Trinity Grammar School v Raiciuciu
[2006] NSWWCCPD 348
•18 December 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Trinity Grammar School v Raiciuciu [2006] NSWWCCPD 348
APPELLANT: Trinity Grammar School
RESPONDENT: Llaisa Raiciuciu
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC6020-05
DATE OF ARBITRATOR’S DECISION: 9 September 2005
DATE OF APPEAL DECISION: 18 December 2006
SUBJECT MATTER OF DECISION: Sections 40 and 52A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Robert Harrington
HEARING:On the Papers
REPRESENTATION: Appellant: Vardanega Roberts Solicitors
Respondent: Beilby Poulkden Costello Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 6 September 2005 is confirmed.
The Appellant pay the Respondent’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 7 October 2005 Trinity Grammar School (‘Trinity Grammar’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 September 2005.
The Respondent to the Appeal is llaisa Raiciuciu (‘Mr Raiciuciu’).
Mr Raiciuciu is 48 years of age. Mr Raiciuciu commenced employment with Trinity Grammar on 12 January 1989. He was employed as a gardener his duties included lawn mowing, pruning, cleaning and general maintenance of the school grounds.
On 17 January 2001 Mr Raiciuciu injured his back whilst lifting a heavy bag of grass clippings. Mr Raiciuciu claimed compensation from Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’), Trinity Grammar’s workers compensation insurer. Liability was accepted, Mr Raiciuciu was paid weekly compensation payments up until the 18 October 2004.
On 11 September 2002 an agreement was reached between Trinity Grammar and Mr Raiciuciu whereby Mr Raiciuciu received $9,000 in respect of 15 % permanent impairment of his back, $3750 in respect of 5% loss of efficient use of his left leg at or above the knee and $12,250 in respect of pain and suffering under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Allianz reduced Mr Raiciuciu’s workers compensation payments to $27.74 gross per week as from 29 November 2004.The reduction was based on a ‘section 40 assessment’ conducted by Recovre Pty Ltd.
On 25 Febrruary 2005 Allianz gave notice to Mr Raiciuciu that they would cease paying his weekly compensation payments because he had not complied, in their opinion, with his obligations to seek suitable duties under section 52A of the 1987 Act. Allianz asserted that Mr Raiciuciu was, at the time that they gave him notice, partially incapacitated and not seeking suiatable employment.
Mr Raiciuciu disputed both the reduction of his weekly compensation payments under section 40 and the cancellation of his weekly payments of compensation pursuant to section 52A of the 1987 Act.
Mr Raiciuciu on 22 April 2005 filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission. Mr Raiciuciu claimed weekly compensation payments at the rate of $490.16 gross per week from the 21 November 2004 to 1 February 2005 and $650 gross per week from 2 February 2005 to date and continuing. Mr Raiciuciu claimed that his entitlement to weekly compensation resulted from his injury on 17 January 2001.
Mr Raiciuciu’s claim was heard before a Commission Arbitrator on the 5 August 2005. The Arbitrator’s ‘Statement of Reasons for Decision’ (‘the Arbitrator’s decision’) was delivered on 9 September 2005. Mr Raiciuciu was successful in his claim and it is in respect of this decision, that Trinity Grammar seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 September 2005 records the Arbitrator’s orders as follows:
·That the Respondent pay the Applicant weekly compensation at the rate of $301.26 from 21/11/04 to 2/2/05 under section 40 of the Workers Compensation Act 1987.
·That the Respondent pay the Applicant weekly compensation at the rate of $328.90 from 3/2/05 to 31/3/05 under section 40 of the Workers Compensation Act 1987.
·That the Respondent pay the Applicant weekly compensation at the rate of $334.10 from 1/4/05 to 8/9/05 under section 40 of the Workers Compensation Act 1987.
·Such weekly payments to continue in accordance with the provisions of the Act.
ISSUES IN DISPUTE
Trinity Grammar’s solicitors submissions contained 12 grounds of appeal the grounds can be distilled into four broad areas of dispute:
·Lack of procedural fairness by the Arbitrator in failing to allow cross-examination or an adjournment to call evidence in respect of allegation that Mr Raiciuciu was intoxicated when attending job seeking interviews.
·The Arbitrator erred in her interpretation and her application of section 52A of the 1987 Act to the established facts.
·The Arbitrator failed to properly apply section 40 of the 1987 Act.
·The Arbitrator failed to give sufficient reasons.
ON THE PAPERS REVIEW
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.”
