The Warehouse Group Pty Ltd (formerly Clints Crazy Bargains) v Stephens
[2006] NSWWCCPD 67
•27 April 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:The Warehouse Group Pty Ltd (formerly Clints Crazy Bargains) v Stephens [2006] NSWWCCPD 67
APPELLANT: The Warehouse Group Pty Ltd (formerly Clints Crazy Bargains)
RESPONDENT: Darryl Stephens
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC 18960-04
DATE OF ARBITRATOR’S DECISION: 7 February 2005
DATE OF APPEAL DECISION: 27 April 2006
SUBJECT MATTER OF DECISION: Treatment of the evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Moroney Betts, Solicitors
Respondent: Gerard Malouf & Partners, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant, the Warehouse Group Pty Ltd (formerly Clints Crazy Bargains), is to pay the Respondent, Mr Stephens’ costs in this appeal.
BACKGROUND TO THE APPEAL
On 4 March 2005, the Warehouse Group Pty Ltd (formerly Clints Crazy Bargains) (‘the Warehouse Group’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 7 February 2005. The Respondent to the appeal is Darryl Stephens. The Warehouse Group’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).
Mr Stephens was born on 11 December 1958 and is aged 47. He is married with three children, aged 12, 10 and 8. Mr Stephens commenced employment for the Warehouse Group in September 1999. On 4 April 2002, while working as a night fill supervisor, he injured his back and left leg while lifting a heavy box. He notified the Warehouse Group of his injury on that day and, on 2 October 2003, made a claim for compensation for permanent impairment. On 11 August 2004, the Commission determined that the Warehouse Group should pay $14,000 compensation to Mr Stephens under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of an 11% whole person impairment, and $10,000 compensation under section 67 in respect of pain and suffering.
By letter dated 11 October 2004, Allianz notified Mr Stephens that on the basis of a re-assessment of his earning capacity, it had determined that his entitlement under section 40 of the 1987 Act was nil, and that weekly compensation payments would cease from 16 November 2004. On 19 November 2004, the Commission registered Mr Stephens’ ‘Application to Resolve a Dispute’ in respect of his claims for weekly compensation from 16 November 2004 to date and continuing at the rate of $778.00, and medical, hospital or related expenses. The Warehouse Group’s ‘Reply’ was lodged on 3 December 2004.
On 1 February 2005, the Arbitrator conducted a teleconference with the parties and, on 7 February 2005, conciliation having proved unsuccessful, he conducted an arbitration hearing. He gave his decision orally at the conclusion of the hearing.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 3 March 2005, records the Arbitrator’s orders as follows:
“1. That the Respondent pay to the Applicant weekly payments of compensation from 16 November 2004 to date at the rate of $538.
2. Such payments to continue in accordance with the Act.
3. That the Respondent pay the Applicant’s s60 of the Act expenses on production of accounts or receipts.
4. That the Respondent pay the Applicant’s costs as agreed or assessed.”
In his Statement of Reasons given orally at the conclusion of the hearing, the Arbitrator identified as the issue before him Mr Stephens’ capacity to earn from 16 November 2004 to date. Following the approach to making a determination under section 40 of the 1987 Act prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWLR 527 (‘Mitchell’), the Arbitrator found the weekly amount Mr Stephens would have been earning but for the injury was agreed by the parties to be $538 (Mitchell, step 1). With regard to the amount that Mr Stephens’ would be able to earn post injury in suitable employment, the Arbitrator found Mr Stephens currently had a capacity to perform work, for example as a sales representative, on a part-time basis for four hours per day on five days a week “with five minutes rest for every hour of standing, avoiding going up and down stairs, no lifting more than 10 kilograms” (transcript page 28), in accordance with a medical certificate issued by his general practitioner, Dr Yang Wang, dated 1 October 2004.
The Arbitrator found section 43A to be relevant in determining what was suitable employment in Mr Stephens’ case. The Arbitrator accepted that Mr Stephens had applied for many jobs without success. The Arbitrator noted Mr Stephens’ age, his need for proximity to public transport, his limited work experience, the limitations on his capacity for work imposed by his injury, and his efforts to find suitable work over a period of two years, and concluded that “it’s just not realistic that he’s going to find employment” (transcript page 29). Notwithstanding that Mr Stephens had a “theoretical” earning capacity, the Arbitrator determined that his actual earning capacity was nil (Mitchell, step 2). The Arbitrator found that Mr Stephens had tried hard to find suitable employment and there was no basis for a reduction in the difference between his pre-injury earnings and his post injury earnings (calculated in accordance with Mitchell, step 3) by exercising the discretion in section 40(1) (Mitchell, step 4). The Arbitrator therefore made an award of weekly compensation of $538 from 16 November 2004 to date and continuing (Mitchell, step 5).
The Arbitrator also determined that the Warehouse Group was liable for the payment of “medical and related expenses incurred as a result of the treatment services or assistance reasonably necessary for the compensable injury” (transcript page 29).
