Super Retail Group Services Pty Ltd v Uelese
[2016] NSWWCCPD 4
•22 January 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4 | |
| APPELLANT: | Super Retail Group Services Pty Ltd | |
| RESPONDENT: | Toganiu Uelese | |
| INSURER: | AAI Ltd t/as GIO | |
| FILE NUMBER: | A1-3682/15 | |
| ARBITRATOR: | Mr T Wardell | |
| DATE OF ARBITRATOR’S DECISION: | 29 September 2015 | |
| DATE OF APPEAL DECISION: | 22 January 2016 | |
| SUBJECT MATTER OF DECISION: | Whether employment a substantial contributing factor to injury; assessment of expert evidence; alleged absence of history of trauma; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; concessions made by counsel at arbitration; parties bound by conduct of counsel at arbitration; issues not argued at arbitration; application of principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; reliance on unchallenged schedule of earnings; Pt 15.5(3) of the Workers Compensation Commission Rules 2011 | |
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Hicksons |
| Respondent: | Slater and Gordon | |
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 29 September 2015 is confirmed. | |
INTRODUCTION
The appellant employer has challenged the Arbitrator’s finding that the worker’s employment was a substantial contributing factor to her injury and the quantum of the award of weekly compensation. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.
BACKGROUND
The respondent worker, Toganiu Uelese, started work for the appellant employer, Super Retail Group Services Pty Ltd, in July 2014 as a full-time “picker packer”. Her duties required her to ride on a stand-up pallet mover and to stop frequently, step off the pallet mover, and manually pick up boxes and place them on the pallet. Once an order was complete, she delivered the pallet to the shipping area.
Ms Uelese’s case was and is that on 28 November 2014, while in the course of her employment, she believed that she twisted or turned awkwardly as she stepped off a pallet mover and injured her right ankle and foot. She reported the injury on the day it occurred, and completed a claim form on 1 December 2014.
Ms Uelese’s general practitioner, Dr Lim, and her qualified orthopaedic surgeon, Dr Pillemer, both supported her case. Dr Pillemer diagnosed Ms Uelese to be suffering a tenosynovitis at the tibialis posterior and flexor hallucis longus due to a twisting injury to her right foot and ankle on 28 November 2014.
The appellant’s insurer disputed liability on the ground that Ms Uelese’s right ankle condition was not the result of an injury related to, or caused by, her employment and, presumably in the alternative, though that was not stated, that employment was not a substantial contributing factor to the injury under s 9A of the Workers Compensation Act 1987 (the 1987 Act).
The s 9A defence was based on the assertion that there was no clear evidence of how the injury occurred, that is, whether she fell, tripped or slipped. This was said to be supported by a note in a Notification of Injury/Illness form (the notification of injury form), dated 28 November 2014, in which it was recorded that Ms Uelese did not recall the exact movement of her foot when she felt the pain.
The insurer did not dispute the quantum of Ms Uelese’s entitlement to weekly compensation in the event that she established liability.
The matter came before a Commission Arbitrator for conciliation and arbitration on 23 September 2015. On that day, Mr Hanrahan appeared for Ms Uelese and Mr Halligan appeared for the appellant. Neither side sought leave to call any oral evidence. After hearing submissions from both counsel, the Arbitrator reserved his decision.
The Arbitrator delivered an oral decision on 28 September 2015. He found that, in the absence of any other evidence as to why pain and swelling might have occurred at the time of the injury, commonsense supported an inference that, in the process of stepping off the pallet mover, Ms Uelese’s right foot and ankle were subjected to some “abnormal strain” and “twisting motion” (T7.14), which placed stress upon the tissues, sufficient to produce immediate pain and swelling.
Considering each of the matters in s 9A(2), the Arbitrator was satisfied that Ms Uelese’s employment was a substantial contributing factor to her injury and he made an award for weekly compensation based on the figures in her (unchallenged) wage schedule and a general order for the payment of hospital and medical expenses.
Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 29 September 2015 in the following terms:
“The determination of the Commission in this matter is as follows:
1.The Applicant suffered injury to her right foot and ankle within the meaning of section 4(a) of the Workers Compensation Act 1987 on 28 November 2014.
2.The Applicant’s employment was a substantial contributing factor to such injury within the meaning of section 9A of the 1987 Act.
3.The Respondent is to pay the Applicant’s medical and treatment expenses resulting from the injury on 28 November 2015 within the meaning of section 60 of the 1987 Act.
4.The Respondent is to make weekly payments to the Applicant pursuant to the 1987 Act as follows:
(a)$ 583.03 per week pursuant to section 36(2) from 14 December 2014 to 20 December 2014;
(b)$ 854.27 per week pursuant to section 36(1) from 21 December 2014 to 15 March 2015;
(c)$ 719.38 per week pursuant to section 37(1) from 16 March 2015 to 28 July 2015;
(d)$ 447.46 per week pursuant to section 37(1) from 29 July 2015 to 1 August 2015;
(e)$ 515.44 per week pursuant to section 37(1) from 2 August 2015 to 8 August 2015;
(f)$ 401.07 per week pursuant to section 37(2) from 9 August 2015 to 15 August 2015;
(g)$ 461.12 per week pursuant to section 37(2) from 16 August 2015 to 22 August 2015;
(h)$ 333.81 per week pursuant to section 37(2) from 23 August 2015 to 29 August 2015;
(i)$ 385.27 per week pursuant to section 37(2) from 30 August 2015 to date and continuing.”
