Sydney Opera House Trust v Gaya Beaumont
[2004] NSWWCCPD 19
•8 April 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Sydney Opera House Trust v Gaya Beaumont [2004] NSW WCC PD 19
APPELLANT: Sydney Opera House Trust
RESPONDENT: Gaya Beaumont
INSURER:Treasury Managed Fund
FILE NUMBER: WCC13175-2003
DATE OF ARBITRATOR’S DECISION: 5 November 2003
DATE OF APPEAL DECISION: 8 April 2004
SUBJECT MATTER OF DECISION: Error of Law by reason of Inadequate Reasons; Factual Error; Calculation of Rate of Compensation; Amount of Wage Loss.
PRESIDENTIAL MEMBER: Deputy President, Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Moray & Agnew Solicitors
Respondent: Shaw McDonald Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed. The Appellant Employer is ordered to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.
BACKGROUND TO THE APPLICATION TO APPEAL
On 25 November 2003 Sydney Opera House Trust (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against the decision of the Arbitrator in this matter, dated 5 November 2003.
The Respondent to the Appeal is Gaya Beaumont (‘the Respondent Worker’).
The Worker filed submissions in reply to the appeal, on 8 December 2003.
This matter was referred to me for review on 12 December 2003. Directions were issued to the parties on 14 January 2004, allowing further submissions to be filed. No further written submissions have been lodged in the Commission, by either party.
No new evidence has been submitted on the appeal. The documents that were before the Arbitrator and a transcript of the arbitration proceedings, dated 21 October 2003, are in evidence in the appeal.
THE DECISION UNDER REVIEW
The decision of the Arbitrator that is under review in this appeal is set out at paragraph 37 of the Arbitrator’s Statement of Reasons for Decision (‘reasons’):
“For the reasons set out in this statement the decision in this matter is:
·That the Respondent pay the Applicant weekly compensation of $262.57 from 27 November 2002 to date and continuing with the exception of the period 20 February 2003 to 6 March 2003 for which the Respondent has already agreed to pay compensation.
·That the Respondent pay the Applicant’s medical and hospital expenses pursuant to s60 including chiropractic treatment.
·That the Respondent pay the Applicant’s costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
·Whether the Arbitrator failed to provide adequate reasons for her decision, amounting to an error of law.
·Whether the Arbitrator made a factual error in her reasons in relation to the evidence regarding the Respondent Worker’s ability to perform other work and if so, consequent upon that error, whether she erred in failing to properly assess the Respondent Worker’s entitlement to compensation by not considering relevant legislative provisions.
·Whether the Arbitrator made an error in calculating the Respondent Worker’s entitlement to weekly compensation based on the evidence available before her.
·The weekly wage loss should be recorded as $262.54 per week and not $262.57 per week, in the Arbitrator’s reasons. (This is conceded by the Respondent Worker).
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘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.
The Appellant Employer submits that the Arbitrator’s errors in her findings and reasons are of such magnitude as to render the decision unsafe. Application is made to have the matter placed before another Arbitrator to be dealt with de novo. Other matters are raised as to the suggested progress of the disputed claim before the Commission. However, the appeal, having been properly lodged in accordance with the 1998 Act, must be determined. Accordingly, I propose to determine the matter, dealing with the issues raised on appeal, as I am required to do by the 1998 Act. The Appellant Employer submits in the alternative, that if the appeal is to proceed, it should not be determined on the papers but should be the subject of a hearing. The Respondent Worker submits that the appeal should be dealt with on the papers. On 14 January 2004, after closely considering all of the material before me, I made an order pursuant to section 354(6) of the 1998 Act, that the appeal is to be determined on the papers without holding any conference or formal hearing. However, I issued directions to the parties, providing an opportunity for the Appellant Employer to make further written submissions on appeal and an opportunity for the Respondent Worker to respond in writing to any further submissions made. No further written submissions have been put before me.
In making the order on 14 January 2004, that the matter is to proceed on the papers, I was satisfied that I had sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this was the appropriate course in the circumstances.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The appeal meets the threshold tests in section 352(2) of the 1998 Act.
Leave to appeal was granted on 14 January 2004.
