State Rail Authority of NSW v White & Wow Wash Pty Ltd
[2007] NSWWCCPD 116
•22 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Rail Authority of NSW v White & Wow Wash Pty Limited [2007] NSWWCCPD 116
APPELLANT: State Rail Authority of NSW
FIRST RESPONDENT: Kylie Lee White
SECOND RESONDENT: Wow Wash Pty Limited
APPELLANT’S INSURER: RailCover
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC6080-06
DATE OF ARBITRATOR’S DECISION: 18 September 2006
DATE OF APPEAL DECISION: 22 May 2007
SUBJECT MATTER OF DECISION: Apportionment between employers; incapacity; weight of evidence; adequacy of reasons; application of sections 22, 36, 37, 40 and 60 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
First Respondent: Bell Lawyers
Second Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. Paragraphs 1(a), 2, 3, 4 and 5 of the
Arbitrator’s amended ‘Certificate of Determination’ dated 18 September 2006 are confirmed.
2.The Arbitrator’s award in paragraph 1(b) is revoked and the following orders made:
(i)In respect of the period 6 August 2005 to date and continuing there will be an award for the Applicant in accordance with section 36 of the Workers Compensation Act 1987 from 6 August 2005 to 4 February 2006 and thereafter pursuant to section 37 of the Workers Compensation Act 1987at the maximum statutory rate for a single worker with one dependant child or whatever rate is applicable.
(ii)The matter is remitted to the Arbitrator at first instance for calculation of the monetary entitlements payable pursuant the award referred to in 2(i) above.
3.The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 13 September 2006, the State Rail Authority of NSW (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator initially dated 16 August 2006 and subsequently amended (to which I will refer later) and reissued on 18 September 2006.
The Respondents to the appeal are Kylie Lee White (‘the Worker’) and Wow Wash Pty Limited (‘the Second Respondent’).
The Worker was born on 25 September 1978. She is now a 28 year old single woman who resides with her 10 year old daughter. She commenced employment with the Appellant as a trades assistant at its Flemington Maintenance Centre in April 2000. The Worker claimed that she suffered three injuries to her right foot and ankle whilst in the employ of the Appellant. On 5 May 2004 whilst descending some steps, the Worker lost her footing and fell, sustaining a twisting injury to her right ankle. The second injury occurred on 24 October 2004 when the Worker claimed that, whilst squatting on the roof of a train, she suffered an onset of numbness in her right ankle. The third injury occurred on 14 January 2005 when the Worker was working underneath a train in a pit checking oil. She claimed that she slipped on a patch of oil and again injured her right ankle.
The Worker claimed that she notified the Appellant of the injury on 5 May 2004, and was off work until approximately 25 May 2004. She claimed that she resumed on part time duties performing office work until August 2004 when she returned to her pre-injury duties as a trades assistant.
Following the incident at work in October 2004, the Worker again notified the Appellant. It appears she had no time off work, but received medical treatment and again returned to what she described as “light duties”. It is not clear precisely what duties the Worker was performing at the time of the incident on 14 January 2005, but it appears that the Worker remained on fulltime “light duties” until she ceased work with the Appellant in March 2005.
In a statement dated 21 November 2005, the Worker claimed that “I resigned at the end of March 2005 in relation to a grievance I had concerning harassment in the work place which had not been appropriately dealt with by RailCover Management.”
The Worker also claimed that she received weekly payments of compensation from the Appellant’s insurer, RailCover, “… up until late June 2005.” It seems that weekly payments were in fact made by the Appellant up to 18 June 2005.
The Worker commenced employment with the Second Respondent on about 26 June 2005. The Second Respondent operated a mobile waterless car wash business, based at Carlton. The Worker claimed that:
“On 5 August 2005, I was at a house at Wetherill Park doing a car wash with my boss. I went to walk down a flight of two stairs and as I was stepping down with my right foot and weight bearing on my right leg, my right ankle gave way. I lost my balance and fell to the ground, suffering bruises to my hands, an abrasion to my right knee and a further twisting injury to my right ankle.”
The Worker ceased work on 5 August 2005 and has not resumed work since that date.
The Worker gave notice of the injury on 5 August 2005 to the Second Respondent and made a claim for weekly benefits of compensation and medical expenses. Liability was denied by the Appellant from 18 June 2005, and liability by the Second Respondent appears to have been denied at the outset.
On 19 April 2006 the Worker filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation against both the Appellant and the Second Respondent from 26 June 2005 to date and continuing, together with medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). The parties attended a conciliation/arbitration hearing on 17 July 2006. On that occasion, it appears that the claim was amended to seek weekly benefits for the period 19 June 2005 to 5 August 2005 at the rate of $397.00 per week being the maximum statutory rate for an injured worker with a dependant child, and from 6 August 2005 to date and continuing at the rate of $850.00 per week. At that hearing, the Worker sought to include a claim for weekly benefits for the period 24 March 2005 to 18 June 2005 but, since the claim had not been duly made on the other parties, the Arbitrator disallowed that additional claim.
On 16 August 2006, a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:-
“1. There be an award for the Applicant in respect of the Applicant’s claim for weekly benefits as to the following:
a. In respect of the period 19 June 2005 to 5 August 2005 at the rate of $228.50 per week;
b. In respect of the period 6 August 2005 to date and continuing there will be an award for the Applicant in accord [sic] with Section 36 for so much of that period as might then be applicable and thereafter pursuant to Section 37 on the basis of maximum statutory rate for a single worker with one dependant child.
2. The First Respondent to pay the Applicant’s reasonably incurred treatment expenses pursuant to section 60 including those of the proposed surgery.
3. The Respondent [sic] to pay the Applicant’s costs as agreed or assessed.
4.There be an apportionment as between the First and Second Respondent as to payment of the Applicant’s weekly award, namely as to a two third contribution by the First Respondent and a one third contribution by the Second Respondent. There is to be no apportionment between the Respondents in respect of the Applicant’s proposed surgery to the right ankle.”
