Sunnybrand Chickens Pty Limited v Hussein
[2006] NSWWCCPD 49
•20 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sunnybrand Chickens Pty Limited v Hussein [2006] NSWWCCPD 49
APPELLANT: Sunnybrand Chickens Pty Limited
RESPONDENT: Sadi Khadim Ali Hussein
INSURER: QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9988-05
DATE OF ARBITRATOR’S DECISION: 3 November 2005
DATE OF APPEAL DECISION: 20 March 2006
SUBJECT MATTER OF DECISION: Finding of injury and total incapacity; weight of evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Mulcahy Lawyers
Respondent: David Legal
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 3
November 2005 is confirmed.
2The Appellant to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Sadi Khadim Ali Hussein (‘Mr Hussein’) was employed by Sunnybrand Chickens Pty Limited (‘Sunnybrand Chickens’) as a Halal Slaughterman at its Byron Bay processing factory. He claimed that on or about 1 June 2002, whilst lifting tubs of chicken, he suffered an injury to his back and left leg.
Mr Hussein resigned from his employment with Sunnybrand Chickens on or about 17 September 2002, having ceased work on 13 September 2002. It was common ground that Mr Hussein ceased work voluntarily and did not make any formal report of injury to Sunnybrand Chickens.
Mr Hussein had consulted a Dr Abdalla in Sydney on or about 6 August 2002 and had an x-ray of his lumbar spine on 19 August 2002.
On 19 September 2002, shortly after ceasing work, he consulted doctors at the Logan Road General Practice in Queensland. On 26 September 2002, he made a claim for compensation with WorkCover Queensland which was rejected by letter from that organisation dated 16 October 2002. In about November 2002, he consulted a solicitor in Sydney who wrote to Sunnybrand Chickens on 12 November 2002 apparently seeking to make a claim for compensation.
On 21 November 2002, Sunnybrand Chickens’ solicitors replied, stating that it had no record of an injury sustained made by Mr Hussein and seeking further information. That information was supplied by letter dated 28 January 2003.
A claim form had been requested from Sunnybrand Chickens’ insurer in or about March 2003. No further communication was apparently received. Mr Hussein then consulted his present solicitors in about September 2003 who wrote to Sunnybrand Chickens’ solicitors on 22 September 2003. They replied on 24 September 2003 advising that, inter alia, since no report of injury had been made, “… any claim for Workers Compensation benefits will be disputed.”
A claim form was ultimately completed by Mr Hussein on 18 December 2003 and forwarded to Sunnybrand Chickens’ insurer, QBE Workers Compensation (NSW) Limited (‘the insurer’).
On 2 March 2004, the insurer wrote to Mr Hussein advising that no weekly payments would be made because notice was given more than three months after the alleged injury.
It appears the insurer accepted liability for some medical or chemist expenses in about August 2004 however, on 17 November 2004, the insurer wrote to Mr Hussein denying liability for the claim.
On 28 June 2005 Mr Hussein filed an ‘Application to Resolve a Dispute’ seeking weekly benefits compensation from 16 September 2002, medical expenses and permanent impairment compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 27 July 2005 Sunnybrand Chickens filed a Reply, wherein it disputed, inter alia, ‘injury’, ‘notice’ and ‘incapacity’.
The matter was listed for conciliation/arbitration hearing at Byron Bay on 28 October 2005. The matter proceeded to hearing and the Arbitrator gave an ex tempore decision contained at pages 40 – 43 inclusive of the transcript. The Arbitrator determined that Mr Hussein was “totally incapacitated” and then asked the parties to “draft some appropriate orders.”
On 3 November 2005 a ‘Certificate of Determination – Consent Orders’ was issued. The reference to “Consent Orders” is not strictly true, since the parties only agreed on the amount of the award following the Arbitrator’s decision that Mr Hussein was totally incapacitated. In any event, the Arbitrator’s determination was as follows:
“1. That the Respondent pay the Applicant weekly compensation at the rate of $520.00 from 13 September 2002 to date and continuing until varied in accordance with sections 36 and 37 of the Workers Compensation Act 1987.
Such weekly payments to continue in accordance with the provisions of the Act.
2. That the Respondent pay the Applicant section 60 [sic] of the Workers Compensation Act 1987 expenses on production of accounts or receipts.