The appellant has challenged the finding that employment was a substantial contributing factor to the injury and the quantum of the award of weekly compensation.
ON THE PAPERS
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 Nos 1 and 6, the documents that are before me, and the submissions 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.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that Ms Uelese had discharged the onus of proof for the purposes of s 9A (substantial contributing factor);
(b) finding that the appellant had failed to discharge its evidentiary onus of proof with respect to the issue of injury (substantial contributing factor);
(c) his determination that Ms Uelese’s actual earnings from time to time were a proper reflection of her current work capacity and her ability to earn in suitable employment in accordance with s 32A of the 1987 Act (weekly compensation), and
(d) awarding weekly compensation to Ms Uelese in the period from 27 January 2015 to 22 August 2015 in accordance with ss 36 and 37 of the 1987 Act (weekly compensation).
SUBSTANTIAL CONTRIBUTING FACTOR
Submissions
Mr Halligan drew attention to the notification of injury form, completed by Tony Martin, the appellant’s return to work co-ordinator, on 28 November 2014. The document described the incident as having occurred as follows:
“Team member was taking a pallet on a dble [sic] pallet rider to drop off at inbound. She believes she stopped the pallet rider and then got off the pallet rider … and felt a sharp pain in her foot. She does not recall the exact movement of her foot and positioning.”
He also referred to Ms Uelese’s claim form, in which she wrote, under “[w]hat happened and how were you injured”, that she “must have twist [sic] on and or turned and sprained my ankle without realising until I felt pain”.
Mr Halligan submitted that the expert medical evidence “did not contain a description of the circumstances surrounding the worker’s foot pain sufficient to establish that the worker’s employment had made a contribution to injury that was real and of substance”. He referred to Taylor v PJM Building Management Pty Ltd [2013] NSWWCCPD 52 (Taylor), where it was held that an Arbitrator’s task was to evaluate the linkage between employment and injury.
The Arbitrator distinguished Taylor because, in that case, there was evidence sufficient to discharge the evidentiary onus that rests on the employer as to whether the injury would probably have occurred at the same time of the worker’s life regardless of his employment, but there was no such evidence in the present case.
Mr Halligan contended that the Arbitrator misdirected himself “regarding the test required under section 9A” and that the presence of a pre-existing condition is not “essential in the determination of whether or not the employer has discharged the evidentiary onus”. Each case must be dealt with on its own facts. The important feature of this case was the “complete absence of a reliable history of trauma arising out of the tasks required of [Ms Uelese]”. Accordingly, so it was submitted, there should be an award for the appellant.
In submissions in reply, Mr Halligan submitted that the fact of the injury arising out of or in the course of employment was relevant, but not determinative of itself (Van Wessem v Entertainment Outlet Pty Ltd [2011] NSWCA 214 at [40]–[45] (Van Wessem)). He said that s 9A requires an evaluation of the strength of the causal linkage between the employment and the injury.
Dealing with s 9A(2)(b), Mr Halligan drew attention to the Arbitrator’s statement at T1.27 that there was no evidence as to the dimensions of the pallet mover or of the particular movements involved in mounting or alighting from that vehicle. He said that s 9A(2)(d) was not qualified by reference to pre-existing pathologies, but merely whether the injury might nevertheless have happened. He contended that the opinion of Dr Guirgis “unequivocally invokes the subsection”.
Discussion and findings
Mr Halligan’s submissions have ignored the Arbitrator’s reasons and are untenable. It is appropriate to consider first the Arbitrator’s reasons in detail, which incorporate a succinct summary of the relevant evidence.
The Arbitrator started by noting the following:
(a) there was no evidence to contradict that Ms Uelese had not experienced symptoms in her right ankle or foot prior to the incident on 28 November 2014 (T2.4);
(b) the symptoms experienced by Ms Uelese were of sudden onset immediately after, or as she stepped off the pallet mover (T2.6);
(c) the mechanism of injury specifically related to stepping off the pallet mover (T2.11), and
(d) Ms Uelese suffered a personal injury in the course of her employment on 28 November 2014 (T3.32 and T4.8).
The appellant has not challenged any of these findings, which were all open on the evidence.
The Arbitrator said that it was implicit in the appellant’s s 9A defence that Ms Uelese’s symptoms developed spontaneously and without any connection to her employment. He referred to Mr Halligan’s submission that no weight could be attached to Ms Uelese’s medical evidence because it was based on a history that could not be established, namely, that Ms Uelese “twisted” her ankle and/or foot.
The Arbitrator accepted that Ms Uelese was unable to say precisely how her injury occurred and that she had, to a degree, “engaged in a retrospective reconstruction of events” (T4.30), though that was not to say that she had been untruthful. He considered the description in the notification of injury form to be reasonably consistent with the description in the claim form.
The Arbitrator accepted that the contemporary clinical notes from Ms Uelese’s first treating general practitioner, Dr Safwat Soliman, merely recorded “right ankle pain, SWELLING” and included no description of the injury or how it happened. However, on 29 November 2014, Dr Soliman issued a WorkCover certificate of capacity in which he diagnosed “RT ANKLE SPRAIN” suffered on 28 November 2014. (Dr Soliman added, I note, under “How is the injury/disease related to work?”, “TWISTED RIGHT ANKLE AT WORK”.)
