Styash Pty Ltd v Nguyen
[2008] NSWWCCPD 146
•23 December 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Styash Pty Ltd v Nguyen [2008] NSWWCCPD 146 | |||||
| APPELLANT: | Styash Pty Ltd | |||||
| RESPONDENT: | Duc Tuan Nguyen | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | WCC4595-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 26 August 2008 | |||||
| DATE OF APPEAL DECISION: | 23 December 2008 | |||||
| SUBJECT MATTER OF DECISION: | Absence of a transcript of proceedings; assessment under section 40 of the Workers Compensation Act 1987; suitable duties. | |||||
| PRESIDENTIAL MEMBER: | President Judge Keating | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Sparke Helmore | ||||
| Respondent: | MN Compensation Lawyers | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 26 August 2008 is confirmed. | |||||
| The Appellant to pay the Respondent’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 23 September 2008 Styash Pty Ltd (‘the Appellant/Employer/Styash’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 August 2008.
The Respondent to the Appeal is Duc Tuan Nguyen (‘the Respondent/Worker’).
Mr Nguyen is a 39-year labourer who was employed by Styash as labouring assistant to a printer. He commenced work with Styash in about August 1998. On 5 September 2002 he fell approximately two metres onto a cement floor when he was attempting to climb down from a printer after securing paper in the machine.
Mr Nguyen fractured his right dominant wrist in the fall, which required internal fixation at the hands of Dr Walker. After the injury, Mr Nguyen was off work until January 2003 when he returned to light duty work performing stencilling work, mostly with his left hand, two hours per day, five days per week. Mr Nguyen was also required to sweep, which he stated caused back pain. He also complained of a pins and needle sensation in his right shoulder blade, which he attributed to becoming more active at work.
On 27 June 2003, Mr Nguyen underwent further surgery to remove the internal fixation. He complained of increased pain after the internal fixation was removed and that Dr Walker suggested a wrist fusion, which he declined.
On 7 November 2003, Styash terminated his employment on the basis that it could no longer provide light duties.
In 2004, Mr Nguyen brought proceedings in the Commission (WCC21069-04), which resolved by consent with the issuing of a ‘Certificate of Determination-Consent Orders’ on 1 August 2005. The terms of settlement were an award in favour of Mr Nguyen in respect of 12% whole person impairment ($15,500.00) under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) and $8,500.00 under section 67 for pain and suffering. The Worker also agreed to discontinue his section 60 claim.
Mr Nguyen remained in receipt of weekly compensation payments until 29 November 2007 when payments were discontinued following his participation in a vocational assessment. He was assessed as capable of employment in a range of occupations, which paid wages in excess of his pre injury earnings. On that basis Mr Nguyen was assessed as having no entitlement to compensation pursuant to section 40 of the 1987 Act.
On 12 June 2008, Mr Nguyen filed an ‘Application to Resolve a Dispute’ in the Commission. He claimed additional compensation under sections 66 and 67, payment of medical expenses estimated at $500.00 and an unspecified claim for weekly compensation benefits from 29 November 2007 to date and continuing. He claimed a dependant wife and two dependant children.
Styash filed a ‘Reply’ in which it denied that Mr Nguyen was entitled to compensation under section 40 and also denied that he was entitled to further compensation under sections 66 and 67.
The matter was listed for a conciliation conference and arbitration hearing on 8 August 2008. The parties confirmed that there was no dispute in relation to the claim for medical expenses and the Worker discontinued that part of the claim. The parties were unable to reach agreement by way of settlement in relation to the claim for weekly compensation and the claim for further compensation under sections 66 and 67 and the matter proceeded to arbitration hearing. At the conclusion of the hearing the Arbitrator reserved and issued a decision and written Statement of Reasons (‘Reasons’), on 26 August 2008. It is from this decision that Styash now seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 August 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1)The Respondent is directed to pay weekly compensation to the Applicant, pursuant to s.40 of the Workers Compensation Act 1987, at the rate of $426.17 per week, with effect from 29 November 2007.
2)The matter is remitted to the Registrar for referral to an Approved Medical Specialist.
3)The Approved Medical Specialist shall be requested to assess whether the Applicant has whole person impairment that results from injury on 5 September 2002 to his right upper extremity and cervical spine.
4)The materials to be provided to the Approved Medical Specialist shall consist of all documents attached to the Application to Resolve a Dispute and to the Reply.
5)The Applicant's claim pursuant to s.60 is discontinued.
6)The requirement that a Notice of Discontinuance be filed is dispensed with.
7)The Respondent is ordered to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(1) finding that Mr Nguyen was capable of earning $254.80 per week;
(2) failing to consider the medical evidence of Dr Ly, General Practitioner;
(3)using his discretion to reduce the number of hours Mr Nguyen could work, to 20 hours per week, and
(4)failing to use his discretion to reduce Mr Nguyen’s weekly compensation payments.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged on 23 September 2008, within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The monetary thresholds in section 352(2)(a) and (b) of the 1998 Act are met.
Leave to appeal is granted.
FRESH EVIDENCE
Neither party seeks to rely on fresh evidence.
TRANSCRIPT
Whilst the Arbitrator attempted to sound record the arbitration hearing, the Commission has no record of receiving the sound card and therefore has been unable to prepare a transcript of the proceedings.
The Commission notified the parties that a transcript was not available and invited them to make further submissions on the future conduct of the appeal in the absence of a transcript of the arbitral proceedings.
Styash submitted that the appeal could proceed in the absence of the transcript on the documentary material filed.
Mr Nguyen’s solicitors made the following submissions on the absence of the transcript:
(1) The factual issues before the Arbitrator were “almost completely defined by the documentary evidence”;
(2) Mr Nguyen was cross examined about transactions recorded in his financial records, which were in evidence;
(3) Mr Nguyen gave evidence about playing poker machines in a hotel in Cabramatta;
(4) The Arbitrator’s findings in relation to that evidence are recorded at [20] of his Reasons and “accurately reflect the thrust of the cross examination”;
(5) Except for the oral evidence in relation to Mr Nguyen’s playing of poker machines, there is no other matter of oral evidence on which Styash relies in the appeal;
(6) Styash’s appeal relates almost entirely to the evidence contained in the documents, and
(7) No issue in the appeal turns on the oral evidence or oral submissions and the appeal can properly proceed without the transcript.
Depending on the circumstances, the Commission has taken various approaches to appeals in the absence of a transcript of the arbitral proceedings, (see Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 (‘Brines’), Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47, Ashley v Ashmore Constructions Pty Limited [2006] NSWWCCPD 225, Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128, Miles v ACE Semi Trailer Sales Pty Ltd [2007] NSWWCCPD 145, IF & LM Smith v Barrass [2008] NSWWCCPD 143).
In Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; (2007) 4 DDCR 206 (‘Zheng’) there was no transcript or sound recording available of the evidence given before the Arbitrator. The Presidential member dealing with the appeal overcame the absence of the transcript by relying upon a summary of the relevant evidence from a solicitor for one of the parties. The Court of Appeal noted that the solicitor’s narration of the relevant facts was not disputed by the opposing party and in all the circumstances it was determined there was no error on the part of the Presidential member in proceeding to deal with the appeal relying, inter alia, on the solicitor’s narration of the relevant evidence.
