Tweed Shire Council v Marriott - [2007] NSWWCCPD 102

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision confirmed on Appeal: Tweed Shire Council v Garrie Marriott* [2008] NSWCA 166**
CITATION:		Tweed Shire Council v Marriott [2007] NSWWCCPD 102
APPELLANT:		Tweed Shire Council
RESPONDENT:		Garrie Marriott
INSURER:		StateCover Mutual Limited
FILE NUMBER:		WCC21272-05
DATE OF ARBITRATOR’S DECISION:		27 April 2006
DATE OF APPEAL HEARING:		10 April 2007
DATE OF APPEAL DECISION:		1 May 2007
SUBJECT MATTER OF DECISION:		Weekly payments; section 40 of the Workers Compensation Act 1987; evidence; incapacity; conclusiveness of a Medical Assessment Certificate
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		Oral
REPRESENTATION:		Appellant:	Bartier Perry, Solicitors
Respondent:	White Barnes, Solicitors
ORDERS MADE ON APPEAL:		The decision of the Arbitrator, dated 27 April 2006, is revoked and the following decision is made in its place:
“1. The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the Workers Compensation Act 1987 at the rate of $484.60 per week from 5 November 2005 to 25 January 2006 and is to pay compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $236.00 per week from 26 January 2006 to date and continuing.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.
3. I certify that this matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that it involved complex issues which required the matter to go straight to arbitration.”
Each party to the appeal is to bear his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Garrie Marriott (‘the worker’) was employed by Tweed Shire Council (‘the employer’). In the course of his work as a reticulation ganger, on 27 March 2001 he injured his left shoulder and on 10 July 2003 he suffered an injury to his back and right leg. In respect of the earlier injury the worker was paid compensation including a sum under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) representing 10 % permanent loss of use of the left arm at or above the elbow. In respect of the second injury the worker ceased work on 11 July 2003 returning to work on 15 June 2004 on a restricted duties basis. On 14 September 2004 his employment was terminated.
There were prior proceedings in relation to the later injury, 17581-04, in the Workers Compensation Commission (‘the Commission’) which were determined by the agreement of the parties on 1 February 2005 in which the employer agreed to pay weekly compensation at the rate of $50.00 per week from 15 September 2004 to 26 January 2005. The claim for permanent impairment benefits was referred for assessment by an Approved Medical Specialist (‘AMS’). The Certificate of Determination in respect of those proceedings also noted that StateCover Mutual Limited (‘StateCover’), the workers compensation insurer of the employer, agreed to make voluntary payments of weekly compensation pursuant to section 38 of the 1987 Act from 27 January 2005. Those payments of weekly compensation continued until 4 November 2005 when they ceased pursuant to a letter from StateCover dated 22 September 2005.
The AMS found there was a whole person impairment on account of injury to the worker’s lumbosacral spine of 11% from which there was no deduction pursuant to section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). An amount of $14,000.00 was paid in respect of the whole person impairment found by the AMS together with the sum of $10,000.00 pursuant to section 67 in respect of pain and suffering.
Upon weekly payments of compensation ceasing, the worker saw his solicitor who lodged an Application to Resolve a Dispute with the Commission. Weekly payments of compensation were claimed from 22 September 2005 at the rate of $467.50 per week. Two dependent children were claimed, namely a son and daughter aged at that time 16 and 12 respectively. The injuries of 27 March 2001 and 10 July 2003 were relied on in the Application although the earlier injury was later abandoned since there was a different workers compensation insurer at that time which had not been named in the proceedings.
The proceedings were referred to a Commission Arbitrator, who in a determination of 27 April 2006 found in favour of the worker. It is against that determination that the employer now seeks leave to appeal by ‘Application to Appeal Against Decision of an Arbitrator’ lodged on 23 May 2006.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 27 April 2006 records the Arbitrator’s orders as follows:
“1.The Respondent is to pay the Applicant weekly benefits compensation pursuant to sections 38 and 40 of the 1987 Act at the maximum statutory rate for a worker with two dependent children, as adjusted, from 4 November 2005 to date and continuing. From 1 October 2005 until 31 March 2006 that weekly rate was $484.60 and from 1 April 2006 until 30 September 2006 that rate was $494.50 per week.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify that the matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that it involved complex issues which required the matter to go straight to arbitration.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
·failing to admit Dr Dearnley’s report of 30 March 2006 into evidence and refusing to allow him to give evidence;
·giving the AMS’s assessment of whole person impairment excessive weight;
·finding incapacity in relation to the worker’s back and failing to find incapacity in relation to the injury to the worker’s left arm;
·finding the worker to be a witness of truth;
·failing to give adequate and proper reasons as to why the worker was not capable of performing other duties in which he could earn the same or more than his probable earnings.

ON THE PAPERS REVIEW

Section 354(6) of 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.”
In this matter I considered that it was necessary to hear from the parties as to certain matters which were not addressed in written submissions. Accordingly there was a telephone conference on 10 April 2007 at which further submissions were made.

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 employer appeals against the whole of the award for weekly compensation which, to the date of lodging the appeal, amounted to approximately $12,000. Thus the amount at issue on the appeal is more than $5,000.00 and the whole of that amount is at issue. Section 352(2) of the 1998 Act is accordingly satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.

