Transfield Constructions Pty Ltd v Ahmed

[2005] NSWWCCPD 88

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Transfield Constructions Pty Ltd v Ahmed [2005] NSW WCC PD 88

APPELLANT:  Transfield Constructions Pty Ltd

RESPONDENT:  Gulfam Ahmed

INSURER:Transfield Constructions Pty Ltd

FILE NUMBER:  WCC7122-03

DATE OF ARBITRATOR’S DECISION:          12 August 2004

DATE OF APPEAL DECISION:  17 August 2005

SUBJECT MATTER OF DECISION:                Lack of evidence to support findings, reliance on own observations, adequacy of reasons

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Hicksons Lawyers

Respondent: Buttar Caldwell & Co, Solicitors

ORDERS MADE ON APPEAL:  1. The first three paragraphs of the decision of the Arbitrator dated 12 August 2004 dealing with the payment of weekly compensation to Mr Ahmed are revoked and that part of the decision is remitted to an Arbitrator to be redetermined in accordance with the law.

2. The decision is otherwise confirmed.

3. No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 8 September 2004, Transfield Constructions Pty Ltd (‘Transfield’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 12 August 2004.

2. The Respondent to the Appeal is Gulfam Ahmed. Mr Ahmed was born in Pakistan on 28 March 1971 and migrated to Australia arriving on 19 May 2000. He is married with four dependent children. Mr Ahmed commenced employment with Transfield as a process worker in its Corrosion Protection Division in October 2000. His duties involved hanging pieces of iron on a jig. He stated that in early November 2001, he began experiencing pain in the lower side of his back whenever lifting “excessive weights”. While working on 26 November 2001, he experienced severe pain that he reported to his safety officer on 28 November 2001 before going home due to the pain. When he returned to work on 29 November 2001, he was unable to “even stand for a few hours”. As a consequence, he was put on light duties until 21 December 2001, when he was made redundant as a result of the closure of the Corrosion Protection Division.

3. On 21 February 2003, Mr Ahmed’s ‘Application to Resolve a Dispute’ was received by the Commission in respect of the injury to his back on 26 November 2001 and Mr Ahmed’s claim for weekly compensation since 26 November 2001 to date and continuing, and his claim for compensation for permanent impairment and pain and suffering. Transfield’s ‘Reply’ was received by the Commission on 5 March 2003.

4. An Arbitrator conducted a teleconference with the parties on 5 June 2003 and directed Mr Ahmed to submit to a medical assessment by an Approved Medical Specialist for the purpose of assessing the percentage permanent impairment of his lower back, legs and neck. Mr Ahmed was examined by Dr Ian Meakin, Orthopaedic Surgeon, on 19 August 2003. In Dr Meakin’s Medical Assessment Certificate of that date, he stated that Mr Ahmed’s x-rays dated 26 November 2001 showed:

   “radiological evidence of degenerative change at the L4/5 and the L5/S1 facet joints … [and] degenerative changes in the T11/T12 disc space. It is my opinion that these radiological findings have absolutely pre-dated the patient’s injury.”

   Dr Meakin assessed the permanent impairment of Mr Ahmed’s back at 15%, of which 10% was attributable to the injury on 26 November 2001. He found a nil percentage impairment in respect of Mr Ahmed’s legs and neck.

5. Mr Ahmed appealed against the Medical Assessment Certificate. The Arbitrator conducted a further teleconference with the parties on 17 October 2003 but was unable to progress the resolution of the matter pending the outcome of the appeal. On 15 March 2004, the Appeal Panel confirmed the Medical Assessment Certificate, finding there was no demonstrable error in the Certificate. On 15 June 2004, a different Arbitrator conducted a teleconference with the parties and, on 22 July 2004, conciliation having proved unsuccessful, she conducted an arbitration hearing. On 12 August 2004, the Arbitrator made the determination set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 12 August 2004, records the Arbitrator’s orders as follows:

   “• That the Respondent pay the Applicant weekly compensation for a person able to earn $200 per week from 21.12.01 until 22 June 2004 under s40 of the Workers Compensation Act 1987 suitably adjusted for his having a wife and 3 children until 18.12.03 at which time a 4^th child was born and became dependent.