In Zheng, Bryson JA (with whom Handley JA and Bell J agreed) in dealing with the absence of transcript stated:
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
The absence of a transcript of the arbitration may be fatal to the conduct of a fair review on appeal in circumstances where the Arbitrator has delivered his/her decision orally and where no written reasons have been provided. The task of the Presidential member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing.
In Brines, the parties agreed that the Arbitrator’s Statement of Reasons accurately encapsulated the evidence that had been given and that the oral evidence went no further than confirming material that was already contained in the written statements and consequently the appeal was able to proceed in the absence of a transcript of portions of the oral evidence.
In the present appeal, the Arbitrator has provided a detailed Statement of Reasons for his decision and both parties submit that the appeal can proceed in the absence of the transcript.
It is apparent from the Arbitrator’s Reasons and confirmed in the submissions filed on appeal by Mr Nguyen that the only oral evidence called at the hearing was from Mr Nguyen, who had also provided a signed written statement of evidence dated 4 March 2008.
Mr Nguyen was cross-examined at the hearing in relation to bank statements, which were in evidence, and in particular in relation to an explanation for a number of deposits made into his accounts.
The Arbitrator noted at [20] of his Reasons:
“Counsel for the Respondent cross-examined the Applicant regarding the detail of his bank statements, her objective being to establish that deposits into the Applicant's account were in respect of remuneration earned by the Applicant. I am satisfied with the Applicant's explanation that the deposits in question were the proceeds of gambling (as borne out by the withdrawal and deposit of funds at the Stardust Hotel), and by his wife ‘to pay the bank for the home loan.’”
Mr Nguyen was also cross-examined about Dr Chase’s observations in relation to the condition of his hands. It is noted that Dr Chase in his report dated 7 May 2007 made the following comments in relation to Mr Nguyen’s hands at pages 1-2:
“…the state of his hands indicates that Mr Nguyen is engaged in quite hard manual labour somewhere. It is physically impossible to gain the variety of calluses, wear and tear, ingrained dirt and minor trauma to his hands without engaging in some form of manual labour. The state of his hands clearly indicates that the work in which he is engaging already exceeds the certificated that are currently issued by Dr Ly.”
The Arbitrator’s Reasons at paragraph [21] refer to the Worker’s evidence as follows:
“The Applicant was also cross-examined in relation to Dr Chase’ observations regarding the condition of his hands. He stated that his hands get dry and he needs to use ointment. He denied that he was not doing any work and had not been working when he went to see Dr Chase.”
The Arbitrator made the following finding at [35]:
“I accept the Applicant's evidence that, since the termination of his employment with the Respondent, he has sought suitable light work without success. The Respondent concedes that the Applicant's incapacity is such that he would not be able to return to his pre-injury duties. Given the severity of the injury to the Applicant's dominant right wrist, and the permanent impairment which has resulted, the Applicant is in my view significantly incapacitated. He cannot reasonably be expected to engage in manual work which would require regular movement of his right upper extremity. His difficulties have extended from the wrist to the shoulder (as acknowledged by Dr Bodel).”
Whilst it is regrettable there is no transcript of the proceedings, I am satisfied that with the documentary evidence, the Arbitrator’s Statement of Reasons and the parties’ submissions on appeal, that I can fairly undertake a review of this matter. The Arbitrator accepted the Worker as a witness of truth and his credit is not in issue in the appeal. The oral evidence was within a narrow compass, and the parties agree the Arbitrator accurately encapsulated the evidence in the Statement of Reasons for Decision. Both parties submit that the appeal can proceed notwithstanding the absence of transcript.
EVIDENCE
Mr Nguyen’s evidence included a signed statement dated 4 March 2008, medical reports from Dr Sun, rehabilitation and pain management specialist, and Dr Endrey-Walder, surgeon, a Medical Assessment Certificate from Dr Bodel, orthopaedic surgeon, and a section 40 - assessment report by Mr Ting, occupational therapist.
Styash relied on Dr Ly’s Workcover certificates, Dr Bodel’s reports, Dr Chase, an injury management consultant’s, report and various vocational and rehabilitation reports from Recovre, Peak Conditioning and Pro Fit Rehabilitation.
Dr Sun, in a report dated 19 December 2007, records that the Worker suffered a comminuted fracture of his right wrist and jarred his neck and shoulder when he fell from a printing machine on 5 September 2002. The fracture was internally fixed and the surgical plates were removed in July 2003. Mr Nguyen was offered fusion surgery in October 2003 to manage his ongoing severe pain. The doctor recorded that at the time of his examination, five years post injury, Mr Nguyen complained of constant wrist pain varying in intensity, but worse with movement of the right hand, such as writing or using the telephone. He also had right grip strength weakness and occasionally dropped items. He complained of difficulty opening jars and lifting weights greater than 3kg. Mr Nguyen informed Dr Sun that he could drive, but uses his left hand for support when the right hand pain escalates. He also complained of difficulty with housework and intermittent neck and right shoulder pain.
On examination, Dr Sun noted reduced range of movement of the right wrist, shoulder and neck. Right hand grip strength was 70% of normal.
Dr Sun recorded a work history that included completing school in Vietnam and working in the family business for five years. Mr Nguyen migrated to Australia in 1989, after which he repeated years 11 and 12. He started part-time work in a printing company in 1997 before commencing with ‘Apex Printing’ [sic- Styash] in 1999. Dr Sun noted Mr Nguyen had returned to light duties work after each surgical procedure but his employment was ultimately terminated at the end of 2003 and Mr Nguyen was job seeking. The doctor noted that due to his limited employment history, mainly as a printing assistant, Mr Nguyen had “very limited transferable skills”.
Dr Sun concluded that Mr Nguyen was fit for permanently modified duties, with a lifting limit of 3kg, no forceful pushing or pulling or sustained gripping or repetitive movements for more than ten minutes. He also required a five-minute break every hour and rotation of duties every two hours. Provided suitable duties and suitable workstations were available he may be able to work 30 hours per week.
Dr Sun was critical of the vocational assessment report prepared by Recovre, on behalf of the Appellant noting at page four of his report:
“The report reads like a cook book manual and did not take into consideration the above mentioned factors.
For someone with a fractured wrist with ongoing pain and weakness and dropping objects it was negligent to require him to take up [a] manual labourer position.”
In reviewing the jobs selected by Recovre as appropriate for Mr Nguyen, Dr Sun concluded that picking and packing work was too repetitive, dry-cleaning work involving lifting bundles of clothing at shoulder height was not appropriate due to his neck and shoulder symptoms and delivery driving work would cause difficulties because the steering aggravated his wrist pain. The doctor concluded that the only suitable option was car park attendant for 25 to 30 hours per week.
In a separate report dated 19 December 2007, Dr Sun assessed a whole person impairment of 27% as a result of the neck, shoulder and wrist problems.
