State Transit Authority of NSW v Claverie
[2006] NSWWCCPD 53
•24 March 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Transit Authority of NSW v Claverie [2006] NSWWCCPD 53
APPELLANT: State Transit Authority of NSW
RESPONDENT: Raphael John Claverie
INSURER:State Transit Authority of NSW (Self Insured)
FILE NUMBER: WCC1911-04
DATE OF ARBITRATOR’S DECISION: 19 January 2005
DATE OF APPEAL DECISION: 24 March 2006
SUBJECT MATTER OF DECISION: Weight of Evidence; ‘injury’, section 4 of the Workers Compensation Act 1987; ‘causation’
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: Goldberg Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the Respondent’s costs of the appeal.
BACKGROUND TO THE APPLICATION TO APPEAL
1.On 2 February 2005 the State Transit Authority of NSW (‘State Transit’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 19 January 2005.
2.The Respondent to the Appeal is Mr Raphael Claverie who was employed by State Transit as a bus driver. Mr Claverie claims to have suffered an injury when, in November 2002, he was the driver of a bus that was involved in a fatal collision with a cyclist. Mr Claverie has made a claim for weekly benefits compensation on State Transit. The claim was disputed and Mr Claverie filed an ‘Application to Resolve a Dispute’ in the Commission.
3.A Commission Arbitrator determined the dispute. A ‘Certificate of Determination’, with attached ‘Statement of Reasons’ was issued on 20 December 2004. State Transit claim not to have received the decision until 5 January 2005. The Arbitrator issued an ‘amended’ Certificate of Determination on 19 January 2005.
THE DECISION UNDER REVIEW
4.The ‘Certificate of Determination’, dated 19 January 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.There is an award for the Applicant [Mr Claverie], in relation to the Applicant’s claim for weekly compensation, in the sum of $33,901.63.
2.The Respondent [State Transit] is to be credited for the monies it has already paid by way of compensation to the Applicant.
3.There is an award for the Applicant, in respect of reasonable medical costs pursuant to s 60 of the 1987 Act incurred in respect of the injury, to be paid on production of accounts and receipts.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.
5.I determine that this was a matter which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.”
5.A statement of reasons was attached.
ISSUES IN DISPUTE
6.The threshold issues in the appeal are:
· Is the appeal out of time? If so, should leave be granted to extend the time?
· Is the appeal capable of determination on the papers without holding an oral hearing?
7.State Transit’s submission sets out a number of alleged substantive errors made by the Arbitrator as follows:
· The Arbitrator “incorrectly summarised the issues in dispute”.
· The Arbitrator erred in his summary of the medical certificates and thereby ignored relevant evidence supporting State Transit.
· The Arbitrator erred, in the absence of WorkCover medical certificates, in making an award of weekly payments from 10 November 2002-12 July 2004.
· The Arbitrator erred “in his interpretation of Dr Moore’s opinion as to causation”.
· The Arbitrator erred in finding that Mr Claverie was not fit to return to work as a result of the original injury.
· The Arbitrator erred in finding that Mr Claverie persuaded “his General Practitioner to provide him with a medical certificate certifying him fit for full duties”.
· The Arbitrator erred “where he reached the conclusion that [Mr Claverie’s] participation in the public processes of the courts could fairly be regarded as incidental to his employment”.
· The Arbitrator erred in finding that Mr Claverie “suffered psychological injury as a result both of the original incident and the criminal charges and that the two “could not be separated and are intrinsically linked”.
· The Arbitrator erred in finding that “it was the employer, that made the return to work contingent upon the conclusion of the investigations and court proceedings and they can be regarded as incidents to the continuation of his employment with the Respondent. As a result of that decision, there was then created the necessary connection with his employment”.
· The Arbitrator erred in awarding a lump sum representing weekly payments.
· The Arbitrator erred in making an award pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’).
· The Arbitrator “erred by not exercising any discretion in making the award of weekly payments pursuant to Section 40”.