EVIDENCE

There are four statements from the worker in evidence. The first of these is dated 23 June 2004. In this the worker said that he began employment with the employer as a casual labourer in June 1992. He set out the circumstances of injury to his left arm on 27 March 2001 in respect of which he was referred by his general practitioner to an orthopaedic surgeon, Dr Stabler, who performed an operation on the worker’s left shoulder on 18 February 2002. He said that as a result he had some problems with his left arm in that it was weaker than it was before and he had pain and discomfort in cold weather.
The worker then related the events of the injury of 10 July 2003. He was doing some very heavy physical work trying to undo couplings on pipes. He and another employee had been working for about 15 to 20 minutes. He said that after ceasing work he got into his car and felt a “peculiar and strange sensation” develop in his right arm, back and right leg. He consulted his general practitioner, Dr Dearnley, the next day. On 15 June 2004 he had returned to work on a restricted duty basis. He had seen orthopaedic surgeons, Drs Tong and Ryan. He had also seen Drs Ashwell and Robinson on behalf of StateCover. He said he had pain and discomfort in his right arm and both legs with the right being more affected than the left. He said that the pain in his back was “centred around the middle of the back”. His movements were restricted as well as his social, domestic and recreational pursuits. He said back pain was “largely also aggravated by activities such as bending and lifting” which he tried to avoid.
In his second statement on 29 September 2004 the worker said that he had continued doing a variety of jobs, mainly clerical work, cleaning and the like. He had been told in late August that the employer could not continue to provide that sort of work and eventually his employment was terminated by letter of 14 September 2004. He said that apart from problems with his left arm and back he had a hernia which he believed developed as a result of lifting weights in a gymnasium to which he was sent for rehabilitation following his left arm injury. He recalled that in about July 2001 he was in the gymnasium doing weights for the arm and shortly afterwards he developed abdominal discomfort for which he consulted his doctor, Dr Smith, who referred him to a Dr White. He had not made a claim in respect of the hernia which was to be repaired on 5 October 2004. His back condition was largely the same; he had restriction of movement and pain and discomfort, together with pain in both left and right legs; his left arm was still the source of ongoing problems for him with weakness and restriction of movement.
In his third statement of 7 November 2005 the worker stated that payments had been made pursuant to section 38 up to 4 November 2005. He had been to an occupational assessment by a doctor who examined him for a maximum of five minutes. He had lined up a taxi driving job but this had proved unsuitable as he found that sitting, bending, getting in and out of the car and lifting material from the boot were too much for his back. Dr Dearnley had certified him as being totally unfit for work until at least 21 December 2005. He said he was having a lot of trouble with his back and both legs, particularly his right leg, and seemed to suffer from loss of power in both legs. He had to lie down quite often during the course of the day to get relief from pain. He also said that his bowel and bladder function had been affected by his back problems which caused him considerable distress. He could not sit or stand for lengthy periods of time and bending and twisting caused severe back pain. He had registered with Centrelink and was attempting to obtain suitable work but thought that his back condition and his legs were preventing him from doing a large amount of work that would otherwise be available to him.
The most recent statement from the worker was dated 23 January 2006. Dr Dearnley had continued to certify him totally unfit up to 21 February 2006 and his certificates had been forwarded to StateCover. He said his current problems related to back pain, pain in the right leg, pain in the right hip, interference with bowel and bladder function and problems associated with a separate injury to his left arm. He said he had done no work since termination of his employment in September 2004. He had an interest in businesses known as “Sleepies” and “Focus on Futons” with his brothers from which he had some income. He did not carry out any work in the businesses but received some income from rental of the property concerned. As to his fitness to carry out restricted duties he said that he could not sit or stand for any length of time and if he did anything physical he had to lie down afterwards for a rest. His back symptoms flared up immediately he started being active and it became very painful to the point he would have to cease after a short time. Jobs which involved standing or sitting for lengthy periods of time he said would not be acceptable, nor would jobs requiring him to bend, twist or lift. He said he could only work in some sedentary type role which enabled him to get up and move around and lie down and rest from time to time.
The worker gave evidence before the Arbitrator on 5 April 2006. In that evidence he commented on videotape of his performing work on the roof of the building in which the businesses to which the worker referred in his statement of 23 January 2006 were conducted. He said he was not paid for any work which he did to the building. He said that he had made attempts to obtain employment and had had three responses to 30 or 40 applications for employment.
