Wall to Wall Civil Australia Pty Limited v Emeli
[2008] NSWWCCPD 118
•17 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Wall to Wall Civil Australia Pty Limited v Emeli [2008] NSWWCCPD 118 | ||||
| APPELLANT: | Wall to Wall Civil Australia Pty Limited | ||||
| RESPONDENT: | Ejder Emeli | ||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | WCC3038-08 | ||||
| DATE OF ARBITRATOR’S DECISION: | 4 July 2008 | ||||
| DATE OF APPEAL DECISION: | 17 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Section 40 of the Workers Compensation Act 1987; adequacy of reasons; weight of evidence | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Sparke Helmore | |||
| Respondent: | Carters Law Firm | ||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 4 July 2008, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. | ||||
BACKGROUND TO THE APPEAL
This case concerns a claim for weekly compensation by Ejder Emeli (‘Mr Emeli’) against Wall to Wall Civil Australia Pty Limited (‘Wall to Wall’). Mr Emeli was employed by Wall to Wall as a labourer working on the construction of the M7 roadway project.
On 2 July 2004, Mr Emeli was wheeling a wheelbarrow when he tripped and fell sustaining injuries to his back, left leg and left foot.
Mr Emeli was paid weekly compensation up to 26 April 2006. Liability of further payments was declined on several bases:
(a)that Mr Emeli was no longer incapacitated;
(b)that he had not sustained an injury to his right shoulder [sic] nor a psychological injury arising out of the course of his employment;
(c)treatment was no longer reasonably necessary as a result of any injury with Wall to Wall, and
(d)employment was not a substantial contributing factor to the alleged injuries to the right shoulder or psychological injury.
A Commission Arbitrator heard the matter on 17 June 2008. Both parties were represented by counsel. In a reserved decision, the Arbitrator issued his Statement of Reasons for Decision (‘Reasons’) on 4 July 2008. The Arbitrator made an award in favour of Mr Emeli at the maximum statutory rate, for a single worker with no dependents, from 27 April 2006 to date and continuing.
By an appeal filed on 1 August 2008, Wall to Wall seeks leave to appeal the Arbitrator’s decision.
LEAVE
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that the monetary threshold in section 352(2) of the 1998 Act is satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to give proper, adequate and satisfactory reasons for his decision;
(b)failing to give proper consideration to the medical evidence in determining the issue of incapacity for work;
(c)finding that Mr Emeli was partially incapacitated for work;
(d)his calculation of probable weekly earnings but for the injury, and
(e)the exercise of his discretion under section 40(1) of the Workers Compensation Act 1987 (‘the 1987 Act’).
THE EVIDENCE
Mr Emeli is now 26 years of age.
Mr Emeli attended school until year eight, when his parents took him out of school and sent him to live in Turkey for two years. While in Turkey Mr Emeli did not attend school but worked in his uncle’s metal workshop. He unsuccessfully tried to learn welding and spent most of his time sitting around or cleaning.
Upon his return to Australia in early 1997 Mr Emeli started working in McDonalds in customer service and food preparation. He worked fulltime for about 18 months between 1997 and 1998, I infer this was with McDonalds.
Mr Emeli’s next job was in a factory at Auburn that manufactured metal security posts. He was involved in powder coating of components, drilling holes, installing locking devices and packing orders for delivery. He was employed on that job for 12 months on a fulltime basis.
In 2000 Mr Emeli obtained a job with Allied Couriers as an off-sider to his brother. He undertook manual loading and unloading and delivery of goods and was sometimes permitted to drive. He was so employed for 12 months. Between 2001 and 2002, Mr Emeli was employed as a trade assistant to a roof tiler.
During 2002 he returned to Turkey to complete 18 months of national service. During this time in the Army he was trained as a heavy vehicle driver, operating tanks and large personnel carriers.
After completing his national service, Mr Emeli returned to Australia in December 2003 and went back to work as a roof tiler’s trade assistant for a few months.
Mr Emeli’s next job was with Salerno Braddock Pty Ltd (which became known as Wall to Wall) as a labourer. As well as labouring, he also operated heavy machinery such as rollers and maxi-trucks. He began to learn to operate excavators. He also drove personnel around the M7 construction site.