Trinity Grammar’s legal advisers have submitted that they should be given the opportunity to put forward oral submissions. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by Mr Raiciuciu’s legal advisers that the appeal can proceed to be determined on the basis of these documents; the fact that I have before me, very detailed written submissions from Trinity Grammar’s legal advisers and in addition to these submissions I have the transcript of submissions of Mr Roberts of Counsel (who appeared on behalf of Trinity Grammar before the Arbitrator) 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.
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 amount of compensation that is at issue in this matter exceeds $5,000 such that section 352(2)(a) is satisfied. Section 352(2)(b) is satisfied as the entire award is subject of the appeal.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
EVIDENCE AND SUBMISSIONS RELATING TO THE ISSUE OF PROCEDURAL FAIRNESS
In the course of the hearing before the Commission Arbitrator, Counsel for Trinity Grammar asked Mr Raiciuciu the following question:
“Mr Raiciuciu do you drink alcohol at all?”
The question was objected to by Mr Raiciuciu’s solicitor and thereafter there was a lengthy interchange between the Commission Arbitrator, counsel for Trinity Grammar, and Mr Raiciuciu's solicitor. Ultimately the Commission Arbitrator rejected the question. The exchange between the Commission Arbitrator and the legal representatives of the parties is somewhat disjointed, repetitive and difficult to follow as the parties tended to talk over each other. I will not, in this decision, reproduce the transcript of the interchange as I believe, a summary will allow a better understanding of the issues. The essence of the interchange is as follows
·Counsel for Trinity Grammar had been given instructions by a claims manager employed by Allianz that Mr Raiciuciu had “ in addition to not turning up to these job seeking …when he did turn up he was drunk”;
·Counsel for Trinity Grammar asserted that this information had been provided to the claims manager via an employee of the rehabilitation provider Kairros Pty Limited. Kairros was the rehabilitation company providing services to Mr Raiciuciu at the relevant time;
·Counsel for Trinity Grammar had only been given the information relating to Mr Raiciuciu’s alleged intoxication on the day of the arbitration hearing, and
·Counsel for Trinity Grammar was not in a position to call, nor did he intend to call, any evidence in respect of this allegation. He said at page 8 of the transcript (quotations from the transcript are transcribed verbatim)
“ Well how does this is not…if he refutes, if he denies it, that should be the end of it. I can’t prove the contrary and the commission will fall into appellable to find that he was drunk. If however, he admits it how could my calling evidence change the fact? If he admits it? It is a very simple issue. It is highly probative, potentially highly prejudicial (?) To the worker that is what cross-examination is all about. I don’t see how there is any prejudice…”
The Commission Arbitrator rejected the question asked by Trinity Grammar’s counsel. The Counsel for Trinity Grammar then made an application for an adjournment so as to allow Trinity Grammar to place before the Commission Arbitrator evidence in respect of the allegation made against Mr Raiciuciu as to his intoxication The Arbitrator’s reasons for rejecting the question, and the application for adjournment is disclosed in the transcript at pages 8 and 9:
ArbitratorWell I agree. I think if you want to put something that was –and I agree it would be prejudicial, I think your client should put the evidence on…
After some further discussion the following exchange occurred:
Arbitrator Right well, I am going to refuse your application.
Roberts Then I make an application for adjournment.
Arbitrator On what basis?
RobertsOn the basis that I want to get a statement from the person that told me this and then we can come again and have the issue ventilate…all…invent whatever story he wants to…It is not going to serve justice to the respondent by refusing to allow this material to be put to him, and it is not going to prejudice the worker.
Arbitrator What is it going to show any way?
RobertsIf somebody came to me asking for a job, and they were drunk don’t think they were seriously seeking that job and that’s the issue in this case. He turns up drunk for job interviews. How could he possibly be genuinely seeking employment?
Arbitrator Are Kaiross the employer?
RobertsKaiross is a person who arranges job interviews. If you read their report, that is exactly what they did. Job application program… if he turns up drunk at job interviews, what does that say about his…
Arbitrator There is no evidence and you are seeking for an application-
RobertsI have just told you the evidence. I have told you where it comes from. There is a note on a file.
Arbitrator …turn up drunk for job interviews.
RobertsPresumably, they get feedback from the prospective employer, I don’t know.
Arbitrator It is all proposition and presumption.
RobertsIt is not supposition and presumption at all there is a note on the file from Kaiross stating this fact that records as record of what they told the insurer. It is not supposition at all. No one has dreamed it up.