ON THE PAPERS REVIEW
8.No new evidence is filed in the appeal. I have before me all of the material that was before the Arbitrator, the transcript of the arbitration and the submissions of both parties on appeal.
9.State Transit submit that “due to the complexity of the matter” an oral hearing should be held on the appeal. This submission does not adequately address why the matter cannot be completed on the papers and submissions provided.
10.Mr Claverie submits the matter is suitable to be decided on the papers.
11. 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.”
12.In my view the issues raised by the appeal are not unduly complex. The parties have had the opportunity to make submissions.
13.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.
LEAVE
14.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’), which provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
15.As noted above there were two Certificates of Determination issued in this matter. The reason for the issue of an amended Certificate appears to be that the Arbitrator, in the first Certificate issued, did not make an order that the matter was ‘complex’, which has implications for costs. In my view the fair way to proceed is on the basis that time should run from the issue of the second Certificate of Determination, on 19 January 2005. No disadvantage flows to either party from proceeding on this basis. The appeal was therefore lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. There is therefore no need to extend time for the filing of the appeal.
16.The amount at issue in the appeal is both greater than $5000 and at least 20% of the amount awarded in the decision appealed against.
17. Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
18.A Presidential Member has wide powers in relation to the matters that may be considered on ‘review’ of an arbitrator’s decision and the manner in which they may be considered (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at para 38). The scope of review is determined by the context of the statutory scheme (Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 587), which provides for first instance determination by an arbitrator and appeal to a Presidential Member. Previous Presidential decisions have considered the nature of the review of an arbitrator’s decision, and determined that, to be successful, an appellant must demonstrate the arbitrator has made an error. The nature of the error is not restricted and may be of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; The King Island Company Limited v Deery [2005] NSW WCC PD 1). However the error must be such that, if it were not made, a different decision would have resulted (Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at paragraph 4). A Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator concerned or a different arbitrator for re-determination in accordance with the decision on appeal (section 352 of the 1998 Act).
19.I consider each of State Transit’s claims on appeal below, and the parties submissions in relation to them, in turn.
Identification of the Issues Error
20.State Transit argues that the Arbitrator “incorrectly summarised the issues in dispute”. This submission fails to identify any substantive error by the Arbitrator. The Arbitrator briefly identified the questions of ‘injury’; ‘substantial contributing factor’ and ‘incapacity’ as in dispute. It is not alleged that the Arbitrator erred in correctly identifying the issues, and in fact the decision, when taken as a whole, clearly addresses the substance of the dispute. The claim that the Arbitrator failed to specify ‘incapacity’ and ‘causation’ as ‘in issue’ is directly contradicted by the Arbitrator’s findings on these matters at paragraph 29, and following, of the reasons. In later submissions State Transit itself is critical of the Arbitrator’s opinion of the medical evidence in relation to causation, a position that is difficult to reconcile with the claim that the Arbitrator failed to correctly identify this as an issue in dispute.
Failure to consider Dr Bennett’s evidence
21.State Transit argues that the Arbitrator erred in his summary of the medical certificates and thereby ignored relevant evidence supporting State Transit. In support of this argument State Transit points to the fact that “there is no reference by the Arbitrator to the certificate of Dr Bennett dated 24 November” 2002 and “by omitting the certificate which stated the Respondent Worker was fit for pre-injury duties, the Arbitrator has ignored evidence which supports the Appellant’s position [that] the Respondent was not incapacitated for the entire period claimed”. In paragraph 18 the Arbitrator lists Mr Claverie’s medical evidence. He does not refer to the medical certificate of Dr Bennett dated 24 November 2002. However a reading of the whole of the decision clearly demonstrates that this is simply an oversight. The Arbitrator refers to this medical certificate, and to his conclusions in relation to it, at paragraphs 30 and 38 of the Reasons. It is completely wrong to suggest the Arbitrator ignored this evidence and this ground of appeal discloses no error.