   ·      That the Respondent pay the Applicant weekly compensation for his being totally incapacitated as of 22 June 2004 under s37, with a dependent wife and 4 children. Such weekly payments to continue in accordance with the provisions of the Act.

   ·      That the Respondent pay the Applicant the applicable interest on the weekly compensation as above.

   · That the Respondent pay the Applicant’s reasonable medical expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.

   · That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 $6,000 in respect of 10% permanent loss of efficient use [sic] of the Applicant’s back.

   ·      That the Respondent pay the Applicant’s costs as agreed or assessed.”

2. In her ‘Statement of Reasons for Decision’, at paragraph 26, the Arbitrator found Mr Ahmed “did a considerable amount of overtime and that following his injury he had periods of hours to days off work”. She accepted that “in 2001 his average earnings were $736.19 per week as contended by the Respondent”. With regard to Mr Ahmed’s incapacity, the Arbitrator said, at paragraph 27:

   “The medical evidence is not greatly helpful – the MAC [Medical Assessment Certificate] gives no assistance other than that Mr Ahmed has a 10% permanent impairment to his back attributable to his work injury and 15% overall.”

3. The Arbitrator then discussed the medical evidence and stated that Mr Ahmed could probably “within the foreseeable future be able to undertake work with restrictions and that it would probably be beneficial that he return to the workforce”. She said:

   “28. I was able to observe Mr Ahmed’s mobility and ability to sit for approximately 3 hours during conference – his ability to move around and sit appeared limited and far greater than might be expected with a 15% permanent impairment of the back. However, his demeanour was consistent with my experience of persons with chronic pain.”

4. The Arbitrator summarised the resolution of the issues in dispute as follows:

   “• On 26 November 2001, Gulfam Ahmed received an injury to his back arising out of or in the course of his employment as a process worker with Transfield Constructions Pty Ltd.
   • Mr Ahmed was partially incapacitated for work as a result of his injuries from 21 December 2001 until 22 June 2004, at which time he became totally incapacitated.
   • Mr Ahmed’s probable weekly earnings but for the injury, had he continued to be employed in the same or some comparable employment, are $763.19 per week with increments since December 2001.
   • During Mr Ahmed’s period of partial incapacity for work from 21.12.01 to 22 June 2004, the average weekly amount he would have been able to earn in some suitable employment was $200 per week.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are, first, whether the Arbitrator erred by finding Mr Ahmed’s probable weekly earnings, but for the injury, in the same or comparable employment were $763.19, and by finding Mr Ahmed had an ability to earn $200 per week in suitable employment, and, second, whether the Arbitrator erred by finding Mr Ahmed became totally incapacitated for work on 22 June 2004 in circumstances giving rise to a liability to Transfield. Transfield submits that the Arbitrator failed to give any or adequate reasons for her findings. The submissions of the parties are discussed more fully below.

ON THE PAPERS REVIEW

1. 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.”

2. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Transfield submits that while, generally, the appeal can be considered ‘on the papers’, it may be appropriate for there to be a hearing. Mr Ahmed’s solicitors submit that the matter can be determined ‘on the papers’. Having considered these submissions, 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.