Arbitrator The proposition that he turned up drunk to job interviews-
RobertsThe worst thing that you could say about it is that it is hearsay. That is the worst thing that you could say about it. It is only supposition if it is just wrong. It is not supposition. It is what they were told. I have made an application for an adjournment.
GarlingAny evidence that the client…should have been put on… …in the form of an application… …apply to these issues, they haven’t mentioned… …
ArbitratorWell I agree with that submission. I refuse your application for the adjournment. I understand that this is information that they have had for quite some time and a could have put it on if they want to
Trinity Grammar’s legal representatives on appeal submits that they were denied procedural fairness by the Commission Arbitrator. Trinity Grammar submits that the Arbitrator fell into error in failing to allow the cross-examination and/or an adjournment. Trinity Grammar required the adjournment in order to comply with the requirements of the Commission that all evidence (evidence as to intoxication) upon which a party wishes to rely should be filed prior to the arbitration hearing.
DISCUSSION AND FINDINGS
Procedural fairness
The right to cross-examine in the Commission was considered by the Court of Appeal in Aluminium Louvres & Ceilings v Zheng [2006] NSWCA 34 (‘Zheng’). In upholding the decision of Fleming DP, Bryson JA (who delivered the judgment of the court) said:
“37. An assessment of whether the Arbitrator's decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.”
The legislation and practice which the Commission follows had been adverted to by Fleming DP in Aluminium Louvres & Ceilings v Zheng [2004] NSWWCCPD 26 the Deputy President considered the relevant guidelines at paragraph 30 of the judgment
“30. The determination of what is procedurally fair will be a matter for the Arbitrator in the circumstances of the particular case. It must not be made arbitrarily, or without regard to the requirements of the 1998 Act and the Rules. To guide and assist Arbitrators, parties and legal practitioners in the conduct of Commission proceedings, the President of the Commission has issued a ‘Guideline for the Practice of Conciliation/Arbitration’ (‘the Guideline’), which is published on the Commission’s internet site and is widely available in hard copy. This Guideline is expressly based on the following principles:
• The Commission is part of a broader statutory scheme for dealing with workers compensation issues and claims in a way which is timely, fair and affordable (ss 3 & 367 of the 1998 Act).
• All of the information to be used in the dispute resolution process is to be provided and exchanged at the beginning (s 290 of the 1998 Act & Rules 38, 40, 42 & 44). Key information will already be in existence, having been used to support prior resolution attempts between the parties (Parts 2 & 3 of Chapter 7 of the 1998 Act).
• Agreement between the parties is to be encouraged and facilitated at each and every stage of the process (s 355 of the 1998 Act, Rule 71(d)).
• The Commission will take all practicable measures to ensure that parties understand the nature of the application, the legal implications of any assertions made in the proceedings, the procedure of the Commission and any decision or ruling made (Rule 71(a) & (b)).
• Arbitrators are required to play an inquisitorial role in resolving disputes. Therefore, traditional adversarial processes are absent or heavily modified and those remaining must be exercised in the context of the Commission’s objectives (s 354 of the 1998 Act).
• Parties are entitled to procedural fairness consistent with the inherently inquisitorial character of the process and the objectives of the Commission (ss 367(1)(a) & (2) of the 1998 Act, Rules 70 & 71(c)). Timeliness and consistency of procedure are strong elements of fairness in this method of dispute resolution.
• The dispute resolution process will be as informal and free of legal technicality as is possible (s 354 of the 1998 Act).
• The focus is at all times on the parties to the dispute. Legal representatives and agents play a role in supporting parties with information and advice, and in assisting the dispute resolution process (ss 367 & 356 of the 1998 Act, Standards of Conduct During Proceedings).
• Evidence used as a basis for any final arbitral decision-making will usually be in documentary form. There will be limited opportunity for oral evidence to be given (Rules 66 & 67).
• The Act requires that the same Arbitrator who is to determine a dispute will first use his or her best endeavours to bring the parties to a settlement that is acceptable to the parties (section 355 of the 1998 Act).”
The Commission Arbitrator’s decision not to allow the question of drunkenness to be put in cross-examination was based on the failure by Trinity Grammar to provide and exchange information on which they wished to rely at the beginning of the dispute resolution process. I am of the opinion that an examination of the facts and circumstances which were before the Arbitrator leads to the conclusion that the Arbitrator’s decision to reject the question pertaining to intoxication was reasonable and did not amount to a reviewable error. I am of that view for the following reasons.
