Warner v Northern Coal Fields Community Care Association
[2005] NSWWCCPD 27
•29 April 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Warner v Northern Coalfields Community Care Association [2005] NSW WCC PD 27
APPELLANT: Brenda Warner
RESPONDENT: Northern Coalfields Community Care Association
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC 13538-2003
DATE OF ARBITRATOR’S DECISION: 16 February 2004
DATE OF APPEAL DECISION: 29 April 2005
SUBJECT MATTER OF DECISION: Section 55 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION: Appellant: RL Whyburn & Associates
Respondent: Phillips Fox
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 16 February 2004, is revoked and the following decision is made in its place:
The application to terminate or reduce the weekly payment of compensation is dismissed.
BACKGROUND TO THE APPEAL
On 15 March 2004 Brenda Warner sought leave to appeal the decision of an Arbitrator of the Workers Compensation Commission made 16 February 2004.
The Respondent to the appeal is Northern Coalfields Community Care Association (‘the Employer’). The Insurer is GIO Workers Compensation (NSW) Ltd.
The Arbitrator determined that the Employer was no longer liable to make weekly payments of $94.34 to Ms Warner in respect of an injury to her neck. These payments had been made as a result of a consent order issued by the Compensation Court of NSW (‘the Compensation Court’) in respect of an injury to her neck that Ms Warner suffered at work on 23 October 1997. At that time she was employed as an Assistant in Nursing by the Employer at a nursing home. The Compensation Court order provided that the Employer pay Ms Warner $8000 as lump sum compensation for a 20% permanent impairment of her neck, and weekly compensation from 23 October 1997 and continuing. The order provided that from 6 September 1999 the rate of weekly compensation was $94.34.
The proceedings before the Arbitrator were instituted by the Insurer on behalf of the Employer by ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 18 August 2003. The Employer asserted that there had been a change of circumstances, which justified termination, or reduction of the weekly payment under section 55 of the Workers Compensation Act 1987 (‘the 1987 Act’). Ms Warner denied any change of circumstances. At the time of the hearing before the Arbitrator Ms Warner remained employed at the nursing home 32 hours per fortnight as a Personal Care Assistant - Grade 2 and 18 hours per fortnight as a General Service Officer- Grade 1.
The Arbitrator found that:
“ … the Applicant has made out their (sic) claim under Section 55 WCA 1987. There has been a change of circumstances in that the Respondent is now earning almost exactly the same doing her present duties as she would have been earning doing her pre-injury duties for the same working hours. The respondent admits that her condition has improved and that she could undertake more work. I find that the worker is no longer suffering from a financial incapacity. Her earning capacity is now the same as it would have been if she had not been injured. The Respondent has not been able to show that she has a financial incapacity.”
Ms Warner seeks an order reinstating the order of the Compensation Court. The Employer opposes the appeal and seeks an order confirming the decision of the Arbitrator.
ON THE PAPERS REVIEW
Both parties agree that the appeal should be determined on the papers and I am satisfied that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements as to time and leave set out in section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Application was filed in time but the Employer asserts that the Application does not meet the requirements of section 352(2) which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.”
The Employer has not made any detailed submission as to why this sub-section is not satisfied. Dealing firstly with paragraph (a), the amount of compensation at issue on this appeal is $94.34 per week i.e $4905.68 per annum until such time as the orders of the Compensation Court are changed or payments terminate under section 52 of the 1987 Act. Under that section payments of weekly compensation terminate a year after the recipient reaches retiring age. Ms Warner was born on 14 February 1965 and accordingly was 39 years of age at the time of the Arbitrator’s decision. If that decision was incorrect, then potentially Ms Warner may continue to receive weekly payments until she is 66 i.e. for another 27 years. In that case, the amount of compensation would well and truly exceed $5000.
It is, of course, possible that even if the Arbitrator’s decision is incorrect and payments are reinstated, they may be terminated at some future time prior to termination under s52 of the 1987 Act.That is hypothetical, however. The starting point is that the payments are to continue unless there is a change of circumstance, and, accordingly, I consider that the amount of compensation at issue on the appeal is at least $5000.