Ms Uelese came under the care of a new general practitioner, Dr Eric Lim, on 12 December 2014. An entry on that date, which the Arbitrator wrongly attributed to Dr Lim, but which was in fact written by a physiotherapist, Alistair Choie, recorded “on pallet mover picking order stepped off pallet mover and on set of pain”.
In a WorkCover certificate of capacity dated 12 December 2014, Dr Lim diagnosed a work related right ankle injury. In answer to the question “[h]ow is the injury/disease related to work?” Dr Lim wrote “R) ankle injury twisting at work; condition aggravated by returning to work and being made to stand outside her certified restrictions”. He ticked “yes” to the box stating that the injury was consistent with the patient’s “description of cause”.
In his report of 1 May 2015, Dr Lim confirmed that Ms Uelese reported that while at work she suffered a right ankle injury, twisting at work. He added that, from his understanding of Ms Uelese’s role as a “Pick/Packer”, it “would be reasonable to conclude that the mechanism of injury was the direct result of performing those specified tasks”.
In addition to referring to the above evidence, the Arbitrator quoted the following passage from Ms Uelese’s statement of 19 February 2015:
“As I stepped down off the pallet mover I must have twisted or turned awkwardly as I felt a sharp pain in my right ankle and foot.”
Having regard to the evidence, and accepting that Ms Uelese could not clearly identify the “mechanism of injury” (T7.6), the Arbitrator said, at T7.9:
“Nevertheless, it is possible that [Ms Uelese] did suffer a classic sprained ankle caused by a sudden and unexpected inversion of the foot. Moreover, I consider it more probable that in the process of dismounting from the pallet mover her right foot and ankle was subjected to some abnormal strain, some twisting motion which placed stress upon the tissues sufficient to produce immediate pain and swelling.
I, therefore, consider that [Ms Uelese’s] evidence as referred to above, although somewhat vague, is well-founded in common sense and supports the inference that an injury of this type was suffered. This is particularly so in the absence of any other evidence as to why pain and swelling might have occurred at that time and place.”
The Arbitrator said that the doctors who described a twisting injury did not do so only on the basis of Ms Uelese’s history, but also on the basis of their clinical observations of pain, tenderness and swelling, which “could only have been caused by a strain or sprain placing undue stress on the affected tissues” (T7.32). Thus, the doctors proceeded on a history that provided a “fair climate” for their opinions, namely, that Ms Uelese suffered a twisting injury. Though not cited by the Arbitrator, this statement was a reference to the well-established principles discussed in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510.
Turning to the evidence from Dr Pillemer, orthopaedic surgeon qualified on behalf of Ms Uelese, the Arbitrator noted the doctor’s statement that as Ms Uelese “stepped off the pallet mover her foot twisted badly and she developed significant discomfort”, which the Arbitrator considered was a conclusion rather than a recorded history. That was because Dr Pillemer also recorded that, on specific questioning, Ms Uelese could not “really recall the mechanism of injury, which is not unusual”.
The Arbitrator said that Dr Pillemer based his opinion, which was that Ms Uelese “sustained a twisting injury to her right foot and ankle region on 28 November 2014”, on the history of a sudden onset of symptoms, the absence of any prior symptoms, his clinical examination and the radiological examinations. The Arbitrator added that no other explanation for the injury had been offered in the evidence.
Turning to the terms of s 9A, the Arbitrator correctly observed that the section directs attention to the strength of the causal linkage between the employment and the injury. In order to be “substantial” the contribution by the employment must be “real and of substance”, but the employment need not be the only contributing factor, or even the most significant contributing factor (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503 (Badawi)).
He further noted, again correctly, and consistent with Van Wessem, that the fact that the injury arose out of, or in the course of, employment will be relevant, but not determinative and that the exercise required is an evaluative one involving questions of impression and degree. It is therefore a question of fact.
The Arbitrator considered each of the matters listed in s 9A(2), noting that the list is not exhaustive and that the weight and relevance of each will vary according to the circumstances of each case. Taking each of those matters in turn, the Arbitrator said:
(a) it was of “significant relevance” that Ms Uelese not only suffered injury in the course of her employment, but also that at the time and place of injury she was in fact engaged in an activity forming part of her actual work duties;
(b) considering the nature of the work performed and the particular tasks of that work was relevant in the sense that, as part of her work as a picker packer, Ms Uelese was required to operate the pallet mover from which she was dismounting at the time of her injury, which meant that Ms Uelese’s activity at the time of injury “very much had an employment character” (T10.29);
(c) the duration of Ms Uelese’s employment was not of particular relevance, save to note that she had undertaken her duties for some months without any difficulties with her right foot and ankle prior to 28 November 2014;
(d) there was no evidence that there was any “probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of [Ms Uelese’s] life, if she had not been at work or had not worked in that employment” (T11.12);
(e) dealing with Ms Uelese’s state of health before the injury, the Arbitrator noted that Dr Pillemer had identified two pre-existing, constitutional, conditions in Ms Uelese’s right foot and ankle but did not consider them to have been affected by the injury, and
(f) there was little or no evidence about Ms Uelese’s lifestyle and activities outside the workplace and no evidence that her lifestyle and activities outside the workplace played any role in the injury.