Dates of Incapacity Errors
22.State Transit next argue that the Arbitrator erred, in the absence of WorkCover medical certificates, in making an award of weekly payments covering the whole of the period from 10 November 2002-12 July 2004. It submits that on the medical certificates available, Mr Claverie could only have received an award of compensation for the period 13 November 2002 - 24 November 2002 and 14 August 2003 - 7 February 2004. It argues that only the following periods were supported by WorkCover medical certificate:
·13 November 2002-17 November 2002 - Unfit for work.
·18 November 2002-24 November 2002 - Fit for suitable duties.
·24 November 2002-11 August 2003 - Fit for pre-injury duties.
·12 August 2003-19 August 2003- Unfit for work only from 14 August, as Dr Ng saw him on that day.
·14 August 2003 – 7 February 2003 - Fit for suitable duties.
23.The Arbitrator appears to have given detailed consideration to the periods for which Mr Claverie claimed compensation. He found (at paragraph 71 of the reasons) that:
a)For the period 10/11/2001 to 9/11/2002, the Applicant suffered no loss in income as a result of the injury, but was paid in excess of what he would have been earning.
b)For the period 10/11/2002 to 23/11/2002, a period of 2 weeks, the difference in the gross weekly wages between what the Applicant did earn and what he could have earned but for the injury was, $157.37 giving a total of $350.74.
c)For the period 24/11/2002 to 7/8/2003, a period of 36 weeks and 5 days (or 36.714 weeks), the difference in gross weekly wages between what the Applicant did earn and what he could have earned but for injury was, $293.26 giving a total of $10,766.75.
d)For the period 8/8/2003 to 19/8/2003 a period of 1 week and 5 days (or 8.714 weeks) the difference in the gross weekly wages between what the Applicant did earn and what he could have earned but for the injury was $298.66 giving a total of $511.90.
e)For the period 20/8/2003 to 19/10/2003, a period of 8 weeks and 5 days (or 36.714 weeks), the Applicant was partially incapacitated for work and was entitled to be paid the rate prescribed by s 38 of the 1987 Act for the first 26 weeks of incapacity, a weekly amount of $1,157.67 giving a total of $10,087.94. However I note that both the Applicant and the Respondent agree that payments of weekly compensation were made by the Respondent to the Applicant during this period and it would therefore be appropriate for the Respondent to be credited for any payments that it made.
f)For the period 20/10/2003 to 12/7/2004, the difference in the gross weekly wages between what the Applicant did earn and what he could have earned but for the injury is in excess of the rate prescribed by s 37 of the 1987 Act. Section 40(5) of the 1987 Act provides that the weekly payment of compensation for partial incapacity is not to exceed that which would be payable for total incapacity but is capped by s 37(1)(a)(i). For a single person without dependants the applicable rates and periods are:
i. From 20/10/2003 to 31/3/2004, a period of 23 weeks and 3 days (or 23.429 weeks) at the statutorily adjusted rate of $317.20 per week, giving $7,431.68.
ii. From 1/4/2004 to 12/7/2004, a period of 14 weeks and 5 days (or 14.714 weeks) at the statutorily adjusted rate of $323.00 per week, giving $4,752.62.
g)From 12/7/2004, the Applicant concedes that he lost his entitlement to compensation when he lost his licence to drive a bus as a result of court action.
24.The exact dates in the Arbitrator’s findings above are not entirely correct. There are some minor errors as follows:
·Paragraph (b) should be adjusted to reflect the WorkCover certificate, dated 12 December 2002, showing the date of incapacity as from 13-17 November as ‘unfit for work; and from 18–24 November 2002 as fit for ‘suitable duties’. Mr Claverie was paid ‘provisional’ entitlements until at least 29 November 2002. Any ‘difference’ in entitlement based on the Arbitrator assessing the entitlement from 10 November instead of 13 November is minimal.