3. That the Applicant be referred to an Approved Medical Specialist.
4. That a further teleconference be held once the Medical Assessment Certificate is to hand.
5. That the Respondent to pay the Applicant’s costs as agreed or assessed.
6. That this matter be certified as complex.”
On 9 November 2005 Sunnybrand Chickens filed an ‘Appeal Against Decision of Arbitrator’. Sunnybrand Chickens lists five grounds of appeal as follows:
“The Arbitrator made errors of law and fact in respect to:
1. In finding that the Applicant sustained injury to his back and/or left leg with the Respondent;
2. That such injury has led to incapacity;
3. That the Applicant is totally incapacitated as a result of injury suffered in the employ of the Respondent;
4. That the Arbitrator failed to take into account the Applicant’s failure to mitigate;
5. That the Arbitrator erred in failing to find prejudice as to the employer by the Respondent worker’s failure to report injury in accordance with section 61 of the Workplace Injury Management and Workers Compensation Act 1998.”
On 7 December 2005 Mr Hussein filed a ‘Notice of Opposition to Appeal’. In essence, he submits that the Arbitrator’s determination was supported by the evidence and accordingly, there has been no error.
LEAVE TO APPEAL
The amount at issue on appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was filed in time. Leave to appeal is granted.
ON THE PAPERS REVIEW
Sunnybrand Chickens submits that the appeal cannot be determined ‘on the papers’ without further hearing for the following reasons:
“(a) The Respondent worker has been directed to submit to AMS examination … ;
(b) [The] Arbitrator’s … reasons for determination have not been published as at the time of appeal;
(c) The transcript of evidence taken on 28 October 2005 at Byron Bay was not available as at the date of this appeal;
(d) For reasons set out in paragraphs (a) – (c) above the appellant submits that it be allowed to make further oral or written submissions when all the evidence is available.”
The Approved Medical Specialist appointment has been cancelled pending the outcome of the appeal. The Arbitrator’s reasons are contained in the transcript. The transcript was forwarded to Sunnybrand Chickens by the Commission by letter dated 23 November 2005. No further submissions have been filed by Sunnybrand Chickens.
Mr Hussein submits that he would “… welcome any opportunity to make oral submissions … [and] reserves the right to make further submissions in response to any further submissions foreshadowed in … the Appellant’s submissions dated 4 November 2005.”
Having carefully read the transcript including the Arbitrator’s reasons, all the evidence before him, and the lengthy submissions from both parties on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Injury’ Error
Sunnybrand Chickens submits that the Arbitrator “made an error” because he based his finding “… that the Respondent worker suffered an injury to his back … ‘when lifting a container at work’ upon the history contained in the medico-legal report of Dr Drew Dixon dated 20 January 2005, more than two years after Mr Hussein ceased work”. Sunnybrand Chickens says that there is no other evidence that Mr Hussein sustained an injury to his back. It also claims that Mr Hussein’s evidence is contrary to the history recorded by Dr Dixon and that “the clear evidence given by the Respondent worker was that during his employment with the Appellant he noticed pain/tiredness in his left leg but had no problem with his back before voluntarily ceasing that employment”.
Sunnybrand Chickens further submits that no report of injury was given to anyone at its premises and that Mr Hussein also failed to report an injury to Dr Abdalla whom he saw on 19 August 2002 prior to ceasing work “… when there was clearly an opportunity to do so.”
Finally, Sunnybrand Chickens submits that:
“… The Arbitrator erred in accepting that the … notes of Dr Abdullah [sic] supported the Respondent worker’s allegation of injury … whereas in fact, the failure to record a workplace injury and the failure of the Respondent worker to present a medical report from Dr Abdullah [sic] clearly indicates that Dr Abdullah [sic] did not support a work related injury.”
I should point out at this stage that the transcript is not particularly helpful in considering this appeal. A good deal of it has portions noted as “inaudible” and it is clear that there were considerable difficulties with the interpreter. Many of Mr Hussein’s replies to questions simply did not respond to the point raised and were at times inconsistent. Nevertheless, as the Arbitrator pointed out at page 41 of the transcript, “the Applicant’s oral evidence was patchy at best even allowing for the language difficulties, but it was still consistent.”
In addition, the Arbitrator had several lengthy statements from Mr Hussein and a good deal of other written material. Ms Robyn Holloway, the Assistant General Manager at Sunnybrand Chickens, also gave oral evidence in addition to her two written statements contained in the factual investigation report annexed to Sunnybrand Chickens’ Reply.