On 23 August 2006, the solicitors for the Second Respondent wrote to the Registrar of the Commission stating as follows:
“We believe that the Arbitrator has erred in respect of his award for weekly compensation for the period 19 June 2005 to 5 August 2005. It is apparent from his judgment that he attributed that wage loss to injuries sustained with the first respondent … In his findings, the Arbitrator made no finding of injury arising from the period of employment from 19 June 2005 to 5 August 2005 at the second respondent and therefore it is apparent that he is [in] error and that the award in respect of the weekly compensation of $228.50 from 19 June 2005 to 5 August 2005 should be made solely against the first respondent and liability apportioned thereafter against both respondents in accordance with the balance of his award and findings.
This is a minor error and we do not believe that it should warrant an Appeal against the whole award. In those circumstances, we ask you to refer the decision back to the Arbitrator for him to review and perhaps amend his Award pursuant to the ‘slip rule’. Alternatively, a further Teleconference would appear to [be] in order.”
Following receipt of that communication, an amended ‘Certificate of Determination’ was issued dated 18 September 2006. The amended Determination read as follows:
“1. There be an award for the Applicant in respect of the Applicant’s claim for weekly benefits as to the following:
a. In respect of the period 19 June 2005 to 5 August 2005 at the rate of $228.50 per week;
b. In respect of the period 6 August 2005 to date and continuing there will be an award for the Applicant in accord [sic] with Section 36 for so much of that period as might then be applicable and thereafter pursuant to Section 37 on the basis of maximum statutory rate for a single worker with one dependant child.
2. The First Respondent shall be responsible for the entirety of the award for weekly workers compensation in respect of the period 19 June 2005 to 5 August 2005.
3. The First Respondent to pay the Applicant’s reasonably incurred treatment expenses pursuant to Section 60 including those of the proposed surgery.
4. The Respondents to pay the Applicant’s costs as agreed or assessed.
5.There be an apportionment as between the First and Second Respondent [sic] as to payment of the Applicant’s weekly award in respect of the second period, that is to say 6 August 2005 to date, namely as to a two third contribution by the First Respondent and a one third contribution by the Second Respondent. There is to be no apportionment between the Respondents in respect of the Applicant’s proposed surgery to the right ankle.”
A copy of the amended Determination of 18 September 2006 was sent to all parties by the Commission under cover of a letter dated 18 September 2006.
No further submissions have been filed by the Appellant such that its appeal in effect remains in relation to the Determination dated 16 August 2006.
On 9 October 2006 the Worker filed a ‘Notice of Opposition to Appeal’. In brief, the Worker submits that no errors were made by the Arbitrator and that the appeal should be dismissed.
On 23 October 2006, the Second Respondent filed a ‘Notice of Opposition to Appeal’. The Second Respondent submits that it was open to the Arbitrator to “… make a finding of partial incapacity for the period 19 June 2005 to 5 August 2005” and it should not be held liable for any payment of weekly compensation to which the Worker was entitled prior to the date of injury with the Second Respondent, namely 5 August 2005.
The Second Respondent supports the Appellant’s submission that the Arbitrator erred in finding the Worker “totally incapacitated”, but disputes the Appellant’s submissions as to liability for medical expenses.
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 (‘the 1998 Act’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
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.”
All parties submit that the matter is suitable for a determination ‘on the papers’.
All parties have prepared detailed submissions on appeal, identifying relevant authorities where appropriate. None of the parties have identified any difficulty with the matter proceeding on this basis notwithstanding the absence of a transcript which, as I understand it, recorded the parties oral submissions before the Arbitrator.
Having regard to Practice Directions numbers 1 and 6, and all the documents that are before me, 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.
THE ISSUES IN DISPUTE
The Appellant cites a number of grounds of appeal which may be summarised as follows:
·The Appellant submits that the Arbitrator erred in his section 40 assessment in respect of the period 19 June 2005 to 5 August 2005. The Appellant submits that because the Worker resigned her employment with it for reasons unconnected with her injuries, at a time when she was being provided with suitable duties, the Arbitrator, in the exercise of his discretion, should have awarded nominal compensation in respect of this period.
·The Appellant submits that the Arbitrator erred in his finding that the Worker was “totally incapacitated”. Two issues are raised on this point, firstly, that the Arbitrator erred in finding that the Worker’s total incapacity was as a result of the combination of all her injuries when, in the Appellant’s submission, the Worker’s “incapacity” resulted from injuries sustained with the Second Respondent on 5 August 2005, and secondly, the Arbitrator’s finding that the Worker was totally incapacitated from 6 August 2005 was against the weight of evidence which was to the effect the Worker was capable of performing some work in a labour market reasonably accessible to her.
·The Appellant submits that the Arbitrator erred in finding that the award of section 60 expenses should be born entirely by the First Respondent. It is the Appellant’s submission that “liability in respect of such expenses should be born by both Respondent’s equally.”
·The Appellant submits that the Arbitrator failed to provide adequate reasons as to the basis of the quantification of the award of weekly compensation from 6 August 2005.
THE ARBITRATOR’S DETERMINATION AND REASONS
The Arbitrator prepared a detailed ‘Statement of Reasons’ accompanying his ‘Certificate of Determination’ dated 16 August 2006. Since that Determination is the subject of appeal, I will refer to it and not the ‘amended’ Determination dated 18 September 2006.
After identifying the evidence before him, summarising the injury and nature of the claim, and all parties’ medical evidence, he set out his findings and reasons commencing at paragraph 41 of the ‘Statement of Reasons’.
The occurrence of the various injuries sustained by the Worker with both employers was not really in dispute between the parties. Nor was it seriously disputed that the Worker suffered some incapacity as a consequence of these injuries. What was principally in issue was the impact of each of these injuries on the Worker’s overall condition, and which employer was principally liable for the consequences of those injuries.
The Arbitrator concluded that (para 42) “There is clearly no doubt the Applicant suffered a serious injury on 5 May 2004 when she fell twisting her right ankle as she descended some steps.” The Arbitrator then noted the further injuries sustained on 24 October 2004 noting that “the position was further compounded it would appear by an incident which occurred on 14 January 2005.”
At paragraph 43, the Arbitrator stated:
“Following the incident on 24 October 2004 the Applicant’s uncontested evidence … [in] … her statement … is that she continued to work full time performing light duties. This would appear to be the position up until … the incident which occurred on 14 January 2005. It is clear … that she remained in the employ of the First Respondent until the end of March 2005 when she left for reasons unrelated to her work injuries. There is some conjecture … as to when weekly workers compensation payments ceased however there is no doubt that as at 6 April 2005 the First Respondent’s insurer wrote to the Applicant denying any further liability based on a report of Dr Barrett.”
