Way v Sunbuster Sportswear Pty Ltd
[2007] NSWWCCPD 166
•31 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Way v Sunbuster Sportswear Pty Ltd [2007] NSWWCCPD 166
APPELLANT: Helen Marlene Way
RESPONDENT: Sunbuster Sportswear Pty Ltd
INSURERS:QBE Workers Compensation (NSW) Limited
Allianz Australia Workers Compensation (NSW) Limited
GIO General Limited
FILE NUMBER: WCC13895-05
DATE OF ARBITRATOR’S DECISION: 18 December 2006
DATE OF APPEAL DECISION: 31 July 2007
SUBJECT MATTER OF DECISION: Leave to appeal; sections 38 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Trenches, Solicitors
Respondent: Mulcahy Lawyers (QBE)
Ellisons, Tillyard Callanan (Allianz)
No appearance (GIO)
ORDERS MADE ON APPEAL: 1. Leave to appeal is extended to 22 January 2006.
2. The decision of the Arbitrator dated 18 December 2006 is revoked and the following decision is made in its place:
1. That Sunbuster Sportswear Pty Ltd pay Mrs Helen Marlene Way weekly compensation pursuant to sections 38 and 40 of the Workers Compensation Act 1987 as follows:
(a) $465.21 per week from 21 December 2001 to 20 June 2002 pursuant to section 38 of the Workers Compensation Act 1987;
(b) $372.17 per week from 21 June 2002 to 20 December 2002 pursuant to section 38 of the Workers Compensation Act 1987;
(c) $265.21 per week from 21 December 2002 to 31 December 2005 pursuant to section 40 of the Workers Compensation Act 1987;
(d) $279.17 per week from 1 January 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987. Allianz Australia Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd in respect of the award.
2. That Sunbuster Sportswear Pty Ltd pay Mrs Helen Marlene Way costs as agreed or assessed, and for this purpose the proceedings are certified as complex. Allianz Australia Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd.
3.Sunbuster Sportswear Pty Ltd is to pay Mrs Helen Marlene Way costs of this appeal. Allianz Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd.
BACKGROUND TO THE APPEAL
On 22 January 2007 Helen Marlene Way (‘Mrs Way’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 December 2006.
The Respondent to the Appeal is Sunbuster Sportswear Pty Ltd (‘Sunbuster’).
Mrs Way was born on 8 March 1948 and is 59 years of age. She commenced employment with Sunbuster as a machinist in August 1985. Her work involved repetitive and stressful use of both arms.
Mrs Way first complained of pain in her hands and arms to her general practitioner, Dr Earner, in 1992.
On 12 April 1999 Sunbuster provided Mrs Way with lighter duties at reduced hours in response to a medical certificate from Dr Earner.
Mrs Way continued to work lighter duties until her employment was terminated when Sunbuster ceased trading on or about 20 December 2001. Mrs Way has not worked since.
A claim for lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was made by Mrs Way in 2004. This resulted in a section 66A agreement being filed in the Commission on 9 March 2004. The agreement was for lump sum compensation pursuant to section 66 of $18,125.00 in respect of 12.5% permanent loss of use of each arm below the elbow. A further sum of $9,062.50 was agreed for pain and suffering. The agreement notes the date of injury to be 1992. The insurer of Sunbuster is noted as Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), who insured the employer from 30 June 1997 until 30 June 1999. I note when this matter was raised at the arbitration hearing Allianz’s solicitor pointed out that they were also the insurer on risk for Sunbuster up until 30 June 1992.
On 18 August 2005 Mrs Way commenced proceedings in the Commission seeking weekly compensation from April 1999 to date and continuing.
At the relevant time Sunbuster was insured by the following three insurers:
· QBE Workers Compensation (NSW) Limited (‘QBE’) on risk from 30 June 2000 until 20 December 2001;
· Allianz on risk from 30 June 1997 until 30 June 1999, and
· GIO General Limited (‘GIO’) on risk from 30 June 1992 until 30 June 1997.
Mrs Way chose to proceed with the arbitration although it was apparent there was no appearance for an insurer in the period 30 June 1999 until 30 June 2000.
An arbitration hearing took place in Lismore on 5 December 2005 and an ex tempore decision was handed down awarding Mrs Way weekly compensation pursuant to section 40 at various rates from 12 April 1999 to date and continuing. The Arbitrator found QBE liable to pay the whole of the compensation ordered to be paid to Mrs Way.
QBE appealed from the decision of the Arbitrator and the matter came before Acting Deputy President Roche (as he then was). The Acting Deputy President dealt with the appeal on the papers and delivered his decision on 28 September 2006. He revoked the Certificate of Determination dated 12 December 2005 and the matter was remitted to a different Arbitrator to be re-determined.
The matter was again listed for arbitration hearing on 27 November 2006 resulting in a Certificate of Determination dated 18 December 2006. Mrs Way has appealed from that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 18 December 2006 records the Arbitrator’s orders as follows:
“1.That the Third Respondent (Allianz) pay the Applicant weekly compensation under s40 of the Workers Compensation Act 1987 as follows:
12/4/1999 to 19/7/2000 $465.21 - $440.78 = $24.43
20/7/2000 to 5/6/2001 $465.21 - $442.02 = $23.19
6/6/2001 to 31/12/2005 $465.21 - $442.35 = $22.86
1/1/2006 to date $479.17 - $455.62 = $23.55
Such payments to continue in accordance with the Act.
2.That the Third Respondent (Allianz) pay the Applicant’s costs as agreed or assessed, and for this purpose I certify the proceedings as complex.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
· failing to award Mrs Way compensation pursuant to section 38 of the 1987 Act;
· failing to assess or properly assess Mrs Way’s ability to earn pursuant to section 40(2)(b) of the 1987 Act;
· determining that Mrs Way’s capacity for employment was restricted to her last date of employment;
· determining that the deterioration in Mrs Way’s health after ceasing employment with Sunbuster was not a factor she could rely on in assessing her incapacity for employment, and
· failure to give adequate reasons.
The Arbitrator’s award is for the period commencing 12 April 1999 to date and continuing pursuant to section 40 of the 1987 Act. Mrs Way has limited her appeal to the period from the time her employment was terminated, 20 December 2001 to date and continuing.
The Arbitrator ordered Allianz to pay Mrs Way’s compensation and costs. Allianz has not challenged this order and in fact has submitted that the decision of the Arbitrator “is soundly based upon the evidence and submissions available to him and should be confirmed”.
Accordingly the issues in dispute are limited to the quantum of Mrs Way’s weekly payments whilst partially incapacitated from 21 December 2001 to date and continuing.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
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 1998 Act.
The quantum in issue on the appeal is in excess of $5,000 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied.
Time
Section 352(4) of the 1998 Act provides an appeal can only be made within 28 days after the making of the decision appealed against. The Arbitrator’s decision was made on the date of the Certificate of Determination, 18 December 2006 (Rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’)). Accordingly the appeal had to be lodged by 16 January 2007 (28 days).
Mrs Way lodged an appeal on 17 January 2007 which was rejected by the Registrar as it was filed out of time and failed to attach adequate submissions in favour of granting an extension of time and the demonstrable and substantial injustice that would be caused if Mrs Way were to lose the right to appeal.
On 22 January 2006 Mrs Way re-filed the appeal together with submissions in support of granting an extension of time. The submissions did not address the issue of the demonstrable and substantial injustice that would be caused if Mrs Way were to lose the right to appeal.
Mrs Way submits that the Certificate of Determination dated 18 December 2006 was not received by her solicitor until 20 December 2006 and therefore time should not run until the last mentioned date. I reject this submission for the reasons stated above that the 28 days runs from the date of the decision which is the date of the Certificate of Determination (Rule 16.2(2)).
Mrs Way further submits that the 28 days should exclude the three public holidays in the period 24 December 2006 to 2 January 2007. I again reject this submission as an additional day is only added for public holidays when the last day of the 28 day appeal period falls on the public holiday (Rule 8.1(5)). The last day of the 28 day appeal fell on a Tuesday which was not a public holiday.
QBE supports Mrs Way’s submissions seeking an extension of time. Allianz simply states that Mrs Way’s appeal should have been filed by 16 January 2007 without any submissions in support of this assertion.
Rule 16.2(11) provides that a Presidential Member may by order extend the time for making an appeal if in “exceptional circumstances” to lose the right of appeal “would work demonstrable and substantial injustice”.
I propose to extend the time to appeal as I am satisfied that to lose the right of appeal would cause Mrs Way demonstrable and substantial injustice. In so doing I have had regard to the following:
· that in my view QBE and GIO suffer no disadvantage in the delay in filing the appeal;
· the history of the proceedings;
· the seriousness of Mrs Way’s claim and the effect of the Arbitrator’s decision to award her nominal payments of weekly compensation only;
· the strength of the arguments on appeal including the prospects of success for Mrs Way, and
· the short period of delay in filing the appeal.
I order that the time for making an appeal in this matter is extended to 22 January 2006.
I grant leave to appeal.
FRESH EVIDENCE
No party seeks leave to introduce fresh evidence.
EVIDENCE
Mrs Way’s evidence consisted of two written statements together with oral evidence at the arbitration hearing. When she commenced employment with Sunbuster she was working 40 hours per week. Her duties required repetitive movements of her hands and arms. In 1996 Mrs Way commenced working light duties with no change in her hours of work. The light duties were recommended by Dr Earner due to pain and discomfort in both hands and arms.
On 12 April 1999 Mrs Way’s hours were reduced to 35.5 per week at the recommendation of Dr Earner. On some occasions Mrs Way completed more than 35.5 hours, but only working light duties. She explained the reason for working extra hours was because Sunbuster was experiencing financial problems and being a long-term employee she wished to play a part in keeping the business going.
After Sunbuster ceased trading on 20 December 2001, Mrs Way found herself unemployed. She states that she tried to obtain employment, however she was not successful in finding a job that would allow her to work on light duties for restricted hours. Mrs Way states that her condition deteriorated and on 8 November 2004 Dr Earner certified her unfit to work.
In support of Mrs Way’s claim there is a report from Dr G A Miller who examined her on 18 August 2003 at the request of her solicitors. Dr Miller was of the opinion that Mrs Way’s work has aggravated previously asymptomatic degenerative changes in her upper limbs. The doctor was of the opinion Mrs Way was fit for work that does not put repetitive strain on her hands and forearms.
Dr Earner has provided a report dated 30 October 2006 where he sets out the history of consultations with Mrs Way. On 16 October 2003 the doctor states Mrs Way was unfit for the heavier aspects of her work and the forceful use of her arms and left hand. The doctor states that Mrs Way was unfit for all of her usual duties from 8 November 2004 and is permanently unfit for her pre-injury occupation or for any work requiring any force of her forearms and hands or any repetitive work involving her forearms and hands.
Dr Murray Stapleton examined Mrs Way on 6 September 2005 at the request of GIO. The doctor was of the opinion that Mrs Way has small joint osteoarthritis of both hands and left hand carpal tunnel syndrome. The doctor further stated that in his opinion the employment at Sunbuster was not a substantial contribution to the condition. Dr Stapleton was of the opinion it would be unreasonable to ask Mrs Way to perform activities that are uncomfortable.
Dr Michael MacMahon examined Mrs Way on two occasions at the request of Allianz. The first medical examination took place on 24 April 2003 and the doctor re-examined Mrs Way on 25 November 2004. The doctor’s diagnosis was degenerative osteoarthritis affecting the small joints of both hands as well as wrists. The doctor apportioned two-thirds due to degenerative changes and one-third due to the nature and conditions of employment. After the first medical examination, Dr MacMahon was of the opinion that Mrs Way was not fit for her pre-injury duties, but fit for selected duties with no lifting over 5kgs or any pulling or pushing or grip work with either hand and no pressure work with either thumb. At the second medical examination the doctor records that Mrs Way’s condition appears to have deteriorated. The doctor was again of the opinion Mrs Way was fit for selected duties with the same restrictions, but on this occasion with no lifting over 3kgs. The doctor further stated that Mrs Way could perform a variety of alternative duties including working as a shopkeeper, sandwich hand, receptionist, telephonist or sales representative.
Dr Douglas examined Mrs Way at the request of QBE. In his report dated 19 October 2005 the doctor was of the opinion that Mrs Way suffers from osteoarthritis of both hands that is a constitutional condition, but aggravated by her work. The doctor was of the view that Mrs Way was unfit for her previous occupation and any work that would put repetitive strain on her hands and forearms. The doctor further added that with her education and training it would be difficult for Mrs Way to obtain suitable work.
As a result of a Direction for Production, medical reports were tendered in evidence from Dr Gray, Consultant Rheumatologist, Dr Pearce, Consultant Orthopaedic Surgeon and Dr Walters, Orthopaedic Surgeon.
Mrs Way was referred to Dr Pearce in 1996 in relation to pain in her right foot and problems with her left thumb. In a short report the doctor was of the opinion Mrs Way had swelling of her right foot due to a ‘palpable osteophyte’. He was of the opinion that Mrs Way’s left thumb showed evidence of osteoarthritis of the interphalangeal joint.
Dr Gray saw Mrs Way at the request of her general practitioner in May 2002. In a short report the doctor noted that Mrs Way had worked pretty hard in the clothing manufacturing industry and had hand osteoarthritis which he suspected had a fairly significant genetic component.
Dr Walters saw Mrs Way at the request of her general practitioner in January 2005. The doctor in a short report provides no specific opinion but notes Mrs Way has arthritis involving the DIP joints of the fingers of both hands. He further notes she has advanced arthritic changes in the interphalangeal joints of both her thumbs, worse on the left. The doctor finally notes Mrs Way also gave a history suggesting bilateral carpal tunnel syndrome.
Mrs Way’s wage schedule was tendered in evidence at the arbitration hearing. There was no competing wage schedule from Sunbuster. The issue was discussed at the arbitration hearing and the Arbitrator in his decision noted that it was accepted by all parties that Mrs Way would have been earning $465.21 from 21 December 2001 to 31 December 2005. This figure increased to $479.17 from 1 January 2006. From documentary material, including Mrs Way’s wage schedule, it would appear that these amounts represent both the probable earnings and the current weekly wage rate.
SUBMISSIONS
The Arbitrator in his decision set out the issues in dispute which included:
“Did the Applicant seek suitable employment during any period of partial incapacity for work? (the 1987 Act ss 38, 38A and 52A).”
Having identified this as an issue the Arbitrator did not address the matter in his decision.
I further note that both Mrs Way’s solicitor and QBE’s Counsel did address the issue of section 38 in submissions which are recorded at pages 45 and 46 of the transcript.
On appeal Mrs Way submits that she relied on section 38 of the 1987 Act at the arbitration hearing and the Arbitrator erred in not entering an award in her favour pursuant to section 38.
QBE have made no submissions on appeal in response to this issue. Allianz submits in reply that as far as they are aware, there was no formal notice given that Mrs Way relied upon section 38 prior to the conclusion of submissions. Having read the transcript of the submissions I note that this very issue was raised by Allianz at the arbitration hearing:
“MR ANDERSON: I must say I’m a bit surprised. I thought it was a section 40 claim. This is the first time the issue of section 38 has been raised.
MR BULL: That’s not correct. The wages schedule clearly sets it out and at the last occasion at the last hearing the claim was made.
ARBITRATOR: From ’01 it’s a section 38 claim on the wages schedule from 22 December ’01 and then it reverts to section 40 as at 22 December ’02.
MR ANDERSON: I’m sorry.
ARBITRATOR: It’s just for a period, Mr Anderson, of --
MR ANDERSON: Oh, I know [inaudible].
ARBITRATOR: -- [inaudible]. In any event, that’s something that I’ll need to look at. It won’t surprise you that I’m going to reserve…”
Clearly the very point that Allianz now raises in response to this issue was dealt with at the arbitration hearing and on one view of the transcript, conceded by Allianz. If not conceded, the proper time to further object to the section 38 claim was at the arbitration hearing, rather than at this late stage.
In my opinion the Arbitrator’s failure to deal with the section 38 claim was an error of law. Accordingly it is necessary that the decision be revoked. Having made this finding I do not need to consider the further grounds of appeal.
A Presidential Member, where possible, should determine the matter fully unless there is some reason for the matter to be remitted to an Arbitrator for a re-determination. Having the documentary material, transcript of the evidence and submissions of the parties, I am satisfied that I am in a position to determine the matter.
As the parties have not challenged the Arbitrator’s findings on liability and partial incapacity I accept the Arbitrator’s findings on those issues. I do so having formed the opinion that such findings were available on the evidence.
FINDINGS
Section 38 Entitlement
Section 38 of the 1987 Act provides that where a worker is partially incapacitated for work as a result of an injury and is not suitably employed during any period of that partial incapacity for work, the worker is to be compensated as if the worker’s incapacity for work were total. The maximum total period for which a worker may be so compensated is 52 weeks.
The entitlement to compensation under section 38 hinges on the worker seeking suitable employment during the period concerned. Section 38A sets out the general requirements for seeking suitable employment:
· the worker is ready, willing and able to accept an offer of suitable employment from the employer (section 38A(2)(a));
· the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker (section 38A(2)(b));
· the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer (section 38A(2)(c); and
· the worker is taking reasonable steps to obtain suitable employment from some other person (section 38A(2)(d).
Allianz in their submissions in response to the grounds of appeal state that there was evidence before the Arbitrator to the effect that Mrs Way had not sought suitable work since ceasing employment with Sunbuster and therefore was precluded from the benefits of section 38.
Certainly Mrs Way in her written statement of 31 October 2006 stated Dr Earner provided a certificate on 8 November 2004 certifying her unfit for work. However, in that same statement she states that after becoming unemployed on 21 December 2001 she
“tried to obtain employment, however, I was not successful in obtaining another job as I could not work in a full capacity using my arms and hands. I was not able to find a job that would allow me to work on light duties for restricted hours.”
Dr MacMahon took a history when he first examined Mrs Way on 24 April 2003 that she was looking for lighter duties work.
Section 38(4) of the 1987 Act specifically states:
“(4) Worker to seek suitable employment. Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”
I am satisfied that Mrs Way was seeking suitable duties during the period 21 December 2001 to 20 December 2002 for the following reasons:
· Mrs Way was ready, willing and able to accept an offer of suitable employment from Sunbuster as demonstrated by her working at suitable duties for a period of two years and eight months until her employment was terminated on 20 December 2001;
· Mrs Way supplied Sunbuster with a medical certificate dated 16 March 1999 with respect to her partial incapacity for work. This certificate did contain information that was reasonably sufficient in the circumstances to assist in determining what was suitable employment for Mrs Way, and
· for the reasons stated above in paragraph 57 I am satisfied Mrs Way took reasonable steps in the period 21 December 2001 to 20 December 2002 to obtain suitable employment from some other person.
In accordance with section 38(3) Mrs Way’s entitlement is the current weekly wage rate for the first 26 weeks. As stated above in paragraph 45, this was $465.21 at the relevant time.
For the next 26 weeks Mrs Way’s entitlement is 80% of the current weekly wage rate or the statutory indexed rate, whichever is the greater. As Mrs Way claimed no dependents her entitlement is $372.17 (80% of the current weekly wage rate), which is greater than the statutory indexed rate.
Section 40 Entitlement
The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process.
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:
· determination of the weekly amount the worker would probably have been earning if uninjured;
· determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
· subtraction of the figure in (2) from the figure in (1);
· exercise of the discretion contained in subsection (1) of section 40, and
· make an award in the amount arrived at by step (4).
Mrs Way’s agreed probable earnings as stated in paragraph 45 above were $465.21 per week prior to 31 December 2005 and $479.17 thereafter.
Accordingly at step (1) I find that Mrs Way’s probable earnings but for injury are:
$465.21 per week for the period 21 December 2002 to 31 December 2005; and
$479.17 from 1 January 2006.
The Amount the Worker is earning, or would be able to earn (step (2))
At the arbitration hearing Mrs Way submitted that her ability to earn was minimal.
Counsel for QBE in well-reasoned submissions at the arbitration hearing submitted that Mrs Way’s ability to earn should be measured with regard to the light work that she was doing from April 1999 until Sunbuster ceased trading in December 2001. It was submitted that Mrs Way would have continued working, if the business had not closed, until 8 November 2004 when she became unfit for any duties at Sunbuster. On this date, it is submitted, the osteoarthritis had reduced Mrs Way’s economic incapacity to almost nil.
On appeal Mrs Way repeats her submissions that her ability to earn was minimal when Sunbuster ceased trading, because the light duties work she was performing at the time was in effect, protected employment.
QBE made no submissions in response to the appeal on Mrs Way’s section 40 entitlement. Allianz submitted on appeal that there was no evidence that Mrs Way was in protected employment. It was further submitted that there was no evidence in respect to Mrs Way’s ability to earn on the open labour market and that the medical evidence was to the effect that Mrs Way was able to perform many duties. Further, regard should be had to the hours she was able to work prior to the business closed. Allianz also submitted that there was no reliable medical evidence that the deterioration in Mrs Way’s condition in November 2004 was related to her employment.
Mrs Way’s evidence was to the effect that in April 1999 she retrained to enable her to operate the automatic embroidery machine. The embroidery room had two embroidery machines, one manual and the other automatic. Mrs Way did attempt to operate the manual machine, but was unable to move the bars required to change the colours of the embroidery. This being the situation, Sunbuster allowed her to work solely on the automatic machine and this was the situation until the business ceased trading in December 2001.
This evidence, which is not contested by Sunbuster, does suggest an element of protected employment in the sense that by being allowed to use only the automatic machine, Mrs Way was thereby protected from further injury. However, at the same time, the work that Mrs Way performed was ‘real’ work, not an artificial position. Mrs Way herself stated she occasionally worked extra hours to help keep the business going. This being the situation I am not satisfied that Mrs Way’s earnings in the period April 1999 to December 2001 are a true indication of her ability to earn. It is unlikely that another employer having two embroidery machines, would allow Mrs Way to solely operate the easier of the two.
In the period 21 December 2002 to 7 November 2004 I find that Mrs Way’s ability to earn is $200 per week. In reaching this conclusion I have had regard not only to the work that Mrs Way was performing at the time her employment was terminated, but also the medical evidence. Dr Miller, Dr MacMahon and Dr Earner all examined Mrs Way in the period in question. All doctors were of the opinion that Mrs Way was not fit for her pre-injury duties and in effect was unfit for work involving repetitive or stressful strain on her hands and arms.
I have also had regard to section 43A of the 1987 Act which directs that I look to various matters in identifying ‘suitable employment’. Mrs Way in her statement of 31 October 2006 states that she left school at the age of 15 years after completing her School Certificate. Her employment before Sunbuster involved work as a waitress and in a school canteen. Mrs Way lives at Alstonville which is a small town situated approximately 20 minutes drive from Lismore on one side and 15 minutes drive from Ballina on the other. It is apparent that opportunities for restricted employment on the open labour market reasonably accessible to Mrs Way are less than would be available in a larger town or city.
For the period 8 November 2004 to date I find that Mrs Way’s ability to earn is for all intents and purposes nil. I do so having regard to the medical evidence of Dr Earner who states that Mrs Way was unfit for all her usual duties from 8 November 2004 and any work requiring any force of her forearms and hands. Dr Earner’s opinion is consistent with Mrs Way’s oral evidence at the arbitration hearing where she agreed that her condition had deteriorated to the point where she would not be able to work on the automatic embroidery machine. Dr Douglas, as noted above, was of the opinion that it would be difficult for Mrs Way to obtain suitable employment. Dr Stapleton’s opinion was that it would be unreasonable to ask Mrs Way to perform activities that are uncomfortable. In her statement of 12 December 2004 Mrs Way provided a comprehensive list of activities that cause her pain and discomfort which include every day activities such as using a computer and opening car doors. Although Dr MacMahon was of the opinion Mrs Way was fit for a variety of alternate duties including a shopkeeper, sandwich hand, receptionist, telephonist or sales representative, I am of the view these occupations are unrealistic having regard to the evidence of Mrs Way and the other doctors I have referred to.
The amounts at step (3) after subtracting the figures at step (2) from step (1) are:
$265.21 in the period 21 December 2002 to 7 November 2004;
$465.21 in the period 8 November 2004 to 31 December 2005, and
$479.17 in the period 1 January 2006 to date.
Section 40 Discretion
Having found the amount at step (3), sub-section (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. Mrs Way submits that it is not incumbent on her to establish what degree of incapacity results from work and what incapacity flows from the constitutional condition itself. In support of this submission reference was made to Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (‘Watts’ case’). This case was concerned with the “character and quality of the evidence required to displace a plaintiff’s prima facie case …” (Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164). The better authority on section 40 (1) is Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 (‘Nicholson’), where the Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
In the period 21 December 2002 to 7 November 2004 I see no reason for the exercise of my discretion as Mrs Way was well motivated before her injury and after her return to work on light duties.
In the period 8 November 2004 to date the situation clearly changed. Dr Earner certified Mrs Way permanently unfit for all her usual duties and any work requiring any force of her forearms and hands. Dr MacMahon who examined Mrs Way on two occasions, the last being 25 November 2004, noted that her condition appears to have deteriorated since the earlier examination. In her statement of 31 October 2006 Mrs Way stated that her injury continued to deteriorate. In her oral evidence at the arbitration hearing Mrs Way agreed she would not be able to work at the light duties she was performing at the time her employment was terminated.
As McHugh J stated in Nicholson:
“Compensation for lost earnings as the result of work injury remains the primary purpose of the statute”.
In the exercise of my discretion I reduce the amount at step (4) in this period by the sum of $200. I do so because I am satisfied that the cause of the deterioration in Mrs Way’s condition was due to the effects of the constitutional condition. As stated above Mrs Way was not working during this period. All doctors were of the opinion that Mrs Way’s condition was degenerative/constitutional, with the point of difference being, to what degree, if any, it was aggravated by work.
At step (5) the amounts are:
$265.21 for the period 21 December 2002 to 31 December 2005;
$279.17 for the period 1 January 2006 to date and continuing pursuant to section 40 of the 1987 Act.
DECISION
For the reasons referred to above I revoke the Arbitrator’s decision dated 18 December 2006 and the following decision is made in its place:
1.That Sunbuster Sportswear Pty Ltd pay Mrs Helen Marlene Way weekly compensation pursuant to sections 38 and 40 of the Workers Compensation Act 1987 as follows:-
(a)$465.21 per week from 21 December 2001 to 20 June 2002 pursuant to section 38 of the Workers Compensation Act 1987;
(b)$372.17 per week from 21 June 2002 to 20 December 2002 pursuant to section 38 of the Workers Compensation Act 1987;
(c)$265.21 per week from 21 December 2002 to 31 December 2005 pursuant to section 40 of the Workers Compensation Act 1987;
(d)$279.17 per week from 1 January 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987. Allianz Australia Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd in respect of the award.
2.That Sunbuster Sportswear Pty Ltd pay Mrs Helen Marlene Way costs as agreed or assessed, and for this purpose the proceedings are certified as complex. Allianz Australia Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd.
COSTS
Sunbuster Sportswear Pty Ltd is to pay Mrs Helen Marlene Way costs of this appeal. Allianz Workers Compensation (NSW) Limited is to indemnify Sunbuster Sportswear Pty Ltd.
JULIAN MARTIN
Acting Deputy President
31 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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