The thrust of Sunnybrand Chickens’ submissions seems to be that Mr Hussein’s initial complaint of left leg pain or ‘tiredness’ could not substantiate a finding of a back injury consequent upon a lifting incident and that “there is no other evidence”, other than Dr Dixon’s report, to support such a finding.
The Arbitrator found (paragraph 41 of the transcript) that “[Mr Hussein] was aware of leg pain at work. He gave evidence of being aware of leg pain at work when lifting tubs, and he made his claim on the worker’s comp [sic] insurer when told of his rights.” The Arbitrator went on to say, on the same page:
“There is clear evidence that the Respondent [sic – Applicant] was lifting tubs containing between six to eight birds. Ungutted, I estimate that they would weigh approximately three kilos each. So you are talking a maximum in the tubs of something like 24 kilos. Each time the production line broke down 250 birds had to be removed… I think that that is capable of producing the injury complained of by the Applicant, and I therefore find on the balance of probabilities that the Applicant has an injury within the meaning of section 4.”
Dr Dixon in his report dated 20 January 2005 noted this: “Mr Hussein reports injuring his lower back when lifting a container at work during the course of his duties at a Chicken Processing Factory … at the time he had worked at this place … for some 16 months … he developed low back pain and left sciatica …”
In his undated statement annexed to his application, Mr Hussein said:
“One day and I do not recall the exact date, the machine broke down again. The mechanic was unable to fix it in a short period of time. Eventually we were told that all the chickens in every section had to be taken from the machine and dumped into tubs. The person who told the workers to do this in my section was ‘Simon’. The process involved me and other co-workers stretching our arms on to the conveyor belt, pulling the chicken up from the hooks … the pulling had to be done with pressure so that the chicken could be lifted from the hook. We then had to bend down or twist around to the nearest tub and throw the chicken in the tub.
After we filled out the tubs with the chicken we were then required to bend, lift and carry the tubs to the door …
After I completed that job I went home. When I went home I felt severe pain in my left leg. I thought I was tired. However, I continued to work for about two weeks after this incident believing that the pain would go away and again attributing the discomfort to my tiredness at work.”
Later in his statement however Mr Hussein says that “my pain had started in my leg but subsequently I also felt pain in my back.”
In a statement Mr Hussein gave to Sunnybrand Chickens’ investigator on 18 June 2004 he said:
“I don’t remember the exact date or the day of the week of accident. When I got home after work the [sic] day I felt that my left leg was very sore and numb. First for a while I thought I was tired … The machine was broken on that day and I had to lift the buckets of chicken … I didn’t know what’s the problem, I just thought that my legs are tired and that’s why I didn’t report it the next day.”
He went on to say:
“Up until I finished working at Sunnybrand Chickens the only problem I had was my left numb leg. I had nom [sic] pain or discomfort in my lower back … it was about 10 or 15 days [sic] I finished work that the pain went up to my lower back on the left side… I did not work after I finished working at the Chicken place. I did not do any physical activities between the time I left work to the time I felt the pain going up my lower back.”
When Mr Hussein consulted Dr Abdalla in August 2002, he was sent for an x-ray of his back. The doctor’s notes contained in the Application are not clear, and do not shed any light on the question of ‘injury’.
Reports from the Logan Road General Practice under the hand of Dr Ruth Morris confirm that Mr Hussein was seen on 19 September 2002 “… with a six week history of left sided lower back pain radiating down the left leg.”
A CT Scan performed on 22 October 2002 reported at the L4/5 disc level “there is a posterior left para-central disc protrusion effacing the left lateral recess and possibly abutting the exiting left L4 nerve root.”
A report from Dr John Gallagher, Orthopaedic Registrar at the Mater Hospital in Brisbane dated [illegible] December 2002 addressed to Dr Morris states:
“I note that this non-English speaking Iraqi immigrant presents with concerns (1) low back pain; (2) left leg pain involving his buttock, thigh and posterior calf. The patient states his leg pain is more significant that his back pain. It would seem there is a 4-month history which has been slowly progressive.”
On examination, Dr Gallagher noted “… This man has left thigh wasting of his quadriceps … with a positive sciatic stretch test.”