After considering the nature and extent of the Worker’s claim, the Arbitrator then went on to consider the Second Respondent’s submission that the incident with it on 5 August 2005 was not a substantial contributing factor to the Worker’s injuries in accordance with the provisions of section 9A of the 1987 Act. Having considered the terms of that section and a number of relevant authorities, the Arbitrator concluded that “… the Applicant’s employment with the Second Respondent was a substantial contributing factor to her injury which occurred on 5 August 2005.”
Commencing at paragraph 48, the Arbitrator then went on to consider the Worker’s level of incapacity and any award which may follow therefrom.
At paragraph 49 the Arbitrator stated as follows:
“The diagnostic investigations and in particular the ultrasound of 7 May 2004 clearly shows the Applicant suffered a lateral ligament tear and this was confirmed with the MRI Scan of 10 March 2006. Further there is the unrefuted evidence that the Applicant was working light or modified duties up to the time of her cessation of employment with the First Respondent in March 2005.”
The Arbitrator concluded that, based on the medical evidence, there was no doubt that the Worker was fit only for modified or restricted duties as at March 2005 and that “… this position was maintained up until and including the commencement of employment with the Second Respondent on or about 19 June 2005.” The Arbitrator then went on to consider the steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) in determining an appropriate award. In brief, the Arbitrator accepted that at the time she ceased work with the Appellant, the Worker was in receipt of $850.00 per week. In considering the second step in Mitchell, the Arbitrator concluded that (para 51) “… I am not satisfied that the Applicant in working for the Second Respondent was generating an income commensurate with that which she was capable of earning.” The Arbitrator concluded that the Worker was capable of earning $621.50 per week, the average weekly earnings as at February 2005 for all females. The difference resulted in an award of $228.50 per week which the Arbitrator did not consider, in the exercise of his discretion, warranted any reduction.
As to the claim for weekly benefits from 6 August 2005, the Arbitrator concluded as follows (para 54):
“… I am satisfied that whilst … the injury which occurred in the course of employment with the First Respondent was the predominant catalyst for the Applicant’s vulnerability to further injury she was at least able to perform all of her tasks with the Second Respondent up to the incident which occurred with that employer on 5 August 2005. There is no doubt that the incident which occurred on 5 August 2005 was the ultimate catalyst for the Applicant no longer being able to continue working and as indicated by the weight of the medical evidence it is apparent that the Applicant is in need of surgery. I am mindful in this regard of the observations of the First Respondent’s medical evidence that responsibility for that surgery would appear to lie with the First Respondent”.
The Arbitrator concluded that, on the medical evidence, the Worker was incapable of returning to suitable employment (para 55):
“… As clearly there was going to be a continuing vulnerability for the ankle to ‘give way’. This I believe would have made it extremely difficult for the Applicant to find suitable employment even be it of a sedentary nature, having in mind that even the most menial of tasks has a potential to involve walking about and potentially ascending/descending steps all of which would create a further vulnerability in light of the state of her right ankle.”
Accordingly, the Arbitrator determined that the Worker’s incapacity as from 6 August 2005 ought be deemed total.
At paragraph 57, the Arbitrator went on to consider “… The Applicant’s present stage of pregnancy”. The Arbitrator went on to consider a number of authorities on this issue, but declined to use his discretion to reduce the weekly award he had made stating as follows:
“Clearly, the Applicant remains on my assessment totally incapacitated for work, irrespective of the pregnancy and will continue to do so at least until the surgery is performed and then it is a matter of conjecture as to the state of recovery as to whether or not the Applicant will return to an ability to earn that which she was earning prior to the injury with the First Respondent or a lesser sum.”
As to the claim for section 60 expenses, the Worker’s attorney had sought a declaration in relation to the proposed surgery. This the Arbitrator declined to do but noted “… I am satisfied that the surgery is imperative to the Applicant’s potential recovery and that it is a reasonable and necessary expenses [sic] pursuant to section 60”.
As to the issue of apportionment between the two employers (including the section 60 claim) the Arbitrator concluded at paragraphs 60 and 61 as follows:
“60. Having regard for [sic] the Applicant’s claim for weekly benefits I have had regard for the amount paid by the respective Respondents to the Applicant in the course of her employment with each of them, the period of employment and am of the view that there ought to be a contribution to weekly benefits by the First Respondent as to two thirds and one third by the Second Respondent.
61. In relation to the Applicant’s claim for section 60 expenses I believe the medical evidence clearly is indicative of the fact that the injury in the course of employment with the First Respondent was the principal cause for such surgery and there should accordingly be no such apportionment between the respective Respondents but that the totality of the cost of the surgery should be born by the First Respondent”.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
The Section 40 Award
The thrust of Appellant’s submission on this issue is as follows:
“The finding that the Applicant’s decision to leave the employ of the First Respondent while she was being provided with suitable duties (which rendered earnings equal to her pre-injury earnings) for reasons unconnected with injury, should have been the basis for the exercise of discretion pursuant to s.40 to award the Applicant nominal compensation in respect of the period between 19 June and 5 August 2005.”
It was apparently agreed between the parties that the Worker’s earnings with the Second Respondent at that time were $312.00 per week. As I said earlier, the Arbitrator concluded that the Worker was able to earn the sum of $621.50 per week, thus entitling her to an award of $228.50 per week.
The task of the Arbitrator was to determine the impact of the Worker’s undoubted physical incapacity at that stage on her capacity to obtain employment in a labour market reasonably accessible to her. In effect, at the time the Worker ceased with the Appellant in March 2005 she was partially incapacitated (not really in dispute by the Appellant) and effectively on “the open labour market” from that time. It is that market which is determinative in any assessment of weekly benefits. As Jacobs JA said in Metropolitan Coal Company Limited v Duffy (1966) 67 SR (NSW) 163 (at 168):
“... The question is whether the admitted employment injury has affected the value of the worker on the labour market ... The fact that his previous job is open to him and that he is able to carry it out are no doubt very important elements in determining whether the injury has affected the value of the worker on the labour market. However, they are not conclusive and, particularly if his pre-injury employment is a suitable employment as a result of particular circumstances of the Applicant’s position, it does not follow as a matter of law that the Applicant has suffered no incapacity for work.”