All of the above findings and observations were consistent with the evidence and all pointed overwhelmingly to Ms Uelese’s employment being a substantial contributing factor to her injury. Any suggestion to the contrary stretches credulity to breaking.
The Arbitrator’s statement that there was no evidence as to the dimensions of the pallet mover or of the particular movements involved in mounting or alighting from it does not advance the appellant’s position. Nor does it detract from the Arbitrator’s observation, when dealing with s 9A(2)(b), that Ms Uelese’s activity at the time of injury “very much had an employment character”.
The submission that the expert medical evidence did not contain a description of the circumstances surrounding Ms Uelese’s foot pain sufficient to establish that Ms Uelese’s employment had made a contribution to the injury that was real and of substance is unsustainable. Though not expressly stated, it implies that the Arbitrator erred in accepting that evidence. He did not.
The Arbitrator accepted that Ms Uelese’s evidence was “somewhat vague”, but his analysis of the expert evidence demonstrates that the experts did not rely wholly on Ms Uelese’s history. Dr Pillemer, for example, relied on the history of a sudden onset of symptoms, the absence of any prior symptoms, his clinical examination and the radiological examinations. This approach was consistent with the principles discussed in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43, which the Commission has consistently applied and which insurers consistently ignore. It follows that it was open to the Arbitrator to accept Dr Pillemer’s evidence on cause of the injury.
After quoting from Basten JA in Badawi, the Arbitrator said, at T12.24:
“If an injury occurs at work and in connection with the performance of work activities and such injury cannot be explained by some medical or factual circumstances which, in effect, sever or weaken the causal connection between the work activity and the injury it will almost inevitably follow that employment will be a substantial contributing factor to the injury.
I consider this to be such a case. At the time, and as a result of performing the actual duties required of her in her employment, [Ms Uelese] suffered a personal injury and there is no evidence to suggest that either the event, the mechanism of injury or the pathology which resulted from it would probably have occurred regardless of whether the applicant was at work or not. In these circumstances, I consider it a matter of common sense that the contribution of the employment to [Ms Uelese’s] injury was real and of substance and I, therefore, find section 9A to be satisfied.”
This statement was consistent with the evidence and the relevant authorities. It disclosed no error.
The appellant’s reliance on Taylor, which is relevant to s 9A(2)(d), is misplaced. In that case, the worker, while walking on flat and even ground in the course of his work duties, felt a pop in his knee, which was later diagnosed as a tearing of a degenerate meniscus. It was conceded that the worker suffered a personal injury in the course of his employment. However, the worker failed because it was held that the injury might have happened at the same time away from work, because walking was an ordinary incident of life and the injury would probably not have happened but for the presence of advanced degenerative changes, which were not alleged to have been caused or aggravated by the work.
The medicolegal specialist qualified by the worker in Taylor, Dr Guirgis, had conceded, in response to questions posed by the insurer, that on the balance of probabilities the injury could, or would, have occurred at a similar time irrespective of the worker’s employment. In other words, the degenerative changes in the worker’s knee were such that the meniscus could have torn at any time.
The Arbitrator distinguished Taylor on grounds that minimised its relevance to the present case but also “served to illustrate the strength of the causal connection required by section 9A in the present case” (T14.10). Those grounds were that, in Taylor:
(a) there was evidence sufficient to discharge the evidentiary onus which rested on the employer in relation to whether the injury would probably have occurred at the same time of the worker’s life regardless of his employment. In the present case, there was no such evidence, or even any evidence from which such an inference might have been drawn;
(b) there was evidence of a pre-existing condition which was causative of, or contributory to, the pathological injury suffered of precisely the type referred to by Basten JA in Badawi. In the present case, there was no such evidence, and
(c) it was of relevance that the worker’s lifestyle included considerable physical activity outside work, including camping, club walking and gardening. In the present case, there was no evidence that Ms Uelese’s lifestyle or activities outside the workplace in any way contributed to the likelihood of her suffering injury when and where she did.
Having regard to these distinguishing features, the Arbitrator considered Taylor to have been decided on its own facts and did not accept that it contains any statement of principle that would lead him to a different conclusion to that which he expressed. That statement was correct.
The appellant’s submission dealing with this part of the decision is that the presence of a pre-existing condition is not essential in the determination of whether or not the employer has discharged the evidentiary onus. This criticism is without merit and is based on the false assumption that the Arbitrator held that the presence of a pre-existing condition is essential before the employer could discharge the evidentiary burden it carries under paragraph (d) in s 9A(2). He did not do that or anything like it.
As noted above, the Arbitrator’s finding on this point was that there was no evidence that there was any “probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of [Ms Uelese’s] life, if she had not been at work or had not worked in that employment”. That finding was correct.
The Arbitrator added, dealing specifically with Taylor, that there was evidence in that case (from Dr Guirgis) to establish that it was probable that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he had not been at work or had not worked for the employer. He said, at T13.30:
“Of significance, the medico-legal specialist qualified by the worker in that case Dr Guirguis [sic] had conceded in response to questions posed by the insurer that on the balance of probabilities the injury could, or would, have occurred at a similar time irrespective of the worker’s employment which was, in effect, a statement that the degenerative changes in the worker’s knee were such that the meniscus could have torn at any time.”