On 2 July 2004, some four to five months after starting work with Wall to Wall, Mr Emeli was wheeling a heavy wheelbarrow when he tripped and fell falling across the handle of the wheelbarrow. He sustained injuries to his back, left leg and left foot. Mr Emeli was unable to drive after the accident. He was collected by his sister and taken to his local practitioner, Dr Kurdo Saeed.
Mr Emeli alleges that he continues to suffer from pain and discomfort and restricted movement of his back, left leg and left foot. He also claims to suffer from anxiety and depression.
Mr Emeli relies on a report of Dr Saeed dated 29 March 2005. He noted that Mr Emeli was suffering severe and persistent pain in the mid thoracic region and into the left scapular with radiation to the left arm. He also complained of right-sided back pain and associated numbness in the left leg below the knee.
Dr Saeed arranged for Mr Emeli to have a CT scan of the thoracic spine on 6 July 2004 which demonstrated minor disc impressions anteriorly on the vertebral bodies. There was no significant disc protrusion seen. There was no impingement upon the theca. Foramina were patent and no other abnormality was seen. There were no areas of bony destruction and no paravertebral masses were identified. The study was within normal limits.
X-rays of the lumbosacral spine performed on 5 July 2004 showed thinning of the L3/4, L4/5 and lumbosacral disc spaces, however, these were considered to be developmental. An x-ray of the thoracic spine showed slight wedging of the mid-thoracic vertebrae and very mild scoliosis convex to the right.
A CT scan of the lumbar spine was undertaken on 2 September 2004, which showed no disc bulge or protrusion evident and a bone scan on 10 December 2004 revealed no evidence of recent fracture in the thoracic or lumbosacral vertebrae.
Dr Saeed diagnosed a thoracic and lumbar musculo-ligamentous back strain with nerve root irritation affecting the lower left limb. He considered that the diagnosis was consistent with the injuries described by Mr Emeli. Dr Saeed certified Mr Emeli fit for part-time work on light duties not necessitating heavy lifting, no prolonged standing, sitting or walking, with no bending, pushing or pulling heavy objects. He referred Mr Emeli for further treatment to an orthopaedic surgeon, Dr Graham Mahony.
Dr Mahony has provided a report to Mr Emeli’s solicitors dated 30 March 2005. Dr Mahony noted that Mr Emeli was off work for about three weeks and then carried out light duty work, working full hours for about one week. He was off work for a couple of days and then worked a further couple of days. He was unable to continue and has been off work ever since. Dr Mahony noted a history of left low back pain, which radiated to the left foot, and a feeling of pins and needles in the left leg. Dr Mahony reviewed the following radiology:
(a)x-ray of the lumbosacral spine dated 5 July 2004;
(b)x-rays of the thoracic spine;
(c)CT scan of the thoracic spine dated 6 July 2004;
(d)CT scan of lumbar spine dated 2 September 2004, and
(e)bone scan dated 10 December 2004.
Dr Mahony concluded that Mr Emeli had developed symptoms referable to a low back strain with nerve root irritation affecting the left lower limb, and he had sustained a laceration to the anterior aspect of the left upper shin. The bone scan had failed to reveal any evidence of fractures involving the thoracic vertebrae, but he noted a normal bone scan would not normally totally exclude such bony injuries. He thought that the condition was consistent with the incident described by Mr Emeli on 2 July 2004. Dr Mahony did not express an opinion regarding Mr Emeli’s fitness for work.
In December 2005, Dr Mahony issued a certificate assessing a 14% whole person impairment. It was comprised of 5% impairment of the cervical spine, 5% impairment of the lumbar spine (DRE), and 4% for scarring of the left upper shin.
Wall to Wall relied on the medical reports of Dr Bornstein, orthopaedic surgeon, of 8 November 2007, Dr William Coyle, orthopaedic surgeon, of 1 March 2006, and a report of Dr Ben Teoh, consultant psychiatrist, of 2 December 2005.