In Steggles Pty Limited v Aguirre (1988) 12 NSWLR 693 Priestly JA, quoting from Atkin LJ in Hamilton v Shelton Iron, Steel & Coal Co (1926) 96 LJKB 295 said:
“... If he(the partially incapacitated worker) gives up the job on his own account, it may very well be found by the Judge that in fact he was able to earn those wages, because, except for his own fault he would be in that employment still earning those wages. That is a matter to be taken into account; but if the job has ceased, then it seems to me it matters not why it has ceased ... the job, at any rate, is then at an end and the Judge has then to determine whether or not the man is able to earn in the labour market the wages, and if so, at what rate, taking into account the question that he was, when last employed, earning the particular wages that he was receiving from his employers.”
In other words, an enquiry must be made as to whether the compensable injury impacts in a negative way on the worker’s capacity to earn in the open labour market.
In the present case, the Arbitrator stated (para 51):
“It is abundantly clear that the Applicant possessed many skills, not the least of which were her clerical, administrative skills which she had been performing for the First Respondent prior to leaving the employ of the First Respondent. Clearly her specific trade enabled her to earn not an insignificant sum in the form of the agreed $850 per week however I think it not unreasonable to suggest that with these skills, the Applicant’s location, age and all other matters that might be brought to account pursuant to section 43A that might be considered in determining her capabilities that to work as she did for the Second Respondent and to earn the sum of $312 per week was not necessarily a reflection of her true earning capacity. I have no other evidence before me in terms of what would represent the Applicant’s ability to earn however as I have indicated an administrative role would not, in my opinion, be beyond the Applicant.”
Mere disagreement with the outcome of proceedings is not a proper basis for appeal. As Deputy President Fleming said in Rania Falcon 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.”
No submission is made by the Appellant as to what it considers “nominal compensation” to be. In my view, the Arbitrator fairly weighed the evidence, and I can see nothing in the manner in which he exercised his discretion that would suggest he did so carelessly, unfairly or unlawfully.
It is noted that at the time the Worker ceased employment with the Appellant in March 2005, payments of compensation resumed and were apparently made by RailCover until 18 June 2005 when liability was declined on the basis of the views of Dr Barrett (to which I will refer later).
In my view, there was ample evidence for the Arbitrator to conclude that the Worker was partially incapacitated for the period 19 June 2005 to 5 August 2005, and I can see no error by the Arbitrator in the manner or calculation of his award for that period.
I should point out at this stage that the Appellant appealed the original determination of the Arbitrator dated 16 August 2006 where he directed both the Appellant and the Second Respondent to pay “… The Applicant’s weekly award …”. That order was amended in his subsequent determination dated 18 September 2006 wherein he directed that the Appellant be responsible for the whole of the award for the period 19 June 2005 to 5 August 2005. No specific submissions have been made by the Appellant on this issue: the submissions were directed to the substantive assessment of the award.
In these circumstances, paragraph 2 of the Arbitrator’s ‘Certificate of Determination’ dated 18 September 2006 is confirmed, and this ground of appeal fails.
The Total Incapacity Issue
The Appellant takes issue with two aspects of the Arbitrator’s determination on this aspect of the claim: Firstly, as to its liability for the award and secondly, as to the Arbitrator’s determination that the Worker was in effect totally incapacitated for employment.
As to the ‘liability’ issue, the Appellant submits as follows:
“The Arbitrator erred in his finding of the Applicant’s total incapacity was as a result of the combination of all the Applicant’s injuries. When the Applicant ceased her employment with the First Respondent in March 2005 she was working fulltime … performing office duties. During her employment with the Second Respondent, the Applicant ‘averaged’ 31.2 hours per week … as a waterless car washer. Factually, it was the injury which occurred on 5 August 2005 which was, in the arbitrator’s reasons ‘the ultimate catalyst for the Applicant no longer being able to work’ (paragraph 54). It is submitted that if total incapacity occurred, it ‘resulted from’ the injury sustained by the Applicant on 5 August 2005. On that basis, the Second Respondent is liable for the total incapacity suffered by the Applicant, whilst the Applicant’s entitlement to weekly compensation as against the First Respondent should have continued on the basis of a nominal partial incapacity.”
In essence, the Appellant submits that the particular circumstances of this case warrant separate awards. In theory, several awards under section 40 of the 1987 Act can be made.
The Appellant has referred to a number of authorities on this point, in particular, Alcan Australia Limited v Jordan (1995) 11 NSWCCR 475 (‘Jordan’) and Sydney City Council v Ince (1989) 16 NSWLR 690 (‘Ince’). Both these cases dealt principally with awards made pursuant to section 11(2) of the Workers Compensation Act, 1926 (‘the 1926 Act’). In Ince, the worker sustained a back injury with one employer and a second back injury with another. Manser J as he then was made two separate awards. The Court of Appeal accepted that in principle two separate awards were available, but took issue with the making of two awards pursuant to section 11(2) of the 1926 Act. It is noted that the Court endorsed the approach in Morris v George [1977] 2 NSWLR 552 (‘Morris’) stating: “Where a worker receives a number of injuries each leading to its own separate incapacity, no questions of apportionment arises under [the 1926 Act], s7A, for that section only operates where … one single incapacity results from more than one injury.”
In Jordan, the Trial Judge concluded that the worker had three separate partial incapacities and made three awards, two pursuant to section 11(2) of the 1926 Act. The employer appealed as did the worker, the latter challenging the trial judge’s refusal to make separate awards for each orthopaedic injury. As Handley JA said at page 483 “The partial incapacity of an injured worker must therefore take into account all consequences of that injury. The Act neither requires nor authorises separate award under section 40(1) in respect of separate disabilities resulting from a single injury”.
It is a question of fact to be considered in each particular case. In the present case, the Worker claimed to have injured her right ankle on four separate occasions, but the “consequences” of those injuries in my view resulted in a single incapacity, that is, an incapacity with her right ankle rendering her unfit for employment requiring, as the majority of medical examiners concluded, prolonged standing, repetitive lifting, walking or stair climbing and indeed any activities which may place stress on her unstable ankle. She did not sustain separate injuries resulting in separate disabilities which would justify separate awards. The appropriate course to take was that adopted by the Arbitrator, namely apportionment between the employers pursuant to the provisions of section 22 of the 1987 Act.