Paragraph (b) requires the amount of compensation at issue on the appeal to be at least 20% of the amount “awarded” in the decision appealed against. A number of Commission decisions, commencing with Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 have held that this paragraph is not applicable to appeals against decisions in which no award is made. Accordingly, it does not apply to this appeal. I find that the appeal satisfies the pre-conditions of section 352.
The Employer also asserts that the requirements of section 355(2) of the 1998 Act have not been satisfied. Section 355(2) provides as follows:
“355 Arbitrator to attempt conciliation
(2) No objection may be taken to the making of an award or the determination of a dispute by an Arbitrator on the ground that the Arbitrator had previously used the Arbitrator’s best endeavours to bring the parties to the dispute to a settlement.”
It is unclear what is meant by this assertion by the Employer. The Appellant, Ms Warner, does not take any objection on the ground referred to in the subsection. I do not consider this sub-section to have any relevance to the appeal. I grant leave to appeal for the reasons set out above.
EVIDENCE AND SUBMISSIONS
Neither party seeks to rely on any fresh evidence. The material before me on the determination of this appeal is as follows:
(1)Documents filed by each party in the proceedings before the Arbitrator;
(2) Transcript of the submissions of the Employer and Ms Warner before the Arbitrator (there is no record of any oral evidence before the Arbitrator);
(3) Statement of Reasons for the Arbitrator’s decision;
(4) The appeal form and attached submissions filed by Ms Warner; and
(5) The submissions filed by the Employer in the appeal.
Ms Warner submits that the Arbitrator erred in a number of respects. The grounds are not enumerated in her submissions. I summarise them as follows:
(1) Failing to take into account the entirety of the worker’s evidence and submissions, in particular the evidence that she previously worked overtime but no overtime is available to her in her current duties and the evidence as to probable earnings set out in the Schedule of Wages.
(2) Failing to take into account all the medical evidence filed for the worker and preferring the medical evidence filed for the employer.
(3) Making a finding that Ms Warner had admitted her condition had improved which was not available on the evidence.
(3) A factual error in stating fortnightly earnings as weekly earnings.
(4) Finding a change in circumstances without a basis in the evidence. Ms Warner articulates this ground last in her submissions, but states that it is the primary error of the Arbitrator.
The Employer submits that the Arbitrator’s decision was correct and should be confirmed. It states in its submission that there was evidence before the Arbitrator on which the decision was based. Further, the submission states that the Appellant has not discharged the onus of establishing that the decision was erroneous and should be overturned.
DISCUSSION AND FINDINGS
To be successful in an appeal to a Presidential Member under section 352 of the 1998 Act the Appellant must demonstrate that the Arbitrator has made an error, whether of law, fact or discretion (Allesch v Maunz (200) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). Ms Warner submits that the Arbitrator “primarily erred” in finding a change of circumstances that was not available on the evidence. The approach to be taken to cases under section 55 of the 1987 Act is discussed in previous appeal decisions of the Commission – (see Williams v North Gosford Private Hospital [2004] NSW WCC PD 76 and Worthington v Alexander [2005] NSW WCC PD 12). These two decisions both post-date the lodging of this appeal. They each, however, refer to, and apply earlier authorities on section 55 of the 1998 Act. Those authorities confirm that a change in circumstances is a pre-condition to review of a previous order and that the onus is on the party alleging the change in circumstances to establish it. Accordingly, the Arbitrator was only entitled to consider whether the previous order should be varied or terminated once a change of circumstances was established.
I have set out the Arbitrator’s findings in paragraph 5 above. She found that in two respects there had been a change of circumstances. The first change was in relation to earnings. The Arbitrator found that Ms Warner “ is now earning almost exactly the same doing her present duties as she would have been earning doing her pre-injury duties for the same working hours”. This statement is supported by the evidence and is not contested by the Appellant. I consider that the Arbitrator has erred, however, in two respects in determining that this constituted a change of circumstances. First, the Arbitrator implies that the relevant time periods for comparison are pre-injury and as at the time of the arbitration, when the authorities establish that the point of comparison is between the situation at the time of the previous orders and currently. The circumstances must have changed since the Compensation Court order to justify considering varying or terminating the order. Further, the Arbitrator’s statement implies that Ms Warner has continued to work the same number of hours before and after the injury, but that the rate has now changed sufficiently so that she earns the same amount notwithstanding the change in duties. This is not supported by the evidence. The evidence establishes that the hourly rate for the different duties was always similar, but Ms Warner worked more hours pre-injury due to the availability of overtime. I will now set out this analysis of the evidence in detail.