1. Trinity Grammar concedes, contrary to the Commission guidelines, that prior to the arbitration hearing they had not provided evidence pertaining to the allegation that Mr Raiciuciu was intoxicated when he attended a rehabilitation provider.
2. Trinity Grammar’s counsel when asked by the Arbitrator to give particulars of the evidence that he intended to rely upon or the matters that he wished to put to Mr Raiciuciu candidly informed the Arbitrator that the information was based on hearsay, and I infer from the interchange between Counsel for Trinity Grammar and the Arbitrator, lacked precision. No details were given, by Trinity Grammar’s counsel concerning, for example; how many occasions Mr Raiciuciu had been allegedly intoxicated when attending the rehabilitation programme, who had observed him to be intoxicated, to what extent he was intoxicated and the basis upon which the person who observed had him formed the assessment that he was intoxicated.
3. Before the Commissioner Arbitrator were three rehabilitation reports and reports from six doctors who had examined Mr Raiciuciu since his injury. The only doctor who made any comment in respect of excessive alcohol intake was Dr Chase. The doctor noted:
“Identified a number of psychosocial factors that argue against a good outcome in this case, not least his social isolation and evidence of alcohol abuse. These will need to be addressed, but I suspect he will be resistant to exploration and counselling.”
The doctor noted his work history of 13 years with Trinity Grammar School and that he had nil relevant past medical history, he further noted that he drinks alcohol only on ‘special occasions’. Other doctors who have treated Mr Raiciuciu have noted that Mr Raiciuciu suffers from ‘a degree of functional overlay’. There is a reasonable inference to be drawn that if Mr Raiciuciu has an alcohol problem that it has been either caused or exacerbated by his serious work injury. If Trinity Grammar complied with their obligations to exchange information prior to the arbitration hearing these issues could have been dealt with by Mr Raiciuciu’s legal advisers by obtaining further medical reports or further lay evidence to address the allegation of intoxication. If Mr Raiciuciu does have an alcohol problem, which has been caused or exacerbated by his work injury and the circumstances he finds himself in as a result of the work injury, then appropriate rehabilitation would be to firstly deal with the alcohol problem. These issues could have been dealt with by Mr Raiciuciu legal advisers, if they had been given notice of the allegation prior to the arbitration hearing.
4.Dr Chase’s history of excessive alcohol use would not have alerted, in my opinion, Mr Raiciuciu’s legal advisers to the specific allegations of intoxication whilst attending rehabilitation. In any event, there was nothing in the particulars provided by Trinity Grammar’s counsel as to the allegation of intoxication, which would be contrary to Mr Raiciuciu’s assertion to Dr Chase that he drank alcohol on special occasions which may result in him, on occasions, presenting in the morning with the effects of alcohol.
5.A significant alcohol problem that would interfere with Mr Raiciuciu’s ability to obtain work or remain in the workforce is inconsistent with his 13 years employment with Trinity Grammar.
6.Additional or fresh evidence can be adduced on appeal before a Presidential Member. No attempt has been made by Trinity Grammar to place before me the additional material that they wished to cross-examine Mr Raiciuciu on or alternatively rely upon as evidence.
7.Even if Trinity Grammar did establish that on occasions, Mr Raiciuciu was affected by alcohol whilst attending rehabilitation I am of the opinion that the overwhelming evidence, which I will refer to more fully below, establishes that at the relevant time Mr Raiciuciu was fulfilling his obligations to seek ‘suitable employment’ under the 1987 Act.
The issues that I have addressed above go equally to the issue of the adjournment by Trinity Grammar to adduce additional evidence of Mr Raiciuciu’s alleged ‘alcohol abuse.’ It follows therefore that my conclusion is that there was no such denial of procedural fairness in both the rejection of the question relating to alcohol use in cross-examination and the rejection of Trinity Grammar’s application for an adjournment to adduce additional evidence to substantiate the allegation.
Section 52A of the 1987 Act
Trinity Grammar’s second ground of appeal is in respect of the Arbitrator’s application of section 52A of the1987 Act.
The relevant statutory framework consists of Section 52A and the related Sections; s38A and s43A of the 1987 Act:
Section 52A Discontinuation of weekly payments for partial incapacity after 2 years
(1) Weekly payments of compensation in respect of partial incapacity for work are not payable for any period beyond the first 104 weeks of partial incapacity for work (whether or not any part of that period is compensated as if the incapacity for work was total) but only if one or more of the following paragraphs (referred to in this section as grounds for discontinuation) applies to the worker at the relevant time:
(a) The worker is not suitably employed (within the meaning of section 43A) and is not seeking suitable employment (as determined in accordance with section 38A),
(b) The worker is not suitably employed (within the meaning of section 43A) and has previously unreasonably rejected suitable employment (within the meaning of section 40 (2B)),
(c) The worker has sought suitable employment but has failed to obtain suitable employment primarily because of the state of the labour market (rather than because of the effects of the worker’s injury).