Dr Endrey-Walder examined Mr Nguyen at the request of his solicitors and prepared a report dated 10 November 2003. The doctor obtained a consistent history of the injury and subsequent surgical procedures. Following his examination of the Worker, Dr Endrey-Walder was of the opinion that Mr Nguyen had suffered a comminuted displaced intra-articular fracture of the distal end of the right radius, which required internal fixation. He noted that Mr Nguyen remained significantly functionally impaired as a result of the injury, with marked restriction and range of movement of the wrist and residual weakness. He believed that Mr Nguyen would have difficulty finding appropriate employment in the long term because he had no particular skills and had earned his living as a labourer in intensive menial work, which would now be outside his physical capability.
Dr Endrey-Walder suggested Mr Nguyen may be fit for some process work that does not require marked dexterity or significant power grip, but he doubted the ready availability of such work, particular given Mr Nguyen limited English, which was contributing to his difficulties in his vocational rehabilitation. Dr Endrey-Walder was also of the opinion that Mr Nguyen would develop reactive arthritic changes in his wrist and if there were further increases in symptoms then he may have to consider a joint fusion, which would decrease his pain locally, but would eliminate his wrist movement.
In a separate report dated 10 November 2003, Dr Endrey-Walder, assessed Mr Nguyen as having a 20% whole person impairment as a result of his upper limb symptoms.
Dr Endrey-Walder prepared a further report dated 5 July 2004. He reviewed a nerve conduction study performed by Dr Hanna on 28 May 2004 and was of the opinion that the studies were consistent with carpal tunnel syndrome in the right hand. He concluded that as the result of the combined motor and sensory impairments in his right upper limb and reduced range of motion that Mr Nguyen had a 22% whole person impairment.
A number of WorkCover medical certificates from Dr Ly, general practitioner, were in evidence before the Arbitrator dating from 5 July 2005 to 17 September 2007. The diagnosis recorded by Dr Ly in each certificate was “chronic injury – chronic pain syndrome to right distal forearm – right carpal tunnel syndrome as a result of the date of injury of 5 September 2002”.
Dr Ly certified Mr Nguyen fit for suitable duties from 14 July 2005 to 10 July 2007 with the certificates throughout this period gradually increasing the number of hours and days Dr Ly considered Mr Nguyen was capable of working and increasing his lifting limit, from 5 kilograms on 5 July 2005 to 13 kilograms by 12 June 2006. The doctor also stipulated a further limitation of avoiding frequent repetitive movements and sustained elevation of the right arm.
In the certificate dated 24 July 2007 Dr Ly certified Mr Nguyen as:
“fit for pre-injury duties for some permanent modifications as below from 2 August 2007 to 22 August 2007.”
Modifications listed in this certificate included working eight hours per day five days per week with a lifting restriction of 14 kilograms and a requirement that Mr Nguyen work at his own pace.
In his further certificates dated 20 August 2007 and 17 September 2007, Dr Ly certified the Worker fit for pre-injury duties but permanently modified, in accordance with the restrictions detailed above from 20 August 2007.
Each of these last three certificates were titled “Final”.
A facsimile transmission from Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) dated 23 October 2006, addressed to Dr Ly, noted that a vocational assessment had identified a number of jobs as being appropriate and requested Dr Ly confirm if he believed Mr Nguyen was able to complete these jobs at 35 hours per week, as advised on his present medical certificate.
The doctor apparently completed a hand written note on this document initialled and dated 6 November 2006, ticking each of the jobs identified, namely, processor/assembly work, light delivery driver/courier, dry cleaner, car park attendant and fork lift driver as suitable, provided that the work did not involve frequent repetitive movements to the right forearm and wrist. On page 2 of this document Dr Ly hand wrote that Mr Nguyen’s current treatment was non - steroidal anti-inflammatory medication and exercising the right arm in heated water.
In response to the question from Allianz “is there anything further that Allianz may do to assist the management of Mr Nguyen’s injury? Please provide any further comments”, Dr Ly recorded the following on 31 August 2007:
· no active treatment required;
· Mr Nguyen has reached mostly maximal recovery;
· future treatment mostly will be exercising and analgesics PRM, and
· wrist support while at work.
Mr Ting, occupational therapist, prepared a Vocational Assessment report dated 26 May 2008, at the request of Mr Nguyen’s solicitors. Mr Ting noted the history of the injury and the Worker’s return to work on light duties, but because the company did not have any more office duties available, his employment was terminated in December 2003.
Mr Ting noted that Mr Nguyen had enrolled in an English course at TAFE in 2004, studying part-time four hours per day three days a week. He completed the program and obtained his certificate but was not sure at what level and he still felt embarrassed speaking in English. Mr Nguyen however stated that he would like to continue to improve his English but found prolonged sitting and writing aggravated his pain. Mr Ting noted that Mr Nguyen was assisted by the insurer to find a job had not been able to return to any gainful employment.
Mr Ting recorded that Mr Nguyen was seeing Dr Ly every two to three weeks for prescription medication and although Dr Ly had certified him fit for suitable duties on a full-time basis with lifting restrictions of 14 kilograms, Mr Nguyen was not confident that he could work full-time or lift 14 kilograms without aggravating his pain condition.
The history obtained by Mr Ting was that Mr Nguyen was born in Vietnam and that his parents operated a home based sewing business with the assistance of the older children. He lived with the family until he was 18 years old, and he became a refugee in Thailand for two years before coming to Australia in 1989 and settling in Sydney. He initially attended an English course in Sydney but did not learn much from the course and started job seeking without success until 1997. Through his sister’s friend he found casual processing work, but a year later he stopped because of the uncertainty of his position and lack of work. Again, through his sister’s friend, he found a printing assistant job with the Appellant, Styash, in July or August 1999 and he worked there until his employment was terminated in 2003.
Mr Ting noted that Mr Nguyen had little confidence in finding a job. He had been referred to a rehabilitation provider and despite assistance, he had been unable to find another job. Mr Nguyen believed his age, lack of work experience and skills, the injury and a limited circle of friends all contributed to his lack of success in finding a job. Mr Nguyen reported that he continued to undertake job seeking by attending Centrelink and inexpertly using their computer facilities. He also cold canvassed in his local community and responded to two or three jobs per week in the paper by telephoning respective employers using his rudimentary English. He reported not having been offered a job or an interview since he started job seeking in 2004.
Mr Ting noted in relation to Mr Nguyen’s English language and literacy that he would have difficulty completing basic clerical tasks in an English speaking environment and his demonstrated verbal skills were not sufficient for employment requirements in the open labour market as he was unable to respond to greetings or answer in single words and he did not have the ability to follow and respond to simple conversation. He possessed limited clerical skills and would not be competitive in a clerical position in the general labour market. He had no basic computer knowledge or skills and had no office experience.
Mr Ting concluded that, as a result of the work accident, Mr Nguyen’s employability had been reduced:
·He had limited transferable skills.
·He had physical functional restrictions.
·He complained of poor sleep patterns and anxiety and the avoidance of physical activities.
·He was 38 years of age, which was a potential barrier to return to work.
·He had a long unemployment gap since 2003.