The primary task of the Arbitrator was to determine from what the Worker’s incapacity “results from”.
The history of the impact of sections 22 and 22A of the 1987 Act are set out in some detail in the Mills Practice and were considered extensively by Burke J as he then was in Wilson v Blayney Abattoir County Council & Ors (1995) 12 NSWCCR 509. As His Honour said:
“Once you, in fact or by virtue of a deeming provision, have an incapacity which ‘results from more than one injury’ you have the basis upon which section 22(1) can operate to require apportionment. The absence of the availability of such a finding had been the rock upon which the previous incarnations of section 22 had perished.”
In the present case, the question to consider was whether the Worker’s undoubted incapacity “results from more than one injury” or whether, as the Appellant submits, “the ultimate catalyst for the Applicant no longer being able to work” was simply the injury on 5 August 2005.
Implicit in the Appellant’s submissions is an acceptance that the Worker suffered a “nominal partial incapacity” prior to the incident on 5 August 2005. The issue is essentially whether it can be said that the Worker’s incapacity after 5 August 2005 ‘resulted from’ that injury alone such that earlier injuries with the Appellant were merely ‘contributory’ such that, in the Appellant’s submission, “… the Second Respondent is liable for the total incapacity suffered by the Applicant …”
The Appellant has made reference to the decisions of National & General Insurance Company Limited v South British Insurance Company Limited & Ors (1982) 149 CLR 327 and Sutherland Shire Council v Baltica General Insurance Company Limited (1995) 39 NSWLR 87 (‘Baltica’). These cases were recently considered by ADP Candy in Mayne Group Limited v O’Neill & Anor [2007] NSWWCCPD 85 principally in the context of an award made pursuant to section 38 of the 1987 Act.
Section 22(1)(A) of the 1987 Act is in the following terms:
“Death, incapacity, loss or liability that results partly from one injury and partly from one or more other injuries is taken to have resulted from more than one injury”.
Section 22 provides that in those circumstances, liability may be apportioned. Section 22A of the 1987 Act essentially applies a mechanism for apportionment.
In Baltica, the Court of Appeal held that whenever apportionment is sought, the Court must consider whether the incapacity “in strictness” resulted from more than one injury (see Morris v George [1977] 2 NSWLR 552). As Mills Practice summarises (page 1929):
“If the finding is that it has not so resulted, the court must then consider whether the incapacity or loss resulted partly from one injury, and partly from one or more different injuries. The second consideration is provided for by s 22(1A); … if either question is answered in the affirmative, apportionment must be carried out. The initial task of the trial judge is to determine the liability of an employer or employers to pay compensation to a worker. If apportionment is then sought, the two stage test set out above is applied.”
The issue of “causation” must then be considered. In Kooragang Cement Pty Limited v Bates (1994) 10 NSWCCR 796, the Court held:
“(1)The phrase ‘results from’ means ‘to arise as a consequence … to end or conclude in a specified manner’.
(2)Whether death or incapacity ‘results from’ a relevant work injury is a question of fact. The importation of notions of proximate cause, by the use of the phrase ‘results from’, is not now accepted. By the same token the mere proof that certain events occurred which pre-disposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain and due regard must be paid to the statutory formula by asking the question whether the disputed incapacity or death ‘resulted from “the work injury which is impugned.”
Did the evidence justify the Arbitrator’s finding of fact that the Worker’s incapacity “results from” more than one injury, or partly from one injury and partly from one or more others?
It is appropriate at this point to consider the medical evidence.
An ultrasound of the right ankle dated 7 May 2004 noted: “There is a tear of the anterior tallo-fibular ligament”.
The Worker was seen by Dr Rizkallah, Orthopaedic Surgeon, on 10 May 2004. In a report dated 11 May 2004 Dr Rizkallah noted: “Kylie sustained a significant sprain to her right ankle involving the lateral ligament complex … I discussed with her the natural history of ankle sprains and informed her that in a percentage of patients, surgery is required in the future because of persistent instability and/or anterior-lateral gutter impingement”. It appears that Dr Rizkallah last saw the Worker on 26 July 2004 where he noted considerable improvement.
The Worker was then seen by Dr King, Consultant Neurologist, on 19 November 2004 apparently because of ongoing symptoms. Dr King opined in a report of the same date that: “Most likely she has pathology affecting some of the cutaneous nerves of the dorsum of the foot.” Dr King was of the view that some restrictions on her employment would be appropriate, “… for instance walking on uneven and slippery surfaces …”
An MRI Scan of the right ankle performed on 10 March 2005 showed a “complete tear of the ATFL, appearing long standing. Scar remodelling of the deep fibres of the deltoid ligament”.
The Worker was seen by Dr Raymond Wallace, Orthopaedic Surgeon on 26 July 2005 at the request of her solicitors. In a report dated 29 August 2005, Dr Wallace opined that the Worker “… suffered a significant ligament injury at her right ankle as a result of a fall in the course of her duties at work on 5 May 2004.” Dr Wallace was of the view that the Worker was unfit for a variety of work activities and noted that: “Her current right ankle symptoms will persist, despite further conservative treatment.”
The Worker again consulted Dr Wallace on 30 September 2005, following the injury with the Second Respondent on 5 August 2005. In a report dated 25 October 2005 Dr Wallace concluded that the incident on 5 August 2005:
“… has caused aggravation of her pre-existing right ankle ligament injury …This recent episode of instability at her right ankle is directly related to her original work injury on 5 May 2004, where she sustained the original injury to the lateral collateral ligament at her right ankle, which failed to resolve with a conservative regime of treatment and is the cause of ongoing instability at the joint.”
Dr Wallace concluded: “It is highly unlikely that this incident would have occurred had she not suffered the original injury in May 2004.” Dr Wallace considered that the Worker required operative intervention and that “after her aggravation on 5 August 2005, Miss White has remained unfit for any work since this time.”
Dr Wallace disagreed with the opinion of Dr Ian Barrett, qualified by the Appellant, contained in the report dated 29 March 2005. Dr Barrett was of the view that the Worker’s “… work place aggravation has now ceased.” Dr Wallace stated:
“Ms White suffered a complex tear of the anterior talo-fibular ligament at the right ankle as a result of a work injury in May 2004. Her injury failed to resolve … and she was left with ongoing instability … Her current significant ongoing right ankle disability is directly attributable to injuries sustained in the course of her duties at work on 5 May 2004.”