(2) The relevant time for the purposes of this section is the time at which the notice under section 52A of intention to discontinue payment of compensation pursuant to this section is given. The discontinuation of payments under this section has effect even if, after the relevant time, none of the grounds for discontinuation applies to the worker.
(3) A worker is not entitled to a resumption of payment of weekly compensation for partial incapacity for work once payment is discontinued because of this section.
(4) The notice under section 54 of intention to discontinue payment of compensation pursuant to this section must be given. The notice can be given up to 6 weeks before the end of the 104 week period for which the worker has received or is entitled to receive weekly payments of compensation but cannot be given earlier than that.
(5) The fact that the worker becomes totally incapacitated for work after the relevant time does not affect the operation of this section in respect of partial incapacity for work.
(6) This section does not affect any entitlement to compensation under this Act in respect of any period of total incapacity for work.
(7) A period of partial incapacity for work does not count as part of the 104 weeks referred to in subsection (1) unless the worker received or was entitled to receive compensation for that period. Separate periods during which the worker received or was entitled to receive those payments are to be aggregated.
(8) If:
(a) A claim for weekly payments of compensation is made by a worker after the earliest time at which a notice under section 54 to discontinue payment of compensation can be given under this section, or
(b) Proceedings before the Commission involve a claim for weekly payments of compensation in respect of any period of incapacity for work that includes any period beyond the end of the 104 week period,
The notice under section 54 may (but need not) be given before payments are discontinued. If the notice is not given, the relevant time for the purposes of this section is the time at which payments are discontinued.
(9) This section does not apply to compensation for an injury received by a person as a worker employed in or about a mine to which the Coal Mining Regulation Act 1982 applies.
38A Determination of whether worker seeking suitable employmentSection
(1) Application. This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).
(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:
(a) The worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) The worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer and
(d) The worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person. The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.
Such a notice:
(a) Must be given in writing by the insurer or self insurer concerned, and
(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and
(c) May set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and
(d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self insurers, and
(e) Does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer
(4) Notice not applicable when proceedings pending etc. If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:
(a) A notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and
(b) Particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment. A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:
(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court orders. An order of the Commission relating to the weekly payment of compensation:
(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and
(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7) Definitions. In this section:
employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.
rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation service or treatment provided by way of rehabilitation.
suitable employment means suitable employment within the meaning of section 43A.
Section 43A suitable employment
(1) For the purposes of sections 38, 38A and 40:
suitable employment, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:(a) the nature of the worker’s incapacity and pre-injury employment,
(b) the worker’s age, education, skills and work experience,
(c) the worker’s place of residence,
(d) the details given in the medical certificate supplied by the worker,
(e) the provisions of any injury management plan for the worker,
(f) any suitable employment for which the worker has received rehabilitation training,
(g) the length of time the worker has been seeking suitable employment,
(h) any other relevant circumstances.
(2) In the case of employment provided by the worker’s employer, suitable employment includes:
(a) employment in respect of which:
(i) the number of hours each day or week that the worker performs work, or
(ii) the range of duties the worker performs,
is suitably increased in stages (in accordance with a rehabilitation plan or return-to-work plan or otherwise), and(b) if the employer does not provide employment involving the performance of work duties—suitable training of a vocationally useful kind provided:
(i) by the employer at the workplace or elsewhere, or
(ii) by any other person or body under arrangements made with the employer,
but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends the training concerned.
(3) However, in any such case, suitable employment does not include:
(a) employment that is merely of a token nature and does not involve useful work having regard to the employer’s trade or business, or
(b) employment that is demeaning in nature, having regard to subsection (1) (a) and (b) and to the worker’s other employment prospects.
(4) A worker is to be regarded as suitably employed if:
(a) the worker’s employer provides the worker with, or the worker obtain, suitable employment, or
(b) the worker has been reinstated to the worker’s former employment under Part 7 of Chapter 2 of the Industrial Relations Act 1996
Trinity Grammar submitted before the Arbitrator and on appeal that the ‘relevant time’ for the purpose of section 52A was a period commencing on or about 1 February 2005 which corresponds with a letter from Allianz to Mr Raiciuciu of the same day. Trinity Grammar further submitted before the Arbitrator and on appeal that at the relevant time, which includes a period both before and after 1 February 2005, Mr Raiciuciu was not looking for suitable employment.