In cross-examination the worker said he had been a reticulation ganger since 1994 and he agreed with a duties description which was attached to the Reply lodged on behalf of the employer. He did however say that when he applied for the job in 1994 the duties were a little different then. He described the duties which a reticulation ganger did, namely repairing water leaks, broken water mains the diameters of which ranged from four inches to two feet, sewer repair and unblocking sewer mains. He summarised his duties as keeping the water flowing through to the community. The work was said to be heavy, involving a lot of lifting and bending, however, he could get others in to help sometimes. He agreed that he had made statements about the continuing problems with his left arm. The worker gave evidence that Dr Dearnley had been providing him with certificates saying that he was unfit for employment from about May 2005. It was suggested that the only reason the doctor was providing those certificates was that the worker was telling him he could not work. The worker agreed with the quotation from his statement of 23 January 2006 that his back symptoms would flare up immediately when he started doing anything active and become very painful to the point where he would have to cease after a short time. He was then cross-examined about the surveillance videotape in which he was shown repairing a fence which he said took about one and a half hours or so, perhaps less. [I will deal with the substance of the surveillance reports and the videotapes in due course]. The worker was also cross-examined about his activity on 14 July 2005 when he worked on the roof of the building to which I have referred. He admitted that the video showed him working on this occasion for perhaps two hours, although he had originally estimated the time as one and a quarter hours or less. He said that in relation to the property he would clean a drain or would tidy up a garden bed if required.
The worker was then cross-examined about the rehabilitation course which had been organised by the employer in relation to taxi driving. In particular he was asked about what he had told a rehabilitation consultant named Kirsten Black on 12 July 2005, namely that he had reduced his activity as he was experiencing numbness in his legs down to his toes, including pins and needles. The significance of this was that this was only two days before the worker was observed doing work on the roof of the building on 14 July 2005. The worker explained this by saying that employment would involve eight or nine hours work a day and he could not get a job where he only had to work for two hours a day. He denied that he would be able to work eight hours a day doing the work which he was shown doing on the video on 14 July 2005.
In re-examination the worker said that the work that he was shown doing on the video was only light work whereas the work he had to do as a reticulation ganger was sometimes heavy and required him to work from 7 a.m. to 4 p.m. on the basis of a nine-day fortnight. He said that after the work on the roof he would probably have had a shower and “laid down”. He said that after the work he had done on that day his back was “aching a bit”.
Attached to the Application to Resolve a Dispute is a Medical Assessment Certificate (‘MAC’) of the AMS, Dr James Rowe, which is undated. Dr Rowe obtained a history that the worker’s services had been terminated upon his presenting a certificate in respect of inguinal hernias. That doctor’s summary of injuries and diagnosis was as follows:
“This man has suffered acute low back pain and possibly has suffered disc derangement at L4-5, in spite of the CT and MRI scan reports, and this could be affecting the L5 nerve root on the left side. He has evidence of radiculopathy in the left leg and this includes wasting of the left calf, a change in sensation about the left great toe and limited straight leg raise on the left.”
There is a certificate of Dr Dearnley dated 20 September 2005 in which he certified the worker unfit for work on 21 September to 21 October 2005. The diagnosis was lower back strain and the management plan was “chiropractic recommended”.
Dr Black, whose specialty is not stated, saw the worker at the request of his solicitors on 7 July 2004 (report 13 July 2004). He obtained a history of injury to the worker’s left shoulder in March 2001 when he was off work for five months. On 10 July 2003, after 20 minutes of strenuous work, the worker said he developed weakness in his right arm, right hip and leg and attended Dr Dearnley within a few days. He had some physiotherapy and a CT scan of his spine. He ceased work that day and on 15 June 2004 he began a graded return to work on restricted duties, despite aching in his low back and pain and aching in his right leg as far as the ankle and weakness in that leg. The worker said he sometimes had pain in his right leg but no significant weakness. He had some weakness in the right arm and some weakness with movement about the left shoulder. In relation to his return to work he was not able to lift anything heavier than 10 kilograms and the worker said he was very careful with what he did. He did not go bodysurfing or fishing but did exercise in water. He walked one to three kilometres per day and drove to and from work. The worker said he had little difficulty using his left arm but it tired quickly with sustained elevation. Dr Black reviewed radiological investigations which showed the appearance of a fracture at the corner of L5. An MRI of 25 June 2004 was reported as showing mild disc protrusion at the left L1/2 level not causing significant compression of the thecal sac. In relation to the possible fracture at L5, the radiologist reported “The ossific fragment noted anteriorally to the superior L5 vertebral end plate is consistent with a normal accessory ossification centre and no oedema is noted at this site”.
Dr Black concluded that the basis for weakness in his right arm was not clear and there was no radiological evidence of a lumbar disc protrusion. The lesion noted at L5 he thought was developmental anomaly and not a fracture. He thought that the worker could have developed fibroligamentous and muscular back strain on 10 July 2003, together with disruption of the lower lumbar facet joints causing back pain which could radiate into the buttocks, groins and thigh. Dr Black thought the worker had a 20% permanent loss of efficient use of his left upper limb at or above the elbow as a result of the injury in March 2001. He did not, however, think that any impairment rating could be given in relation to the worker’s right upper limb symptoms. So far as the back is concerned he thought that this represented 8% permanent impairment of the whole person (AMA 5, page 384-Table 15/3).