The Worker was examined by Dr David Maxwell, Orthopaedic Surgeon, at the request of her general practitioner, on 23 August 2005. Dr Maxwell also concluded that the Worker sustained “… a complete tear of the anterior talo-fibular ligament in the course of her work”. Dr Maxwell obtained a history of an injury occurring with the Appellant on 5 May 2004. As to employment with the Second Respondent, Dr Maxwell recorded that the Worker “… stepped on a step two weeks ago and again twisted her ankle for no apparent reason … Her ankle again became swollen and she was on crutches for four days.”
Dr Maxwell concluded that the Worker required surgery.
The Worker was also seen by Dr Deveridge on 18 May 2005, prior to the incident with the Second Respondent. Dr Deveridge agreed with the diagnosis of other doctors, and confirmed that the Worker had some restrictions on her ability to work. Dr Deveridge concluded:
“On the balance of probabilities, residual disability in the right lower limb is attributable to work injury on 5.5.2004 whilst employment by RailCorp.”
In a report dated 24 June 2004, Dr Ian Barrett, for the Appellant, agreed that the Worker had suffered a tear to the anterior talo-fibular ligament in the incident on 5 May 2004, noting that the Worker was “… steadily recovering …” In a report of 25 November 2004, Dr Barrett opined that the Worker “… is immediately fit to return to some of her pre-injury duties as a trades assistant.”
In his report dated 29 March 2005, Dr Barrett took a history of a further aggravation occurring on 24 October 2004 and noted that:
“Ms White stated in January 2005 she was certified fit to return to light duties work with avoidance of squatting. She said she has not worked since February as she has been on stress leave. She said she resigned today (24 March 2005) due to ‘sexual harassment’”.
Dr Barrett opined that: “Her employment was the initial substantial contributing factor to her injuries. Workplace aggravation has now ceased.” Dr Barrett considered that the Worker “… has now recovered following the incident on 5 May 2004.”
In a final report dated 6 June 2006, Dr Barrett obtained a history that “… On 5 August 2005 she sustained a further injury to her right foot. She was walking down a flight of stairs when her right ankle gave way causing her to lose balance and fall to the ground. Her ankle became swollen immediately.” Dr Barrett again diagnosed “… complex tear anterior talo- fibular ligament right ankle” and that “I consider that the Applicant’s employment with the Respondent [the Appellant] was a substantial contributing factor with regard to the initial injury to her ankle on 5 May 2004 and to the subsequent injuries including the injury sustained on 5 August 2005.” Dr Barrett opined that “Ms White’s present incapacity is directly related to the previous injury with the Respondent.” Dr Barrett concluded that because of recurrent episodes of right ankle instability, “… I do not consider that she is capable of carrying out her pre-injury duties as a trades assistant. She is permanently unsuited to that form of employment …” Dr Barrett considered that the Worker was fit for fulltime more “sedentary” employment.
Dr Barrett concluded that even if the Worker were to undergo surgery, “… it is my opinion she would be most unlikely to be able to return to her pre-injury duties as a trades assistant.”
Thus it seems that Dr Barrett ultimately resiled from his opinion in 2005 as to the impact of the incident in May 2004 on the Worker’s condition.
The Worker was examined by Dr Bodel at the request of the Second Respondent on 18 May 2006. Dr Bodel again confirmed the diagnosis of the other specialists and concluded that:
“This lady has had recurring problems with her right ankle dating from an injury that occurred at the State Rail Authority on 5 May 2004. The injury on 5 August 2005 has merely aggravated what already existed. That temporary aggravation has now settled.”
Dr Bodel concluded that the Worker was “… currently unfit for work. She is six months pregnant and she has an unstable ankle.” Dr Bodel also considered that the Worker required surgery.
On one view of this medical evidence, it was open to the Arbitrator to conclude that the Worker’s condition was entirely due to the incident with the Appellant in May 2004, subsequent incidents being merely by way of temporary “aggravations”. However, it is also true to say that, following the incident in August 2005, the Worker was rendered, at least for a period of time, totally incapacitated for employment, that incident being, as the Arbitrator stated, “… the ultimate catalyst for the Applicant no longer being able to continue to work.” It is noted that Dr Wallace in his report of 25 October 2005 stated that “Miss White’s ankle condition has worsened as a result of an aggravation on 5 August 2005.
As the Court pointed out in Bates, whether incapacity “results from” a work injury or injuries is essentially a question of fact. Adopting the language of the Court, I am of the view that the Arbitrator’s reasons demonstrated a “commonsense evaluation of the causal chain”, and that it was open to him to find, on the totality of the evidence, both lay and medical, that the Worker’s incapacity resulted partly from one injury and partly from another.
It is noted that at paragraph 47 of his ‘Statement of Reasons’, the Arbitrator considered the impact of section 9A of the 1987 Act on the Worker’s employment with the Second Respondent, citing relevant authorities, before concluding that “… I am satisfied that the Applicant’s employment with the Second Respondent was a substantial contributing factor to the injury which occurred on 5 August 2005.”
Whilst the Worker’s incapacity reflected a close temporal connection with her employment with the Second Respondent, it is, as the Court said in Bates, the causal link or chain which is paramount in determining the question: “From what did the incapacity result?”
In my view, there was ample evidence for the Arbitrator to conclude that the Worker’s incapacity resulted both from injuries with the Appellant and from the Second Respondent, and his ultimate conclusion as to apportionment between the parties reflected the weight of the medical evidence to the effect that the principle or primary cause of the Worker’s incapacity was the initial incident in May 2004 with the Appellant.
It is perhaps appropriate at this point to remind the parties of what Deputy President Roche recently said in Berry v Department of Education & Training [2007] NSWWCCPD 75 as to the “… specific and limited role in the review of the decision of an Arbitrator” by a Presidential Member. Quoting from The King Island Company Limited v Deery [2005] NSWWCCPD 1 at [19], DP Roche said:
“The review is not a rehearing. The Presidential Member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time … The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in his place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error …”
In the present case, in my view, the Arbitrator’s determination on this issue was open to him on the totality of the evidence before him, and I can see no error by him on this issue.