As the Arbitrator correctly observed, there is no such evidence in the present case.
The submission that the opinion of “Dr Guirgis (set out at p13 [sic]) unequivocally invokes the subsection” was surprising. It has overlooked the fact that, in the present case, there is no evidence that comes close to the kind of evidence Dr Guirgis gave in Taylor. If Mr Halligan intended to refer to the opinion of Dr Pillemer, he made no relevant submission as to how that doctor’s evidence “invoked the subsection”. Dealing with Dr Pillemer’s evidence, the Arbitrator (correctly) noted that Dr Pillemer had identified two pre-existing, constitutional, conditions in Ms Uelese’s right foot and ankle but did not consider them to have been affected by the injury (nor did they cause the injury). Therefore, Dr Pillemer’s evidence did not “invoke” subsection (d) or support the appellant’s position.
The submission that the Arbitrator misdirected himself as to the test required under s 9A is untenable and is rejected.
Last, the submission that the important feature of this case is the complete absence of a reliable history of trauma arising out of the tasks required of Ms Uelese has ignored the Arbitrator’s reasons and the evidence. The Arbitrator dealt with the medical histories and, as explained above, concluded that the experts’ opinions were based on clinical observations of pain, tenderness and swelling, which “could only have been caused by a strain or sprain placing undue stress on the affected tissues” (T7.32).
This reasoning was logical and consistent with the evidence. It clearly supported the Arbitrator’s conclusion that, though Ms Uelese’s evidence was vague, the reasonable inference from all the evidence was that she suffered a twisting injury to her right foot and ankle and that her employment was a substantial contributing factor to that injury.
WEEKLY COMPENSATION
The Arbitrator’s reasons
This issue involves a challenge to the following statements by the Arbitrator, commencing at T15.25:
“In relation to weekly benefits I consider [Ms Uelese] to be a well-motivated worker who has acknowledged some improvement in the condition of her right foot and ankle and has, since 28 July 2015, returned to suitable employment with the [appellant] in accordance with her medical certification. Having regard to section 32A of the 1987 Act and the available evidence I accept that [Ms Uelese] had no current work capacity during the periods in which that was certified to be the case and to have had a current work capacity to the extent of the various certifications to that effect.
I do not understand the [appellant] to have disputed the foregoing and, in particular, that [Ms Uelese’s] actual earnings from time to time are a proper reflection of her current work capacity and her ability to earn in suitable employment during the periods she has undertaken suitable work with the respondent.
…
The respondent has not disputed that [Ms Uelese’s] pre-injury average weekly earnings were $899.23 per week. 95 per cent of that amount is $854.27 per week and 80 per cent of that amount is $719.38 per week.
I further note that there is no precise evidence as to the hours worked on suitable duties from time to time and I have inferred that at any time when [Ms Uelese’s] earnings were less than $300 per week she was in fact working less than 15 hours per week. Accordingly, and adopting [Ms Uelese’s] wage schedule, the [appellant] is to make weekly payments to the [Ms Uelese] as follows:
a) $583.03 per week pursuant to section 36(2) from 14 December 2014 to 20 December 2014.
b) $854.27 per week pursuant to section 36(1) from 21 December 2014 to 15 March 2015, that being the end of the first entitlement period.
c) $719.38 per week pursuant to section 37(1) from 16 March 2015 to 28 July 2015.
d) $447.46 per week pursuant to section 37(1) from 29 July 2015 to 1 August 2015.
e) $515.44 per week pursuant to section 37(1) from 2 August 2015 to 8 August 2015.
f) $401.07 per week pursuant to section 37(2) from 9 August 2015 to 15 August 2015.
g) $461.12 per week pursuant to section 37(2) from 16 August 2015 to 22 August 2015.
h) $333.81 per week pursuant to section 37(2) from 23 August 2015 to 29 August 2015.
i) $385.27 per week pursuant to section 37(2) from 30 August 2015 to date and continuing.”
The assumption underlying the above orders was that Ms Uelese had no current work capacity from 27 January 2015 to 8 August 2015 and that her actual earnings, when she returned to work on suitable duties on 9 August 2015, were a correct measure of current work capacity.
Submissions
Mr Halligan submitted that the Arbitrator erred in determining that Ms Uelese had no current work capacity from 27 January 2015 to 8 August 2015. From 27 January 2015 to 13 March 2015 Ms Uelese was certified as having a capacity to work three hours per day, five days per week and from 13 March 2015 she was upgraded to four hours per day, five days per week.
Mr Halligan submitted that the Arbitrator erred in finding that Ms Uelese’s actual earnings from time to time were a proper reflection of her current work capacity and her ability to earn in suitable employment in accordance with s 32A of the 1987 Act. He contended that this reasoning was inconsistent with the Arbitrator’s earlier determination that the certification issued by Ms Uelese’s nominated treating doctor was an accurate reflection of her current work capacity.
He argued that the Arbitrator’s acceptance of Ms Uelese’s current weekly earnings as evidence of her current work capacity failed to recognise the medical evidence certifying her as having a current work capacity to work certain hours per week in suitable employment. He submitted that a worker’s actual or current earnings are an irrelevant consideration for the purposes of determining a worker’s “current work capacity” or the identification of “suitable employment” within the meaning of s 32A.