SUBMISSIONS ON APPEAL
The Appellant Employer’s written submissions on the substantive issues on appeal, may be summarised as follows:
·The Arbitrator failed to provide adequate reasons for her decision and in so doing, made an error of law. In particular, the Arbitrator commented at paragraph 27 of her reasons regarding the Appellant Employer’s submissions, with respect to the effect of its medical evidence, that “There is some merit in these submissions…”. However, it is submitted that the submissions were then largely ignored at paragraph 31 and, without providing adequate reasons, the Arbitrator found that Dr Downes’ conclusions were “unhelpful” and rejected his opinion. Furthermore, the Arbitrator failed to provide adequate reasons for preferring the Respondent Worker’s medical case to that of the Appellant Employer. At paragraph 34 of the reasons, the Arbitrator attempted to address the Appellant Employer’s case, but simply stated: “The appropriate defence would be that the applicant had recovered from her injury but I have not accepted the respondent’s arguments in that regard.” It is submitted that a bland statement that the Appellant Employer’s arguments were not accepted constitutes a failure to give adequate reasons for the decision.
·The Arbitrator made factual errors in her finding at paragraph 32 in stating, “No evidence is led or submissions made to the effect that the applicant would be able to perform other work”. It is submitted that there was oral evidence given by the Respondent Worker that directly addressed this issue. Reference is made to pages 10-13 of the transcript of proceedings and in particular, to evidence recorded at page 12, “line 45ff”. (The transcript is before me, the contents of those pages have been carefully noted and do not need to be reproduced here). The Appellant Employer concluded his submissions to the Arbitrator, as follows (as set out at page 23 of the Arbitrator’s reasons): “Unless there’s anything further you want to hear from me about weekly payments of compensation, there are some things I could put to you in relation to her evidence about looking for other work.” The Arbitrator responded at page 23, line 54: “I don’t have anything else I need to hear from you…”
·It is submitted that the Arbitrator made an error consequent upon the apparent factual error contained in the first sentence of paragraph 32 of her reasons, that “No evidence is led or submissions made to the effect that the applicant would be able to perform other work and accordingly I find that the applicant is currently working to the extent of her ability.” This conclusion is a legal error in that the Arbitrator failed to properly assess the Respondent Worker’s entitlement to compensation as she has neglected to consider the effect of section 40(2)(b), section 40(3) and section 43A of the Workers Compensation Act 1987 (‘the 1987 Act’) based on the evidence available to her. The Appellant Employer submits that the failure to take into account the Respondent Worker’s own evidence as referred to above, resulted in the Arbitrator being unable to properly assess her entitlement to compensation in accordance with section 40 of the 1987 Act. Alternatively, it is submitted that the failure to give reasons for the decision in that regard constitutes an error of law.
·“In summary, it is submitted that the aggregated failures of the arbitrator set out above materially affected the outcome of the proceedings. We submit that the appellant has been denied the opportunity to make submissions on evidence taken which the arbitrator has in turn failed to address in reaching her decision in the case. We submit that the arbitrator has failed to explain her decision to accept the applicant’s case over that of the appellant. The appellant submits that the arbitrator’s errors in her findings and reasons are of such magnitude as to render her decision unsafe.”
·The Arbitrator’s decision at paragraph 37 of her reasons to fix a rate of compensation for the future was flawed in circumstances where the Respondent Worker remained employed in a casual position with her pre-injury employer. “We note the intrinsic nature of that employment is that a variable number of hours may be worked from one week to the next. The effect of the arbitrator’s decision is potentially to prejudice both the employer and the applicant, depending upon how many hours of work are available to the applicant in any given week.” It is submitted that the appropriate order in the circumstances, “in the event that the applicant’s case was successful”, ought to have been an order that the Appellant Employer pay to the Respondent Worker weekly compensation pursuant to section 40 of the 1987 Act, ongoing from the date of the arbitration.
·The Arbitrator’s calculations at paragraph 32 of her reasons stipulated an apparent wage loss of $262.54 per week, while at paragraph 37 and in paragraph 1 of the Certificate of Determination the amount is stated as $262.57. The figure of $262.57 is not correct.
·It is submitted that the errors in the Arbitrator’s findings “are of such magnitude as to render her decision unsafe. Because of the critical role of the applicant’s credit in assessing the merits of this case, the appellant submits that this matter should be submitted for an arbitration hearing de novo before another arbitrator. We further submit that, as the applicant has duly made a claim for lump sum compensation in respect of her injury, the further arbitration hearing should be deferred until all matters in dispute between the parties are the subject of an application for resolution of a dispute. We submit that the applicant should be granted leave to amend the present application and the matter should be referred to another arbitrator for directions at a teleconference.” (An alternative position is put that if the matter should proceed before me, that a face-to-face hearing should take place. As previously indicated, I decided to determine the matter on the papers).