Dealing firstly with the psychiatric evidence, Dr Teoh formed the view that the Mr Emeli’s presentation was not consistent with a diagnosable psychiatric condition according to the criteria of DSM IV. Dr Teoh noted the complaints of a range of psychological symptoms but thought these were largely reactive to his social situation and chronic pain. He formed the impression there was some evidence of exaggeration of the psychological symptoms and questioned Mr Emeli’s motivation to return to work. From a psychological point of view he certified Mr Emeli as fit for his pre-injury duties.
Mr Emeli alleged anxiety, depression and migraines in his statement of evidence. Mr Emeli did not submit any psychiatric evidence to support his claims other than references to anxiety, stress and depression in some, but not all, of the more recent medical certificates from Dr Saeed. Dr Saeed’s report does not address the issue. The Arbitrator made no finding on the claimed psychological injury. Wall to Wall makes no reference to it in their submissions. On review, I make no finding on whether Mr Emeli suffers from a psychological injury, nor the extent, if any, to which such condition contributes to his incapacity.
Dr Bornstein opined that Mr Emeli had suffered a soft tissue bruising type incident to which his employment had been a substantial contributing factor. He felt that there was no clinical diagnosis at the time he assessed Mr Emeli and his complaints were inconsistent with the history provided. Dr Bornstein stated that there was no evidence that Mr Emeli had ever sustained any lasting trauma. He was unable to find any objective orthopaedic cause for Mr Emeli’s complaints. He considered Mr Emeli fit for his pre-injury duties and assessed him as having 0% whole person impairment.
Dr Coyle assessed Mr Emeli’s complaints of pain in the posterior-lateral side of his mid‑chest wall, which he described as “stabbing, ripping” pain. He complained of pins and needles and numbness in the lateral aspect of the hip and lateral thigh. Dr Coyle’s opinion was that Mr Emeli had unusual complaints of pain in the lateral side of the chest and sensory changes in the left lower limb, together with stiffness of the left neck and top of shoulder. The complaints, in his opinion, were unusual especially the radiation of pain in the left lateral chest and sensory changes in the left lower limb. Mr Emeli had no imaging signs to suggest any significant orthopaedic pathology and Dr Coyle believed his complaints were the result of a functional illness rather than due to any organic pathology. He also assessed Mr Emeli as suffering 0% whole person impairment.
Mr Emeli has also submitted to a range of vocational assessments.
On 27 March 2007 Mr Emeli was referred to Dr Kalev Wilding an approved medical specialist, for assessment of the degree of permanent impairment resulting from the injury of 2 July 2004. He noted an employment history consistent with the above history. He noted complaints of constant pain in the lumbar region which intermittently radiated into the left buttock and down the left thigh to the mid thigh level. The pain occurring daily and lasting between half an hour to an hour. Stretching exercises caused pain and ‘pins and needles’. He had difficulty bending and lifting. Walking aggravated his low back pain. Prolonged sitting also aggravated his pain. Mr Emeli’s low back pain woke him at night. Cold weather aggravated his pain. Travelling on public transport also aggravated his low back pain because of the rocking motion of the train.
Dr Wilding excluded any previous injuries or illnesses as a cause or contributing factor to his condition. He noted Mr Emeli did not play sport and although he had tried to mow the lawns at his parents home, where he lives, he was unable to do so due to the vibration of the lawnmower, as a result his father mows most of the lawns.
Following a thorough examination and consideration of the radiological investigations, Dr Wilding diagnosed a musculoligamentous strain of the lumbar spine with referred pain into the left upper leg. He assessed Mr Emeli as suffering a 6% whole person impairment, finding that Mr Emeli’s condition was consistent with the criteria for an assessment of a finding of DRE lumbar category II pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, fifth edition, (‘AMA 5’), under which the assessment was conducted. Insofar as the assessment of the lumbar spine is concerned, the assessment was consistent with that of Dr Mahony, although Dr Mahoney also assessed the cervical spine and scarring of the left shin.
Relevantly, a finding of impairment of DRE II satisfies the following criteria:
“Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy.”
Ground 1
The Arbitrator failed to give any or any adequate reasons for his decision
Wall to Wall submit that the reasons for the decision given by the Arbitrator, contain a recital of the evidence, but do not disclose the basis upon which he came to his findings. It is submitted that the reasons for the decision do not reveal the judgment process, particularly in relation to his assessment of the medical evidence. The findings made by the Arbitrator as to probable earnings do not correspond with the evidence or the submissions of the parties and the reasons for the findings are not disclosed.