Mr Halligan submitted that the Arbitrator ought to have determined Ms Uelese’s current work capacity and ability to earn in suitable employment by reference to the certification in the WorkCover certificates of capacity, noting his acceptance that these certificates reflected the extent of her current work capacity.
As a result of this error, Mr Halligan contended that the Arbitrator also erred in awarding weekly compensation in accordance with ss 36 and 37 of the 1987 Act. He said that, applying these sections, a determination must be made of “E”. (“E” is the greater of either the amount the worker is able to earn in suitable employment or the worker’s current weekly earnings.)
Mr Halligan submitted that the Arbitrator erred in accepting Ms Uelese’s current weekly earnings (as outlined in her wage schedule) as the relevant “E” figure when awarding weekly benefits in respect of the period 27 January 2015 to 22 August 2015 and that Ms Uelese’s ability to earn in suitable employment ought to have been adopted as the “greater amount”.
Despite the fact that Ms Uelese was certified as having a current work capacity of 15 hours per week in suitable employment from 27 January 2015 to 13 March 2015 and of 20 hours per week from 13 March 2015, she did not return to work until 28 July 2015, initially working less than 15 hours per week and then more than 15 hours per week from 9 August 2015.
Mr Halligan contended that, in accordance with ss 36 and 37, the relevant “E” figure ought to have been calculated with reference to Ms Uelese’s ability to earn in suitable employment during the periods she was not working and was certified by her nominated treating doctor as having a current work capacity. He said that the base rate of $23.45 gross per hour (as outlined in the pay slips served by Ms Uelese) ought to be adopted in calculating the amount Ms Uelese is able to earn in suitable employment.
Mr Halligan then set out the figures that, adopting the above approach, Ms Uelese was entitled to recover.
Mr Hanrahan drew attention to the way Mr Halligan conducted the arbitration. In particular, Mr Hanrahan asserted that, at that arbitration, Mr Halligan did not submit that Ms Uelese had a current work capacity from 27 January 2015 to 8 August 2015. Nor did Mr Halligan dispute, so it was asserted, that Ms Uelese’s actual earnings from time to time were a proper reflection of her current work capacity and her ability to earn in suitable employment during the periods she undertook suitable work.
Mr Hanrahan noted that the Arbitrator adopted Ms Uelese’s wage schedule, which was admitted without objection, and that, at the arbitration, Mr Halligan made none of the submissions he now makes on appeal. In other words, this was not an issue before the Arbitrator and should not be allowed on appeal.
Effectively, Mr Hanrahan submitted that, given the way the arbitration was conducted, the appellant could not now be allowed to assert that the weekly compensation “ought to have been” Ms Uelese’s certified current capacity even though she was not actually working during some of the periods.
In reply, Mr Halligan drew attention to his submission at T3.5–10 at the arbitration that the s 32A assessment must be taken into account by the Arbitrator and that it was reasonably plain from the wage schedule that, consistent with some of the WorkCover certificates, Ms Uelese had returned to work for periods of up to 20 hours per week.
He said that it was conceded that, under s 32A, Ms Uelese’s current work capacity would be no better than the hours being worked by her “at the moment”. This submission, so it was contended, was not inconsistent with the submissions made by the appellant on appeal, or the Arbitrator’s finding, that Ms Uelese had a current work capacity to work 20 hours per week from 30 August 2015 to date and continuing, consistent with the certification at the time.
Mr Halligan disputed that he conceded, on the Arbitrator’s understanding, that the actual periods of current work capacity were fairly reflected by the actual hours worked by Ms Uelese. He said that it was submitted (at the arbitration) that the WorkCover certificates “more or less” (T4.4) matched the pattern of employment. He contended that he did not concede that Ms Uelese’s actual hours worked ought to be accepted as the extent of her current work capacity within the meaning of s 32A, or that the actual earnings ought to be applied as the “E” figure as provided for by s 35.
Mr Halligan added:
“To this end, the Arbitrator’s determination that ‘having regard to section 32A of the 1987 Act and the available evidence I accept that [Ms Uelese] had no current work capacity during the periods in which that was certified to be the case and to have had a current work capacity to the extent of the various certifications to that effect’ is not challenged.
Having accepted that the certificates of capacity were a reflection of the extent of [Ms Uelese’s] current work capacity within the meaning of section 32A of the 1987 Act, it follows that the Arbitrator fell into error in adopting the wages schedule served by [Ms Uelese] when determining the ‘E’ figure to be applied to [Ms Uelese’s] entitlements under sections 36 and 37 of the 1987 Act.
The appeal seeks to rectify the calculation of errors made by the Arbitrator in accordance with sections 36 and 37 of the 1987 Act.”
If the Commission was not satisfied that the Arbitrator erred in awarding weekly compensation in accordance with ss 36 and 37, Mr Halligan submitted that it ought to amend the award in respect of the period from 27 January 2015 to 22 August 2015 under s 350(3) of the 1998 Act, on the basis that there is an obvious error in the Arbitrator’s calculations, given his findings in relation to capacity at T15.30 of his reasons (quoted at [57] above, but starting at T15.25).
Discussion and findings
The first issue is whether Mr Halligan made the concessions attributed to him by Mr Hanrahan.