3. Neither party sought to adduce fresh evidence.

LEAVE

1. 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 Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), according to Transfield, the amount of compensation at issue is $28,567.80 and comprises 20% of the amount awarded by the Arbitrator. Mr Ahmed’s solicitors submit the Arbitrator’s determination contained a typographical error and that the probable weekly earnings stated to be $763.19 should have read $736.19. They submit the consequence of this is to reduce the amount of payments in dispute made pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) to $3,510.00 in respect of the period 21 December 2001 to 22 June 2004. I note, however, that this does not take into account the continuing nature of the payments beyond 22 June 2004. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS

1. With regard to the first ground of appeal, Transfield submits there was no evidence to support the Arbitrator’s finding that Mr Ahmed could, but for the injury, have continued to earn his past average weekly earnings, and would have been able to get a similar job allowing him to do as much overtime as he could, enabling him to earn $736.19 per week. The Arbitrator failed to give reasons for so finding or for finding why Mr Ahmed had an ability to earn $200 per week in some suitable employment. She failed to consider the provisions of section 43A of the 1987 Act. Contrary to the Arbitrator’s statement of reasons at paragraph 23, where she stated the Respondent submitted the “worker could earn at least $100 per week from the time he [Mr Ahmed] was injured”, Transfield contends it submitted Mr Ahmed “could earn at least $20,000 per annum or $400 per week”.

2. Mr Ahmed’s solicitors submit the Arbitrator’s preference for using Mr Ahmed’s pre-injury earnings “to represent the true probables” rather than the award rate, was an entirely appropriate finding. It was open to the Arbitrator to find Mr Ahmed’s ability to earn in the period of partial incapacity was $200 per week. It was not necessary for her to refer exhaustively to section 43A. She made reference to competing medical opinions in relation to Mr Ahmed’s incapacity, to English not being his first language, to no rehabilitation having been provided to him throughout the period of incapacity, and to his demeanour in conference being consistent with a person experiencing chronic pain.

3. With regard to the second ground of appeal, Transfield submits there was no evidence to support the Arbitrator’s finding that, on 22 June 2004, Mr Ahmed ceased to be partially incapacitated for work and became totally incapacitated as a result of the worsening of chronic pain syndrome and depression. The Arbitrator “went beyond the available evidence and apparently formed an opinion based on her own observations”. [‘Statement of Reasons’ at paragraph 28, quoted in paragraph 8, above.]

4. Mr Ahmed’s solicitors submit the Arbitrator relied on the evidence of Dr Wan in his report dated 3 May 2003, together with her own observations in the conference.

5. In summary, Transfield submits:

   “It is the failure of the Arbitrator to give any or adequate reasons for the findings of probable weekly earnings, ability to earn in suitable employment, failure to exercise discretion and transition from partial to total incapacity that gives rise to this appeal.”

6. Mr Ahmed’s solicitors submit the Arbitrator made appropriate findings of fact based upon available evidence.

DISCUSSION

1. Mr Ahmed has provided two statements: a statement date stamped 3 February 2003 and a supplementary statement dated 22 June 2004. Mr Ahmed’s medical evidence comprises a report from his general practitioner, Dr Vincent Chin, dated 13 October 2002, reports from his treating Orthopaedic Surgeon, Dr Alexander Woo, reports from Dr Khalid Qidwai, Surgeon, dated 4 February 2003 and 13 July 2004, and a report from Dr Tai Tak Wan, Consultant Physician in Rehabilitation Medicine, dated 3 May 2003. Transfield’s medical evidence comprises a report from Dr T Mastroianni, Occupational Physician, dated 11 February 2003. There is also a report dated 26 November 2001 of an x-ray and a CT scan of Mr Ahmed’s lumbar spine, and a report of a MRI of his lumbar spine dated 2 September 2002, together with various WorkCover Certificates, including a Certificate issued by Dr Qidwai on 23 June 2004, stating Mr Ahmed is unfit to work from 22 June 2004 to 10 July 2004. Finally, there is the Medical Assessment Certificate issued by Dr Meakin on 19 August 2003. Dr Meakin assesses the degree of permanent impairment attributable to the injury but makes no comment on Mr Ahmed’s capacity for work, about which he was not asked to comment. Both parties also provided evidence in relation to Mr Ahmed’s earnings.