The Arbitrator’s Statement of Reasons contained the following statement in respect of the issue pertaining to section 52A [paragraph 44]:
“ In relation to s52A, weekly payments are not payable beyond 104 weeks of partial incapacity only if one of the grounds set out in that section apply to the worker at the relevant time. It was not seriously disputed that the relevant time was on and around the 25/2/05.
The Arbitrator at paragraph 45, in respect of the section 52A defence, continued:
“The ground relied upon was section 52A(1)(a), that the worker was not suitably employed and not seeking suitable employment. It is clear from the evidence before me, particularly the documents from work directions, that at the relevant time the Applicant was seeking work. I find that the Applicant was seeking suitable work at the relevant time, therefore, the ground set out in section 52A(1)(a) does not apply and weekly compensation payments continue to be payable.
Trinity Grammar’s submissions relied on the letter of 1 February 2005 from Allianz to Mr Raiciuciu as complying with the requirements to give notice under section 52A. An examination of that letter discloses that its contents are similar in nature to letters dated 23 December 2003, 19 February 2004, 18 October 2004, 16 November 2004 and 19 November 2004, that is, letters advising Mr Raiciuciu of his obligations under the Workers Compensation Act. It was not a letter giving notice under section 52A.
It was not until the letter of 25 February 2005, as the Arbitrator found, that notice was given to Mr Raiciuciu under section 52A. It would seem to me therefore, that the Arbitrator was correct in her assessment that the ‘relevant time’ under section 52A was on or about 25/2/05. At the ‘relevant time’, under section 52A, Mr Raiciuciu’s evidence was that he was seeking suitable employment and this evidence was corroborated by the documents produced by WorkDirections Australia. Mr Raiciuciu’s evidence was that he had sought assistance from WorkDirections Australia Campsie in an attempt to obtain suitable employment rather than Kairros Pty Ltd. The reason Mr Raiciuciu had changed his rehabilitation provider was that he had to travel 45 minutes to attend Kairros, whereas WorkDirections were closer to his home. This would seem a sensible course of action for a person seeking suitable light duties as an employment agency closer to his home is likely to be able to assist in obtaining employment within a reasonable distance from his place of abode, as opposed to an employment agency some 45 minutes travelling time from his place of abode.
It follows therefore that I reject Trinity Grammar’s submission that the Arbitrator erred in her determination that the ‘relevant time’ for an assessment of the 52A defence was ‘on and around 25/2/05’and that at the ‘relevant time’ Mr Raiciuciu was seeking suitable employment.
If I am wrong, as to the “ relevant time” being “ around the time of notice, 25/2/05” as found by the Arbitrator, it then becomes necessary to determine “suitable employment” in the circumstances of this case in order to determine whether Mr Raiciuciu was or was not seeking suitable employment at the ‘relevant time’.
Section 43A of 1987 Act provides a number of criteria for the assessment of suitable employment. The uncontested facts before the Commission Arbitrator establish the following matters pertaining to the assessment of what should be considered suitable employment for Mr Raiciuciu:
·Mr Raiciuciu has no formal qualifications for employment, he was born in Fiji, worked on his family farm and as a gardener at a hotel in Fiji before migrating to Australia in 1988;
.
·Mr Raiciuciu commenced employment with Trinity Grammar as a gardener on 17 January 1989. He remained in this employ up until his accident on 17 January 2001. Mr Raiciuciu has no work skills, other than in respect of labouring type occupations;
·Mr Raiciuciu is fluent in the Fijian language; however, his English language verbal skills and comprehension were described as: “however his accent is distinguishable and at times, he appears to struggle to understand the interview clear conversation.” This assessment was contained in the ‘section 40 assessment’ compiled by Messes Kesby and Mansfield;
·His employer of 12 years is unable to provide him with suitable duties, all medical providers considered him unfit for pre- injury occupation;
·As a result of his injury Mr Raiciuciu has sustained significant structural damage to his back. Dr J. Govind (pain medicine) opined the following in respect of his injuries:
“ Injury-Chronic low back pain, presumably due to 2-level internal disc disruption (L 4/5, L5 /S1) and probably a small contributing from the zygapophyseal joint.”;
·Dr Robert Chase (occupational physician) who again examined Mr Raiciuciu on behalf of Allianz was of the view that he was fit for work consisting of light duties for 4 hours per day, four days per week;
·In addition to Mr Raiciuciu’s physical problems, he has according to his treating general practitioner, developed a “functional overlay”;
·Mr Raiciuciu has now been out of the workforce for five years, and despite the attempts of the rehabilitation providers; Recovre, Combrook, Kairros and finally Work Directions Australia, he has not been able to be retrained nor have suitable duties been found for him, and
·Mr Raiciuciu has now been seeking suitable employment, at least on an intermittent basis, for five years.