Dr Gallagher then concluded:
“The patient has a CT which demonstrates a lateral recess disc herniation of the L4 – 5 intervertebral disc on the left hand side. This is compressing the L4 nerve root. We have organised for this fellow to be seen at the Spine Clinic where he will be assessed for suitability for surgical decompression of his nerve root.”
Even Dr Watson who saw Mr Hussein at the request of Sunnybrand Chickens’ insurers noted in his report dated 8 November 2004 “ if the patient was required to lift a bin or bucket in his occupation, it may have been the reason for the presentation of discogenic pathology at the L4-5 level”.
There is then considerable evidence from the medical material referred to that Mr Hussein’s complaints and symptoms were consistent with a lifting injury causing a posterior left disc protrusion compressing the L4 nerve root.
It is clear however that there was a strong factual dispute as to whether or not Mr Hussein’s duties involved any lifting.
There is an agreement between the Australian Federation of Islamic Councils (AFIC) and Sunnybrand Chickens for Halal accreditation of its chickens. Ms Holloway in her statement dated 20 April 2004 stated that, “The Halal Slaughtermen are supplied to the company by AFIC, and the company has no say in who are appointed to these roles … AFIC governed the duties of these people”. There are apparently two Halal Slaughtermen. The duty of the first is to touch then recite the Tasmiyah for each bird before it is slaughtered. A second is present to use a knife to attend to any birds not killed initially. Ms Holloway stated that: “This is the total of the duties of the Halal Slaughtermen.” In that statement, she went on to say that:
“[Mr Hussein] … was not required to undertake any other duties within the factory other than those of Halal Slaughterman, which does not require any manual lifting. To the best of my knowledge and information [Mr Hussein] has never carried out any lifting, carrying or other physical duties whilst employed by Sunnybrand Chickens…”
In a supplementary dated 25 February 2005, Ms Holloway stated:
“I am aware that from time to time, the chicken slaughtering chain is stopped due to mechanical breakdown however at that time workers such as [Mr Hussein] who are employed solely as chicken blessers are not allocated any other duties but are merely put on a break… There are no bins or tubs in the area occupied by [Mr Hussein] as all the chickens that pass through the chicken blesser’s area are hanging from the slaughter chain and do not require any manual handling.”
However, Ms Holloway’s evidence at the hearing before the Arbitrator on 28 October 2005 was somewhat different. She conceded that when there was a breakdown, Mr Hussein may be required to lift and carry tubs of chicken and buckets for that purpose were “… accessible if there is a breakdown.” As to the breakdowns, she said “sometimes no breakdowns happened for a week. Then you may get two in a day …” The breakdowns were normally “… 20 minutes, a half hour to an hour and a quarter, an hour and a half.” In those circumstances, it was necessary to dispose of all the birds quickly. Ms Holloway estimated that the bins or tubs would have to be carried some 25 metres before returning and continuing the process.
This evidence is clearly inconsistent with her written statements. The Arbitrator pointed out at paragraph 41 of the transcript:
“The respondent’s case is further weakened because of the information given to Dr Watson, who bases his report’s conclusions on incorrect information and assumptions. The respondent’s factual report is also based on wrong information and assumptions, and that was brought out in Ms Holloway’s evidence.”
The Arbitrator then goes on to refer to Ms Holloway’s evidence before concluding, “I think that that is capable of producing the injury complained of by the Applicant …”
Dr Watson, in his report dated 8 November 2004, was provided with certain “documentation”. He notes that:
“It would appear that a Halal Slaughterman was required basically to bless the chicken and then to cut the throat of the chick on a production conveyer belt … these duties apparently do not involve any other duties within the factory. It would appear that they are not required to lift, it would appear that it is not part of their duties.”
Dr Watson concluded:
“… It is difficult to confirm whether this incident took place whilst he was employed at Sunnybrand Chickens. From the employment description, it was suggested he was not required to do any lifting and that he was employed as a Halal Slaughterman”.
As stated earlier, Dr Watson however did agree that if Mr Hussein had been required to lift a bin or bucket at work, “… it may have been the reason for the … pathology …”
Sunnybrand Chickens’ insurer’s decision to dispute liability was no doubt justified on the basis of the material originally available, but closer scrutiny of Mr Hussein’s oral and documentary evidence, and in particular, the change in Ms Holloway’s evidence at the hearing before the Arbitrator, entitled him to reach the conclusion that the Mr Hussein had suffered an injury to his back and left leg as a consequence of a lifting incident in the course of his employment.