·It is further submitted that in the event that the appeal is partially successful but that it is decided to affirm the effect of the submission, the costs of the appeal should be treated as though the appeal were successful because of the obvious errors contained in the Arbitrator’s decision. “We submit that the appeal in this case was necessary as a matter of natural justice because the decision of the arbitrator was so replete with errors as to render her decision unsafe. We further submit that an appeal by one of the parties was necessary given the unsatisfactory nature of the order made by the arbitrator with respect to the ongoing award in favour of the applicant. For that reason, we submit that the costs of the appeal should be treated as though the appeal were successful irrespective of the outcome of the appeal because of the interest of both parties in amending the arbitrator’s decision in that regard.”
The Respondent Worker’s written submissions on appeal may be summarised as follows:
·The Appellant Employer’s three grounds of appeal are first, that the Arbitrator failed to provide adequate reasons for her decision to prefer the Respondent Worker’s evidence and submissions over those of the Appellant Employer; second, that she made a factual error in finding that no evidence had been led or submissions made in relation to the Respondent Worker’s capacity to perform other work, and third, that the Arbitrator erred in awarding weekly compensation according to a fixed rate.
·The Respondent refers to the Commission decision in Christopher Michael McMahon v Anthony Lagana and Joseph Lavella trading as the Vessel “Nimble II” [2003] NSW WCC PD 22, at paragraphs 47-50, which sets out the requirements for an Arbitrator to provide adequate reasons and the standard of the adequacy. The findings in relation to incapacity and medical condition are based on competing medical reports and the evidence of the Respondent Worker. The Arbitrator had the benefit of medical reports from both parties and heard the evidence of the Respondent Worker (at paragraphs 12 and 13). The Arbitrator summarised the Respondent Worker’s medical reports and in particular the reports of Dr Gschwind, the treating specialist and Dr Downes, a medico-legal consultant for the Appellant Employer and found, at paragraph 31 of her reasons that the Respondent Worker had some support from Dr Gschwind that she was unable to return to work full time. She went on to say, “In all the circumstances, because the Applicant has some support from her treating doctors for permanently modified duties and because Dr Downes’ conclusions are unhelpful the evidence must lead me to make an order in favour of the Applicant.” The Respondent Worker submits that this is more than sufficient to enable the parties to know the basis for the Arbitrator’s decision. The fact that the Arbitrator indicated that there was some merit in the Appellant Employer’s submissions is not contrary to a finding that the evidence of the treating doctors ought to be preferred. The Arbitrator also had the benefit of the Respondent Worker’s statement of 14 October 2003 and the oral evidence, particularly at page 9, lines 27 to 45.
·It is submitted that if there is any inadequacy, this does not necessarily demonstrate that the Arbitrator failed to exercise her statutory duty to fairly and lawfully determine the matter. It was open to the Arbitrator to prefer the evidence of one doctor over another “‘in all the circumstances’ (paragraph 31).” The Respondent Worker goes on to submit “…that the quote needs to be read in the context of the whole paragraph 34 [of the Arbitrator’s reasons] which refers to the appropriate defence to be recorded on the notice of termination and simply repeats the earlier finding that the Applicant’s evidence had been accepted over the Respondent’s.”
·No evidence was led or submissions made to the effect that the Respondent Worker would be able to perform other work. It is submitted that “other work” refers to work other than work as a front of house usher. It is not in dispute that the only work performed since ceasing work in the box office in June 2001, was front of house. There was no evidence given by the Respondent Worker that she was unable to work in the box office due to her inability to type using her right arm and hand (transcript page 3, line 47 and her statement). Furthermore, it is not in dispute that she would be capable of performing more hours working front of house (transcript page 5, line 24). It was accepted by the Arbitrator that the Appellant Employer did not offer the Respondent Worker increased hours working front of house. “The Applicant’s evidence at page 12 of the transcript at line 45, in our submission, supports the finding that she is unable to perform ‘other work’. The Applicant gave evidence that her restrictions preclude her from getting work outside the Opera House and no evidence to the contrary was led by the Respondent.” At page 12 of the transcript, in answer to the Appellant Employer’s question about what efforts she had made to obtain other employment, the Respondent Worker gave an outline of such efforts and the constraints upon her. It is submitted that it was open to the Arbitrator to accept her evidence and make a finding that she was working to the extent of her ability. “The Respondent obtained no concession from the Applicant that she was capable of performing work other than front of house work, or other work offered within the Opera House. It is a very different submission to say that the Applicant was capable of obtaining other work in the open labour market.”