Mr Emeli submits that the Statement of Reasons given by the Arbitrator contain a proper and accurate review of the evidence. Mr Emeli submits that the Arbitrator based his decision and made findings on that evidence as expressed in paragraph 25 of the Reasons.
At paragraph 25 of the Reasons the Arbitrator said:
“Based on the above evidence, I find that the Applicant is partially incapacitated for work and as such an assessment under section 40 is appropriate.”
Mr Emeli submits that the Arbitrator followed the approach recently approved by the Court of Appeal on 8 July 2008 in Tweed Shire Council v Garrie Marriott [2008] NSWCA 166 (‘Marriott’).
Mr Emeli relies in particular on the following passage from Marriott at [23]:
“In the context of the Acting Deputy President’s reasons as a whole, it is apparent, as I have already mentioned, that having regard to all the relevant evidence and the different opinions given and having himself seen the video, he made up his own mind as to incapacity, which indeed was his duty. In the course of his reasons, he explained why he accepted neither Mr Marriott’s contention as to the degree of incapacity, nor the Council’s evidence that there was no incapacity. He concluded that some incapacity remained. The inference is that he accepted the evidence (that he had recounted) that supported a finding of a limited loss of capacity.”
On the question of probable earnings, Mr Emeli submits that the Arbitrator’s findings correspond with the evidence and the submissions of the parties and the reasons for the findings are disclosed. Ground four of this appeal deals with the alleged errors in relation to the assessment of probable earnings, and for convenience I shall deal with the alleged errors in relation to the Arbitrator’s reasons for his findings on probable earnings when dealing with ground four.
The duty to give reasons in the Commission is prescribed by statute at section 294(2) of the 1998 Act and Rule 15.6 of the Workers Compensation Rules 2006.
Rule 15.6 is in these terms:
“15.6 Certificates of determination
(1) A statement of the Commissions’ reasons referred to in section 294(2) of the 1998 Act is to include:
(a)the Commission’s findings on material questions of act, referring to the evidence or other material on which those findings were based, and
(b)the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.” (emphasis added)
The standard by which the adequacy of reasons must be determined is relevant to the nature of the decision itself and the decision maker (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6).
The Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at [444]; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259).
It is not necessary for the Arbitrator to refer to every piece of evidence (see Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 156 (‘Soulemezis’) McHugh JA (as he then was) stated at [280]:
“If an obligation to give reasons for a decision exists it is discharge does not require lengthy or elaborate reasons Ex partePowter; Re Powter (1945) 46 SR (NSW) 1 at [5]: 63 WN 34 at [36]. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given …”
To succeed in having a decision set aside on the basis of inadequate reasons it must be demonstrated not only that the reasons are inadequate, but their inadequacy discloses that the Arbitrator failed to exercise his or her statutory duty to fairly determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247 (26 July 2002) (‘YG & GG’); Absolon v NSW TAFE [1999] NSWCA 311 (‘Absolon’); ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
An error of law would also be involved if the reasoning disclosed in the judgment did not enable the reader to understand the essential steps in the decision making process (see Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 and Soulemezis).
The Arbitrator must not only note the relevant evidence and give reasons for findings made, but where the evidence is disputed, he or she must give a clear explanation of the reasons why some evidence is preferred over other evidence (Mayne Group Limited v Makhail [2006] NSWWCCPD 249 (‘Makhail’); Bright v Joodie Holdings No 2 Pty Ltd [2005] NSWCA 134 (‘Bright’); Hume v Walton [2005] NSWCA 148 (‘Hume’); Jennifer Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119 (23 May 2007) (‘Tyack’) at [102]).
The Arbitrator’s reasons in support of the finding that Mr Emeli was partially incapacitated, are extremely brief. Indeed, so brief that they can reasonably be extracted in full as follows:
“17. On looking at the medical evidence presented in this case, it is apparent that the Applicant suffered a frank injury in the course of his employment and to which that employment was a substantial contributing factor.