·Paragraph (d) refers to the period from 8 August 2003-19 August 2003. Dr Ng issued the relevant WorkCover Certificate on 14 August 2003. State Transit therefore argue that the entitlement should operate from that date. However it is clear from the whole of the evidence that Mr Claverie continued to be partially incapacitated throughout the relevant period. The Arbitrator’s orders cover the whole of the period from the date of injury to July 2004. It is unsustainable, in the face of the other evidence, for State Transit to claim that from 8 August –14 August 2003 Mr Claverie was not incapacitated because he did not see Dr Ng before 14 August 2003.
25.The period from 24/11/02 to 7/08/03 and from 7/02/04 to 12/7/04 are the significant periods during which State Transit argue there are no WorkCover certificates to support the claim. There are no WorkCover medical certificates filed in evidence in the Commission for the period following 7 February 2003. That is not to say that the relevant WorkCover certificates are not in existence, as required by the Workers Compensation Acts, to cover this period of the claim. Mr Claverie was working ‘suitable duties’ during that time. The Arbitrator found that in the Commission proceedings, the medical evidence, in particular the evidence of Dr Moore, supported these periods. Dr Moore’s evidence is logical and probative and the Arbitrator was entitled to rely upon it. He found Dr Moore’s view to be supported by Mr Claverie’s own evidence and the reports of Dr Milton and Dr Ng.
Weight of Evidence and Causation Errors
26.The weight to be given to the evidence is a matter for the discretion of the arbitrator. Findings of fact should not be interfered with unless it can be said that the arbitrator’s discretion has miscarried and he or she has failed to exercise this discretion fairly and lawfully (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, National Roads and Motorists’ Association Ltd [2003] FCAFC 206).
27.State Transit make a number of submissions that allege ‘error’ by the Arbitrator and essentially go to the Arbitrator’s view of the weight of the evidence. It alleges that the Arbitrator erred:
·in his interpretation of Dr Moore’s opinion as to causation;
·in finding that Mr Claverie was not fit to return to work as a result of the original injury;
·in relying upon Dr Moore’s evidence to conclude that Mr Claverie’s “acute stress reaction” was an ongoing state and not restricted to the period immediately following the incident;
·“where he reached the conclusion that [Mr Claverie’s] participation in the public processes of the courts could fairly be regarded as incidental to his employment”;
·in finding that Mr Claverie suffered psychological injury as a result both of the original incident and the criminal charges and that the two “could not be separated and are intrinsically linked”; and
·in finding that “it was the employer, that made the return to work contingent upon the conclusion of the investigations and court proceedings and they can be regarded as incidents to the continuation of this employment with the Respondent. As a result of that decision, there was then created the necessary connection with his employment”.
28.Mr Claverie submits that the facts and evidence support the Arbitrator’s findings. He submits that the causation issues were “carefully considered by the Arbitrator”.
29.The Arbitrator sets out his view of the evidence, and in particular of Dr Moore’s evidence, at paragraphs 29 to 38 of the ‘Statement of Reasons’. The evidence of Dr Bennett, Dr Milton and Dr Mattick are discussed briefly at paragraphs 29 to 32. At paragraphs 33 to 37 the Arbitrator makes summary comments on the evidence and considers the evidence of Dr Moore in more depth, as follows:
“33.In making sense of this information two scenarios are propounded. For the Respondent it is said that the Applicant never suffered any psychological injury as a result of the accident, that he was ready to work, had stated so, had a medical certificate from his treating general practitioner attesting to his fitness to do his previous work and was fit to do so, and that any depression from which he was suffering was due to the protracted legal process unrelated to the original incident.
34. However, I think the better view of the material is obtained from the report of Dr Marilyn Moore. In her view “it is Mr Claverie’s way of dealing with things that he underestimates his symptoms and tends to minimise and isolate them rather than dealing with them.” As I understand her analysis, the Applicant suffered as a result of the incident, and continues to suffer from a psychological injury, specifically an Adjustment disorder with anxiety. That the Applicant’s way of dealing with this psychological crisis was to avoid it and get on with what he likes to do, and was by nature bored and easily distracted. He does not like to dwell on matters but would prefer to put the incident out of his mind to the extent that he could. Hence the Applicant’s view of himself was that he was fit to return to his full-time duties.