·He lacked career direction following the injury.
Mr Ting stated that, as a result of these barriers to employment, Mr Nguyen’s chances of gaining employment had been reduced by approximately 60%. Mr Ting did not believe Mr Nguyen was competitive for employment requirements in the open labour market.
Mr Ting believed that positions that may be readily available to Mr Nguyen would include, but were not limited to, sales assistant work within the Vietnamese community, such as, food, drink, household items or video rental. He stated that job prospects for sales assistants were good but that sales assistants had a relatively low proportion of full-time jobs. The award rate for a shop employee aged 35 to 39 years of age was recorded as $604.00 per week.
However, in concluding his report, Mr Ting opined that taking into account the barriers to employment identified, that Mr Nguyen’s real capacity to earn was $241.60 per week as compared to his pre-injury earnings of $530.00, and that he would have difficulty securing work, and it was highly likely he would face periods of unemployment between jobs. He would more than likely retire prematurely and his working life expectancy would be significantly reduced as a result of his physical restrictions and disability arising from the work injury.
Mr Nguyen’s signed statement dated 4 March 2008 noted that in 1993 and 1994 he attended TAFE to complete Year 11 and 12 and obtain High School Certificate, which he was able to obtain due to his ability in maths, physics, chemistry and Vietnamese, but his grasp of English was poor. In 1995, he worked as a baker’s assistant for three months and in 1998, he worked for six months as a printer’s assistant. In August 1998, he commenced with Styash as a labourer. His duties involved the loading of printing machines with rolls of paper, which weighed 500kg. The duties were very heavy including pushing rolls of paper on a trolley, working with co-workers to insert steel rods (weighing approximately 20kg to 30kg) into the core of the roll and pushing the roll into position in the machine.
Following the injury in September 2002, Mr Nguyen was provided with some rehabilitation assistance, but in late 2005 his wrist pain was worsening and he was now experiencing pins and needles sensation in his right shoulder and pain in his neck and was still feeling pain in his back from time to time.
Mr Nguyen’s compensation payments were terminated by letter dated 29 November 2007, on the basis that he was capable of doing a number of jobs in which he would earn more than he earned with the Styash. He stated that he had been looking for light labouring jobs, sales assistant work and cashier work in a service station, however, he believed that he had been unsuccessful because of the condition of his hand and his poor English.
Mr Nguyen stated that he could not lift heavy items and could not use his hands in a repetitive way. He could write in Vietnamese for about half a page, had poor computer skills and did not believe that he would be able to use a keyboard for long periods of time. He drove an automatic car for short distances and continued to have weakness in his right hand.
He agreed that he could work as a car park attendant, as suggested by Dr Sun, but believed his lack of English would restrict him in obtaining such work and parking cars would aggravate his wrist pain.
A Medical Assessment Certificate prepared by Dr Bodel was issued in the prior Commission proceedings (WCC 21069-04) following his examination on 16 June 2005. The doctor recorded a consistent history of the injury and subsequent surgical procedures Mr Nguyen had undergone. He noted at the time of the examination that Mr Nguyen continued to complain of pain and stiffness in his right wrist, reduced grip strength, fatigability on repetitive right arm activities and intermittent back pain aggravated by bending and lifting.
Dr Bodel referred to Dr Endrey-Walder’s report dated 10 November 2003 (see [47] – [50] above). Dr Bodel believed that Dr Endrey-Walder’s assessments of whole person impairment were too high for the clinical findings present. Dr Bodel was satisfied from the medical records that a good reduction had been achieved with the internal fixation. He noted there were multiple WorkCover medical certificates but stated that they did not aid his understanding of Mr Nguyen’s clinical condition. The claim form was consistent with the history and the statement from Mr Nguyen, which was undated, was also consistent with the history he had recorded.
Dr Bodel concluded that Mr Nguyen had a 12% whole person impairment as a result of his right upper limb symptoms and he gave no assessment for permanent impairment of the back.
In a report dated 26 February 2008, prepared at the request of Allianz on behalf of Styash, Dr Bodel noted he had previously examined Mr Nguyen in his role as an Approved Medical Specialist. He noted that since his last examination three years earlier Mr Nguyen reported a steady increase in pain in the right wrist, with associated stiffness, and that he had developed a gradual onset of neck and right shoulder girdle pain and was taking ‘Digesic’ medication and remained under Dr Ly’s care.
Dr Bodel observed that Mr Nguyen had dry skin and that his hands were calloused. The callosities more marked on the uninjured left hand, but there were significant callosities on both hands. Mr Nguyen could offer no explanation as to why his hands were calloused but stated that he had not engaged in any physical work activities. The doctor noted reduced range of movement of the right wrist and reduced grip strength but no objective signs of medial or ulnar nerve pathology in either limb. Mr Nguyen had however been referred to Dr Masson, a hand surgeon, in July 2004, who was of the opinion that he had clinical signs of carpal tunnel syndrome, which was treated with a cortisone injection, which did not relieve Mr Nguyen’s symptoms. He offered surgery but Mr Nguyen stated he did not wish to pursue surgery.
Dr Bodel also referred to Dr Keighery, an injury management consultant, who saw Mr Nguyen on 14 July 2005, and concluded that he considered it very unlikely that Mr Nguyen would return to full time hours of suitable duties. Dr Bodel noted the Work Readiness Assessment from Recovre, and other documentation from that company indicated that extensive attempts had been made to attempt to return Mr Nguyen to the work force, without success.
On examination, Dr Bodel found that Mr Nguyen had some slight stiffness of the shoulder movement but there were no investigations to confirm any intra-articular pathology in the shoulder. He believed Mr Nguyen’s prognosis in relation to the wrist injury was guarded and that he was not fit for his pre-injury work because of the intra-articular fracture of the wrist. He had very poor command of English, retraining had failed and Dr Bodel believed it was unlikely that Mr Nguyen would return to paid employment. Dr Bodel did however note that:
“From a theoretical point of view he should be capable of part time light work, that does not require strenuous and repetitive tasks with the right arm particularly overhead”.
Dr Bodel also suggested that Mr Nguyen may have developed psychological disturbances as a result of his chronic pain but such a condition was outside his area of expertise. Since his prior examination there had been no deterioration in the pre-existing pathology in the right wrist, but there was some evidence of slight restriction of shoulder movement, which had developed since the injury to the right wrist. Mr Nguyen complained of symptoms in his neck and right shoulder and that he may have been favouring his right wrist and putting undue strain on the neck and shoulder.
In a separate report dated 26 February 2008, Dr Bodel stated there may be an indirect causal link between the original injury of the right wrist and the development of some stiffness in the right shoulder but he did not believe there was any localised pathology in the region of the right shoulder. He found that the range of movement in the right wrist had not altered since his previous examination. He confirmed his previous assessment of 12% whole person impairment and found an additional 2% whole person impairment as a result of reduced shoulder range of movement.
A Work Readiness Assessment report prepared by Recovre, dated 29 September 2005, recorded that Mr Nguyen had undergone a training program “accessing the hidden job market, interview techniques, injury disclosure and that he had participated in the training”. The recommendation was made that if he was unable to secure a job placement he should be referred for English courses.