18. His injury appears to be primarily to the lumbar spine and left lower extremity for which he has been awarded non economic loss compensation equating to a 6% Whole Person Impairment (see Medical Assessment Certificate of Dr Wilding given on 27 March 2007 in Workers Compensation Commission proceedings 15742-06).
19. Dr Mahony in his report of 30 March 2005 sees the Applicant as partially incapacitated, that doctor having "suggested retraining".
20. In a report of 29 March 2005, Dr Saeed, general practitioner says that the Applicant is currently fit for part time work for light duties not necessitating heavy lifting, prolonged standing, sitting or walking with no bending, pushing or pulling heavy objects.
21. Dr Bornstein in his report of 8 November 2007 considered the Applicant fit for pre-injury duties but found a 0% Whole Person Impairment.
22. Dr Coyle on 1 March 2006 found no impairment but did not elaborate on his work capacity.
23. Dr Teoh, Psychiatrist in a report dated 2 September 2005 said there was no psychiatric injury and that his psychological symptoms were mild and would not affect capacity to work.”
25. Based on the above evidence, I find that the Applicant is partially incapacitated for work and as such an assessment under section 40 is appropriate.”
Paragraph [24] is not reproduced as it deals with the section 40 assessment.
Wall to Wall make a valid point that there is nothing in the Arbitrator’s reasons to disclose why he preferred the evidence of Dr Mahony and Dr Saeed over that of Dr Bornstein. The Arbitrator simply did not analyse the evidence, other than to briefly recite it.
I am satisfied on appeal that the Arbitrator’s reasons are inadequate. Whilst he was under no obligation to provide lengthy or elaborate reasons, it is essential that the grounds upon which the decision rests should be articulated (Soulemenzis). The Arbitrator failed to do so. He failed to give a clear explanation of the reasons why some evidence was preferred over other evidence (Makhail; Bright; Hume and Tyack).
In my view the Arbitrator’s reasons are so inadequate that their inadequacy discloses the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG; Absolon).
I am not persuaded by Mr Emeil’s submission that the Arbitrators reasons for decision are consistent with the approach recently approved by the Court of Appeal in Marriott. In that case the Court of Appeal accepted the Deputy President’s finding based ‘on all the evidence’ disclosed no error, but only after the Deputy President referred to all the relevant evidence in considerable detail and weighed it against the video evidence presented to the Commission. The facts in Marriott’s case are quite different to the instant case. It does not, in my view, mitigate in any sense, the obligation to give proper reasons in accordance with the accepted authorities.
It follows that ground one is upheld.
Ground 2
The Arbitrator’s decision was against the evidence and the weight of the evidence
Wall to Wall submit the Arbitrator summarised the various medical reports in evidence without taking into account that the evidence from the doctors tendered by the Respondent worker all pre-date the commencement of the claim by more than one year and pre-dated the determination “by a period in excess of these [sic three] years.” The Arbitrator did not note that Dr Mahony did not give any express opinion as to the incapacity. The Arbitrator has not revealed why he has not adopted the most recent medical opinion as to incapacity, being that of Dr Bornstein dated 8 November 2007.
I agree the Arbitrator failed to note that Dr Mahony did not give any express opinion as to incapacity. In his findings he noted:
“Dr Mahony in his report of 30 March 2005 sees the Applicant as partially incapacitated, that doctor having “suggested retraining”
It can reasonably be inferred from Dr Mahony’s reports that, at least as of March 2005, he regarded Mr Emeli as partially incapacitated.
It is clear Dr Bornstein rejected Mr Emeli’s complaints entirely. He said at page four of his report “Despite his complaints of pain, I consider him fit for his pre-injury duties”.
Dr Bornstein formed the view that Mr Emeli suffered no permanent impairment as a result of his injuries and suffered no ongoing incapacity. However, his opinion is inconsistent with the medical assessment certificate of Dr Wilding of 27 March 2008. Dr Wilding found that, as a consequence of the accident at work on 2 July 2004 Mr Emeli sustained a musculoligamentous strain of the lumbar spine with referred pain into the left upper leg. He found the condition was permanent and certified him to have a 6% whole person impairment as a result of his injury. That diagnosis was broadly consistent with the evidence from Drs Saeed and Mahony. It was also consistent with Mr Emeli’s evidence that he suffers ongoing pain in the back, left leg and left foot.