The doctor considered that the worker had a significant medical impairment of his left shoulder and would be disadvantaged in any work calling for full and efficient use of that shoulder. On account of his back condition the doctor thought he should avoid heavy lifting, repeated bending and rotational stress of his spine. He thought it was appropriate that the worker had begun his graded return to work. He thought, however, that maximal medical improvement had been achieved.
Dr Black saw the worker again on 14 December 2005 (report 19 December 2005). He obtained a history that towards the end of July 2004 after doing a water service the worker developed pain in his left groin. He ceased work and attended his doctor, being diagnosed as having a left inguinal hernia. Surgical repair of this was done in October 2004. He was then off work for about three months however his employment was terminated on 15 September 2004 and he had not worked since. The worker continued to consult his treating doctor, Dr Dearnley, and took Panadol tablets for pain. He complained of weakness in his left shoulder and difficulty with prolonged outstretching of the left arm. He had difficulty lifting items beyond waist level with his left hand. Back pain had persisted and was of varying degree, worse with prolonged standing, heavy lifting and repeated bending. It often interfered with his sleep and in order to prevent this he took Panadol tablets before going to bed. It still radiated to his right hip and thigh. The worker thought that his back and right leg symptoms were worse than they were before he developed a hernia and he did not think he could resume the graded return to work he was trying to achieve until the hernia. Dr Black saw no further radiological investigations other than those to which he had referred in the earlier report.
Dr Black thought it was not unreasonable that there would have been an addition of some further degenerative changes in the worker’s lower spine as a result of which his symptoms could be worse then than they were when he last saw him. Dr Black did not think the worker was fit for his previous type of employment but would be fit for light alternative work taking into account the residual partial weakness to his left shoulder and his low back pain which was worse with many activities calling for full and efficient use of the back. Dr Black thought that the worker should undergo a Functional Capacity Evaluation followed by Vocational Assessment.
A Wages Schedule filed on behalf of the worker alleged that comparable earnings from 1 July 2004 to 14 September 2004 - $668.98; from 14 September 2004 to 30 June 2005 - $825.00; and from 30 June 2005 to date – $836.00. The worker’s classification was said to be “Reticulation Operator – Job Grade 4.2”.
Attached to the employer’s Reply are a substantial number of documents. StateCover wrote to the worker on 22 September 2005 advising that it would not pay weekly compensation beyond 4 November 2005. This decision was pursuant to section 40 of the 1987 Act on the basis that the worker’s capacity to earn in suitable employment was equal to or greater than his pre-injury earnings. StateCover also relied upon a report of Dr Robin Mitchell.
On 30 September and 23 November 2005 the worker’s solicitors wrote to StateCover requesting that it reconsider its decision to cease payments of weekly compensation having regard to the certificates of the worker’s general practitioner, Dr Dearnley. StateCover declined to do so.
Four radiological reports were also attached to the Reply. The first three are under the hand of Dr Hellwege. The earliest dated 30 July 2003 reported on a lumbar spine X-ray and CT scan. The X-ray was said to show a fracture of the anterior superior corner of the L5 vertebral body. There was mild spondylosis, the disc spaces were preserved and no abnormality was seen in the facet joints. The CT scan was said to show minimal evidence of spodylosis at L2/3 with no significant degenerative change in the disc or facet joints. There was no disc protrusion or neural compression. At L3/4 there was no evidence of significant degenerative change in the disc or facet joints and there was no disc protrusion or compression of the neural structures in the central canal or foramina. At L4/5 there was evidence of a fracture of the anterosuperior aspect of the L5 vertebral body. There was no evidence of degenerative change in the disc and only minor degenerative change in the facet joints. At this level there was similarly no evidence of posterior disc protrusion and no narrowing of the central canal or foramina. At L5/S1 there was no evidence of degenerative change in the disc or facet joint or disc protrusion. The radiologist suggested bone densitometry in view of bone density appearing generally reduced.
The same radiologist reported on bone densitometry tests on 18 August 2003. The scans were said to show less bone than normal.
Dr Hellwege reported on a CT scan of the lumbar spine on 29 October 2003. This was a follow-up of the presumed fracture of L5. He thought this may represent a fracture or possibly a developmental appearance. There was no vertebral abnormality seen and no evidence of disc protrusion at L4/5.
Dr Frawley reported on 25 June 2004 on an MRI of the worker’s spine. His impression was as follows:
“Mild focal disc protrusion noted at the L1/2 level. This not causing significant compression of the thecal sac. No other focal disc abnormality is evident. Minimal vertebral and plate degenerative changes are noted. The ossific fragment noted anterior to the superior L5 vertebral end plate is consistent with a normal accessory ossification centre and no oedema is noted at this site.”
Dr Dearnley replied to StateCover’s request for a report of 23 January 2004, although his report is not dated. He said that he had referred the worker to Dr Ryan, an orthopaedic spinal surgeon, for a second opinion. The doctor commented on the CT appearance of a possible fracture and also noted the bone densitometry report. He thought the history was clear that the worker did not have any pre-existing back pain before the work incident and that pain was not resolving. The combination of factors pointed against a simple strain which usually settled over some weeks. He was not aware of any social or psychological factors which would tend to delay resolution of symptoms. He said he had discussed the proposed Return to Work Program with the worker, however the worker told him that the level of ongoing pain which he was experiencing was such that he would reasonably be unable to do even the light duties specified. He had continuous pain which was easily exacerbated and he was often confined to bed for that reason. The doctor said he had no reason to doubt his statements.
On 2 December 2003 the worker saw an orthopaedic surgeon, Dr Tong, on referral from Dr Dearnley. The presenting complaint was of low back pain and leg pain, with the right being worse than the left. He gave a consistent history of developing pain in his right forearm and right leg associated with some back pain in July 2003. The pain was said to be present constantly and was exacerbated by certain activities. His pain was worst sitting and he was best lying flat. Walking long distances tended to aggravate his pain although he had no limit to his exercise tolerance. The worker said he was able to perform his activities of daily living but had been on workers compensation. He was not able to play sports such as indoor cricket, touch etc. The doctor noted some mild wasting of the left calf. The doctor reviewed the X-rays which he thought revealed a limbus vertebra with some disc herniations into the end plates consistent with Scheuermann’s disease. He also thought there was a lateral disc prolapse at L3/4 on the left side and possibly at L4/5 whereas the pain was mostly right-sided and not particularly in the L3 dermatome. The doctor thought that the worker’s pain was due to degenerative disc disease with associated facet joint arthritis. The facet joint arthritis was causing the majority of the worker’s pain and the worker was referred for hydrocortisone and local anaesthetic injection into his L4/5 and L5/S1 facet joints. The injection of the left L4/5 facet joint caused exacerbation of pain and accordingly no further injections were done. The doctor noted that the worker’s employment had involved significant physical work with a large degree of bending and working in a bent position. These activities he thought generally increased the degeneration of the spine. He thought the incident of July 2003 had exacerbated his degenerative disc disease which in turn had flowed on to exacerbate his facet joint arthritis.
Dr Tong however thought that it would be beneficial for the worker to return to the workplace on a suitable duties program. This would have him performing light duties at a desk job however he would need to alternate sitting and standing and may need to return to a suitable duties program for restricted hours also. He thought that rehabilitation would be of assistance in returning the worker to employment. The doctor concluded that degenerative disc disease with associated facet joint arthritis was a permanent condition however the levels of pain would fluctuate. He thought that Scheuermann’s disease, which was not work-related, would pre-dispose the worker to degenerative disc disease and facet arthritis. He said the worker should try to take analgesics and anti-inflammatories to relieve his pain and should also undergo a general fitness and back strengthening programs.
Dr Ashwell, an orthopaedic surgeon, saw the worker at the request of StateCover on 15 September 2003. Dr Ashwell considered that the worker had an exacerbation of pre-existing degenerative change in his lumbo-sacral spine. He thought that the suggestion of a fracture of L5 was an old finding. The worker was unfit for his pre-injury duties but he would be able to return to normal work within a month. Rehabilitation and gradual return to work could be commenced immediately.