The next issue to consider is whether the Arbitrator’s finding that the Worker was in effect totally incapacitated for employment from 6 August 2005 was consistent with the totality of the evidence before him. The Appellant submits as follows:
“… The Arbitrator misconstrued the test to determine total incapacity. It is submitted the Applicant, whilst not capable of returning to her pre-injury duties with the First Respondent as a Trades Assistant or as a car detailer with the Second Respondent, the Applicant remained at all times subsequent to 6 August 2005 capable of performing some, but not all work in the open labour market reasonably available to her … There is no suggestion the Applicant did not remain fit for clerical or office based duties … consequently, discretionary factors such as: the Applicant’s voluntary abstention from the suitable employment provided to her by the First Respondent; her significant residual capacity to earn as evidenced by her ability to undertake clerical duties with the First Respondent which rendered to her $850.00 per week; and the Applicant’s pregnancy and absence from the work force in order to care for her child arise and should be given appropriate weight with the affect of reducing the Applicant’s entitlement to nominal weekly compensation pursuant to s.40.”
I discussed the concept of incapacity and the labour market in Star City Pty Limited v Dong [2006] NSWWCCPD 309 as follows:
“66. 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.’67. 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.
68. ‘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.’
69. 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 that case, I also made reference to the decision of Judge Neilson of the former Compensation Court in Summerson v Alcan Australia Limited (1994) 10 NSWCCR 571 where His Honour said:
“… 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 …”
In the present case, the Arbitrator stated at paragraph 55 as follows:
“… I am satisfied that on the medical evidence the Applicant was incapable of returning to suitable employment as clearly there was going to be a continuing vulnerability for the ankle to ‘give way’. This I believe would have made it extremely difficult for the Applicant to find suitable employment even be it of a sedentary nature, having in mind that even the most menial of tasks has a potential to involve walking about and potentially ascending/descending steps all of which would create a further vulnerability in light of the then state of her right ankle.”
In relation to the Worker’s pregnancy, the Arbitrator dealt with this issue at paragraph 57 as follows:
“In having made this determination I am mindful of the Applicant’s present state of pregnancy and that of the Applicant’s evidence that save for the injury on 5 August 2005 she would have been able to continue working despite her pregnant state up to the time of birth of her child due to the very nature of the light duties undertaken for the Second Respondent. I am not altogether satisfied that this is an entirely appropriate approach, it being reasonable to assume the Applicant would not work for at least a short period prior to the birth of her child and certainly would not be working even for the Second Respondent immediately after the birth. Due to the uncertainty of the situation concerning the pregnancy I feel it inappropriate to make any further determination in terms of utilisation of a discretion to reduce the Applicant’s weekly award … the parties would be aware that the facts of the pregnancy and subsequent motherhood did not disentitle the female worker to compensation for partial incapacity but were facts which would be brought to account when assessing an award for compensation … clearly the Applicant remains on my assessment totally incapacitated for work, irrespective of the pregnancy and will continue to do so at least until the surgery is performed and then it is a matter of conjecture as to the state of recovery as to whether or not the Applicant will return to an ability to earn that which she was earning prior to the injury with the First Respondent or a lesser sum.”
Whilst Dr Barrett was of the view that the Worker was fit for fulltime “sedentary” work, Dr Bodel was of the view that, as at May 2006, the Worker was “unfit for work”. Dr Wallace in his report of 25 October 2005 shared that view, as did Dr Maxwell in August 2005 where he noted: “While her ankle settled down it is now unstable and she cannot trust it walking on uneven ground. She is having recurrent sprain. At the present time she is having difficulty walking. She is unable to work as a car washer.”
Again, this was a question of fact to be determined by the Arbitrator. In line with the authorities to which I have referred, I am not persuaded that the Appellant has demonstrated that the Arbitrator erred in his determination of this issue. Whilst certainly there was evidence to the effect that the Worker was capable of some form of employment, the Arbitrator’s conclusions contained in paragraph 55 of his ‘Statement of Reasons’ were well reasoned and considered, and in line with the weight of evidence before him.
I am of the same view in relation to the Arbitrator’s determination with respect to the Worker’s state of pregnancy. The Arbitrator was required to determine the matter on the basis of the evidence before him at that time. In the circumstances of this particular case, the Arbitrator concluded that “… irrespective of the pregnancy …” the state of the Worker’s right ankle precluded her from obtaining employment having regard to the realities of the labour market.
This conclusion was open to the Arbitrator on the evidence before him, and I can see no error on his part in this regard.
The Section 60 Expenses Issue
The Arbitrator concluded that (para 61):
“I believe the medical evidence clearly is indicative of the fact that the injury in the course of employment with the First Respondent [Appellant] was the principle cause for such surgery and there should accordingly be no such apportionment between the respective Respondents but that the totality of the cost of the surgery (my emphasis) should be born [sic] by the First Respondent.”
The Appellant submits as follows:
“The Arbitrator erred in his finding that the s.60 award should be borne entirely by the First Respondent. The Applicant’s statements and the medical material clearly demonstrated the need for medical and related treatment that ‘resulted from’ the injuries suffered by the Applicant on 5 August 2005 … The Second Respondent should be found liable for such expenses … The need for the proposed operative treatment did not crystallise until after the injury sustained on 5 August 2005 … Despite the presence of the tear to the anterior tallo-fibular ligament, between May 2004 and March 2005 the Applicant’s treating surgeon, Dr Rizkallah did not recommend surgery. It was not until after the last injury suffered in August 2005 did the Applicant’s (more recent) treating doctor, Dr Maxwell, recommend surgical repair. That view is shared by Dr Wallace … [who] recommends surgery ‘… in light of Ms White’s further injury …’ It is submitted that causally, the need for the surgical procedure arose as a result of injury sustained in the employ of both Respondent[s] and therefore, liability in respect of such expenses should be born [sic] by both Respondents equally.”
As I said earlier, Dr Rizkallah, in his initial report of 11 May 2004, flagged the prospect of “… surgery … in the future because of persistent instability …” When Dr Rizkallah last saw the Worker on 26 July 2004 she apparently advised him that she had not suffered any recent “instability episodes”. She was discharged from the care of Dr Rizkallah who noted that he would be “… happy to see her again in the future if she … suffers any further instability episodes.”