·The Respondent Worker accepts that the Arbitrator indicated that she did not require submissions from the Appellant Employer in relation to the Respondent Worker’s evidence about looking for work. It is submitted that this is irrelevant and would not have affected the outcome of the matter. Any submission that she was capable of performing other work is against the weight of the evidence and could not be accepted. “There was in fact no evidence that the Applicant was capable of performing other work on which the Arbitrator could base such a finding.”
·In terms of the rate of compensation the Respondent Worker submits that according to the evidence, she was working 34 hours per week prior to the date of injury, and in the period after weekly compensation ceased in November 2002 to October 2003, she worked on average 20 hours per week. According to the evidence, notwithstanding numerous requests, the Respondent Worker’s hours were not increased and that they would never be increased (page 11, line 37 of the transcript). The Arbitrator was entitled therefore, to award the Respondent Worker a fixed weekly rate of compensation. “The correct course of action, if the situation arises in the future, is for either the Appellant or the Respondent, if an agreement cannot be reached, to apply for a variation of the award in the event that the Applicant’s hours are increased or decreased.”
·The Respondent Employer concedes that the figure of $262.54 is the correct figure in terms of the weekly compensation stated in the Arbitrator’s Statement of Reasons for Decision and the Determination, and that any reference to a figure of $262.57 should be amended, accordingly.
EVIDENCE BEFORE THE ARBITRATOR
The Respondent Worker claims that she suffers partial incapacity for work as a result of an injury that arose out of or in the course of her employment with the Appellant Employer, as a casual front of house usher and casual ticket sales adviser. She states that the injury that she sustained occurred on 13 October 2000 when she strained her arm while trying to stop a self-closing door from colliding with patrons at the Sydney Opera House. She notified the Appellant Employer of her injury on 21 October 2000. She made a claim for weekly benefits and medical expenses and remains employed by the Appellant Employer although she now works reduced hours. On 17 October 2002 the insurer informed her that it denied liability for ongoing weekly compensation from 27 November 2002 and ongoing medical expenses from 18 October 2002.
The evidence that was before the Arbitrator and that is before me in this appeal, is:
· A transcript of the evidence of the proceedings before the Arbitrator on 21 October 2003, including the sworn evidence of the Respondent Worker.
·A statement of the Respondent Worker dated 14 October 2003.
·Medical reports annexed to the Application, together with the report of Dr Gschwind dated 25 September 2003 and a report of Dr George dated 2 October 2003.
·Medical reports annexed to the reply to the Application, including the report of Dr Downes.
There is no dispute about ‘injury’ and the Respondent Worker was paid compensation until late in 2002. According to the Arbitrator, the dispute turns on the medical diagnosis and whether the Respondent Worker remains relevantly incapacitated. She remains employed as a front of house usher. Her evidence is that any use of her right arm is significantly limited.
DISCUSSION AND FINDINGS
Adequacy of reasons
Arbitrators are bound at common law to provide adequate reasons for their decisions: Absolon v NSW TAFE [1999] NSWCA 311. They are also required to do so by statute: Section 294(2) of the 1998 Act provides that a brief statement is to be attached to the certificate of determination, setting out the reasons for the determination. Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides:
73 Certificates of Determination
(1)A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2)Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
Failure on the part of an Arbitrator to provide adequate reasons for decision may constitute an error of law, and may cause the decision to be revoked on appeal pursuant to section 352(7) of the 1998 Act.
The requirement to provide adequate reasons has been the subject of comment and findings in previous decisions on appeal, by the Commission. The Respondent Worker cites Christopher Michael McMahon v Anthony Lagana and Joseph Lavella trading as the Vessel “Nimble ll” [2003] NSW WCC PD 22 as one of these decisions. In that case, Deputy President Fleming states:
“The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is equally applicable to the preparation of statements of reasons. At the same time, the reasons must be capable of adequately conveying to the parties the basis upon which the Arbitrator came to his or her decision…It is not incumbent upon an Arbitrator to set out every detail of the evidence that was before him or her. To do so would be unreasonable and inconsistent with the objectives of the Commission in providing a speedy resolution to workers compensation disputes. However the reasons should set out the evidence, findings and application of the applicable law clearly. The statement of reasons for decision must ultimately explain to the parties why the Arbitrator has made the particular decision.
To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application. The Court of Appeal in YG v Minister for Community Services [2002] NSWCA 247 (26 July 2002), per Hodgson JA said,
…inadequate reasons do not without more show that the decision involved error: the inadequacy must be such as to warrant the inference that the Tribunal had not exercised its jurisdiction in accordance with law: see Absolon v. NSW TAFE [1999] NSWCA 311 at [67].
…In my opinion, a question whether there is a deficiency of reasons, and whether that deficiency warrants an inference that a tribunal has not exercised its jurisdiction in accordance with law, is a matter of judgment, and in borderline cases, minds may reasonably differ (at [37]-38]).”
In the recent NSW Court of Appeal case of Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59, Stein AJA said at [33]:
“…Brevity in reasons is to be admired but they must still pass the tests enunciated in the authorities.
It was acknowledged by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 271-273 that a judge is not required to make a finding in respect of every fact leading to the final conclusion of fact, nor reason from one fact to the next along the chain of reasoning to that conclusion. Nevertheless, a judge must distinguish between the essentials and the peripherals. This is so particularly where there is a right of appeal to be exercised. Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted.
As McHugh JA said at 280, lengthy or elaborate reasons are not required. However, it is necessary that the essential ground(s) upon which the decision rests should be articulated. The parties (and the Courts) are entitled to see what matters were considered and what the view reached by the judge was on fact and law.”
The Arbitrator stated at paragraph 31 of her reasons that this is a difficult case because there is little medical evidence and there are few objective findings. Nevertheless, she provided a detailed account of the available medical evidence at paragraphs 19–25. She referred in particular to the reports of Dr Downes and Dr Gschwind. The Appellant Employer highlights an apparent inconsistency between the Arbitrator’s comments at paragraph 27 of her reasons, where she said that there was some merit in the submissions made that “the only reason the Applicant had not returned to full time work was in effect her own choice”, and her rejection at paragraph 31 of Dr Downes' conclusions because they were unhelpful, without giving reasons, and submits that this is an error of law. The Arbitrator outlined at paragraph 25, the substance and findings in Dr Downes’ report but qualified its impact by stating “Dr Gschwind’s opinion is not forceful but [sic] only medical evidence the Respondent relies on is the report of Dr Downes dated 26 September 2002. This report is over a year old and a more recent report would have been helpful to the Commission.” She added, “Dr Downes’ report pre-dates the most recent investigations and treatment and therefore did not comment on them.” What the Arbitrator said at paragraph 31 must be read in the context of all relevant comments and findings in her Statement of Reasons for Decision. She concludes:
“I have summarised the effect of the medical reports. This is a difficult case because there is so little medical evidence and so few objective findings. Nonetheless, the Applicant has some support from her treating doctor, Dr Gschwind, that she is unable to return to full time work. In all of the circumstances, because the Applicant has some support from her treating doctors for permanently modified duties and because Dr Downes’ conclusions are unhelpful the evidence must lead me to make an order in favour of the Applicant.”
On my reading of her Statement of Reasons for Decision, the Arbitrator outlined and gave due weight to the medical evidence produced by both parties. She made it clear that this posed some difficulty, given that there was a difference of medical opinion as to the Respondent Worker’s condition and that there were few physical findings to support the claim. The medical evidence that was available was discussed in the hearing before her on 21 October 2003. Regardless of the difficulty, the Arbitrator did weigh up such evidence as was available, as she was obliged to do, and on balance, preferred the medical evidence of the Respondent Worker. The reason why she found Dr Downes’ report “unhelpful” is articulated in paragraph 25, that is, it was more than a year old and “a more recent report would have been helpful to the Commission.” In the circumstances, she preferred the medical evidence of Dr Gschwind, who was the Respondent Worker’s treating doctor, for the whole of the period in question. Her discussion and consideration of the evidence extended beyond what is described by the Appellant Employer, as her “bland statement” at paragraph 34 of her reasons, as indicated by the very fact that she had already made her finding, on balance, in favour of the Respondent Worker as to her medical condition. In outlining the medical evidence that had been provided by the parties, weighing it up, and arriving at a conclusion as she did, the Arbitrator has provided adequate reasons and has satisfied the statutory and common law obligations outlined above. She was not obliged to give an elaborate set of reasons but simply to state the essential grounds upon which her decision rested. In my view the Arbitrator exercised her jurisdiction according to law. Accordingly, I can find no error of law in this regard.
Whether factual error made by Arbitrator regarding capacity to perform other work
It is submitted by the Appellant Employer that the Arbitrator made factual errors at paragraph 32 of her reasons in stating that: “No evidence is led or submissions made to the effect that the applicant would be able to perform other work.” It is true, as claimed by the Appellant Employer that some of the oral evidence of the Respondent Worker touches upon this issue. Specific reference is made to pages 10-13 of the transcript of the evidence taken before the Arbitrator. The evidence at pages 10-13 of the transcript is a record of cross examination of the Respondent Worker specifically about the limited other duties she might have been able to perform at the Sydney Opera House; about what efforts she had made to obtain other employment, and what constraints her medical condition imposed upon her. There was in fact, no evidence at all put forward by the Appellant Employer to the effect that she would be able to perform other work and no concession was made under cross examination by the Respondent Worker, that she was capable of doing other than a very limited range of work.
Again, it is true that the Arbitrator indicated that she did not need to hear further from the
Appellant Employer. This was at the conclusion of an address by the Appellant Employer (recorded at pages 18-23 of the transcript), in response to the question “Unless there’s anything further you want to hear from me about weekly payments of compensation, there are some things I could put to you in relation to her evidence about looking for other work.” The Arbitrator said, “I don’t have anything else I need to hear from you except that I’m just – I presume that the section 60 expenses have been checked…” This was followed by a brief comment from the Respondent Worker’s legal representative concerning these expenses and then an address by him. The Arbitrator’s comment that no submissions were made to the effect that the Respondent Worker would be able to perform other work, is correct. As stated above, no evidence had been led by the Appellant Employer in relation to this issue. However, cross examination did take place and it may have been prudent for the Arbitrator to briefly hear the matters that the Appellant Employer “could put”. However, in the absence of substantive evidence from the Appellant Employer, as opposed to cross examination, the submissions necessarily, would have been somewhat limited. I agree with the Respondent Worker that any failure to hear the submissions would have made no difference to the outcome.
I find on the basis of the documents that are before me, that the factual errors asserted by the Appellant Employer, were not made by the Arbitrator.
Assessment of any entitlement in accordance with relevant legislative provisions and whether error made in calculating entitlement to weekly compensation based on the available evidence
Having found that there was no factual error made by the Arbitrator, as submitted by the Appellant Employer, I agree with the Arbitrator that there are no grounds to reduce the Respondent Worker’s weekly benefits. The Respondent Worker’s evidence that she made a number of requests for increased hours of work was accepted by the Arbitrator and is accepted by me, as was the fact that there was no intention on the part of the Appellant Employer to increase her hours of work. Moreover, I agree that the evidence supports the Arbitrator’s view that the Respondent Worker was working to the extent of her ability. In the circumstances of this matter, the Arbitrator was entitled to make her findings, and to arrive at her decision to award a fixed weekly rate, based on those findings.
Correct amount of weekly wages loss
Both parties agree that the reference in the Arbitrator’s decision to the amount of $262.57 is incorrect and should be shown to be an amount of $262.54.
Application for the matter to be dealt with de novo before another Arbitrator
The application for the matter to be dealt with de novo by another Arbitrator and the other suggested steps associated with that application, cannot be entertained by me. Section 352(7) provides that on appeal [before a Presidential member], the decision [of the Arbitrator] may be confirmed or may be revoked and a new decision made in its place. Accordingly, I have no power to accede to the request. In any event, I do not agree with the Appellant Employer’s submission that the alleged errors were made by the Arbitrator that “are of such magnitude as to render her decision unsafe.” I am constrained to say that the Arbitrator was required to determine the matter on the evidence that was put before her by the parties and their legal representatives; that the actual content and extent of that evidence made that task somewhat difficult, but notwithstanding that difficulty, her findings were soundly based on that evidence and her decision was properly and adequately reasoned according to law.
DECISION
The decision of the Arbitrator is confirmed.
COSTS
The appeal has been unsuccessful and the costs of the appeal fall to be determined in accordance with section 345 of the 1998 Act. The Appellant Employer is ordered to pay the costs of the appeal of the Respondent Worker, as agreed or assessed.
Gary Byron
Deputy President
8 April, 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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