that her ability to undertake employment in a labour market in which she might reasonably be expected to work was limited. As Judge Neilson said, “… the number of jobs which she could hold down has been reduced.” The Arbitrator’s conclusion that Ms Dong’s ability to earn in some suitable employment was $500.00 gross per week was consistent with the totality of the evidence before her.
Star City submits that “in relation to the period which the Applicant worker was in China it is submitted she should not receive any compensation.” This issue was considered by the Arbitrator at paragraph 87. She stated:
“The Respondent submitted that the Applicant had moved to China in the latter half of 2004. The inference was that she had moved to an area where her ability to obtain or look for employment was negated. The Respondent also submitted that the Applicant had not seriously looked for work since 2003.”
The Arbitrator concluded at paragraph 88 as follows:
“I note that the Applicant has stated that the reason for her travel to China was to seek alternative treatment. However, she gave no evidence that any such treatment happened or that she benefited from it. The fact is that she was not available for work not seeking work for the period 1 July 2004 to 15 January 2005, having moved to China. I believe that these circumstances are sufficient for me to exercise my discretion to reduce payments to the Applicant during that period to $10.00 per week. The Respondent should not have to pay compensation when the Applicant was clearly unavailable for work and not seeking work. I note that she had been certified as totally unfit during that period, but for the reasons outlined above, I do not accept that she was totally unfit during this period.”
Again, this was an issue of discretion for the Arbitrator. Having determined that Ms Dong was partially incapacitated for work from: “8 August 2003 onwards …” it was appropriate for the Arbitrator in the exercise of her discretion to reduce payments during that period.
The Arbitrator has clearly set out the basis upon which she exercised her discretion to make an order that was “proper in the circumstances of the case” in accordance with the principles of section 40 of the 1987 Act. In Hirst v Illawarra Area Health Service (2000) 21 NSWCCR 82 Neilson J as he then was considered whether a worker was entitled to compensation for partial incapacity during a period of maternity leave. His Honour concluded that “the facts of pregnancy and subsequently motherhood do not disentitle a female worker to compensation to partial incapacity but are factors to take into account when assessing an award of compensation.” In that case, His Honour entered an award of $10.00 per week during the period that the worker was on maternity leave.
My task on appeal is not to ‘re-hear’ the matter with a view to ‘re-determining’ the Arbitrator’s decision. An appeal is by way of review where the power of the Commission to confirm, revoke or substitute a new decision is exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7).
As Deputy President Fleming said in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73 “interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious that that discretion has so miscarried that it has not been exercised fairly and lawfully.”
In the present case, I can see nothing in the Arbitrator’s reasons to suggest that she failed to exercise her discretion fairly and properly in the circumstances of the case. Her award was demonstrably “proper in the circumstances of the case.”
Moreover, as Ms Dong points out in her submissions, Star City’s submission that she is fit for fulltime work does not proffer any basis for the submission. “The Appellant does not submit that the Arbitrator’s finding in relation to the degree of incapacity was not open to him [sic], rather that its own submission ought to be approved. This does not demonstrate any error on the part of the Arbitrator …” I concur with this submission.
CONCLUSION
The Arbitrator’s ‘Statement of Reasons’ was both thorough and detailed. Her findings and conclusions were consistent with the totality of the evidence before her.
Star City’s submissions reflect many of the assertions made before the Arbitrator at first instance to the effect that Ms Dong had very little physical constraints upon her in pursuing work in areas in which she was clearly skilled and that such limited physical constraints were not productive of any diminution in her earning capacity. True, there was evidence, essentially from Dr Anderson, to that effect. Dr Anderson’s opinion was rejected by the Arbitrator for reasons set out in paragraph 80 to the effect that, because Dr Anderson opined that Ms Dong’s condition was not work related, his view ought be rejected because that was “… something with which the AMS disagreed and rejected, based on the radiological evidence of cervical and lumbar disc pathology.”
Mere disagreement with the outcome of proceedings is not a proper basis for appeal. As Deputy President Fleming said in RaniaFalcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34:
“Where the parties are accorded procedural fairness, the Arbitrator has taken the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential member, to interfere with the Arbitrator’s decision”.
Nothing in the Appellant’s submissions demonstrates that the Arbitrator made any error in her consideration of the principles and issues associated with a claim under section 40 of the 1987 Act.
The Arbitrator’s determination was consistent with the totality of the evidence before her and Star City has failed to demonstrate any error either of law, fact or discretion.
DECISION
The decision of the Arbitrator dated 20 February 2006 is confirmed.
COSTS
Star City is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
15 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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