Whilst a finding of permanent impairment as a result of a work related injury is certainly a factor to consider in assessing any question of incapacity, the consequences of such a finding do not automatically imply incapacity (Basit v Haden FM t/as Resolve FM Pty Limited No 2 [2007] NSWWCCPD 170).
Wall to Wall submit Dr Bornstein’s report is the most recent opinion on incapacity. That is not so. Mr Emeli’s evidence includes a series of medical certificates from Dr Saeed, dating from 2 July 2004 (the day of the accident) to 21 July 2008. Each of these certificates, and there are some thirty five of them, continue to certify Mr Emeli partially unfit for work.
Prior to sustaining the injuries complained of Mr Emeli was a young, fully fit, young man. Since he was injured, he has complained of constant lower back and leg pain. His complaints have been consistent and generally accepted, except by Dr Bornstein. Br Bornstein did not accept Mr Emeli’s complaints at all. He opined “it would be unusual in the extreme” for a person of Mr Emeli’s age to present in pain, as he did, in the absence of any pathological findings to explain the pain. Whilst I accept there is no pathological evidence to explain the pain, equally there is no objective evidence to suggest that Mr Emeli’s complaints are anything are other than genuine.
On review, I accept, consistent with the certification by Dr Wilding, that Mr Emeli has ongoing back pain and radicular pain in his left leg and left foot. These findings were sufficient to satisfy Dr Wilding and Dr Mahony that Mr Emeli has a permanent impairment of the back. I also accept the evidence of Dr Saeed who has continued to treat Mr Emeli over the four years since his injury, and has continued to certify him partially incapacitated.
Whilst the finding of whole person impairmant does not necessarily equate to a finding of incapacity, the finding of whole person impairment by Dr Wilding is persuasive evidence that Mr Emeli suffered a permanent injury to his spine and his left leg. That evidence, together with the evidence of Mr Emeli’s complaints and the ongoing support of his general practitioner, Dr Saeed, form a solid basis for concluding that Mr Emeli suffers an incapacity in the labour market reasonably accessible to him.
Mr Emeil has a limited education, he left school in year eight. He has no tertiary education or skills. The work he has done since leaving school has depended on his capacity for physical work. His history of employment as at the date in the injury included, working in a metal workshop in Turkey; working in customer service and food preparation in McDonalds, from which I infer he would be required to be on his feet for lengthy periods of time; working in the manufacturing industry; working as courier, where he was required to load and unload goods; working as roof tiler and his labouring work with Wall to Wall.
As a result of his injuries Mr Emeli has a number of physical limitations. He is unable to sit, stand or walk for extended periods without discomfort. Operating vibrating equipment, including a lawnmower, causes pain. Travelling in public transport cause pain due to the rocking motion of the train. These limitations, in my view, would be inconsistent with Mr Emeli returning to work of the kind that he was suited to by reason of his limited education and physical skills.
On review, having regard to all the evidence, and having regard to the requirements of section 43A of the 1987 Act, I am satisfied for the reasons given in this decision that there is sufficient evidence to support the Arbitrator’s finding of ongoing partial incapacity, and I agree with it. It follows ground two has not been made out.
Ground 3
Mr Emeli has not discharged the onus of proving he remained partially incapacitated as a result of his injuries
Wall to Wall submit the Arbitrator erred in finding that the Respondent worker has been partially incapacitated since 27 June 2006. It submits the only medical opinion dealing specifically with the question of incapacity since March 2005 is that of Dr Bornstein who reported on 8 November 2007 that the worker was fit for his pre-injury duties. It further submits the Medical Assessment Certificate dated 27 March 2007 diagnosed a musculo-ligamentous strain of the back without expressing any view as to incapacity for work. Wall to Wall submit the Arbitrator should have found that the Respondent worker had not discharged the onus of proving that he was partially incapacitated for work as a result of his injuries.