The Appellant’s quote from the report of Dr Wallace is not strictly accurate. Dr Wallace opined: “The surgery being considered … is reasonable and necessary in light of Ms White’s further injury and ongoing disability.” However, Dr Wallace concluded that:
“This functional instability of the right ankle has persisted until the present time, causing a further fall on 5 August 2005. She now requires operative intervention to correct the ligament injury sustained in May 2004. Her current ongoing right ankle disability is directly attributable to injuries sustained in the course of her duties at work in May 2004.”
Dr Maxwell, as I said earlier, obtained a history of the incident with the Appellant on 5 May 2004 and simply noted, at the time that he saw the Worker on 23 August 2005, that she had recently “twisted her ankle for no apparent reason”. Dr Maxwell concluded that the tear of the anterior talo-fibular ligament was sustained in the incident on 5 May 2004 and as a consequence, the Worker required a reconstruction procedure.
Dr Barrett noted, in his report of 6 June 2006 to which I referred earlier, that “Ms White’s present incapacity is directly related to the previous injury with the Respondent”. As to the need for surgery, Dr Barrett opined that “unfortunately Ms White is continuing to experience recurrent episodes of ankle instability and for that reason, she may require consideration of operative reconstruction of the ligaments.” Due to Dr Barrett’s impression of the Worker, he did not consider she was a good candidate for surgery.
Dr Bodel noted that the Worker has had recurring problems with her right ankle “dating from an injury that occurred at the State Rail Authority on 5 May 2004.” Dr Bodel thought any aggravation on 5 August 2005 had settled and concluded that “Ms White will require an ankle ligament reconstruction …”
Reading this evidence as a whole, it seems to me that there was ample evidence for the Arbitrator to conclude that the need for surgery arose as a result of injury with the Appellant on 5 May 2004 and confirmed by radiological investigation shortly after that time. A distinction must be drawn between an injury or episode leading to increased symptoms, and the primary cause of those symptoms. In this case, there is no doubt that the ligament tear occurred in the incident with the Appellant in May 2004.
Consequently, the Appellant’s submission that “… causally, the need for the surgical procedure arose as a result of injuries sustained in the employ of both Respondents …” is inconsistent with the totality of the evidence.
Whilst there was clear evidence that the injury in August 2005 with the Second Respondent contributed to the Worker’s “incapacity”, a distinction must be drawn between “incapacity” and the need for surgery. Again, consideration must be given to the concepts of ‘causation’ and ‘nexus’.
Again, it was an issue of fact to be decided by the Arbitrator. In my view, his determination is consistent with the evidence before him, and I am not persuaded that he has demonstrated any error such that his decision on this issue ought be revoked.
The Adequacy of Reasons Issue
The Appellant makes the following submission:
“The Arbitrator erred in failing to provide reasons to demonstrate the basis of the quantification of the award of weekly compensation on the basis of total incapacity from 6 August 2005. The quantification of the Applicant’s entitlements pursuant to s.36 and/or s.37 in respect of total incapacity failed to properly reveal the basis for the Arbitration’s calculations given:
·The Applicant’s pre-injury earnings with the First Respondent;
·The Applicant’s ability to earn up until the cessation of her employment with the First Respondent for reasons unconnected with her injury in March 2005;
·The pre-injury earnings earned by the Worker whilst employed by the Second Respondent between 19 June 2005 and 5 August 2005; and
·The finding as to the Applicant’s ability to earn in the period 19 June to 5 August 2005.”
I agree with the Appellant’s submission that the Arbitrator has not “quantified” the award he made in favour of the Worker pursuant to the provisions of sections 36 and 37 of the 1987 Act. The Arbitrator’s decision was in the following terms:
“In respect of the period 6 August 2005 to date and continuing there will be an award for the Applicant in accord with Section 36 for so much of that period as might then be applicable and thereafter pursuant to Section 37 on the basis of maximum statutory rate for a single worker with one dependant child.”
Although not ‘quantified,’ the award per se was appropriate given his findings that the Worker was totally incapacitated from 6 August 2005.
The award pursuant to section 37 is clearly stated, and should not cause the parties any difficulty in interpretation.
However, I do agree that the Arbitrator ought properly to have calculated the award pursuant to section 36 in accordance with the terms of that section, and indeed the section 37 award which may be affected by the calculation of the award pursuant to section 36. Nevertheless, I do not see that that is in any way fatal to the Arbitrator’s overall determination, nor a basis for revocation of his award.
The appropriate course in my view is to remit the matter back to the Arbitrator at first instance for calculation and quantification of the Worker’s entitlements pursuant to the award he made under section 36 of the 1987 Act. It may be appropriate for the Arbitrator to receive further submissions from the parties on this issue with particular reference to the Appellant’s submissions as to “calculations,” or to deal with the matter by way of Teleconference, but that is a matter for the Arbitrator to determine.
CONCLUSION
The Arbitrator’s determination was consistent with the totality of the evidence before him. His determination of questions of fact was supported by the evidence, notwithstanding that, in the Appellant’s submissions, other or alternative interpretations of the evidence were available.
The Arbitrator was entitled to base his award on the evidence and circumstances presented by the Worker at the time of the Arbitration hearing. It may well be that the Worker’s circumstances alter following surgery and/or the birth of her child. As Deputy President Fleming said in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19 at para 34:
“It is a unique feature of the workers compensation jurisdiction that a party may make more than one claim, and consequent application to the Commission, in relation to an injury that essentially arises from the same set of facts. These typically concern further aggravation of an injury, but may also relate to the resolution of symptoms of an injury, and subsequent changes in the level of incapacity and statutory entitlements.”
DECISION
1. Paragraphs 1(a), 2, 3, 4 and 5 of the Arbitrator’s amended ‘Certificate of Determination’ dated 18 September 2006 are confirmed.
2.The Arbitrator’s award in paragraph 1(b) is revoked and the following orders made:
(i) In respect of the period 6 August 2005 to date and continuing there will be an award for the Applicant in accordance with section 36 of the Workers Compensation Act 1987 from 6 August 2005 to 4 February 2006 and thereafter pursuant to section 37 of the Workers Compensation Act 1987at the maximum statutory rate for a single worker with one dependant child or whatever rate is applicable.
(ii) The matter is remitted to the Arbitrator at first instance for calculation of the monetary entitlements payable pursuant the award referred to in 2(i) above.
COSTS
The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
22 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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