Sunnybrand Chickens also submits that an inference should be drawn that Mr Hussein’s failure to report any injury either to anyone at Sunnybrand Chickens or to Dr Abdalla meant that no such injury occurred.
Whilst it is common ground that Mr Hussein did not formally report any injury to Sunnybrand Chickens before voluntarily leaving that employment, he gave evidence that he had mentioned symptoms to co-workers. Just what was said is not clear. In his statement dated 18 June 2004 to the insurer, Mr Hussein said “First for a while I thought I was tired and then I talked to my supervisor at work, I don’t remember his name, five, six days after I felt pain in my leg”.
As to the claimed “failure to report an injury to Dr Abdullah [sic] … when there was clearly an opportunity to do so”, it was clear that Mr Hussein had attended upon Dr Abdalla at least a month before he ceased his employment with a complaint of left leg pain but was nonetheless referred for a plain x-ray of his lumbar spine. Mr Hussein in his statement said that “I told Dr Abdalla I felt very tired in my left leg. Dr Abdalla sent me … for an x-ray… After my x-ray was taken I was told by Dr Abdalla that there were no problems with my back or leg and that I was just tired.”
Nonetheless, as the Arbitrator pointed out at page 41 of the transcript:
“I note the absence of a report from Dr Abdullah [sic], the first treating GP, but there is evidence in his notes of a complaint by the Applicant prior to his leaving work of left leg pain. The fact that this is misdiagnosed by the doctor does not take away from the fact that that pain was already there.”
Sunnybrand Chickens submits that “… The failure to record a workplace injury and the failure of the Respondent worker to present a medical report from Dr Abdullah [sic] clearly indicate that Dr Abdullah [sic] did not support a work related injury.”
This submission is erroneous. In the absence of a report from Dr Abdalla or indeed detailed notes of his examination at the time, it is impossible to know whether the doctor did in fact record any history or indeed whether he was ever asked about such an injury. The only evidence that seems clear is that Mr Hussein attended on him complaining of left leg symptoms the nature of which apparently suggested to Dr Abdalla that a back x-ray would be appropriate. The inference that Sunnybrand Chickens seeks to draw cannot be sustained.
The ‘Incapacity’ Issue
The submission by Sunnybrand Chickens on this point is simply that “the Respondent worker has no contemporaneous medical evidence which links complaints of leg pain/tiredness and later back pain with injuries sustained in the employ of the Respondent”. This issue has essentially been dealt with in the preceding paragraphs, and it is not quite clear what relevance this statement has to the issue of ‘incapacity’.
In its submissions before the Arbitrator, Sunnybrand Chickens said at page 38 of the transcript, “It was all after the fact that [Mr Hussein] was looking for an explanation as to why he had these problems with his leg and then later with his back”.
Whilst the early medical evidence did not refer to Mr Hussein’s complaints in the context of a work injury, there was clear evidence from him that it was after lifting tubs of chicken at work that he first noticed left leg pain.
Both Dr Dixon and Dr Watson agreed on the diagnosis and that a lifting incident such as described by Mr Hussein could have been, as Dr Watson put it, “… the reason for the presentation of discogenic pathology at the L4-5 level”. This medical evidence certainly links Mr Hussein’s symptoms and complaints with such an injury. As I said in the preceding paragraphs, the Arbitrator was entitled to find on the whole of the evidence before him that Mr Hussein sustained an injury at work.
The ‘Total Incapacity’ Issue
Sunnybrand Chickens submits that:
“The Arbitrator erred in finding that the Respondent worker was totally incapacitated by accepting the opinion of Dr Drew Dickson [sic] and rejecting the opinion of Dr Watson … it was open to the Arbitrator to dismiss Dr Watson’s opinion in respect of causation solely on the basis of an incorrect history but not open to the Arbitrator to dismiss Dr Watson’s opinion concerning the Respondent worker’s capacity for work as at the date of examination on 2 November 2004.”
Sunnybrand Chickens further submits that Dr Dixon merely found that Mr Hussein was unfit for manual work but that he would be capable of a sedentary occupation and further, that Mr Hussein failed to bring “… any specific opinion from either his local medical officer or any treating specialist as to his capacity for work.”
Such an injury, it is submitted, has only resulted in partial incapacity.