The submission that Dr Bornstein’s evidence is the only evidence dealing with incapacity since March 2005 is incorrect. It ignores the evidence from Dr Saeed who provided continuous medical certificates between July 2004 and 21 April 2008. He certified the worker unfit for duty until 25 August 2004 and fit for selected duties thereafter.
For these reasons, and the reasons articulated in dealing with ground two, I am satisfied Mr Emeli has discharged the onus of proving he suffers an ongoing incapacity for work.
Ground 4
The Arbitrator erred in the calculation of the workers probable earnings, but for the injury (section 40(2)(b))
Wall to Wall allege that the Arbitrator erred in his calculation of probable earnings, particularly in relation to the Mr Emeli’s earnings in concurrent employment. It is submitted the Arbitrator noted Mr Emeli had claimed he earned $205.00 per week from his concurrent employment with Bugoa Pty Limited (‘Bugoa’) (Paragraph 2 of the Reasons). He noted Wall to Wall’s submission, based on the payslips in evidence, that average earnings were $171.00 per week (paragraph 15 of the Reasons). It is submitted on appeal, the evidence disclosed that Mr Emeli had earned a total of $2,050.00 from his employment with Bugoa over the 11 or 12 weeks he had been so employed, giving an average of $186.36 or $171.00 per week. It is further submitted that the Arbitrator’s finding, that Mr Emeli’s earnings from his employment with Bugoa averaged $341.66 per week, was arrived at without disclosing any basis for finding that figure and is contrary to all of the evidence.
Mr Emeli submits that the transcript reveals there was an agreement between the parties that from the two concurrent employments he was, at the date of the injury on 2 July 2004, earning $1,049.00 per week (T2.11/4.34). It is submitted that the Arbitrator determined the aggregated earnings together totalled $1,058.59. Further it is submitted that, in circumstances where there was an agreement as to the probable earnings, the real issue between the parties, as reflected in the transcript, became the amount Mr Emeli could earn as a partially incapacitated person and the exercise of the Arbitrators discretion, based upon short the period of prior employment up to the date of injury.
Mr Emeli submits that Wall to Wall has not demonstrated that the calculations made by the Arbitrator as to the actual pre-injury earnings are incorrect. Mr Emeli submits that in light of the agreement as to the extent of actual earnings at the date of injury and “the closeness” of the finding of such earnings made by the Arbitrator, no appealable error can be demonstrated.
For the purpose of calculating average weekly earnings where a worker has entered into two or more contracts of employment, his or her average weekly earnings are to be computed as if the worker’s earnings under all such contracts were earnings in the employment of the employer for whom the worker was working at the date of injury (section 43(1)(b) of the 1987 Act) (see also Palese v Ciba-Grigy Australia Pty Limited (1973) 1 NSWLR 146 (‘Palese’)).
Mr Emeli states that the calculations of his earnings with Bugoa is based on the averages obtained from payslips in his possession. The payslips for the relevant period were attached to the application. The payslips reveal that in his casual employment he earned a total of $2,050.00. The date he commenced employment with Bugoa is not in evidence. The first payslip relates to the pay period ending 19 April 2004. During that week he was paid for 20 hours of work. It would be reasonable to infer that he commenced employment about a week earlier on or about 12 April 2004. On that basis his average earnings with Bugoa would have been $186.00 per week or, as Wall to Wall submit, the average could have been $171.00 per week if his employment extended over a 12 week period.
The Arbitrator’s finding that Mr Emeli’s average earnings between 19 April 2004 and 28 June 2004 with Bugoa averaged $341.66 is incorrect. That finding is inconsistent with the averages obtained from the payslips and are inconsistent with the submissions made by Wall to Wall. The finding is also inconsistent with Mr Emeli’s own evidence. There are no reasons disclosed by the Arbitrator as to how he calculated Mr Emeli’s average earnings during his employment with Bugoa.
In his submissions to the Arbitrator, Mr Curran, counsel for Mr Emeli, announced the parties had agreed that Mr Emeli’s probable weekly earnings from his concurrent employments was in the sum of $1,049.00 gross per week (T2/15). Counsel for Wall to Wall, Mr Flett, did not demur from the announced agreement and indeed appears to have adopted it in his submissions (T7.15).