The above analysis establishes, in my opinion, that there is very limited work opportunity for Mr Raiciuciu. In his injured state he is close to unemployable. It follows therefore that reasonable steps to find suitable employment for a worker who is close to unemployable because of his injuries are not onerous. Providing Mr Raiciuciu remains registered for suitable employment and continues, from time to time, to seek suitable employment, as he has done in the past, I believe he would comply with his reasonable obligation under section 52A. I am therefore of the opinion that at all times, since he has been certified partially fit for work, Mr Raiciuciu has attempted reasonably to obtain suitable employment, particularly having regard to the fact that Trinity Grammar has been unable to provide him with suitable work notwithstanding his 12 years of service. Certainly a holiday in Fiji or returning to Fiji to attend a relative’s funeral during an overall period where he was seeking suitable employment would not be a basis to deny him compensation under section 52A of the 1987 Act. Injured workers like any member of the workforce are entitled to holidays and reasonable breaks from their obligation to seek suitable employment.
Further it is clear that some of the information provided by the rehabilitation provider to Mr Raiciuciuis was not only misleading but could have had a detrimental effect on an injured workers motivation to obtain suitable duties. In a letter from Kuni Thkeshima (B Psych (Hons) UNSW) a Recovre Rehabilitation Consultant of 16 February 2004 to Mr Raiciuciu, Mr Raiciuciu is directed as follows:
“You are required to find 10 – 15 job leads per week and record them in your job seeking diary. These job leads can be found from any source, whether it be word of mouth, newspaper, Internet or directories. Please fax me this job seeking diary every Friday. Once again I must advise that failure to comply with this task may result in the cessation of your weekly compensation payments”
Mr Thkeshima’s requirements of Mr Raiciuciu in the letter of 16 February 2004 are not only misleading but are contrary to the spirit of the Workers Compensation legislation to genuinely rehabilitate injured workers so as to allow them to return to suitable employment.
My conclusion is therefore that there was no error by the Arbitrator in her determination that Trinity Grammar had not made out its defence, under section 52A of the 1987 Act
Section 40 Assessment
The Arbitrator findings in relation to her award of weekly payments are set out in paragraphs 46 to 56 of the reasons for decision. The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) confirmed the five stage assessment process in order to determine entitlement to weekly compensation under section 40 of the 1987 Act. The Arbitrator carried out the appropriate assessment required under section 40 in accordance with the guidance provided in Mitchell other than clearly identify and giving reasons in respect of the fourth stage, that is ‘the exercise of discretion’ under section 40. The reason that the Arbitrator did not address the discretionary elements of section 40 may be because Trinity Grammar’s counsel in submissions before the Arbitrator did not suggest that there were relevant matters which would lead to the exercise of her discretion to reduce the mathematical difference between the workers ability to earn uninjured and his ability to earn in some suitable employment.
On appeal, Trinity Grammar has submitted, that the Arbitrator “failed to exercise her discretion to find the respondent had a greater capacity to earn in suitable employment on a full time basis with restrictions, consistent with the evidence of the section 40 assessment relied on by the appellant and the medical evidence of the treating doctor, Dr Yousuff prior to his asserted change of view in March 2005”. These matters are matters which should be taken into account (and were taken into account by the Arbitrator) in determining the second stage of a section 40 assessment. Trinity Grammar on appeal further submitted that Mr Raiciuciu was not genuinely looking for suitable employment. Trinity Grammar submits that in the exercise of her discretion the Arbitrator should have reduced the award of weekly compensation because of Mr Raiciuciu’s failure to genuinely seek suitable duties. Trinity Grammar’s submissions echo the approach taken by the trial judge in Mitchell, this approach was rejected by the Court of Appeal. The Court of Appeal said in rejecting the trial Judge’s approach in respect of the exercise of the discretion under section 40 as follows:
“The appellant argues that the finding that the appellant had made no attempt to find work of a clerical and managerial type” was foreign to the matters capable of being taken into account in the exercise of the power to adjust the resultant calculation when the judge steps back and considers whether it bears “such relation to the amount of that reduction as may appear proper in the circumstances of the case” (s40 (1)). The function to be served by this discretionary phase has been discussed in a number of cases. In Australian Iron & Steel Pty Ltd v Elliot (1966) 67 SR(NSW) 87 it was held that the fact that the worker was prohibited by law from working in or about a coalmine, even if he had not been injured, was a circumstance to be taken into consideration in determining the amount to be awarded. The discretion is a broad one and it is proper to refrain from endeavouring to define its outer limits. Nevertheless it may be possible to identify a situation where a discretion has miscarried because of reference to an extraneous factor: see R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49. In our view this can be done here, not only because the reasoning discloses a punitive element, but because self-induced diminution of earning capacity lies squarely within the exercise required to be carried out at what we have identified as the second stage. The matters to which Egan AJ referred go directly to the "worker's ability to earn in the general labour market reasonably accessible to the worker" and are therefore required (by s40(3)(a)) to be taken into account in the s40(2)(b) exercise. In consequence, there can be no justification for taking them into account in the additional discretionary phase. In our view this further attack is made good.”