Ms Warner’s evidence was that at the time of her injury she was employed to work as an Assistant in Nursing 25 hours per week. She does not give the rate of pay. The only evidence as to the rate of pay is contained in Mr Jackson’s statutory declaration. He asserts that at the time of her injury Ms Warner was employed as an Assistant in Nursing at an hourly rate of $10.74471 and a Personal Care Assistant Grade 2 at an hourly rate of $10.79921. He does not give the total hours, or hours in each activity.
Ms Warner states that she is now employed 25 hours per week as a personal carer and kitchen hand. This accords with Mr Jackson’s evidence that she is employed 32 hours per fortnight as a Personal Care Assistant - Grade 2 (at a rate of $13.8382 per hour) and 18 hours per fortnight as a General Service Officer - Grade 1 (at a rate if $13.4658). His evidence is that her current gross fortnightly pay for 50 hours per fortnight is $796.29, more than she would earn as an Assistant in Nursing for “the same hours of duty”, which would be $794.35. Thus there was a basis in the evidence, and an uncontested basis, for the Arbitrator’s finding that Ms Warner is “now earning almost exactly the same doing her present duties as she would have been earning doing her pre-injury duties for the same working hours.”
Ms Warner also states, however, in her statutory declaration that prior to the injury she often worked more than 25 hours per week. She states, “I would often work another 10 or 12 hours per week. I was not able to do this after I was hurt as this work was only available to assistant nurses.” She says “Since the injury I have not been able to return to work as an assistant-in-nursing.” Her evidence is that, for the reasons she gives in her statutory declaration, no overtime is available to her in her current duties. There is no evidence in Mr Jackson’s statutory declaration about overtime at all, whether at the time of Ms Warner’s injury, at the time of the Compensation Court orders, or at the time of the arbitration. A letter from Mr Jackson to the solicitor for the Insurer that pre-dates his statutory declaration states that Ms Warner “was employed” for 25 hours per week and since the injury “has been fulfilling the 25 hours of employment (in the different duties)”. This could suggest that there has been no change in the number of hours worked, pre and post injury. It is not specific, however, about overtime. If Ms Warner’s statements about overtime were incorrect it was open to the Employer to obtain specific evidence to that effect from Mr Jackson in his statutory declaration, as this was filed after Ms Warner’s statutory declaration. In the absence of that specific evidence, Ms Warner’s evidence that she worked overtime at the time of the injury but not at the time of the Compensation Court orders or now, must be treated as uncontested.
Further, Mr Jackson’s evidence shows that the rate per hour for Assistants in Nursing was not at the time of injury and is not now, greatly different to the rates per hour for the other job classifications. This supports the submission put by Ms Warner at the arbitration that the difference of $94.34 per week, being the Compensation Court order, arose because she worked substantially more hours pre injury. The Arbitrator overlooked the overtime issue entirely in her ‘Findings and Reasons’ and in that respect erred. Once the lack of availability of overtime is taken into account, no change in earning capacity since the Compensation Court orders is established.
The Arbitrator next stated that “The respondent admits that her condition has improved and that she could undertake more work.”It appears that in this respect as well the Arbitrator concluded that there had been a change of circumstances. Ms Warner submits that there was no evidentiary basis for this conclusion. There is no record of any oral evidence at the arbitration. Accordingly, Ms Warner’s evidence was contained in her statutory declaration. She states in paragraph 5 of her statutory declaration “Since the injury I have not been able to return to work as an assistant- in- nursing.’’ She continues in paragraph 6:
“During the time between the commencement of my employment and the date of injury I often worked more than 25 hours per week. I would often work another 10 or 12 hours per week. I was not able to do this after I was hurt as this work was only available to assistant nurses. However, I am able to do more than 25 hours per week if I was to be offered suitable work. There is no restriction on the amount of hours to be worked according to Workcover certificates from Dr Hollo and Dr Collis.” (underlining added)
In paragraph 10 she states: “My physical situation has not improved since I was before the Court, nor has my capacity to work.”
