Watts v Leisure Coast Removals Pty Ltd

[2007] NSWWCCPD 163

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Watts v Leisure Coast Removals Pty Ltd [2007] NSWWCCPD 163

APPELLANT:  Allan Watts

RESPONDENT:  Leisure Coast Removals Pty Ltd

INSURER:Employers Mutual NSW Ltd

FILE NUMBER:  WCC 15888-06

DATE OF ARBITRATOR’S DECISION:          4 April 2007

DATE OF APPEAL DECISION:  25 July 2007

SUBJECT MATTER OF DECISION: Section 55 of the Workers Compensation Act 1987; review of weekly payments; treatment of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      Maurice Blackburn Cashman Lawyers

Respondent:   Edwards Michael Moroney Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 4 April 2007 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 23 April 2007, Allan Watts sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 4 April 2007. The Respondent to the appeal is Leisure Coast Removals Pty Ltd, whose workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’). On 31 May 2007, EMI lodged a notice of opposition to the appeal.

1. Mr Watts was born on 12 September 1972 and is aged 34. He worked as a delivery driver for Leisure Coast Removals until 6 March 2003, during the course of which employment he was found to have suffered psychological injuries. At the conclusion of an arbitration hearing (in matter number WCC 2862-05) on 19 May 2005, Arbitrator Connelly, in an ex tempore Statement of Reasons, found Mr Watts to be totally incapacitated for work. In a Certificate of Determination, dated 7 June 2005, the Arbitrator made orders for the payment of weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (‘the 1987 Act’) and for the payment of Mr Watts’ reasonable section 60 medical expenses. Relevantly, the Arbitrator ordered ongoing weekly payments pursuant to section 37(2) from 1 April 2005 to date and continuing “at the rate of $332.00 per week as adjusted from time to time”.

1. Mr Watts had also claimed compensation for permanent impairment. On 2 November 2005, the Commission issued a Medical Assessment Certificate (‘MAC’) from an Approved Medical Specialist (‘AMS’), Dr AP McClure, Psychiatrist, who made a diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood” and assessed Mr Watts as having a whole person impairment of 7%. With regard to employability, Dr McClure commented:

“Because of his anxiety regarding the death threats, Mr Watts remains psychiatrically unfit to return to his former employment as a removalist, though he would be capable of working part-time in alternative duties (though because of his reported deficits of concentration and motivation, not on a full-time basis).”

1. On 9 October 2006, the Commission registered EMI’s ‘Application to Resolve a Dispute’ in respect of its claim for a variation of Arbitrator Connelly’s award because of a change of circumstances, pursuant to section 55 of the 1987 Act. EMI sought the termination of the award from 19 May 2005 or, alternatively, the reduction of the award to nil or such other rate as the Commission determines. On 6 December 2006, Mr Watts’ solicitors lodged a ‘Reply’ opposing a variation. On 18 December 2006, Arbitrator Georgiadis conducted a teleconference with the parties. On 29 January 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing, which was concluded on 28 February 2007. On 4 April 2007, the Commission issued the Arbitrator’s Certificate of Determination in the terms set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 4 April 2007, records the Arbitrator’s orders as follows:

“1. That the award of the Commission dated 7 June 2005, that the Applicant make payments to the Respondent of weekly benefits compensation under the Workers Compensation Act 1987 be ended from the date of these orders, under section 55 of the Act.

2. That the Respondent [sic – should read ‘Applicant’] pay the Applicant’s [sic – should read ‘Respondent’] section 60 of the Workers Compensation Act 1987 medical and related expenses to date, upon production of accounts or receipts.

3. That each party pay their own costs. I certify this matter is a complex matter.”

1. In the Statement of Reasons for his decision, the Arbitrator said he was satisfied that there had been a change of circumstances, and Mr Watts “has reached a level where he has attained some capacity for work and that it is possible that this had commenced as early as mid 2006” (paragraph 30). The Arbitrator had regard, in particular, to Mr Watts’ written and oral evidence, to the evidence of Dr JA Roberts, Psychiatrist, dated 29 August 2006, to the MAC dated 2 November 2005, and to an ARC Work Assessment Centre report dated 24 October 2006. The Arbitrator found Mr Watts was (paragraph 39):

“no longer totally incapacitated for work as he has capacity for work in suitable duties ... Taking into consideration the labour market reasonably accessible to the worker I am satisfied that working part-time hours on a casual arrangement the worker can now earn up to $15 per hour for 25 hours per week, as submitted by the Applicant, which is a level approximating, if not exceeding, comparable pre-injury earnings of $332.00 per week.”

1. The Arbitrator then addressed the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’), and concluded that since the amount Mr Watts would be able to earn in suitable employment post injury was greater than the weekly amount of $332.00 he would have been earning but for the injury, he was no longer entitled to receive weekly compensation.

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mr Watts’ solicitors are that the Arbitrator: (1) erred in finding that there had been a change of circumstances, (2) failed to provide adequate reasons as to the finding of a change of circumstances, (3) erred in accepting the opinion of Dr Roberts, (4) erred in allowing the opinion of Dr Roberts to infect his findings, (5) erred in applying the test prescribed in Mitchell, and (6) failed to provide adequate reasons for his findings in assessing Mr Watts’ section 40 entitlements. The parties’ submissions on these grounds are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can 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. 

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the amount of compensation at issue is at least $5,000 and comprises the whole of the amount which was the subject of the Arbitrator’s determination. Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS

1. The first and second grounds of appeal are that the Arbitrator (1) erred in finding that there had been a change of circumstances and (2) failed to provide adequate reasons for so finding. Mr Watts’ solicitors submit that the Arbitrator formed a different view on incapacity from that of Arbitrator Connelly despite their decisions being on essentially the same facts, the only new medical evidence provided subsequent to the original proceedings being that of Dr Roberts, which should be disregarded. Mr Watts’ solicitors contend:

“The Arbitrator appears to indicate that the change is an increased capacity for work. The basis for this opinion appears to be the increase in the drug and alcohol abuse and also the opinion of Dr Roberts. The drug and alcohol abuse played no role in Arbitrator Connelly’s award.”

1. Mr Watts’ solicitors submit the Arbitrator cannot simply reassess the matter and substitute his own finding - that Mr Watts is partially fit for work, for that of Arbitrator Connelly.

1. EMI submits that the Arbitrator’s decision shows clearly that he accepted that Mr Watts had been totally incapacitated at the time of the original award and considered the change of circumstances may have “commenced as early as mid-2006”. It submits that a finding that a worker has ceased to be totally incapacitated is a change of circumstances warranting a review of the previous award. The Arbitrator based this finding on the worker’s own evidence that his situation had changed. The weight given to some parts of the evidence over others is a matter for the discretion of the Arbitrator and should not be interfered with on review unless that discretion was exercised unlawfully or unfairly. It is clear from the Arbitrator’s reasons that he found the worker was prepared to tailor his evidence to best suit his case as he perceived it.

1. With regard to the medical evidence available since the original award, EMI notes the Arbitrator also had the benefit of Dr McClure’s MAC, dated 2 November 2005, in which Dr McClure expressed the view that Mr Watts was capable of working part-time in alternative duties. The Arbitrator was clearly aware of this and took it into account.

1. With regard to the adequacy of the Arbitrator’s reasons, EMI submits “a reading of the decision leaves one in no doubt as to the conclusions reached by the Arbitrator and the evidence upon which those conclusions were reached”.

1. The third and fourth grounds of appeal identified by Mr Watts’ solicitors are that the Arbitrator erred in accepting the opinion of Dr Roberts and in allowing that opinion “to infect his findings”. They submit it is clear that the Arbitrator accepted the opinion of Dr Roberts or, at the very least, allowed it to influence his opinion when, since Dr Roberts did not accept the findings of Arbitrator Connelly, his opinion should have been disregarded.

1. EMI submits these grounds are “utterly without foundation, misconceived and misleading”. The Arbitrator did not adopt either of Dr Roberts’ primary opinions that Mr Watts no longer suffers from a work related psychological condition and that, as at the date of Dr Roberts’ examination in May 2006, Mr Watts was totally incapacitated as a result of ‘substance abuse’ unrelated to his employment. The Arbitrator’s view was, by contrast, based on the lay evidence of Mr Watts.

1. The fifth and sixth grounds of appeal contend that the Arbitrator erred in applying the test prescribed in Mitchell, and failed to provide adequate reasons for his findings in assessing Mr Watts’ section 40 entitlements. Mr Watts’ solicitors submit that the Arbitrator failed to address their submissions regarding Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 (‘Lawarra’). Moreover, the Arbitrator, whilst referring to the difficulties that would be faced by Mr Watts in working, failed to provide reasons as to how Mr Watts could obtain work in the light of these difficulties.

1. EMI notes the Arbitrator found Mr Watts to be partially incapacitated for work and only fit for a limited range of work involving minimal responsibility and on a part-time basis. The Arbitrator’s reasoning does not disclose any error of fact or law. The Arbitrator was entitled to take into account the adverse view he had formed as to Mr Watts’ credit in making findings on Mr Watts’ incapacity, in the light of other, albeit scant, evidence about Mr Watts’ activities. With regard to the decision in Lawarra and the practical realities of the labour market reasonably accessible to Mr Watts, EMI submits that the Arbitrator determined the matter by way of factual findings open to him on the evidence and no error of a type warranting a review of his decision has been made out.

DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Benjamin must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. Pursuant to section 55 of the 1987 Act, the Commission may conduct a review of weekly compensation paid to a worker where a change of circumstances has occurred. In this instance, the application having been made by the employer, the employer bears the onus of proof in establishing a change of circumstances. Once that threshold has been satisfied, it is for the Commission to conduct a review and determine, in default of agreement between the parties, the amount of weekly payments, if any, to be made to the worker.

1. Turning to the first and second grounds of appeal, that the Arbitrator erred in finding that there had been a change of circumstances, and failed to provide adequate reasons for so finding, I note the Arbitrator was satisfied Mr Watts “has reached a level where he has attained some capacity for work and that it is possible that this had commenced as early as mid 2006” (paragraph 30). The Arbitrator discussed Mr Watts’ evidence at some length, both his evidence suggesting he has a capacity for some work, albeit with restrictions, and then his evidence contradicting that. The Arbitrator took the view that the latter evidence was self-serving and not persuasive, but placed “some weight” on the former. The Arbitrator also referred to the evidence of Dr Roberts and Dr McClure. I note the Arbitrator gave effect to the change of circumstances from the date of the decision.

1. I am not satisfied from Mr Watts’ solicitors’ submissions that the Arbitrator made any error in finding that there had been a change of circumstances. I reject their submission that the Arbitrator was substituting his finding on capacity for that of Arbitrator Connelly. Indeed, I find EMI’s submissions in this regard persuasive. Nor do I consider the Arbitrator’s reasons on this issue were inadequate. In my view, he made the necessary findings of fact and referred to the evidence supporting those findings, and a person reading his decision would be able to understand the steps in his reasoning process. Thus, I reject the first and second grounds of appeal.

1. With regard to the third and fourth grounds of appeal, that the Arbitrator erred in accepting the opinion of Dr Roberts and in allowing that opinion “to infect his findings”, I have reviewed the Arbitrator’s findings. When referring to Dr Roberts’ report of 29 August 2006, the Arbitrator noted that Dr Roberts expressed an opinion on causation “which cannot now be revisited” (paragraph 31). With regard to Dr Roberts’ opinion on the effects of Mr Watts’ alcohol and other substance abuse, and that it was not a consequence of his employment, the Arbitrator, while noting this, stated this was a “peripheral issue” because of evidence from Mr Watts that such substance abuse was now under control, with the Arbitrator finding that this did not prevent Mr Watts from working (paragraph 36). I note the Arbitrator also referred to the MAC dated 2 November 2005, issued by Dr McClure, who outlined a history of alcohol consumption. As stated above, Dr McClure found that Mr Watts “would be capable of working part-time in alternative duties”. Thus, I am not persuaded by Mr Watts’ solicitors’ submissions, and I therefore reject these grounds of appeal.

1. The fifth and sixth grounds of appeal contend that the Arbitrator erred in applying the test prescribed in Mitchell, and failed to provide adequate reasons for his findings in assessing Mr Watts’ section 40 entitlements. Mr Watts’ solicitors refer, in particular, to the decision of the NSW Court of Appeal in Lawarra, at 213, where Mahoney P, with whom Handley and Powell JJA agreed, emphasised that determining whether a worker is totally or partially incapacitated for work is a practical exercise, involving the assessment of the worker’s capacity for work of particular kinds, having regard to the realities of the labour market in which he is to be engaged.

1. I note the Arbitrator found Mr Watts to be partially incapacitated for work with a capacity for certain part-time/casual positions which were readily available to him in the labour market reasonably accessible to him. The Arbitrator discussed the relevant evidence at some length. He discussed, in particular, Mr Watts’ evidence, and said he was not persuaded by Mr Watts’ explanation for his not being able to undertake work suggested as suitable for him, given other evidence from Mr Watts as to the improvement in his health and capacity for work.

1. I am not satisfied that the Arbitrator made any error in his treatment of the evidence and in following the approach prescribed in Mitchell, nor specifically, in addressing the practical realities of the labour market reasonably accessible to Mr Watts as required by Lawarra. In his Statement of Reasons, the Arbitrator discussed the relevant evidence and that underpinning his findings, such that a reader would be able to understand his reasoning process. In my view, the Arbitrator’s reasons comply with the adequacy requirement. Thus, I reject the fifth and sixth grounds of appeal.

1. Mr Watts’ solicitors have failed to establish any of their grounds of review and the Arbitrator’s decision must therefore be confirmed.

DECISION

1. The decision of the Arbitrator dated 4 April 2007 is confirmed.

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

25 July 2007

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

ASSOCIATE