When the Arbitrator asked Mr Hanrahan to address first, Mr Hanrahan responded that he understood the issue to be “9A” (T2.28), but he would be interested to know “precisely what aspect of that range of possibilities the [appellant] relies upon in denying the claim” (T2.29). That statement led to the following exchange, starting at T3.1:
“ARBITRATOR: Yes. All right. Mr Halligan, can I just ask you is there any issue about incapacity or the extent of incapacity?
MR HALLIGAN: Well, obviously the section 32A assessment which you must take into account, but of course, it’s reasonably plain from the wages schedule that consistent with some of the WorkCover certificates this lady has returned to work for periods up to 20 hours a week. So I would probably have to concede that were you to make a section 32A adjustment it would probably be no better than what she’s working at the moment.
MR HANRAHAN: Can I enquire of my friend through you, Mr Arbitrator, what part of section 32A is being referred to? I understood 32A is the definition section of the Workers Compensation Act.
ARBITRATOR: Well, it’s the section that defines suitable employment.
MR HALLIGAN: Yes.
ARBITRATOR: As I understood what Mr Halligan just said, he’s effectively conceding that if your client succeeds on injury the actual periods of having no current work capacity or having a current work capacity are fairly reflected by the actual hours that your client’s worked. In other words, I don’t understand it would be suggesting that your client’s ability to earn in suitable employment is in any way greater than what she’s in fact earning.
MR HANRAHAN: I appreciate that concession and I don’t cavil with that.
MR HALLIGAN: I don’t have any instructions about that but looking at Dr Pillemer’s evidence and looking at the WorkCover certificates it more or less matches the pattern of employment so it would be pretty hard to argue a contrary view.
MR HANRAHAN: I wouldn’t argue against that.
ARBITRATOR: Well, you know, I have to say the evidence suggests, and I’m inclined to agree, that [Ms Uelese] seems to be a well-motivated worker so I’m sure she’s be [sic, been] working as much as she feels able to.
MR HALLIGAN: Yes.
MR HANRAHAN: Thank you for that.
ARBITRATOR: So the principal issue seems to be the 9A issue.
MR HALLIGAN: That’s right.” (emphasis added)
Though there may have been some ambiguity in Mr Halligan’s statement commencing “Well, obviously…”, any uncertainty about the concession he made was clarified by the highlighted statements by the Arbitrator quoted above.
Those concessions were, as the Arbitrator understood them, that “the actual periods of having no current work capacity or having a current work capacity are fairly reflected by the actual hours that [Ms Uelese’s] worked”. For the avoidance of doubt, the Arbitrator added that he understood that Mr Halligan would not “be suggesting that [Ms Uelese’s] ability to earn in suitable employment is in any way greater than what she’s in fact earning”. Though it was not stated, this clearly referred to the periods when Ms Uelese was working and when she was not working.
Thus, the concession, as understood by the Arbitrator, was that Ms Uelese’s actual hours worked ought to be accepted as the extent of her current work capacity within the meaning of s 32A and that her actual earnings ought to be applied as the “E” figure as provided for by s 35. The Arbitrator’s decision was consistent with this concession.
Though he had the opportunity to do so, Mr Halligan did not object to or challenge the Arbitrator’s stated understanding of the concession. Indeed, other than referring to the WorkCover certificates more or less matching the pattern of employment, so that it would be hard to argue a contrary view, which took the matter no further and did not dispute or challenge the Arbitrator’s summary, Mr Halligan made no further submissions about Ms Uelese’s entitlement to weekly compensation.
That the Arbitrator was correct in his interpretation of Mr Halligan’s concession is confirmed by the fact that, other than the exchanges noted above, neither party made any submissions about the calculation of Ms Uelese’s entitlement to weekly compensation. After the exchanges quoted above, Mr Halligan addressed on the circumstances of the injury. He contended that the Arbitrator would not be satisfied that the twisting injury occurred and that s 9A had not been satisfied. He made no submission at all about the calculation of Ms Uelese’s weekly compensation. He made none of the submissions he has sought to argue on appeal.
Other matters are consistent with the Arbitrator’s interpretation of Mr Halligan’s concession, though they are not essential for the determination of the appeal. The s 74 notice did not dispute the quantum of Ms Uelese’s entitlement to weekly compensation. Nor did the appellant’s Reply, which merely referred to the s 74 notice. Nor did Mr Halligan seek leave, under s 289A(4), to dispute the quantum of Ms Uelese’s entitlement. This explains why the Arbitrator asked Mr Halligan if there was “any issue about incapacity or the extent of incapacity” (T3.2). Mr Halligan’s concessions, as interpreted by the Arbitrator, were therefore consistent with the fact that Ms Uelese’s entitlement to weekly compensation was not an issue in dispute in the case.
Further, after addressing at length on the s 9A issue, Mr Hanrahan said that Ms Uelese had been incapacitated as a result of the injury. Before he said any more, the Arbitrator interjected and said, at T22.9:
“Well, in view of the concession Mr Halligan very properly made and my comment that I have no hesitation in accepting that your client is well-motivated[,] if you succeed on the 9A point I see no reason not to enter an award in accordance with the wage schedule but applying the appropriate percentages.” (emphasis added) (The reference to “the wage schedule” was a reference to unchallenged wage schedule filed by Ms Uelese.)