The evidence set out above is the only evidence from Ms Warner as to her condition. In the portion I have underlined she says she can work more than 25 hours per week. This statement must be read, however, in conjunction with her other statements in the statutory declaration. So read I consider the Arbitrator erred in finding that Ms Warner had “admitted” that her condition had improved, when she clearly says in paragraph 10 that it had not. The reference to working more than 25 hours per week appears to be a reference to working more hours in her current duties or other suitable work. It is unclear on the evidence how many hours per week Ms Warner could work at the time of the Compensation Court orders. If it was only 25 hours per week, an ability to now work more than that could constitute a change of circumstances. However, the submission that this constituted a change of circumstances was not put by the Employer at the arbitration and is not established on the evidence.
The Employer did submit at the Arbitration that Ms Warner’s physical capacity to work had improved since the date of the Court orders. In that regard the employer relied on a report by Dr William Bye dated 30 July 2003. Dr Bye expressed the opinion that:
“It is hard to explain why this lady’s symptoms have persisted over a period of 6 years, in the light of what appeared to be a minor to moderate injury. One could only conclude that this lady must have pre-existing degenerative disease of the cervical spine as to explain the persistence of her symptoms, which I would have thought to resolve over a period of 3 months... I would have thought Ms Warner was fit for her normal pre-injury duties…”.
Ms Warner submits on the appeal that Dr Bye’s evidence should not have been preferred to that of her own doctors, because they had seen her over a course of time, both prior to the Compensation Court orders and for an update report prior to the arbitration. Further, Ms Warner says that the Arbitrator erred by failing to take into account all the medical evidence filed on her behalf. In this regard Ms Warner relies on the fact that the Arbitrator refers in the statement of reasons only to the most recent report filed for Ms Warner, that of Dr Wallace dated 30 October 2003, and not his earlier reports or the other medical reports filed for Ms Warner. Dr Wallace in his report of 30 October 2003 expressed the view that:
“At present, I do not believe that she is fit to return to her full pre-injury duties at work as an Assistant in Nursing...I believe her condition has remained stable and my estimate of her current impairment remains unchanged to that in my previous medico-legal report of June 2000.…she will be unfit to return to her full pre-injury duties at work as an Assistant in Nursing in the long term.”
In my view it is not necessary to determine these submissions because it does not appear from the Statement of Reasons that the Arbitrator relied on the medical evidence in reaching her conclusion. She based her decision solely on her finding, set out in her summary, that:
“Brenda Warner’s probable weekly earnings, but for the injury, had her (sic) continued to be employed in the same or comparable employment, are $794.29 per week. Her present earnings are $796.29. The Respondent’s entitlements to weekly benefits should cease because pursuant to s55 WCA 1987 she is now earning the same as she would have been earning if she had not had the injury.”
As set out above, the Arbitrator erred in making this finding because it overlooks the availability of overtime prior to the injury and not subsequently.
Ms Warner also asserts that the Arbitrator made a factual error in the passage quoted above, by stating earnings that on the evidence were fortnightly as weekly earnings. This submission is correct, but I do not consider it material as the Arbitrator made the same error in the comparison earnings there referred to.
I consider that the Arbitrator’s finding that there was a change in circumstances cannot be supported by the evidence, because it fails to take into account the uncontested evidence that Ms Warner’s pre- injury earnings included overtime, which is not now available to her. I revoke the decision of the Arbitrator and substitute it with a decision dismissing the Employer’s application. As a consequence, the order of the Compensation Court remains in force and weekly payments of compensation are owed from the date of the Arbitrator’s decision. I note that there was no application made in the appeal either for the costs of the appeal or in relation to the Arbitrator’s order that there be no order as to costs of the arbitration. It would appear appropriate given the result of this appeal that the worker be paid her costs of the original proceedings and this appeal. In the absence of agreement between the parties in relation to this issue, either party may make further submissions in relation to costs within 28 days of the issue of this decision.
DECISION
The decision of the Arbitrator is revoked and the following decision is made in its place:
The Application by the Employer to terminate or reduce the weekly payment of compensation is dismissed.
Ms Robyn Lansdowne
Acting Deputy President
29April 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBYN LANSDOWNE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
0
0