Trinity Grammar has not before the Arbitrator or on appeal, identified any appropriate factors which would justify the exercise of discretion to reduce the weekly payments of compensation under section 40 of the 1987 Act. Trinity Grammar’s attack on the Arbitrator’s section 40 award must therefore fail.
Inadequate Reasons
Trinity Grammar on appeal submits that the Arbitrator erred in that the Arbitrator failed to provide adequate reasons in respect of her determination of the issues between the parties under section 52A and section 40 the 1987 Act. The question of what is required by a Commission Arbitrator in order to comply with the need to give adequate reasons was considered by Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Stanford [2002] NSWWCCPD 6 (‘Stanford’). At paragraph 45 Deputy President said:
“The Commission is not a court and its objectives are to provide a dispute resolution process that is fair and cost effective for the parties to a workers compensation dispute. Proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. The content of statements of reasons for decision reflect this process and should not on review, be “construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). This is not to say that decisions should not be soundly based nor that the reasons should not be capable of conveying clearly the matters required by Rule 41 (set out above). As Kirby J observed in relation to a decision of the Refugee Review Tribunal in Liang, the decision-maker’s reasons will remain the ‘only insight into the considerations which were, or were not, taken into account in reaching the decision’ (at 291).”
Consistent with the decision in Stanford I am of the opinion that the Arbitrator’s reasons were adequate. The Arbitrator’s reasons, in my opinion, clearly disclosed the reasoning process underpinning her decisions in respect of the various issues between the parties.
Section 57(1) of the 1998 Act
The Commission is not a tribunal of strict pleadings. The section 57 issue would seem to have been raised by the solicitor for Mr Raiciuciu during his final address; prior to this point in time this issue did not seem to be part of Trinity Grammar’s case. Section 57 (1) allows an insurer in certain circumstances to suspend the payments of weekly compensation payments to an injured worker.
Section 57 is as follows:
57 Compliance by worker
(1) If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).
(2) a worker’s entitlement to weekly payments does not cease under this section until the insurer has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action the insurer considers the worker must take to be entitled to the presumption of weekly payments.
(3) The resumption of weekly payments does not entitle the worker to weekly payments for the period in respect of which the worker had no entitlement to weekly payments.
At no stage prior to the Arbitration hearing had Trinity Grammar given notice to Mr Raiciuciu of their intention pursuant to section 57 of the 1998 Act that they intended to suspend Mr Raiciuciu’s weekly compensation payments. Trinity Grammar having failed to give the appropriate notice under section 57 was not entitled to suspend Mr Raiciuciu. The Arbitrator’s decision in respect of section 57 was therefore in my opinion correct. Trinity Grammar, in order to rely on section 57, would need to establish that the service being performed by Kairros Pty Ltd in early 2005 were a bona fides ‘injury management plan’ within the meaning of section 43 of the 1988 Act. I have some doubts in the circumstances of this case that the Kairros program amounted to an injury management plan, however it is unnecessary to make a determination in respect of this issue, given that the appropriate notice was not given to Mr Raiciuciu by Allianz.
DECISION
The decision of the Arbitrator dated 9 September 2005 is confirmed.
COSTS
The Appellant (Trinity Grammar) to pay the Respondent (Mr Raiciuciu) costs of the appeal.
Robert Harrington
Acting Deputy President
18 December 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBERT HARRINGTON, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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