A Vocational Assessment report prepared by Ms Terry, rehabilitation consultant at Recovre, dated 25 October 2005, recorded Mr Nguyen’s return to work barriers as his lack of confidence in his English, his physical restrictions affecting his ability to obtain and maintain suitable employment, noting that at the time of the vocation assessment he was fit for four hours per week three days per week, a limited work history and restricted skills and experience, having predominantly worked as a labourer/printer’s assistant. Mr Nguyen stated that he regularly searched for jobs in the local newspaper and applied for jobs directly to employers. He stated that he did not have a job seeker ID number, but had been able to use the Centrelink’s touch screens for employment.
The report concluded that suitable employment options for Mr Nguyen were a forklift operator, a light delivery driver/courier, a drycleaner, an assembly/process worker and a car park attendant. The report also stated that the employment goal was for full or part-time employment in the types of positions identified, but that he required some preparation in the development of competitive resume, a work conditioning program, independent functional assessment to determine his physical tolerances and ability to work, education and training on injury disclosure and training and development in effective interview techniques.
Mr Ndeira, exercise physiologist from Pro-Fit Rehabilitation, prepared a report dated 10 June 2006. Mr Nguyen was co-operative with the program and as a result of his physical improvements it was recommended that his lifting restrictions be increased from 5kg to 10kg and he be upgraded to be certified fit for work at 5 hours a day 5 days a week. The report noted that Dr Ly agreed to comply with this recommendation.
Mr Stancevic, an exercise physiologist from Peak Conditioning, prepared a report dated 25 August 2006. Mr Nguyen had made a notable improvement in his physical and functional tolerance in the first part of the program. He was able to lift 9kg from the floor to above head height, 20 times and was able to push and pull 21.5kg, 20 times. On this assessment, Mr Stancevic recommended that his medical status be reviewed and that his working hours could be increased to eight hours per day five days a week with a lifting restriction increased to 9kg.
Mr Stancevic noted that Dr Ly was reluctant to upgrade his certificate immediately suggesting he would prefer a gradual increase. It was agreed to upgrade to seven hours per day and after two weeks, after that he could upgrade to seven and a half hours, and finally, two weeks after that, being 14 October 2006, he could be issued with a final permanent modification, certifying him fit for eight hours per day five days a week with a 9kg lifting limit.
The Peak Conditioning Upgrading Program – final report, dated 18 September 2006, prepared by Mr Stancevic, noted that Mr Nguyen was compliant with the supervised and non-supervised sessions throughout the program and made notable improvements in his exercise tolerance. Mr Nguyen continued to upgrade his exercise program and function and tolerances and he had been set up with an independent home program to continue regular activity.
Ms Hamilton from Recovre prepared a “Labour Market Research Report to Assist in the Calculation of Section 40 Payments” dated 24 April 2007. The report provided wage details and a rating from excellent to poor of the labour market within a 90 minute travelling distance for the jobs of delivery driver, assembly worker, labourer (print industry), picker/packer, dry cleaner and car park attendant. In relation to car park attendants and delivery drivers the report noted that the mid-term potential for new jobs was average, but vacancies existed for existing jobs through turnover. The mid-term potential for new jobs in dry-cleaning, picker/packer and process worker/assembler were considered below average in the mid-term for new jobs.
Dr Chase, from Recovre, in his capacity as an injury management consultant, prepared a report dated 7 May 2007. The doctor noted that Mr Nguyen had sustained an intra-articular fracture of his radial distal radius and it was probable that he would have intermittent residual joint pain and would also have increasing problems with arthritis in the wrist in the future. He would therefore required permanently modified duties. The doctor agreed with Dr Ly’s certification dated 16 April 2007. Dr Chase, having observed calluses, wear and tear and ingrained dirt on the Worker’s hands, also made the following comment:
“I would stress however that I believe that Mr Nguyen is engaging in work that exceeds these restrictions.”
The doctor stated that he could find no evidence of carnal tunnel syndrome on clinical examination and, after consideration of the Vocational Function Assessments, he believed Mr Nguyen could undertake light assembly process work, delivery driver and courier work, car park attendant, light picker packer and store personal dry cleaner.
Ms Grey, rehabilitation consultant from Recovre, prepared a further vocational assessment report dated 11 October 2007. This report relied on Dr Ly’s medical certificate that Mr Nguyen had reached maximum medical improvement and was fit for permanently modified duties working at his own pace with a lifting limit of 14kg. This report noted that Mr Nguyen was not currently participating in a gym program. He had in the past attended approximately twice per week for a one month peak conditioning program to strengthen his wrist muscles which was completed in July 2003. The report also noted that Mr Nguyen required the assistance of his Vietnamese interpreter and exhibited poor English communications.
It was also noted that Mr Nguyen did not have a typed resume and instead networked with his sister’s friends to job seek. This was how he had previously secured employment but he had not worked in the last four years and had not attended any formal job interviews. He confirmed that he had telephoned companies and searched newspapers including the Vietnamese newspaper for employment. At the time of the assessment he did not hold a job seeker ID but was familiar with the Centrelink touch screen. The report concluded that he would benefit from job seeking assistance and suitable employment options included process work, factory assembly work and delivery driver work.
A number of vocational options were also considered but were regarded as unsuitable, including car park attendant. Although Mr Nguyen had expressed an interest in the position and an approval obtained by his nominated treating doctor, Ms Grey considered the role was unsuitable given the current labour market. Laundry worker/drycleaner was also considered unsuitable given the current labour market. Kitchen hand, butcher, baker and carpenter were all roles that were considered unsuitable by his nominated treating doctor, although the Worker had expressed an interest in those positions.
Bank statements for the period 9 January 2008 to 8 April 2008 and 29 November 2007 to 21 July 2008, and a summary of transactions from 29 November 2007 to 21 July 2008 from a St George Freedom Account, jointly held by Mr Nguyen and his wife, were admitted into evidence at the hearing. These records showed cash deposits in January 2008, one for $1,500.00 and two for $500.00 deposits, cash deposit of $1,000.00 in March 2008, and cash deposits of $300.00 in May 2008, $100.00 in June 2008, and $1,000 in July 2008.
SUBMISSIONS
On appeal the Appellant submits that:
(1) Mr Nguyen’s capacity to earn is much greater than the Arbitrator’s finding of $254.80 per week in suitable duties.
(2) The Appellant relies on the medical evidence of Dr Ly, which the Arbitrator failed to take into account:
a. Dr Ly had examined Mr Nguyen regularly since at least July 2005 and provided WorkCover medical certificate since October 2006 certifying Mr Nguyen fit for suitable duties of eight hours per day five days per week.
b. In a hand written response dated 6 November 2006, Dr Ly considered the Worker fit for light process/assembly work, light delivery driver/courier, dry cleaner, car park attendant or forklift driver, provided the work did not involve repetitive movement of the right wrist and forearm.
(3) The Arbitrator erred, by firstly preferring the opinion of Dr Sun that the Worker could work 30 hours per week as a car park attendant and earn $382.20 per week, but then finding that Mr Nguyen could work only 20 hours per week on the basis that he could only find intermittent employment.