Mr Hussein was cross-examined by Sunnybrand Chickens’ solicitor at the hearing on 28 October 2005. He gave evidence that “I am an illiterate person … in all languages”. He claimed to have had only three years education. It was also clear from the totality of the evidence that Mr Hussein had very limited English skills.
On the issue of incapacity, the Arbitrator said (page 42 transcript):
“With regard to incapacity, I agree with the submissions of the Applicant that he is totally incapacitated in the sense that his ability to sell his labour on the open labour market is severely restricted by the injury. I reject the submission of the Applicant [sic] that he could do the same sort of work. I prefer the opinion of Dr Dixon over that of the severely compromised report of Dr Watson”.
The Arbitrator had previously criticised the report of Dr Watson because of the flaws in its factual basis. Dr Watson in his report of 8 November 2005 repeatedly emphasised the point that “… his employer states that he was not required to do any lifting.” Dr Watson had been advised that “… his occupation was to undertake the Muslem ritual and it would appear that if he undertook the correct Muslem procedure, he was not required to do any other duties.” Dr Watson consequently concluded “I believe this patient is fit to return to his pre-injury duties but is unlikely to return to Sunnybrand as a Halal Slaughterman.”
Nevertheless, earlier in his report, Dr Watson considered “he may experience a minor intermittent pain from the L4/5 area, but I believe he could return to the workforce in some capacity, but he may experience some minor pain.” He then said “the patient probably does require rehabilitation …”
Dr Watson’s conclusions are clearly predicated on incorrect information, particularly in light of Ms Holloway’s evidence.
Dr Dixon in his report dated 20 January 2005 considered that Mr Hussein had reached “maximum medical improvement”. He went on to say:
“… Because of his persisting low back and left sciatica, he is unable to do manual work. While he has reasonable sitting tolerance for a sedentary occupation, he does not have good English as a second language at this stage and has not had clerical training for an office position.”
In these circumstances, it was open to the Arbitrator on the evidence before him to conclude that “his ability to sell his labour on the open labour market is severely restricted by the injury.”
As to the claimed absence of a specific opinion from any treating doctors, there was no evidence that Mr Hussein had been treated by any specialist to date, other than his consultations at the Mater Hospital in Queensland late in 2002. Nevertheless, there were a series of reports and certificates from Dr Ruth Morris. On 6 January 2005, Dr Morris certified Mr Hussein “unfit for work … (cannot work or drive for more than half hour, cannot do manual work, cannot sit for more than half hour)”. In a short report dated 16 February 2005 Dr Morris opined that because of “… analgesic medication for back and leg pain since an injury at work in 2002 … [this] may affect his concentration and memory”.
It appears that Dr Ruth Morris continued to certify Mr Hussein unfit for work up until at least February 2005.
That was the best evidence available, and the Arbitrator was entitled to accept it. Sunnybrand Chickens’ assertion that Mr Hussein failed to bring “any specific opinion from … his local medical officer … as to his capacity for work” is unsubstantiated.
The ‘Failure to Mitigate’ Issue
Sunnybrand Chickens submits that “… the Respondent worker is only partially incapacitated and has failed to mitigate his loss [he] … has a duty to mitigate his loss at common law.”
Sunnybrand Chickens goes on to submit that:
“… On all the available evidence the Respondent worker is at best partially incapacitated and fit for at least sedentary work however the Respondent worker, through his failure to learn English or make application for employment, has failed to mitigate his loss.”
Sunnybrand Chickens claims that there are other sedentary jobs available to Mr Hussein “… not requiring English language through the Islamic Community where the Respondent worker had been directed to employment with … Sunnybrand Chickens Pty Limited”. Nevertheless, no evidence was brought by it to the Arbitration hearing of any such available work.
A ‘failure to mitigate’ is a common law concept which has no particular relevance in the context of a claim for compensation. References in the 1987 Act are to mitigation of ‘damages’, not ‘compensation’.
Sunnybrand Chickens’ cross-examination of Mr Hussein at the hearing was directed to the occurrence or otherwise of the claimed injury. Nothing was put to him in cross examination as to any attempts he had made to find other suitable work, and as I have said, there was no evidence as to opportunities or availability of such work put forward by Sunnybrand Chickens.
In these circumstances, the Arbitrator was entitled to find that Mr Hussein was totally incapacitated for work within the meaning of sections 36 and 37 of the 1987 Act.