35. Dr Moore’s view of this, is that the Applicant is “quite vulnerable at present and he probably underestimates the level of anxiety he is experiencing.” This is indicated by her identifying that all aspects of the Applicant’s daily living have been affected. He has experienced; ongoing sleep disturbance, altered appetite, lost weight, apprehension about the future and difficulties in relationships with his family and colleagues. He was still anxious and hyper-aroused when discussing the accident.
36.The incident at Burwood in August 2003, where the Applicant witnessed a women suffer a minor injury when hit by a passing motor vehicle, again brought to the surface, thoughts and anxieties that the Applicant had been trying to deflect or avoid dealing with. Dr Milton recorded the Applicant’s comment that this incident “brought it all back”. As a result of this seemingly minor incident the Applicant became very depressed, was off work for a week with a WorkCover certificate from Dr Richard Ng dated 14/8/2003 and was prescribed a sedative, Valium, an antidepressant, Cipramil, and he also had some Normison in order to help him get to sleep. He continued to take this medication for a week.
37. The view of the Respondent’s doctors that the Applicant is suffering from depression solely as a result of his continuing worries over his future and the possibility of being incarcerated as a result of legal proceedings is an alternative view which I find does not explain the severity of the Applicant’s reaction to the Burwood incident. This minor incident had an effect on the Applicant that was similar to the severity of symptoms which he experienced as a result of the original accident, nearly one year earlier. I find that the Applicant’s extremely depressed state, experienced as a result of witnessing this incident and attested to by all of the doctors, is better explained by Dr Moore’s analysis of his condition as unresolved and continuing but resurfacing to conscious awareness as a result of witnessing the incident. I find this explanation more in accord with the evidence than the view advanced by the Respondent’s doctors that the reaction only resulted from the need for further court appearance in relation to the legal charges.”
30.Dr Moore did not see Mr Claverie until November 2003, which was around a year since the accident occurred. The Arbitrator has clearly not misunderstood or misinterpreted Dr Moore’s report. She opined that at the time of the accident he “likely” suffered an “acute stress reaction”. However she also opined that, some twelve months after the accident Mr Claverie was suffering from ‘Adjustment Disorder with anxiety’. Dr Moore also opines that the ongoing legal process is exacerbating Mr Claverie’s anxiety.
31.State Transit rely upon the report of Dr Milton, Forensic Psychiatrist, dated 17 March 2004. The Arbitrator has not properly set out his analysis of State Transit’s evidence in the reasons for decision, in particular the report of Dr Milton. The summary given at paragraph 33 of the reasons (set out above) does not properly reflect the case argued by State Transit, nor the evidence filed on its behalf. Dr Milton had the benefit of having seen the report of Dr Moore and was able to comment upon it. However the reports of Dr Milton and Dr Mattick were expressly considered later in the reasons and the Arbitrator considered that they did not detract from his ultimate findings. The Arbitrator acknowledged the critical issue that “both Professor Mattick and Dr Milton were of the view that the Applicant’s adjustment disorder with anxiety was the direct result of the ongoing court processes and ensuing criminal prosecution”. However (as discussed below) a more thorough discussion of Dr Milton’s report in the reasons would not, in my view, have led the Arbitrator to a different conclusion. The failure to properly set out his consideration of the evidence is a matter that goes to the adequacy of the reasons. It does not, in my view, disclose an error on the part of the Arbitrator in terms of the ultimate relevant findings and the application of the correct law to those findings.
32.It is important to note that Mr Claverie is not caught by the “Special provisions for psychological and psychiatric injury” in section 65A of the 1987 Act, which came into effect on 1 January 2002. A ‘secondary psychological injury’ is defined to mean “a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury”. The evidence is that Mr Claverie did not suffer a physical injury but at all times suffered a ‘psychological injury’.