(4) The Arbitrator’s finding that the Worker would have difficulty obtaining work as a sales assistant because of his poor English skills and that for him to be competitive for sales assistant positions in the Vietnamese community would require fluent English and Vietnamese was unfounded. The Worker has experience working in the family shop in Vietnam and lives in the centre of the Vietnamese community.
(5) The Arbitrator erred in finding that there were no factors relevant to the exercise of his discretion to reduce the award of weekly compensation payments in accordance with “the third step” [sic- fourth step] in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526.
(6) The Arbitrator incorrectly applied the Worker’s poor employment history in his favour when it should have been applied in Styash’s favour. The Appellant relies on Pratt v Claydon (1996) 14 NSWCCR 86.
(7) Having accepted that the regular payments into Mr Nguyen’s bank account were the proceeds of gambling, the Arbitrator should have taken into account the Worker’s participation in gambling, and that there was no evidence to substantiate the claim that he had been looking for work, to reduce the amount awarded in weekly compensation payments.
The orders sought is that the award under section 40 is reduced based on a finding that Mr Nguyen is:
(1) capable of working 40 hours per week as a shop assistant earning $562.80 per week and therefore entitled to compensation under section 40 of $118.17 per week or, alternatively,
(2) capable of working 30 hours per week as a car park attendant and entitled to section 40 award of $298.77 per week.
Mr Nguyen submits in reply:
(1) The Arbitrator’s award of weekly compensation under section 40 was supported by the evidence, particularly the reports of Drs Bodel and Sun, and Mr Nguyen’s own evidence.
(2) The Arbitrator was entitled to find that the only work available to Mr Nguyen was car park attendant work.
(3) The Arbitrator’s reasoning that due to his poor English literacy, Mr Nguyen would “probably only be able to secure intermittent casual employment for 20 hours per week” was correct.
(4) Given the fact that Mr Nguyen had no sales experience in Australia, there was no error in the Arbitrator’s reasoning and finding that Mr Nguyen was unlikely to secure employment of a sales assistant ahead of candidates who were literate in English and Vietnamese.
(5) Even if the Worker was able to find work as a sales assistant, the condition of his right dominant wrist prevented him from performing repetitive activities such as cashier, shelving, keyboard work and heavy lifting.
(6) The Arbitrator was not obliged to refer to the evidence of Dr Ly, which was of little or no probative value because:
a. The medical certificates and note dated 6 November 2006 do not cover the relevant period of the claim, which commences on 29 November 2007.
b. Dr Ly’s assessment of work capacity in his medical certificates record substantial improvements in Mr Nguyen’s work capacity (certificate dated 5 July 2005, assesses a capacity to work of three and a half hours per day five days per week with a lifting limit of 5kg and the certificate dated 17 September 2007, refers to a capacity to work eight hours per day five days per week, with a lifting limit of 14kg). This contrasts with Dr Bodel who was of the opinion that Mr Nguyen’s condition had worsened a little from when he undertook the AMS assessment on 16 June 2005, and his later assessment of 26 February 2008.
c. The diagnosis recorded by Dr Ly on the certificates of “Chronic Injury - Chronic pain Syndrome of Right Distal Forearm – Right Carpel Tunnel Syndrome” does not make reference to the neck and shoulder problems and reduced right grip strength, accepted by both Drs Bodel and Sun as arising from the work injury.
(7) The Appellant’s submission in relation to the Worker’s poor employment history ignores the fact that the Appellant employed Mr Nguyen for just over four years prior to the injury. This would mitigate against reducing his award.
(8) The Worker was not required to corroborate his evidence that he had been looking for work.
(9) The evidence about playing poker machines had relevance to the financial records that were in evidence but had no relevance to Mr Nguyen’s capacity for work and provided no basis upon which to reduce his award.
(10) The Worker sustained a serious injury, which “was bound to significantly reduce his pre-injury work capacity”.
(11) The award made by the Arbitrator was fair and reasonable.
DISCUSSION AND FINDINGS
On 7 November 2003 Mr Nguyen’s employment was terminated on the basis that there was no longer suitable duties available for him. At the point of termination he was working three hours a day for three days a week. Since being terminated by the Appellant, Mr Nguyen has not worked, notwithstanding his best efforts to obtain suitable employment. There is no issue that the weekly amount, which he would probably be earning, but for the injury, is $680.97 per week.
Having considered the evidence in some detail, the Arbitrator formed the view that the only suitable option for Mr Nguyen would be work as a car park attendant for 25 to 30 hours per week. The Arbitrator found that car park attendants are remunerated at the rate of $12.74 per hour and having regard to Dr Sun’s opinion, if Mr Nguyen were to work 30 hours a week, he could expect to earn $382.20 per week as a car park attendant. However, the Arbitrator considered that the Worker would:
“struggle to compete the job seekers who have a greater command of English and who would be able to communicate more effectively with members of the public. I consider that, for this reason, the Applicant would probably only be able to secure intermittent casual employment for 20 hours a week. He could therefore expect to earn $254.80 per week.”
The Arbitrator considered that this assessment was consistent with Dr Bodel’s assessment that “from a theoretical point of view” the Worker would be capable of part-time light duty work. It is from this assessment of Mr Nguyen’s ability to earn in suitable employment, that Styash appeals.
The Appellant submits that the Arbitrator failed to take into account a series of WorkCover medical certificates from the Worker’s general practitioner Dr Ly. Dr Ly’s medical certificates commence on 6 July 2005 and terminate on 17 September 2007. Between May 2005 and June 2007 Dr Ly certified Mr Nguyen capable of suitable duties, yet the certificates issued in July, August and September 2007 certified him fit for pre-injury duties, provided that he is able to work at his own pace, and with his lifting capability capped at under 14kg. During the period that the certificates were issued, Dr Ly progressively increased his certification of Mr Nguyen’s capacity for work, both in terms of the working hours and lifting capability, which increased from 5kg to up to 14kg.
There is no report in evidence from Dr Ly to explain his reasons for his certifying Mr Nguyen capable of increasingly heavier duties. However, he appears to have been influenced by the recommendation of Mr Ndeira and Mr Stancevic (see [87] – [90] above).
The Appellant submits that the increase in the assessment of Mr Nguyen’s capacity is inconsistent with the finding by Dr Bodel that Mr Nguyen’s condition had worsened somewhat, since he originally assessed him in June 2005 and his re-assessment in February 2008. Dr Ly’s diagnosis as recorded on the certificates of “chronic injury – chronic pain syndrome to right distal forearm – right carpal tunnel syndrome” does not take into account the neck and right shoulder problems, which both Dr Bodel and Dr Sun accept as arising from the work injury.
The Appellant submits that Dr Ly responded to a facsimile from Allianz dated 23 October 2006. In his handwritten response dated 6 November 2006, Dr Ly considered that Mr Nguyen was fit to work as a light process/assembly worker, light delivery driver/courier, drycleaner, car park attendant or fork lift driver, provided it did not involve repetitive movements of the right forearm/wrist.