The reference to the “appropriate percentages” was to the percentages of the pre-injury average weekly earnings that apply depending on which entitlement period is being considered. Mr Halligan did not object to or challenge the Arbitrator’s observation about his “concession”, though he had every opportunity to do so.
Mr Hanrahan then said, at T22.16:
“I was going to say there are some indications of what she was earning but the percentages of the agreed PIAWE is 95 per cent, we say is $854.27 and 80 per cent is $719.38. We say that [Ms Uelese] will not be able, or has an average ability to earn of around about $400 evidenced by her actual earnings.”
He then asked for a general order for the payment of medical expenses (T23.4) and made further submissions on the circumstances of the injury.
The appellant is bound by the conduct of its counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46]). It follows that, in a case where the insurer never disputed the quantum of weekly compensation payable if Ms Uelese succeeded on liability, where counsel for the appellant made clear concessions about the worker’s entitlement to weekly compensation, and no other submissions to clarify or restrict those concessions, as they were understood by the Arbitrator, it is not open to argue on appeal that the Arbitrator erred in adopting an approach consistent with that concession. Moreover, it is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111). Mr Halligan made no relevant submission about the quantum of Ms Uelese’s entitlement to weekly compensation.
To the extent that the Arbitrator’s award was inconsistent with his statement that he accepted that Ms Uelese had no current work capacity during the periods in which that was certified to be the case and to have had a current work capacity to the extent of the various certifications, in light of Mr Halligan’s concessions, as understood by the Arbitrator, that inconsistency has not affected the outcome.
Even if Mr Halligan did not make the concessions attributed to him by the Arbitrator, Mr Hanrahan’s submission that Mr Halligan’s arguments on appeal were not raised before the Arbitrator is correct and the result is the same. The points sought to be raised by Mr Halligan on appeal were not argued at the arbitration. The general principle in such situations was succinctly summarised by McColl JA (Ward JA and Tobias AJA agreeing) in Mamo v Surace [2014] NSWCA 58, at [75]:
“A party is bound by the conduct of his or her case. It has long been the law that, except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him or her, to raise on appeal (even one by way of rehearing) a new argument which, whether deliberately or by inadvertence, he or she failed to put during the hearing when there was an opportunity to do so: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (at 7–8) per Gibbs CJ, Wilson, Brennan and Dawson JJ; approving University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481 (at 483); Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598.”
Mr Halligan has not sought to identify any exceptional circumstances that justify the raising of new issues on appeal. Instead, he has argued that he did not make the concessions attributed to him. For the reasons explained above, I do not accept that argument. Essentially, Mr Halligan has proceeded as if the appeal is a hearing de novo. That is not correct. As the Commission has attempted to explain in dozens of decisions, and as s 352(5) makes express, appeals against a decision by an Arbitrator are not a “review or new hearing”. Nor are they a rehearing. They are restricted to the identification and correction of error. Arbitrations are not a trial run where the parties can await the outcome and then decide to run new issues on appeal.
Contrary to Mr Halligan’s submissions, the Arbitrator did not err in adopting the wage schedule filed by Ms Uelese. As the appellant never disputed Ms Uelese’s earnings in the s 74 notice, and never filed a competing wage schedule, the figures in Ms Uelese’s wage schedule were “deemed to be admitted” by the appellant (Pt 15.5(3) of the Workers Compensation Commission Rules 2011). It was therefore open to the Arbitrator to accept those figures, regardless of Mr Halligan’s concessions.
Last, the submission that, if the Commission is not satisfied that the Arbitrator erred in the manner alleged, the award should be amended under the reconsideration power in s 350(3) is without merit. Section 352 is an express provision dealing with appeals from decisions of the Commission constituted by an Arbitrator. That is the provision under which the present appeal has been lodged. Section 350(3) gives the Commission a general power to “reconsider any matter that has been dealt with by the Commission”.
An express provision (s 352) excludes a general provision (s 350(3)) (R v Wallis; Ex parte Employers Association of Wool Selling Brokers [1949] HCA 30; 78 CLR 529 per Dixon J at 550, applied in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 at [93]–[100]). Therefore, a s 352 appeal is not a reconsideration and cannot be converted into an application for reconsideration (Preston v Randwick City Council [2012] NSWWCCPD 1).
CONCLUSION
The appeal is unsuccessful. The challenge to the substantial contributing factor issue simply ignored the evidence and the Arbitrator’s reasons. It was completely without merit. Indeed, on any objective view of the evidence, it is difficult to see why the claim was not accepted at the outset.
The challenge to the quantification of the award of weekly compensation sought to present extensive arguments on appeal that were not raised at the arbitration and which were contrary to express concessions made by the appellant’s counsel at the arbitration. The appellant is bound by the conduct of its case at arbitration. There being no exceptional circumstances, it is not permissible to run a different case on appeal.
Regardless of the concessions made by counsel, the appeal fails because the quantum of weekly compensation was never an issue in dispute before the Arbitrator. In addition, the Arbitrator was entitled to rely on Ms Uelese’s wage schedule as the figures in it were deemed to be admitted.
DECISION
The Arbitrator’s determination of 29 September 2015 is confirmed.
Bill Roche
Acting President
22 January 2016
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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