33.Ultimately the Arbitrator’s findings on the evidence must be considered in view of the statutory requirements for establishing a compensable ‘injury’. ‘Injury’ is defined in section 4 of the 1987 Act as ‘arising out of or in the course of employment’. ‘Arising out of the course of employment’ generally connotes a causal relationship between employment and injury, whereas the phrase ‘arising in the course of employment’ connotes a temporal relationship. It is possible for an injury to arise both ‘out of’ and ‘in the course of’ employment and the Arbitrator in this matter found that Mr Claverie’s injury did arise out of and in the course of his employment with State Transit (paragraph 54 of the reasons). The Arbitrator discusses a number of relevant authorities to the issue of ‘causation’ in the decision.
34.In Henderson v Commissioner for Railways (1937) 58 CLR 281 (Henderson) Dixon J said (at 294):
"The general principle governing the ascertainment of the ‘course of employment’ appears now to be settled. It is not merely a question of the existence and continuance of a relationship. To be in the course of the employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful ... Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties."
35.This principle was applied by Dixon J in Humphrey Earl Limited v Speechley (1951) 84 CLR 126 (at 133), as follows:
"The acts of a workman which form part of his service to his employer are done, needless to say, in the course of his employment. The service is not confined to the actual performance of the work which the workman is employed to do. Whatever is incidental to the performance of the work is covered by the course of the employment. When an accident occurs in intervals between work the question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something which he was reasonably required, expected or authorized to do in order to carry out his duties.”
36.In this matter the critical issues are whether Mr Claverie’s ‘injury’, being a psychological condition diagnosed as an ‘adjustment disorder with anxiety’ has the relevant nexus to his employment as a bus driver with State Transit (section 4 of the 1987 Act) and whether this employment was a ‘substantial contributing factor’ to his injury (section 9A of the 1987 Act). This will inevitably involve a consideration of whether matters unrelated to his employment are the cause of his injury.
37.In answering these questions the Arbitrator applied the correct law and came to a conclusion that was open to him on the evidence. At paragraphs 50 to 53 the Arbitrator gives his reasons, which disclose no error, as follows:
“50.Here the employment has relevance to the injury. Professional drivers, be they bus drivers, truck drivers or other road users, by the very nature of their occupation, are exposed to hazards and the possibility of injury in the course of their working lives. The danger of injury cannot be avoided or reduced solely by the adoption of good driving practices on their part. Inclement weather, the state of the roads and especially the presence of other road users, some more skilful than others, and their very human reactions to the conditions they experience, can lead to collisions occasioning very serious injury. Also, like train drivers and taxi drivers, bus drivers are involved in a system of transportation involving members of the public who can be unpredictable and varied in their responses. That exposure involves them in the risk of being insulted or assaulted by their customers or even involved in collisions with passengers (sic), as a result of which they may suffer both physical and/or psychological injury. (Note, in making these observations I am not reflecting on the responsibility for the particular incident in which the Applicant was involved, nor of his culpability for the accident.)
51.The Applicant was engaged in his regular work as a bus driver at the time of the incident, which resulted in him suffering a personal injury. Given the nature of the incidents that a professional driver may face in the course of his employment and the regulated nature of the working environment, requiring compliance with various certification procedures and road rules, it is not unusual that there may be an investigation arising out of an incident in his bus driving work. Whether that investigation is conducted as an internal enquiry or involves public processes of the courts, the Applicant’s participation in that activity could fairly be regarded as incidental to his employment. He has a responsibility to appear and make a report.
52.But in this case there is more. Mr Claverie wanted to return to driving. As noted above; Professor Mattick recorded that the Applicant was “dying to get back to driving” and was bored sitting around doing nothing in the depot. However, it was the Respondent that would not approve the Applicant’s return to bus operations and active driving until the incident was thoroughly investigated (I should add, quite properly so, as a person had been killed.) It is incumbent on the Respondent to thoroughly investigate any such incident to identify that the proper steps are taken to ensure the safety of the travelling public. Dr Milton observed that: “the Police and the Department of Public Prosecutions regarded the Applicant as criminally responsible. Under those circumstances it would appear reasonable for an employer responsible for the safety of the public to provide employment but not to allow the worker to drive buses in which members of the public travelled, at least until court proceedings were concluded. I can appreciate this was boring and unsettling for Mr Claverie but it seems to have been a necessary administrative action.”