The Appellant submits on appeal that the Arbitrator made no reference in his decision to the certificates of Dr Ly. Mr Nguyen submits that the Arbitrator was under no obligation to do so. Whilst it is true that there is no reference to Dr Ly in the Arbitrator’s Reasons, he did refer to the fact that the documents before him included all the material attached to the Application to Resolve a Dispute and the Reply, which included Dr Ly’s certificates and his hand written note of 6 November 2006. More importantly, however, the Arbitrator has carefully analysed the evidence in relation to the range of occupations Dr Ly certified as suitable for the Worker. At [36] of his Reasons, the Arbitrator expressly dealt with the suggestion that Mr Nguyen could be employed as a picker/packer, drycleaner or delivery driver. The Arbitrator, rightly in my view, observed that all of those jobs would require Mr Nguyen to regularly use his right arm. He went on to say that not only would he not be able to do the work efficiently, but the activity would aggravate his pain.
The Arbitrator considered, at [37] of his Reasons, the possibility of Mr Nguyen being employed in light assembly/process work, as recommended by Dr Chase. He observed that such work would involve regular movement of the right arm and would not be appropriate. He considered employment as a store person and noted such work requires the shelving of goods, and that the physical aspects of that job would place a toll on Mr Nguyen’s right arm, thus excluding such work as suitable.
At [41] and [42] of his Reasons, the Arbitrator considered Mr Nguyen’s suitability for employment as a sales assistant or car park attendant. He found that the suggestion Mr Nguyen could work as a sales assistant was unreasonable because Mr Nguyen had no sales experience in Australia, and would be most unlikely to secure employment ahead of other candidates who were able to converse fluently in Vietnamese and English.
The Arbitrator was required to state his findings and reasons to enable a proper understanding of the basis upon which his decision was reached: Pettit v Dunkley [1971] 1 NSWLR 376 (‘Pettit’). It was not necessary for the Arbitrator to refer expressly to Dr Ly’s certificates as he addressed, in some detail, the very point that Dr Ly was making, namely, the Worker’s suitability for particular types of work. Provided the test as laid down in Pettit is met, the Arbitrator was not in my view obliged to refer to every aspect of the evidence. (See Mashiati v Australian Poultry Limited (1995) 11 NSWCCR 345 at 354).
The Arbitrator made it clear in his Reasons that he reviewed all of the medical evidence including the reports of Dr Sun, Dr Bodel and Dr Chase. The Arbitrator noted that even Dr Bodel, who provided a report on behalf of the Appellant, considered Mr Nguyen “from a theoretical point of view” to be capable of only part-time light duty work. Dr Chase acknowledged that given the nature of the Worker’s injuries “he will have increasing problems with arthritis in that wrist in the future and this argues that he does require permanently modified duties”. Having said that however, Dr Chase ultimately agreed that Mr Nguyen could work in the various employments identified by Dr Ly. Not by reason of his assessment of physical capacity alone, but because in his view, Mr Nguyen’s calloused and stained hands suggested that he was already doing heavy work, a claim which Mr Nguyen denied and which was also rejected by the Arbitrator.
In making the finding referred to in [72] of his Reasons that Mr Nguyen is able to earn $254.80 per week, the Arbitrator was completing the second step of the five-step process referred to in Mitchell.
In order to determine what is “suitable employment” for the purposes of section 40, regard must be had for the provisions of section 43A(1), which is in the following terms:
“1) For the purposes of sections 38, 38A and 40:
‘suitable employment’, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,
(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment, and
(h)any other relevant circumstances.”
In terms of the nature of the Worker’s incapacity and his pre-injury employment there seems to be no dispute amongst the majority of the medical experts that Mr Nguyen is no longer fit for his pre-accident employment as a printer’s assistant labourer. Part of his duties as a printer’s assistant labourer was to load rolls of paper weighing in excess of 500kg into heavy machinery. He describes the work as “very heavy”. On several days of the week Mr Nguyen was required to load up to ten rolls a day into the machine. Although he was assisted by another worker and had the assistance of certain equipment he was nevertheless required to lift one end of the roll and manoeuvre it into position in the machine. That sort of work is clearly no longer suitable for Mr Nguyen.
Mr Nguyen is now aged 39. He is married and has two children aged six and one years of age. He left Vietnam for Thailand before having completed his formal schooling. He completed years 11 and 12 at TAFE in Australia during 1993 and 1994. His only real skills are in the printing industry. The Appellant submits Mr Nguyen “had significant experience working in the family shop in Vietnam”. There is very little evidence about Mr Nguyen’s work in Vietnam, other than that he and his siblings assisted in his families home based sawing business (see [63] above). In any event, he was only 18 years of age when he left Vietnam, so whatever experience he gained, it could not have been extensive.
Mr Nguyen lives at Canley Vale, which the Appellant submits, is at the centre of the Vietnamese community in Sydney. One would think that may lead to employment opportunities, however, there was no evidence before the Arbitrator nor is there evidence before me on appeal in relation to employment opportunities in Canley Vale. I can only infer from the current employment market that opportunities for partially disabled workers with limited English skills would not be plentiful, even in the centre of the Vietnamese community. I accept, and agree with the Arbitrator’s observation, that Mr Nguyen would struggle to compete with job seekers who have a greater command of English and who would be able to communicate more effectively with members of the public.
The details given in the medical certificates supplied by the Worker have already been discussed in some detail at [104] above, and I don’t propose to canvas that area again.
As Dr Bodel noted, “retraining has been fruitless so far and is unlikely he will return to paid employment”. He also noted in his report of 26 February 2008:
“a work readiness assessment from Recovre is also noted and that is consistent with this gentlemen’s ongoing complaints. The further documentation indicates that extensive attempts have been made to try and return this gentleman to the workforce.”
Those attempts were of course unsuccessful as Mr Nguyen has not been in gainful employment since his employment with the Appellant was terminated in November 2003, over five years ago.
The Worker provided evidence that he has been looking for suitable work but has been unsuccessful. He said that he has looked for light labouring jobs, sales assistant work and work as cashier in service stations, however, he noted that he was limited by reason of his poor English and physical restrictions.
Having regard to all of the evidence and the matters set out in section 43A, the Arbitrator’s assessment that the most suitable work for Mr Nguyen would be work as a car park attendant was open to him and on, review, I agree with it.
The Appellant also submits that there was no evidence before the Commission to suggest that Mr Nguyen would be required to use his right arm if he worked as a car park attendant. I reject this submission as I infer that the work would require the Worker to take payments from patrons, provide change and receipts, operate equipment, and park vehicles, quite apart from the travelling to and from work, either by driving himself or by using public transport. I infer that in order to undertake these tasks Mr Nguyen would be required to use both arms. Furthermore, the Appellant led no evidence in support of the proposition that the work of a car park attendant could be performed using one arm only.
The central thrust of the Appellant’s submission on appeal concerns what it describes as the Arbitrator’s “discretion” in reducing the number of hours per week Mr Nguyen could work in suitable employment.