The ‘Failure to Report Injury’ and Section 61 of the 1998 Act.
Sunnybrand Chickens submits that it has suffered:
“… Significant prejudice through the Respondent worker’s failure to report injury as the employer was unable to instigate a management plan pursuant to section 45 [of the 1998 Act] whereby the Respondent worker could have been returned to work on selected duties and undergone rehabilitative treatment”.
Further, that “… the ability to effectively rehabilitate the Respondent worker is significantly compromised by his failure to report his injury before voluntarily leaving the employ of the Respondent”.
There is further prejudice, it is submitted, “… in the extent of the award of arrears of weekly compensation … that could have been substantially reduced if the … employer had been able to implement an injury management plan”.
Section 61 of the 1998 Act provides as follows:
“(1)Compensation may not be recovered under this Act unless notice of
the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2) Notwithstanding subsection (1), the absence of, or any defect or
inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation:
(a)that the person against whom the proceedings are taken has not been prejudiced in respect of those proceedings, or
(b)that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or
(c)that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, …”
No issue seems to have been taken by Sunnybrand Chickens that Mr Hussein’s failure to give notice was due to ignorance or some other reasonable cause. Its main complaint is that it has been prejudiced by the failure to give notice.
There is nothing in Sunnybrand Chickens’ Reply that specifically deals with the issue of prejudice. It was common ground that Mr Hussein had made no formal report of injury before voluntarily leaving his employment with Sunnybrand Chickens. As the Arbitrator said at page 41 of the transcript:
“In any event, given the education of the Applicant and his language abilities as well as the fact that the – I’ll call him the fixer – Mr Fazal, spoke a different language, I am satisfied that any non-compliance with that section [section 61] was due to the Applicant’s ignorance or mistake. I also say in passing I don’t think that the Respondent is prejudiced.”
The “prejudice” Sunnybrand Chickens claims it has suffered relates more to its “lost opportunity” to rehabilitate Mr Hussein. The difficulty with that proposition is, as Mr Hussein submits:
“… it appears that the Appellant was from 12 November 2002 on notice of the claim and had particulars thereof from 28 January 2003. There was ample opportunity to then investigate the claim. In those circumstances, and having regard to the fact that the Respondent left the Appellant’s employ on or about 13 September 2002, it is difficult to see how the Appellant could make out a case of prejudice because of the non-reporting of the injury before cessation of employment.”
Details of correspondence between the parties were set out in the ‘background to the appeal’ in paragraphs 4 to 9 of this decision. It is quite clear from Sunnybrand Chickens’ solicitor’s letter to Mr Hussein’s former solicitor dated 21 November 2002 that it was on notice of a claim. In its letter dated 24 September 2003, Sunnybrand Chickens’ solicitors advised Mr Hussein’s present solicitors that “… any claim for Workers Compensation benefits will be disputed”. Sunnybrand Chickens has maintained that position throughout the proceedings.
Section 45(1) of the 1998 Act provides that “when it appears that a workplace injury is a significant injury, an insurer who is or may be liable to pay compensation to the injured worker must establish an injury management plan for the injured worker.” Whilst the ‘significance’ of any claimed injury may not have been known to Sunnybrand Chickens, it was certainly on notice that Mr Hussein had alleged that he suffered an injury in its employ.
Sunnybrand Chickens’ concerns as to “… the extent of the award of arrears of weekly compensation …” can be attributed in part to its failure through its insurer to either investigate the claim and/or forward a claim form to Mr Hussein through his solicitors and therefore I am not satisfied that Sunnybrand Chickens suffered any prejudice occasioned by Mr Hussein’s delay in reporting the injury. The Arbitrator made no error of law in this regard.
CONCLUSION
There was sufficient evidence before the Arbitrator, in particular the oral evidence given at the hearing on 28 October 2005, to support his finding that Mr Hussein suffered an injury in the course of his employment with Sunnybrand Chickens and was, as a consequence, incapacitated for work thereafter. Whilst the evidence as to the extent of his incapacity was somewhat scant, ultimately it was adequate to support the finding of total incapacity.
Nothing in the Arbitrator’s decision and reasons therefore demonstrates that he made any error of law, fact and/or discretion that would justify revoking his decision.
DECISION
(1) The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the costs of the appeal.
COSTS
Deborah Moore
Acting Deputy President
20 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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