53.In fact it proved more than boring and unsettling as, both Professor Mattick and Dr Milton were of the view that the Applicant’s adjustment disorder with anxiety was the direct result of the ongoing court processes and ensuring (sic) criminal prosecution. Even though the Applicant said that he was fit to return to work and was keen to do so and had even persuaded Dr. Dennis to issue him with a WorkCover certificate identifying that he was fit to drive buses, as suggested by Dr. Moore, the Applicant was not fit and continued to be in (sic). The Applicant suffered psychological injuries both as [a] result of the original incident with the bicyclist and as a result of the impending court action and its effect on his career. They could not be separated and are inextricably linked. The later injury was a continuation of the original incident, which occurred on 10 November 2002.”
38. The Arbitrator did not err in finding that, during the relevant periods for which workers compensation is claimed, Mr Claverie suffered from the injury of ‘adjustment disorder with anxiety’ and that this injury arose out of and in the course of his employment as a bus driver with State Transit. He also did not err in finding that Mr Claverie’s employment with State Transit was a substantial contributing factor to his injury.
Error of Fact
39.State Transit submit that the Arbitrator erred in finding that Mr Claverie persuaded “his General Practitioner to provide him with a medical certificate certifying him fit for full duties”. Counsel for State Transit asserted this fact in submissions at the arbitration hearing. However, I can find no evidence to support this finding of fact and must conclude that the Arbitrator made an error. I am of the view that the error was not material to his ultimate findings and orders.
Award of Lump Sum Weekly Payments
40.State Transit argues that the Arbitrator erred in awarding a lump sum representing weekly payments. Had the Arbitrator made such an award without regard to actual weekly entitlements then this would have been an error. However it is clear from the Arbitrator’s detailed findings on each of the periods of incapacity claimed, that he properly considered the nature of the claim, i.e. compensation by way of weekly benefits. The sum awarded was capable of calculation as the matter was a ‘closed period’ claim. The Arbitrator has simply expressed the totality of the award for various periods as a lump sum. The making of the award as a lump sum, while in my view not reflective of the way entitlements are structured in the 1987 Act, does not disclose any substantive error by the Arbitrator.
Section 38 Award
41.State Transit argue that the Arbitrator erred in making an award pursuant to section 38 of the 1987 Act and in not exercising any discretion in making the award of weekly payments pursuant to section 40.
42.Mr Claverie “concedes that the reference in paragraph 71(e) to section 38 does not appear appropriate but given the findings, this does not appear to be other than an error under the Slip Rule as the entitlement is pursuant to Section 40(2) by reference to comparable earnings”.
43.I agree with Mr Claverie’s submission on this issue. The Arbitrator has clearly identified section 40 as the applicable section to the calculation of Mr Claverie’s entitlement. He refers to the five step process set out in Mitchell v Central West HealthService (1997) 14 NSWCCR 527 and then applies them to the facts of the case. He has properly applied section 40 and the reference to section 38 of the 1987 Act has not impacted upon the calculation of the correct entitlement. The Arbitrator does not expressly refer to the exercise of the discretion pursuant to section 40(1) of the 1987 Act. However he has clearly decided that the award to Mr Claverie should not be reduced and, in my view, the evidence supports this conclusion. I note that adjustments are to be made for any payments already made by State Transit.
DECISION
44.The decision of the Arbitrator is confirmed.
COSTS
45.Mr Claverie seeks an order in his favour for the costs of the appeal. Costs in appeal proceedings are governed by Division 3 of Part 8 of the 1998 Act. In this matter the Appellant is the employer and insurer. It has been wholly unsuccessful on the appeal. The appropriate order is that the Appellant pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
24 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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