Dr Ashwell saw the worker again on 8 December 2003. At that time he had before him four reports of Interact Injury Management and the report of Dr Dearnley of 15 August 2003. On this occasion the worker told the doctor that he had recovered from his right arm symptoms but still had ongoing low back pain with radiation to both legs. In October that year he had a sneezing episode which had caused increased lower back pain. Overall his symptoms had not changed much and may even have been slightly worse. He had seen Dr Tong on 2 December 2003 and subsequently had an epidural injection to his lumbar spine the preceding Friday. He said that the injection did improve some of the ache in his legs but he had some other symptoms in his back from the injection site. There were no light duties available at work and his employer was looking for lighter work for him. He had a doctor’s certificate to remain off work until 10 January 2004. He told the doctor he could sit or stand for about 30 minutes before being required to rest and avoided going up and down slopes. He had not tried to lift and could go up and down stairs and ladders but with some difficulty. Dr Ashwell discussed the worker with Dr Dearnley who agreed that the worker would be suitable for office duties and light outside work providing there was no heavy lifting. Dr Dearnley considered that the worker was still reasonably disabled and the worker had some concerns about his ability to work. The worker’s supervisor, Mr Geoff Huffey, had advised Dr Ashwell that a barrier to the worker’s return to work was the issue of certificates stating that he was unfit for work. The case manager, Julene Boyd, told Dr Ashwell that he may need to be re-trained as there was not much light work available. Dr Ashwell thought that the worker was fit for the duties outlined in the Interact Injury Management report of 4 November 2003 and was fit for office work and light outside work lifting less than 15 kilograms weight. Puzzlingly, Dr Ashwell also thought that he should be able to return to his pre-injury duties. Dr Ashwell considered that the worker was in less discomfort than he appeared and he was quite active and able to cope with the majority of his activities.
Dr Ashwell saw the worker again on 8 March 2004. He had at that time a surveillance report of 16 January 2004, together with another report of Dr Dearnley dated 23 January 2004. The worker also had a certificate from his local doctor [? Dr Dearnley] who had certified him unfit for work. The worker did not think he could do the light duties indicated in the Interact Injury Management report of 4 November 2003. The worker told Dr Ashwell that he could drive his motor vehicle over a short distance only. He had to stop 3 to 4 times while travelling from Tweed Heads to Lismore which took approximately one hour. Dr Ashwell in conclusion noted that he did not have a report of Dr Ryan for review and thought that if an MRI and an MSU did not show significant abnormality and if Dr Ryan’s report was not to the contrary, then there was no reason why the worker could not return to suitable duties immediately.
Dr Ashwell reported again on 20 February 2006. He had viewed a number of surveillance videos which dealt with the worker’s activities on 9, 10 and 11 January 2004 and 7, 8, 11, 12, 13, 14, 17 and 18 July 2005. Dr Ashwell thought that the videos showed clearly that the worker was “well capable” of returning to his pre-injury duties.
Dr Robinson, an orthopaedic surgeon, also saw the worker at the request of StateCover on 24 February 2004. He had seen him previously on 1 April 2003 in relation to his shoulder injury. Dr Robinson thought the worker had subjective problems which were disproportionate to the objective findings. There was a fragment of bone at the lower lumbar region which had the appearance of being old and not related to the current incident. However, it had been aggravated by the injury in question. The doctor thought that the injury had aggravated a pre-existing problem and the aggravation should normally cease within twelve months.
Dr Robinson also saw the videos in question and reported on 24 February 2006. Dr Robinson was of opinion that the worker was able to lift satisfactorily, bend, twist, crouch and perform all activities without any undue difficulty with respect to his spine. The doctor thought that at the time the videos were taken the worker was able to undertake his former activities without undue problem and that he was able to undertake work of a similar nature. This was in contradiction of the claim to the doctor that the worker was unable to undertake any work of any type.
Dr Virginia Pascall, an occupational physician, saw the worker at the request of StateCover on 31 May 2005. At that time the worker was training to be a taxi driver. Dr Dearnley was continuing to provide medical certificates stating that the worker was unfit. The worker said he had become more mobile in the preceding six months since being off work. He still had problems with his left arm and could not lift anything heavy above shoulder height. His right arm had felt weak since the injury of July 2003. He had pins and needles in both arms on occasions. He told the doctor that he had ridden his motor cycle once since the back injury but found the vibration made his back pain worse.
Regarding the worker’s fitness for work, Dr Pascall thought he was capable of undertaking full-time work in appropriate duties. She thought that he would be able to work on a light manufacturing line with the only restriction being his level of pain. She thought he was fully capable of driving a taxi or limousine however he would need to take care in lifting luggage.
A section 40 assessment was done by Dr Robin Mitchell, an occupational health physician on 31 August 2005. Dr Mitchell noted that the worker had completed his School Certificate at age 16 and held a HR truck driving licence. The worker’s employment since leaving school had been that of a labourer or driver. Dr Mitchell thought that the worker was fit for a wide variety of work provided that significantly awkward or arduous loading of the spine was not required. The worker said that he had applied for work in accordance with StateCover’s requirements but had not attended any interviews. The worker himself told Dr Mitchell that he considered he was unfit for work but might consider work in the future. Dr Mitchell considered the most likely areas for the worker to find work would be in light courier or truck driving, working in sales in a hardware store or a landscaping gardening outlet. He was also fit to work as a taxi driver, cleaner, service station attendant or a store person.
There are three reports of Ms Kirsten Black, a psychologist of Interact Injury Management. Ms Black administered a number of occupational tests to the worker. She noted that his motivation to job search was low at that time, however, when he was fit to return to work, there were a number of job options, namely as a console operator, hardware assistant/sales assistant, taxi/limousine driver, car salesman or store person/warehouse dispatch. The worker told her that on 12 July 2005 that he had reduced his activity as he experienced numbness in his legs down to his toes including pins and needles. He was however continuing to attend the gym which he felt was making him stronger. Ms Black reported again on 12 August 2005. The worker’s chiropractor was spoken to and advised that the exercise program which the worker had undertaken may have set back his progress. The worker had ceased to have chiropractic treatment after the claim was declined by the insurer.
The report of investigators, Crowthers & Associates, dated 16 January 2004 was in evidence. On 9 January 2004 the worker was seen to drive a vehicle from Banora Point to Tweed Heads. On 10 January 2004 the worker was seen to ride a motor cycle up and down his driveway. On 11 January 2004 the worker was observed playing cricket with his son in the driveway of his house. He was observed to bend to pick up the ball from the ground on a number of occasions over a period of minutes.
Further surveillance was carried out by a different firm of investigators, namely Austrace. Its report is dated 27 July 2005. The worker was observed over a period of 14 consecutive days. The worker was seen to attend the family-owned business premises, to which I have earlier referred, on 7 July 2005. On the following day he repaired a fence there. On 14 and 17 July 2005 the worker was seen to work on the roof of the business premises. The most significant video evidence in my view is that of 14 July 2005. At 12.10 p.m. the worker drove to the family business premises with a ladder, arriving there after a drive of approximately eight minutes. He then rested the ladder on the back of the utility and used it to gain access the roof of the building which was flat and apparently of metal construction. The worker was bending and squatting on the roof doing various repairs for a period until 2.43 p.m. when he departed from the premises. The worker did further work on the roof of the building on 17 July 2005 using a ladder as he had on 14 July but for a shorter time.
Subsequent to the Reply, the employer sought to rely on the clinical notes of Dr Dearnley and the worker’s bank statements for the period 12 August to 30 December 2005. There are two accounts both of which show substantial balances. It should be noted that the second account which is referred to as a “Classic Plus Account” is in the names of Stephen Ronald Marriott, Garrie William Marriott, Kay Patricia Marriott and Craig Thomas Marriott. This account has regular monthly deposits in excess of $10,000.00 with a reference to “Sleepys” which I take to be rental payments for the business premises.