An assessment of a worker’s ability to earn must take into account the worker’s particular circumstances. Burke CCJ noted in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’) at 180:
“When assessing a capacity to earn under section 40(2), it is not sufficient to merely identify a particular potential avenue of employment and attribute the income from such a job as a man’s capacity to earn. Allowance must be made for the availability of work - availability, not so much in the sense of a presently depressed labour market but in the sense of the general availability in any labour market. A rarely available niche in
the labour market which carries, perhaps, substantial remuneration, does not serve as a sole criterion of capacity to earn.”
His Honour added:
“When one assesses an ability to earn under section 40(2), one is really arriving at a weighted average. Wage rates for jobs within capacity that are rarely available, though perhaps highly paid, rate poorly in such an assessment. Conversely, the income derivable from more readily available work rates highly.”
I agree with, and adopt the reasoning of his Honour. The availability of work for car park attendants is limited (see [96] above), and further limited for the Worker because of his poor English literacy and the nature and extent of his injury.
In Summerson v Alcan Australia Ltd (1994) 10 NSWCCR 571 (‘Summerson’) Neilson CCJ, accepted that it was legitimate in assessing partial incapacity to take into account intermittency of employment of a partially incapacitated worker. In that case the worker, although partially incapacitated, had obtained employment over a period of seven months where she earned in excess of the pre-injury earnings. He said at page 577[F]:
“However, I am persuaded by the submissions of Mr Menary that the appropriate way of looking at the case is that the Applicant’s ability to get jobs such as the one she got with George Patterson and Co is reduced…. Therefore, the number of jobs which she could hold down has been reduced. That means if the Applicant finds herself unemployed it is harder and would take longer to obtain suitable employment – that is, employment suitable to a lady with her disability in the dominant left arm.”
In Tuwai v Rail Services Australia and Anor [2007] NSWWCCPD 232 (28 November 2007), Acting Deputy President Snell also adopted intermittency of employment as an appropriate factor to take into account in assessing the workers ability to earn. He said at [65]:
“There would probably be some positions in light assembly or process work, perhaps also making some use of his forklift ticket, which would be suitable for the Appellant worker. Such positions, when available, would probably produce earnings around $700 per week. However, having regard to the Appellant worker’s age, lack of experience in such occupations, and education (including his English language difficulties, identified by Dr Rimmer), and that significant physical restriction in the use of his arms is likely to experience difficulty in both obtaining and retaining such positions. In determining the Appellant worker’s ability to earn in some suitable employment, it is appropriate that I have regard to the likelihood of earnings from such employment being affected by intermittency of employment.”
The Arbitrator reduced Mr Nguyen’s ability to earn by one third, by reason of intermittency of employment. That finding was certainly open to the Arbitrator on all of the available evidence, particularly the report from Mr Ting who concluded that the Worker would not only have difficulty securing work, but would face periods of unemployment between jobs. Mr Ting assessed that as a result of the injury there were a number of barriers limiting Mr Nguyen’s employability, which Mr Ting assessed as having been reduced by approximately 60% (see [67] above). Ms Grey expressed similar reservations regarding Mr Nguyen’s prospects of securing work as a car park attendant, given the current state of the labour market (see [96] above). I therefore agree with the Arbitrator’s finding that Mr Nguyen’s ability to earn was and is reduced. Because of his injury, his ability to obtain and retain employment is significantly impaired.
The Arbitrator then proceeded to complete the third step of the Mitchell formula by deducting $254.80 per week from $680.97 per week (the uncontested finding of the Worker’s probable weekly earnings), which resulted in the shortfall of $426.17 per week the sum for which he ultimately entered an award in favour of the Worker.
The Appellant submits that the Arbitrator erred in finding that there were no relevant factors to warrant the exercise of his discretion, in accordance with the fourth step of the Mitchell analysis. It is submitted that the Arbitrator failed to apply his discretion by taking into account Mr Nguyen’s past history of unemployment. The Appellant relies on Pratt v Claydon (1996) 14 NSWCCR 86 (‘Pratt’).
The facts in this matter are quite different from that which confronted the Court in Pratt. In Pratt the worker had been retired from the workforce for two years before performing a one off job for a relative during the course of which he was injured. The work was for a fixed sum and was to take only six days. In the instant matter Mr Nguyen had been in full-time employment with the same employer for over four years before he was injured.
Whilst it may be argued that Mr Nguyen had a poor work history since arriving in Australia and before taking up employment with the Appellant, it appears that he did settle into full-time employment, which had remained stable for over four years. Having obtained skills in the printing industry and with the responsibilities that go with marriage and two young children and financial commitments, it is reasonable to infer that had Mr Nguyen not been injured he would have continued in full-time paid employment. I reject the submission that the Arbitrator erred in failing to apply the Worker’s past employment history as a relevant factor to the exercise of his discretion at step four in the Mitchell analysis to reduce the amount found by him, as the appropriate sum to reflect the diminution in his ability to earn.
The Appellant submitted that the Arbitrator should have reduced the Worker’s award for weekly payments by taking into account his regular participation in gambling. The submission in my view is ill conceived. The requirements of section 40(1) of the 1987 Act require a calculation of the reduction in the worker’s weekly earnings, that is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case. The fact that Mr Nguyen may have derived windfalls from gambling is irrelevant to an assessment of the reduction in his weekly earnings. The proceeds of gambling could not on any view of it be regarded as earnings unless, perhaps, one was a professional gambler. There is certainly no evidence in this case to support the proposition that Mr Nguyen was a professional gambler. His participation in gambling was likely to either produce winnings or losses; neither is relevant to an assessment of the reduction in his weekly earnings. The proceeds of any gambling activities are in my view, irrelevant to the exercise of the discretion.
The Appellant submits that the Arbitrator should have reduced the award for weekly payments by reason of the “lack of any evidence” to substantiate Mr Nguyen’s claims that he had looked for work. This submission is misconceived. The failure to look for work is not a discretionary factor (see Mitchell). In any event, the Worker gave evidence about his attempts to find employment at paragraph 25 of his statement dated 4 March 2008, and submission that there is no evidence of that issue is incorrect. At [35] of his Reasons, the Arbitrator accepted Mr Nguyen’s evidence that since the termination of his employment he had been seeking suitable light work without success. Indeed, the Appellant called no evidence to rebut Mr Nguyen’s evidence regarding his attempts to obtain suitable employment. It follows therefore that the submission of an absence of evidence to substantiate Mr Nguyen’s claim that he had been looking for suitable employment as a basis for exercising a discretion to reduce the reduction in his weekly earnings must be rejected.
The Arbitrator found that there were no factors relevant to the exercise of his discretion and, on review, I agree with that finding.
Having conducted a review on the merits (per Speiglman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given in this decision, the Arbitrators conclusions and orders with respect to Mr Nguyen’s claim for compensation for his right arm, right wrist and neck are correct.
DECISION
For the foregoing reasons, the decision of the Arbitrator made on 26 August 2008 is confirmed.
COSTS
The Appellant to pay the Respondent’s costs of the appeal.
Judge Keating
President
23 December 2008
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HONOUR JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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