Mr Emeli’s tax return for 2003/2004 tax year indicates that his earnings with Wall to Wall totalled $8,382.00. The evidence does not identify the date Mr Emeli commenced work with Wall to Wall. His first payslip dated 21 April 2004 related to the period ending 20 April 2004. During that pay period Mr Emeli had worked 23 hours. It would be reasonable to infer therefore that he commenced at least a week earlier, on or about 12 April 2004. It would appear therefore that he worked for 11 or so weeks before his accident on 2 July 2004. Dividing the income disclosed in the tax return by 11 weeks would produce an average of $762.00 per week, which is precisely the figure nominated by Mr Emeli in his statement as his average earnings with Wall to Wall.
Assuming the calculations above are correct, Mr Emeli’s average earnings in his concurrent employments did not exceed $948.00 per week. I note this figure is inconsistent with the agreed total of $1,049.00 per week and is also inconsistent with the Arbitrator’s finding of $1,058.59 per week. I am not in a position to reconcile those differences.
It follows therefore, that ground four is upheld.
Ground 5
The Arbitrator erred in the exercise of his discretion in assessing the section 40 entitlement but failing to take into account the Respondent Worker’s inconsistent and irregular pre‑injury employment history
Wall to Wall have not provided any submissions in support of the allegation that the Arbitrator erred in the exercise of his discretion.
Mr Emeli submits that the Arbitrator properly exercised his discretion in declining to make any adjustment to the difference between his determination of probable earnings and his findings as to ability to earn in suitable employment.
Mr Emeli submits the Arbitrator properly exercised his discretion, noting that Mr Emeli would, in all probability, have continued to find work as a well paid labourer if fully fit, in various construction sites around the Sydney Metropolitan region or in similar conditions.
The evidence does not disclose the nature of the work being undertaken by Mr Emeli in his concurrent employment with Bugoa. Indeed there is no evidence from Mr Emeli as to what his intentions were with respect to the continuation of his concurrent employments.
The courts have considered the exercise of discretion in a number of cases and have applied it in situations including the following:
(a)where the worker has retired or suffered some supervening illness or injury (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 55, and Australia Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87);
(b)where the worker was imprisoned during a period of partial incapacity (Stranlund v Mid Coast Meat Co Pty Ltd (1999) 19 NSWCCR 91);
(c)Where, after the injury, the worker was dismissed because of a criminal conviction (Morgan v Commissioner for Railways [1972] WCR 33);
(d)where, before the injury, the worker was pregnant (Wrigley Co Pty Ltd v Holland (2002) NSWCCR 463), and
(e)where a worker sustained injury while working two jobs and the court had regard to the practical impossibility of continuing two fulltime jobs over any lengthy period (Erisir v Kellogg (Australia) Pty ltd (1987) 3 NSWCCR 92).
On the current state of the evidence I can see no justification for interfering with the Arbitrator’s finding. No compelling reasons had been advanced to justify the exercise of the discretion.
However, having regard to the findings I have made in relation to the Arbitrator’s error in quantifying Mr Emeli’s entitlements under section 40, the matter will be remitted to a different Arbitrator to re-determine that issue. In doing so, the question of whether or not it is appropriate to exercise the discretion available under section 40 will be a matter for the Arbitrator at the second arbitration.
CONCLUSION
Having conducted a ‘review on the merits’ (per Speiglman CJ in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249: (2007) 5 DDCR 287 at [28]), it follows that the Arbitrator’s decision cannot stand.
Whilst I accept that Mr Emeli continues to be partially incapacitated as a result of his injury on 2 July 2004, the quantification of his entitlement to weekly compensation must, for the reasons set out above, be re-determined.
Both parties will need to consider the accuracy of their agreement as to the worker’s probable earnings in concurrent employment at the date of injury. Mr Emeli will need to consider whether he wishes to tender additional evidence on the issue of the nature and extent of his ongoing incapacity and the issue concerning the likelihood of him sustaining concurrent employment in the long term.
DECISION
The decision of the Arbitrator dated 4 July 2008, is revoked and the matter remitted to another Arbitrator for determination afresh in accordance with these reasons.
COSTS
Each party is to pay his or its own costs of the appeal.
Judge Greg Keating
President
17 October 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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