The Arbitrator refused to admit a report of Dr Dearnley dated 30 March 2006 addressed to the employer’s solicitors. Similarly the Arbitrator refused to admit a letter from those solicitors to Dr Dearnley dated 24 March 2006 which had sought a report so as to avoid Dr Dearnley having to attend the hearing in Sydney. Since the appeal is in part concerned with the admission of that report and the failure of the Arbitrator to allow Dr Dearnley to give evidence at the arbitration, it is necessary in my view to deal with the contents of that report although it was not, as I have said, admitted in evidence. It is relatively short and I will set it out in full:
“In reply to your letter and three hours of video that you sent me on 24 March 2006:-
1/Mr Marriott appears to be performing actions as described in your enclosed reports
2/Having regard to the video and my own findings, there appears to be an inconsistency between his stated incapacity and the video capacity. The video of 14 July 2005 showed him doing work that was totally inconsistent with what he told me at that period of time.
3/Judging by that video I would not be prepared to certify him as being incapacitated on 22 September 2005
4/The video indicates a lack of credibility of Mr Marriott, and I would not be prepared to certify him as being incapacitated since then.
5/Judging by the video it appears that he would have the fitness to perform the duties of a reticulation officer since 22 September 2005”

THE ARBITRATOR’S DECISION

The Arbitrator correctly stated the issue in dispute was the worker’s entitlement to weekly compensation only. The Arbitrator then referred to her refusal to admit the report of Dr Dearnley or to allow him to give evidence. The reasons for this are not in the statement of reasons but are in the transcript to which it is now necessary to turn. The Arbitrator noted that the report of Dr Dearnley and the letter requesting it were late evidence and there was no written application to admit them. However, the Arbitrator said she was prepared to hear an oral application and also an application for Dr Dearnley to give evidence. The employer submitted that, at a teleconference on 8 March 2006, it had been foreshadowed that the employer would be issuing a summons for Dr Dearnley to give evidence in order to ask him questions about his certificates and the surveillance video. This was done on the assumption the hearing would be taking place in Tweed Heads rather than in Sydney. When it was realised by the employer’s solicitor that the hearing would be in Sydney, it was sought to obtain a report from Dr Dearnley in order that his attendance to give evidence might not be necessary.
The admission of the report of Dr Dearnley was objected to on the basis that it was in breach of the Workers Compensation Commission Rules 2003 (‘the Rules’) It was said there was no reason why Dr Dearnley could not have been shown the video evidence at an earlier stage and a report sought from him. The worker’s solicitor relied on prejudice to his client in only receiving the report of Dr Dearnley on the morning of the arbitration. The prejudice was said to lie in the fact that if the documents had been served earlier, the worker and his solicitor would have had the opportunity to consider the matters in his report. To this the employer submitted that the video evidence had been disclosed since it had been served on the worker’s solicitor. There was no dispute as to that matter. For the employer it was pointed out that Dr Dearnley was the treating general practitioner and the worker always had access to him to discuss the matter with him if it was thought necessary.
The Arbitrator considered that there was no justification for the report from Dr Dearnley not having been brought into existence until 30 March 2006. The Arbitrator did not consider that the report was indispensable to her determination of the issues and she thought that the prejudice caused to the worker by its not being served until the arbitration was too great to justify its being accepted into the proceedings. The Arbitrator noted that the employer relied on rule 71 of the Rules. The relevant part of that rule was as follows:
“The Commission is to take such measures as are reasonably practicable to:
(a)…
(b)…
(c)ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d)…”
The Arbitrator accepted, she said, that the employer’s solicitor was attempting to save the Commission’s time by adopting the course which he had in relation to Dr Dearnley. The Arbitrator then noted that the document in question was not foreshadowed in the Reply. The Arbitrator then referred to rule 40 which dealt with the material to be lodged by the Respondent. This rule is quite long and I will not set it out in full. It may, I think, be fairly summarised as requiring an employer to lodge evidence which is intended to be relied on or a statement as to the intention to rely on evidence, not then available, and the reasons why it was not available. The Commission is given a general discretion for the avoidance of injustice to allow evidence to be admitted which would otherwise be excluded by the operation of the rule. The Arbitrator noted that the report was relevant to the question of incapacity but not essential to her determination. She noted that subsequent reports from Drs Ashwell and Robinson dealt with the video material. She also noted, however, that Dr Dearnley was a treating doctor whose report would have been useful. Nonetheless, the Arbitrator declined to admit that report.
So far as Dr Dearnley’s giving evidence was concerned, the Arbitrator was of opinion that the employer had not complied with rule 66. That rule is also lengthy and again I will not set it out in full. It may, I think, be relevantly summarised as requiring a party who wishes to rely on oral evidence to lodge and serve a document containing the name of that witness and a statement of the evidence to be given, signed by that witness, together with information and documents required under rules 38, 40, 42 and 44. Again there is also a general discretion for the Commission to allow a party to introduce oral evidence for the avoidance of injustice. The Arbitrator took the view that the employer had not complied with rule 66 in that there was no statement outlining the name of the witness and the evidence to be given, which was said to be a prerequisite.
The Arbitrator accepted that the employer’s solicitor had indicated at the teleconference that a summons would be issued for the attendance of Dr Dearnley. The WorkCover certificates of Dr Dearnley, which were in evidence, were said not to be sufficient to meet the provisions of rule 66.
In her reasons for decision the Arbitrator noted that there was no dispute as to certain issues, namely: ‘worker’; injury of 10 July 2003; and that the employer had agreed to pay the worker $14,000.00 in respect of 11% whole person impairment resulting from injury to his back. The Arbitrator also noted that it was agreed that taken as a whole the evidence did not support a claim for total incapacity. The worker accepted that he had some residual capacity for work but not for his pre-injury duties in which he would have been earning $836.00 per week. The employer submitted that the incapacity resulting from injury was minimal and there was some incapacity in relation to the injury to the worker’s left arm which was not relied on in these proceedings. The claimed comparable earnings of $836.00 per week were not disputed nor was the claim that the worker had two dependent children. The Arbitrator was not however satisfied that the worker could earn as much as the agreed probable earnings. She did not think that he was fit for his full pre-injury duties. The Arbitrator accepted the opinion of Dr Black that the worker was not fit for his previous type of employment but would be fit for light alternative work. She thought that the true position, as was indicated in the clinical notes in Dr Dearnley of 9 June 2005, was that the worker could do “moderate physical activities”. The Arbitrator then referred to the conclusions of the AMS that the worker had evidence of radiculopathy in his left leg which, together with the stated impact on his activities of daily living, resulted in an assessment of 11% whole person impairment. The Arbitrator discounted Dr Mitchell’s opinion that the worker had no clinical evidence of having a significant current injury because it did not accord with the findings of the AMS. A similar conclusion was reached in relation to the opinion of Dr Pascall.
The opinions of Drs Ashwell and Robinson were also disregarded for the same reason, although the Arbitrator noted that permanent impairment did not always result in an incapacity for work. The Arbitrator did, however, consider that the worker’s duties involved heavy, manual work. The Arbitrator did not accept the opinions of Drs Ashwell and Robinson as to the worker’s capacity to work after they had viewed the video material as the worker was not shown performing work of a heavy nature. Rather, the Arbitrator characterised this as light maintenance work.
The Arbitrator next dealt with the employer’s submissions regarding the injury to the worker’s left shoulder as contributing to his incapacity for work. The Arbitrator noted that the worker had resumed his full duties despite some weakness in his left arm. Accordingly there was no need to take account of the effects of the earlier injury.
The Arbitrator found that the worker was entitled to be compensated pursuant to section 38 for the balance of the fifty-two week period noting that it was common ground that section 38 payments began on a voluntary basis on 27 January 2005. The Arbitrator then turned to the section 40 exercise in accordance with the decision in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’). The probable earnings if uninjured were found to be $836.00 per week. As to the second step as set out in section 40, the Arbitrator noted that the worker had been seeking employment with Centrelink since November 2005. His own view as to his fitness for work was that he could only do sedentary work for a few hours each day in a situation where he could move around or lie down as needed. The submission on behalf of the worker was that he might be capable of working between 15-20 hours a week which the Arbitrator thought was correct. The finding which the Arbitrator made was that the worker could earn in suitable employment in the labour market reasonably accessible to him the sum of $300.00 per week. The mathematical difference between the two figures was therefore $536.00. The Arbitrator did not consider there was any factor justifying the exercise of discretion to reduce the difference so found. Accordingly there was an award at the maximum statutory rate for a worker with two dependent children, as varied from time to time, being less than $536.00.

SUBMISSIONS, DISCUSSION AND FINDINGS

There are nine grounds of appeal relied on by the employer. In my opinion these may fairly be condensed to five as I have set out at [7]. I will take these in turn, although, ultimately, it may not be necessary to make a decision in relation to all of these grounds.