2. The Arbitrator found the substantive issue to be decided was the appropriate weekly compensation that Mr Ahmed should receive. In relation to the appeal, there seems to be no dispute that Mr Ahmed was partially incapacitated for work from 21 December 2001. At issue is his correct entitlement to weekly compensation. However, Transfield also disputes the Arbitrator’s finding that Mr Ahmed became totally incapaciated for work on 22 June 2004 as a result of the worsening of chronic pain syndrome and depression.

3. With regard to the first ground of appeal and the determination of Mr Ahmed’s probable weekly earnings had he not been injured, the facts are complicated by the fact that Mr Ahmed was made redundant on Transfield’s sale of its Corrosion Protection Division. His former employment with Transfield no longer exists. However, the Arbitrator took the view that Mr Ahmed would have been able to obtain similar employment undertaking as much overtime as he could. She accepted that “in 2001 his average earnings were $736.19 per week as contended by the Respondent” (Statement of Reasons at paragraph 26.) The figure calculated by Transfield and shown in the Respondent’s Schedule of Earnings for Mr Ahmed, was, in fact, for the period 1 July 2001 to 21 December 2001, excluding redundancy pay, and was stated to be $763.19 per week.

1. The Arbitrator concluded that Mr Ahmed’s “probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, are $763.19 per week with increments since December 2001” (Statement of Reasons at paragraph 30). Transfield submits there is no evidence to support a finding that Mr Ahmed would have been able to obtain similar employment enabling him to undertake as much overtime as he could, and to earn similar average wages.

2. In NSW Harness Racing Club v Forrest (1995) 12 NSWCCR 217, the Court of Appeal held that in estimating probable weekly earnings but for the injury, the court will ordinarily have regard to what the worker would have earned in his/her employment at the time of injury. In my view, in the absence of other evidence, it was reasonable for the Arbitrator to rely on Mr Ahmed’s average pre-injury earnings as calculated by Transfield, and she made no error of law by so doing. However, the Arbitrator appears to have made an error, possibly a typographical one, by alternating between $736.19 and $763.19 in her Statement of Reasons. It is not clear from her Statement of Reasons or from an examination of the transcript of the arbitration hearing what effect this may have had, if any, on the outcome.

3. According to the Arbitrator, Mr Ahmed did not contend he was totally incapacitated for work for the whole of the period from 21 December 2001. This is consistent with most of the medical evidence which suggests he has a permanent partial incapacity: for example, Dr Qidwai in his reports dated 4 February 2003 and 13 July 2004; Dr Wan, in his report dated 3 May 2003. The Arbitrator made an award under section 40 of the 1987 Act in respect to the period from 21 December 2001 to 22 June 2004. It is not clear on what basis the Arbitrator found Mr Ahmed had a capacity to earn $200 per week in suitable employment during this period. She appears to have mistaken Transfield’s submission on his earning capacity, believing Transfield submitted that Mr Ahmed could earn at least $100 per week from the time he was injured. However, Transfield contends, and an examination of the transcript of the arbitration hearing at page 3 confirms, that it submitted Mr Ahmed could earn at least $400 per week in suitable employment on the open labour market.

4. In my view, the Arbitrator made an error of law by finding Mr Ahmed had a capacity to earn $200 per week in suitable employment without giving adequate reasons for so finding. I note Rule 73 of the Workers Compensation Rules 2003 requires that a statement of reasons is to include “(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based”. Clearly, in this instance the Arbitrator did not do so. I also note that the Arbitrator made no reference to the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 for determining an award under section 40 of the 1987 Act.

5. With regard to the second ground of appeal, the Arbitrator appears to have based her finding that Mr Ahmed was totally incapacitated for work from 22 June 2004, on the WorkCover Certificate issued by Dr Qidwai, dated 23 June 2004, certifying that Mr Ahmed was totally unfit for work from 22 June 2004 to 10 July 2004. In the Certificate, Dr Qidwai diagnosed “Disc injury D11/12” and stated that Mr Ahmed’s employment was a substantial contributing factor to this injury. I note, however, that in his report dated 13 July 2004, Dr Qidwai, who had reviewed Mr Ahmed on the previous day, while stating that Mr Ahmed “is not currently working, as he is not able to continue with the physical activity … [which] precipitates pain”, stated that “Mr Ahmed’s condition has remained unchanged for the past several months”. Dr Qidwai did not say that Mr Ahmed was totally unfit for work. He said “Mr Ahmed will experience a permanent partial disability”.

1. The Arbitrator also commented on her observation of Mr Ahmed during the course of the three hour conference/hearing:

   “his ability to move around and sit appeared limited and far greater than might be expected with a 15% permanent impairment of the back. However, his demeanour was consistent with my experience of persons with chronic pain.”

2. The Arbitrator had previously referred to Dr Wan’s opinion (3 May 2003) that:

   “the clinical features were consistent with Chronic Pain Syndrome involving neck and low back, most likely secondary to work-related injury on 26 November 2001. The nature of his duties which involved heavy lifting for long hours also contributed to the injury.”

1. Transfield submits the Arbitrator went beyond the available evidence and formed an opinion based on her own observations. In my view, the Arbitrator appears to have placed some reliance on her observation of Mr Ahmed’s demeanour and the conclusions she drew from that observation when considered in the context of Dr Wan’s opinion. To the extent that she did rely on her observations as clinical evidence, she made an error of law. While some findings made by a decision-maker may be within the general knowledge and everyday experience of such a person (as in J & H Timbers Pty Ltd v Nelson (1971-1972) 126 CLR 625 at 633 (Barwick CJ)), in my view the Arbitrator was not qualified to draw clinical conclusions from her observation of what she perceived to be the symptoms of a disease and place reliance on such conclusions as evidence in making a finding of fact. Thus, to the extent the Arbitrator relied on her own observations in making a finding, she thereby made an error of law.

2. Transfield submits there was no evidence to support a finding that Mr Ahmed became totally incapacitiated for work from 22 June 2004 because of worsening chronic pain syndrome and depression. The Arbitrator said (Statement of Reasons at paragraph 27):

“The medical certificates show that he was fit for limited duties from the time of his injury until he left work but the most recent ones state that he is totally unfit. I take this to mean that during his period of unemployment his chronic pain syndrome and depression have probably got worse ...”

1. Dr Wan, in his report dated 3 May 2003, referred to it being likely that Mr Ahmed would continue to suffer pain and impairment. Dr Qidwai, in his report dated 13 July 2004, stated that when Mr Ahmed was reviewed on 12 July 2004, his “symptoms were getting worse than before and radiation of pain into his legs is more pronounced and interferes with his day to day living”. Thus, there is some evidence to support the Arbitrator’s finding in terms of the worsening of Mr Ahmed’s condition but not to support her finding that he is totally unfit for work, at least as far as the period from 11 July 2004 is concerned. Again, in my view, the Arbitrator made an error of law by failing to cite sufficient relevant evidence to support her finding in relation to total incapacity.

1. The Arbitrator ordered that Transfield pay Mr Ahmed interest on the weekly compensation payable since 21 December 2001. However, there is no indication from the file documents that Mr Ahmed claimed interest and the Arbitrator fails to give any reasons for exercising her discretion under section 109 of the 1998 Act.

2. The errors of law and the general inadequacy of the Arbitrator’s reasons in relation to the award of weekly compensation to Mr Ahmed require that the part of the Arbitrator’s decision dealing with weekly compensation (the first three paragraphs) should be revoked and Mr Ahmed’s claim for weekly compensation benefits, including whether interest should be paid, be remitted to a different Arbitrator to be redetermined in accordance with the law.

DECISION

1. The first three paragraphs of the decision of the Arbitrator dated 12 August 2004 dealing with the payment of weekly compensation to Mr Ahmed are revoked and that part of the decision is remitted to an Arbitrator to be redetermined in accordance with the law. The decision is otherwise confirmed.

COSTS

1. No order is made as to the costs of this appeal.

Robin Handley

Acting Deputy President  

17 August 2005

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.

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