ISSUES IN DISPUTE
The ground of appeal identified by the Warehouse Group is that the Arbitrator erred in fact and/or in law in applying sections 40 and 43A of the 1987 Act, and, specifically, in determining that Mr Stephens’ actual post-injury earning capacity was nil. The parties’ submissions on this issue are discussed more fully below.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:
“(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.”
I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties on the appeal. The Warehouse Group submits that the appeal can be dealt with on the papers. Mr Stephens’ solicitors submit there should be an oral hearing but give no reasons. Having considered these submissions and the relevant 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the issue of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I accept that the amount of weekly compensation at issue exceeds $5,000 and represents more than 20% of the amount awarded. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.
SUBMISSIONS, FINDINGS AND DISCUSSION
The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Warehouse Group must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Warehouse Group submits the Arbitrator erred in his application of section 43A of the 1987 Act. The Arbitrator found Mr Stephens was fit for fit to work 20 hours a week as a sales assistant, sales representative, console operator, cashier and parking attendant. These were also the type of positions in which he had prior employment experience (section 43A(1)(a)). Mr Stephens was aged 46, and qualified and experienced in these positions that the Arbitrator found him fit to perform on a part-time basis (section 43A(1)(b)). Mr Stephens was a resident of Werrington in western Sydney and therefore had access to major centres (section 43A(1)(c)). The Arbitrator had determined Mr Stephens’ post-injury capacity (section 43A(1)(d)) and he does not require rehabilitation training for the above positions (section 43A(1)(e)), his injury only having been sustained in April 2002 (section 43A(1)(f)).
The Warehouse Group noted the Recouvre vocational assessment report, dated 3 December 2004, provided in evidence, showed a large pool of suitable positions available in the Sydney area. The Warehouse Group submits:
“the worker should have been found fit to work 20 hours per week in alternate employment and the residual earning capacity should have been taken into account when determining the level of weekly benefits compensation payable to the worker.”
Mr Stephens’ solicitors submit the Arbitrator made no error of fact or law in his decision, and correctly applied the legal principles set out in Mitchell and confirmed by the Commission in Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 (‘Snow’). In Snow, Deputy President Fleming distinguished between the applicant’s “theoretical ability to earn” and what she was in fact able “to earn in the general labour market reasonably accessible to the worker” (section 40(3)). This was a matter to be determined by the Arbitrator on the evidence before him. The Deputy President noted (at paragraph 25) the Arbitrator had found that although the applicant had a theoretical ability to earn in particular employment, “she was, in fact, earning and able to earn, nil dollars because there was no such employment available in the labour market reasonably accessible to her”. Mr Stephens’ solicitors submit that in the current case, the Arbitrator’s reasoning is in line with that of the Deputy President in Snow.
I have examined the transcript of the Arbitrator’s oral statement of reasons and note he found Mr Stephens to have been “clear and consistent” in what he said in evidence (transcript page 27). The Arbitrator accepted his evidence and inferred from it that Mr Stephens
“is keen and he wants to be able to work and is frustrated and depressed because he cannot and because of the problems caused by his situation.
The applicant stated that he has applied for many positions, all of which have been unsuccessful. The most recent of these was in the last week, where he was hopeful of obtaining a position within the range indicated, but that was precluded because of the restrictions [sic] to part-time and also because of the fact that it would involve sitting down for prolonged periods.”
The Arbitrator referred to the vocational assessment reports both by Recouvre (for the Warehouse Group) and by Evidex (for Mr Stephens). The latter report, dated 14 December 2004, concluded that there is “no realistic likelihood Mr Stephens will be able to secure employment in the foreseeable future”. The Arbitrator having discussed Mr Stephens’ limited capacity for work and the other section 43A factors, referred to in paragraph 7 above, and recognising that Mr Stephens’ reasonably available labour market was the Sydney area, said (transcript page 29) that because of the limitations on Mr Stephens
“it’s just not realistic that he’s going to find employment. He’s been trying to look for this employment for two years now and hasn’t been able to score a job within his range. So I think his actual earning capacity, notwithstanding what his theoretical capacity is, is nil.”
The Arbitrator also found Mr Stephens had “tried very hard to find suitable employment”.
I am not satisfied that the Arbitrator made any error of fact or law in his decision. His findings are supported by plausible evidence and he correctly followed the steps prescribed in Mitchell in determining Mr Stephens’ entitlement under section 40, with reference to the factors referred to in section 43A(1) in relation to suitable employment. As Mr Stephens’ solicitors have submitted, the Arbitrator’s decision was also consistent with the decision in Snow in relation to the second step prescribed in Mitchell. I can therefore see no basis for interfering with the Arbitrator’s decision, which must, therefore, be confirmed.
DECISION
The Arbitrator’s decision is confirmed.
COSTS
The Appellant, the Warehouse Group Pty Ltd (formerly Clints Crazy Bargains), is to pay the Respondent, Mr Stephens’ costs in this appeal.
Robin Handley
Acting Deputy President
27 April 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
1
3
0