Dr Dearnley’s Evidence

The point is made by the employer on appeal as it was before the Arbitrator that the opinion of Dr Dearnley carried particular weight because he was the worker’s treating general practitioner, while Drs Ashwell and Robinson were not. The employer relies on Practice Direction No 9 which provides in part:
“In determining an application for leave to lodge late documents, the Arbitrator will take into consideration:
·“the submissions of the parties, including if any, oral or written objections to the grant of leave;
·the effect, if any, on the timely resolution of the dispute;
·the extent of the prejudice to the other parties, if any, that would result from grant of leave;
·the requirements of the Act and the Rules; and
·the objectives of the Commission.”
The employer relies on appeal on the decision of Deputy President Fleming in ADCO Constructions Pty Limited v Kenneth Ferguson [2003] NSWWCCPD 21 (‘ADCO’). That decision of Deputy President Fleming listed factors relevant to the consideration of what was fair and reasonable in deciding whether to admit a Reply which was out of time.
The employer also relies on rule 70 of the Rules which were in force at the time which was as follows:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b)evidence should be relevant to the facts in issue and the issues raised in dispute,
(c)evidence based on speculation or unsubstantiated assumptions is `unacceptable, and
(d)unqualified opinions are unacceptable.”
The point is taken by the employer that the claimed prejudice to the worker did not make sense since the evidence was the opinion of his own general practitioner. Any prejudice to the worker, it is said, could have been addressed in cross-examination of Dr Dearnley if he had been allowed to give evidence. The worker’s solicitor was said to be on notice that Dr Dearnley would be summonsed to give evidence and could have prepared an examination of cross-examination for that doctor.
The employer then relies on the Commission’s paper of October 2005 (‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’) where at page 11 it is said:
“Questioning or cross examination of the witnesses (including parties) will be permitted in very limited circumstances and only if the Arbitrator is of the view that it is necessary to come to a decision. Circumstances where cross-examination may be allowed could include where:
* contradictory evidence requires to be clarified or tested, or
*adverse matters material to the decision should be put to a witness when there has been no previous opportunity for these to be answered.”
It is submitted that the Arbitrator erred in proceeding to determine the matter in the absence of all relevant evidence. This was said to constitute an injustice to the employer. The evidence of Dr Dearnley was also said to be relevant to the Arbitrator’s assessment of the worker’s credit.
The worker says that the appearance of Dr Dearnley at the arbitration was a surprise to him and there was a great deal of medical evidence available to the employer apart from that of Dr Dearnley. There is a lack of clarity as to whether the worker was on notice that Dr Dearnley was being called or not and it is not necessary to decide that question in my view. There was similarly a lack of agreement as to whether the videotapes in question were shown at the arbitration hearing. The transcript does not show this to have been the case, however, it was the recollection of the worker’s solicitor that this was done. In the final result I do not think it is necessary to decide that question either.
It is submitted on behalf of the worker that if I came to the conclusion that Dr Dearnley’s evidence was wrongly excluded, then there should be a re-hearing so that Dr Dearnley might be cross-examined.
As to this matter, I am of opinion that the Arbitrator erred in law in failing to admit the report of Dr Dearnley of 30 March 2006 and in failing to allow him to give evidence. I have come to this conclusion for the following reason. The Arbitrator was required to balance the competing injustice to the employer with the prejudice to the worker the interests of justice, compliance with the Rules and the statutory objectives of the Commission. The factor which the Arbitrator did not appear to take into consideration was that Dr Dearnley was not one of the employer’s doctors and could, if asked to view a videotape and give a report based on such viewing, have refused to do so. It was only after the matter had been fixed for hearing and a summons had been issued for the attendance of Dr Dearnley that the solicitor for the employer wrote to him enclosing a copy of the videotapes and requesting a report. Although there is no evidence as to this, it is reasonable to assume that the furnishing of a report by Dr Dearnley was as a result of the summons being served on him requiring his attendance in Sydney. But for this, I doubt that he would have been so cooperative. As a doctor who had consistently certified the worker unfit for employment, except for selected duties on a part-time basis, Dr Dearnley’s evidence was of special significance which the Arbitrator realised. The opinions of Drs Ashwell and Johnson, being specialist opinions obtained by the employer, do not I think fall into the same category as the evidence of the worker’s treating general practitioner who had seen him on numerous occasions over a number of years.
In view of the conclusion which I have reached in the preceding paragraph, does this mean that there must necessarily be a re-hearing? There are other grounds relied on which, if the employer succeeds, may require a different course to be taken other than ordering a re-hearing. I am far from satisfied, however, that if this were the only ground on which the employer succeeded that a re-hearing should be ordered. I say this because the worker had the opportunity to cross-examine Dr Dearnley at the arbitration hearing and I do not think that the absence of notice of this, if it were the case, would have substantially prejudiced the presentation of the worker’s case. A short adjournment could have been sought in order to obtain relevant instructions. The videotapes had been served. The worker’s solicitor could, had he wished, submitted that videotape evidence to Dr Dearnley or Dr Black or other doctors in order to obtain medical opinion as to the consistency between the worker’s complaints and such evidence. It is not apparent that this was done.
Although the decision to which I have come in the preceding paragraphs is sufficient to dispose of the appeal, there are at least two other matters in respect of which I think the employer is also entitled to succeed.

The weight given to Dr Rowe’s assessment of whole person impairment

The employer submits that the whole person impairment assessment of the AMS says nothing about the worker’s incapacity. The Arbitrator herself conceded that the impairment assessed by the AMS did not necessarily indicate that there was any incapacity. The Arbitrator dismissed Dr Mitchell’s conclusion as to incapacity on the basis that he had not been provided with the report of the AMS. The opinion of Dr Pascall as to incapacity was also dismissed or said to be of limited assistance, because it was said to rest on a premise which was inconsistent with the conclusions of the AMS. The Arbitrator considered the opinions of Drs Ashwell and Robinson must both be considered in the light of the assessment by the AMS. The Arbitrator considered that the comments of Drs Ashwell and Robinson as to the worker’s capacity for work were of limited value and should be given little weight.
The worker submits that the Arbitrator was entitled to rely on the evidence of Drs Black and Rowe and the whole person impairment of 11% in finding incapacity which was a finding which the Arbitrator was said to be entitled to make upon the evidence available to her.
Section 326 of the 1998 Act deals with the status of medical assessments. It is as follows:
“(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned;
(a)the degree of permanent impairment of the worker as the result of an injury,
(b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c)the nature and extent of loss of hearing suffered by a worker,
(d)whether the impairment is permanent,
(e)whether the degree of permanent impairment is fully ascertained.
(2) As to any other matter the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”

In this case, the Arbitrator gave the certificate of the AMS a virtual conclusiveness as to incapacity about which it was silent and which, in my opinion, it could not have. The question of whole person impairment had been determined and the AMS’s opinion was conclusive as to this. In respect of incapacity, however, each doctor was entitled to his own opinion on that and the Arbitrator was required to decide the question in the light of all the evidence. I do not think that the evidence of the employer’s doctors ought to have been dismissed on the basis that it was inconsistent in some respects with the opinion of the AMS or that those doctors did not have the MAC.
It should be noted that only Drs Dearnley, Ashwell and Robinson have commented on the videotape footage which was relied on by the employer. The AMS did not see this.
I am of opinion that the opinions of Drs Ashwell and Robinson were entitled to greater weight than they were given by the Arbitrator in this matter and her failure to give them appropriate weight was, in my opinion, an error of law.

Incapacity resulting from injury to the worker’s left arm

The employer submits that the incapacity referable to the left arm ought to have been taken into account in assessing the appropriate weekly compensation payable. At a time when injury to the left arm was relied on, medical evidence was obtained by the worker supporting an incapacity referable to that injury. Dr Black on 13 July 2004 said that the worker had “a significant medical impairment of his left shoulder and would be disadvantaged in any worker activity calling for full and efficient use of that shoulder”. I note that Dr Black assessed the loss of use of the left arm at 20%, although the sum awarded in prior proceedings was half of that assessment. In his later report Dr Black said “Any work should take into account his left shoulder and back symptoms. Worker should restrict strenuous activity at or above left shoulder level and lifting with the left arm should be restricted to ten kilos from the floor to waist”. The worker’s own statements refer to his problems with his left arm which he says was weaker than before.
As against this the worker submits that he was doing his duties up to the date of the injury to his back in July 2003.
A change of course in the worker’s case was required when it was realised that an insurer who should had been joined had not been and, without such insurer, only the back injury could be relied on. The question is, in my opinion, to what extent an injury, which was said to be partially incapacitating but was not relied on, ought be taken into account in assessing compensation under section 40. There are, it appears, two ways to deal with this. The first is to disregard the question of such incapacity when dealing with the work which the worker is now able to do. That is, reference is only made to incapacity referable to the claimed back injury in assessing the worker’s diminished ability to earn. Such approach would I think be consistent with the terms of section 33 of the 1987 Act, that is, “incapacity for work result(ing) from an injury”. An alternative approach would be to have regard to his total incapacity from both his back and his left shoulder in assessing his ability to earn and then to make a deduction in the exercise of discretion in assessing the appropriate level of compensation. No submissions were made to me as to the appropriate way in which the incapacity referable to the left shoulder ought be dealt with, and no authority was cited to me in relation to this matter. I favour the first approach.
It is pointed out on behalf of the worker that the finding as to loss of use of the left arm was only 10% which was said to be not comparable with the whole person impairment of 11% found in respect of the worker’s back and legs. The Arbitrator said that she was satisfied that the injury to the worker’s left arm/shoulder did not contribute to his incapacity for work and she rejected the employer’s submissions in relation to this. I am however unable to accept the Arbitrator’s conclusion in this regard and I consider that she has erred in failing to have some regard to the worker’s complaints regarding his left arm/shoulder. There is nonetheless, in my view, an incapacity for work referable to the injury to the worker’s back and appropriate compensation should be awarded for this.
It follows from the foregoing that I am of opinion that the Arbitrator’s award ought be revoked. I do consider, however, having regard to the papers that are before me, that I am in a position to determine the appropriate compensation pursuant to section 40 of the 1987 Act.

RE-DETERMINATION

As I have elsewhere indicated, the issue in this case was one of the extent of incapacity. The video footage obtained by the employer was, it appears to me, central to its case in saying that the worker had no incapacity. I have viewed those videotapes and am obliged to say that the activities the worker is shown performing, particularly on 14 July 2005, are quite inconsistent with his presentation to doctors at that time. He is shown bending and crouching for prolonged periods of time over a period of two hours, although he does at one stage have a break and smoke a cigarette. The videotapes depict a person with no apparent restriction or obvious display of pain. It is difficult to see that if the worker did experience discomfort from performing this activity, for which he was not paid, that he would not engage someone else to do it. I conclude that the worker’s complaints as to incapacity and pain are exaggerated and unreliable. I am satisfied on all of the evidence, however, that the worker does have an incapacity for his former work with the employer.
As did the Arbitrator, I approach the matter of the appropriate section 40 assessment of compensation in accordance with the steps set out in Mitchell. The appropriate steps may, in fact, be taken from the terms of section 40 itself.
The first step is to find the weekly amount the worker would probably have been earning but for the injury in question and had he continued to be employed in the same or some comparable employment. That sum is agreed to be $836.00 per week.
The second step is to ascertain the average weekly amount that the worker would be able to earn in some suitable employment. This was found by the Arbitrator to be $300.00 per week. I intend to approach this step having regard to the incapacity referable to the worker’s back and legs only. I am of opinion that the worker could on a full-time basis carry out the work specified by Dr Mitchell in his report of 14 September 2005. The earnings from such employment vary from $592.00 to $667.00 per week. I take into account that the worker resides at Banora Point which is a short drive from Tweed Heads/Coolangatta. Accordingly, I regard the availability of employment to the worker as being reasonably good. The worker does have an incapacity for heavy manual work but could in my opinion carry out moderate physical or sedentary work on a full time basis. I think an appropriate assessment of the worker’s ability to earn is in the sum of $600.00 per week. The difference between these two figures is $236.00 and I cannot see any basis for reducing that sum in the exercise of the discretion conferred by section 40. There is however a period for which the worker is entitled to a greater sum pursuant to section 38 as found by the Arbitrator. Accordingly, there will be an award in favour of the worker in the sum of $484.60.00 per week from 5 November 2005 to 26 January 2006 pursuant to section 38 of the 1987 Act and in the sum of $236.00 per week from 27 January 2006 to date and continuing pursuant to section 40 of the 1987 Act. I see no reason to disturb the costs orders made by the Arbitrator.

DECISION

The decision of the Arbitrator dated 27 April 2006 is revoked and the following decision is made in its place.
“1.The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the 1987 Act at the rate of $484.60 per week from 4 November 2005 to 25 January 2006 and is to pay compensation pursuant to section 40 of the 1987 Act at the rate of $236.00 per week from 26 January 2006 to date and continuing.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.
3.I certify that this matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that it involved complex issues which required the matter to go straight to arbitration.”

COSTS

Although the employer has been successful on the appeal I do not think it is appropriate to order that the worker pay the employer’s costs. Accordingly, I order that each party pay his or its own costs of the appeal.

Anthony Candy

Acting Deputy President
1 May 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE