Whittaker v Abacus Security and Surveillance Pty Limited
[2006] NSWWCCPD 86
•12 May 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Whittaker v Abacus Security and Surveillance Pty Limited [2006] NSWWCCPD 86
APPELLANT: Abacus Security and Surveillance Pty Limited
RESPONDENT: Leon Whittaker
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC8359-04
DATE OF ARBITRATOR’S DECISION: 21 January 2005
DATE OF APPEAL DECISION: 12 May 2006
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; economic loss arising from incapacity; assessment of weekly benefits compensation.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Allianz Australia Workers
Compensation (NSW) Limited
Respondent: M. Russoniello, Solicitor
ORDERS MADE ON APPEAL: Leave to appeal is granted.
Leave to admit fresh evidence is refused.
The decision of the Arbitrator is set aside and the following decision is made in its place:
The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
i.$448.27 per week for the period 4 July 2002 to 24 June 2003 ($801.45 less $353.18)
ii.$486.76 per week for the period 25 June 2003 to 30 June 2004 ($801.45 less $314.69)
iii.$469.45 per week for the period from 1 July 2004 to 31 October 2004 ($801.45 less $332.00) and
iv.$124.45 per week from 1 November 2004 to date and continuing ($801.45 less $677.00).
Credit is to be given to the Respondent for payments already made to Mr Whittaker.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
Leon Whittaker worked as a Security Guard for Abacus Security and Surveillance Pty Limited (‘Abacus’) when, on 8 August 2001, he intervened in an assault and was himself assaulted, suffering an injury to his neck and head.
Allianz Australia Workers Compensation (NSW) Limited (‘the Insurer’) was the employer’s (Abacus) workers compensation insurer. Mr Whittaker made a claim for weekly benefits and lump sum compensation for permanent impairment, which was denied by the Insurer.
Mr Whittaker lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 27 May 2004 seeking weekly benefits compensation and compensation for permanent impairment under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
Following a teleconference with a Commission Arbitrator on 16 August 2004, the ‘medical dispute’ in relation to the claim for lump sum compensation was referred to an Approved Medical Specialist for assessment of permanent impairment. Subsequently, the parties settled this part of Mr Whittaker’s claim and on 20 January 2005 an agreement was lodged and registered pursuant to section 66A of the 1987 Act.
The weekly benefits dispute proceeded to arbitration on 21 January 2005, where it was decided in Mr Whittaker’s favour, with an award for varying amounts of weekly compensation for the period 4 July 2002 and continuing on and from the date of the arbitration.
Following the decision of the Commission Arbitrator, Abacus, on 17 February 2005, lodged an ‘Appeal Against Decision of Arbitrator’. Abacus submit that the Arbitrator made a number of errors of law, fact and discretion and that the decision should be set aside. Abacus submit a new decision, that Mr Whittaker has no entitlement to weekly compensation for his injury, should be made on appeal.
On 14 March 2005, Mr Whittaker lodged a ‘Notice of Opposition’ to the appeal.
This is the determination of the appeal. Both parties have filed written submissions and submit that the matter can be dealt with on the papers. 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 (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘1998 Act’)).
DECISION UNDER REVIEW
The Arbitrator gave her decision orally at the conclusion of the arbitration on 21 January 2005. The reasons were recorded and a transcription is before me on appeal.
A Certificate of Determination was issued on 28 January 2005, with an amended Certificate being issued on 7 February 2005. Pursuant to that Certificate Mr Whittaker was awarded weekly benefits compensation at various rates pursuant to section 40 from July 2002 to date and continuing.
In giving her reasons for the decision the Arbitrator indicated that the following matters were agreed:
· On 8 January 2001 Mr Whittaker had suffered an ‘injury’ to his neck and head arising out of and in the course of his employment with Abacus;
· His employment was a ‘substantial contributing factor’ to this injury;
· His injury caused continuing partial incapacity for work;
· Mr Whittaker has a residual earning capacity;
· He is unable to return to his pre-injury employment as a result of the injury;
· Mr Whittaker’s pre-injury earnings at the time of the injury were $801.45 per week;
· Mr Whittaker’s income at the date of the arbitration (February 2005) was $16.90 per hour;
· From 4 July 2002 to December 2004 he had a dependent wife and two dependent children; and
· From December 2004 and continuing he had a dependent wife and one dependent child.
The Arbitrator identified the issues in dispute before her as follows:
· Did Mr Whittaker suffer any economic loss as a result of his injuries; and
· Is Mr Whittaker entitled to receive an award under section 40 of the 1987 Act in relation to his partial incapacity for work?
LEAVE TO APPEAL
Before dealing with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal meets the threshold requirements of section 352(2) of the 1998 Act as the amount of compensation awarded was greater than $5,000 and the entire award is the subject of the appeal.
The appeal was filed within time.
Leave to appeal is granted.
FRESH EVIDENCE APPLICATION
Section 352(6) of the 1998 Act provides that, in an appeal, leave is required for the admission of fresh evidence or evidence in addition to that which was before the Arbitrator. The requirements of this section are addressed in the President’s Direction Number 6.
The ‘Notice of Opposition’ filed by Mr Whittaker seeks to rely on fresh evidence, namely a Statement of Evidence of Mr B Peisley, Security Officer. It is submitted that Mr Peisley performs the type of work Mr Whittaker undertook prior to his injury on 8 August 2001 and therefore his statement is relevant to an assessment of ‘comparable earnings’ for the purpose of assessing Mr Whittaker’s entitlement to weekly benefits compensation, if any.
The Arbitrator considered evidence of Mr Peisley, as a worker with comparable earnings. Before the Arbitrator Mr Whittaker’s solicitor submitted an Amended Wages Schedule (filed 18 January 2005) that referred to Mr Peisley’s income over the period June to December 2004 as a comparative wage. With respect to this material the Arbitrator stated:
“I note that the respondent has folded and that there are no comparable employee wages. However, I am of the view that I cannot rely on Mr Peisley’s wage information as a comparable employee because he is a security guard employed by an employer in a different industry being health, from that which the applicant was employed, in retail, and there is very little information before me as to the type of work Mr Peisley does and whether it is truly comparable.” (Transcript pages 35 to 36)
I note that the submissions in support of the fresh evidence indicate that Mr Whittaker’s solicitors became aware of Mr Peisley’s identity in December 2004, prior to the Arbitration held on 21 January 2005.
The principles relevant to the exercise of the discretion in Commission proceedings were considered in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. The nature of the Commission’s proceedings, the conduct of the parties, whether or not the evidence could have been obtained and presented to the Arbitrator and the likely impact of the evidence on the outcome are relevant considerations to whether or not fresh evidence should be admitted on appeal. Ultimately it will be a matter to be determined according to the principles of substantial justice to both parties.
In relation to Mr Whittaker’s application to admit fresh evidence on appeal, I am of the view that the evidence should not be admitted. Mr Whittaker had ample opportunity to present his case before the Arbitrator, and to the insurer when the claim was made. The evidence of Mr Peisley is not ‘fresh’ in that it was canvassed by the Arbitrator. The evidence now submitted on appeal is somewhat broader, however it does not address the concerns that the Arbitrator has already stated in relation to Mr Peisley’s evidence. In my view no injustice results to Mr Whittaker if this evidence is not allowed. The dispute resolution process conducted by the Arbitrator was procedurally and substantively fair and allowed the parties to file the evidence relevant to their respective cases. I am not satisfied that the fresh evidence is of sufficient probative value that it would alter the outcome of the appeal.
Leave to admit fresh evidence is refused.
ISSUES IN DISPUTE
The grounds of appeal set out in the submissions relate to the Arbitrator’s determination under section 40 of the 1987 Act. Abacus submit that the Arbitrator erred in fact, law and/or in the exercise of her discretion in:
1.Finding that Mr Whittaker was unfit to work as a security guard in a control room;
2.Failing to consider Mr Whittaker’s capacity to earn in employment as a dispatch clerk or similar administrative role;
3.Finding that Mr Whittaker was unfit to work as a carpark attendant on a fulltime basis from 4 July 2002 to 31 October 2004;
4.Failing to consider Mr Whittaker’s capacity to work as a carpark attendant for other employers;
5.Finding that Mr Whittaker is unfit to work overtime;
6.Finding that Mr Whittaker’s probable earnings should be based on his pre-injury employment plus an allowance of 3% per annum for CPI; and
7.Finding that Mr Whittaker had an incapacity for work.
The grounds of appeal contain a number of challenges to the Arbitrator’s findings on the basis that they were against the weight of the evidence. The weight to be given to the evidence is a matter for the discretion of the arbitrator. Findings of fact should not be interfered with unless it can be said that the arbitrator’s discretion has miscarried in that he or she has failed to exercise this discretion fairly and lawfully (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520, National Roads and Motorists’ Association Ltd [2003] FCAFC 206).
CONSIDERATION OF THE ISSUES
The Arbitrator erred in finding that Mr Whittaker was unfit to work as a security guard in a control room
Before the Arbitrator, Abacus submitted that although Mr Whittaker was unfit for his pre-injury duties he could return to carry out work in, for example, a control room as a security guard.
The Arbitrator expressly found Dr Lyon’s evidence and Mr Whittaker’s own evidence persuasive on the issue of whether he was able to return to any form of security work and that work in a control room, albeit in a more secure setting was not suitable employment. This, and the evidence of Dr McClure, Psychiatrist, persuaded her that Mr Whittaker was not fit to work as a security guard in a control room. The Arbitrator stated in her reasons that:
“The applicant gave evidence that the work of a security guard, even being in the control room, involves too much responsibility, to use his words, and he does not feel himself capable of returning to such work. He said that even while he was performing the control room function he felt that, to quote him again, he was always looking over his shoulder. He felt that to carry out this type of work a person would have to be 100% physically and mentally fit.
I note that the applicant continues to consult and be treated by Dr Dragutinovic for his anxiety and panic disorder and, as stated earlier, he continues to suffer neck pain.
As I’ve already stated, I found the applicant to be forthright and credible, and I’m satisfied that his evidence has been truthful. I’m satisfied that, given the medical evidence before me and the applicant’s evidence that the applicant is unable to not only return to his pre-injury duties but also to return to any from of security work, and I find that work in a control room, albeit in a more secure setting is not suitable employment.”
Abacus submit that this finding was against the weight of the evidence and assert that the Arbitrator should have found that Mr Whittaker was fit for work as a security guard in a control room which is a higher grade of work. As such, they submit that Mr Whittaker had a greater capacity to earn with the result that there should have been an award in favour of Abacus from 4 July 2002 to date and continuing. Abacus submit that the Arbitrator should have placed greater weight on the evidence of Dr MacMahon and Dr Samaraweera, which did not place restrictions on Mr Whittaker working in a control room.
In response, Mr Whittaker submits that he is not fit for work as a control room security guard due to the combined effects of his neck injury and anxiety disorder. He further submits that his evidence and the evidence of Dr Lyons, Dr Deveridge, Dr Manohar and Dr McClure support this conclusion.
The Arbitrator placed significant weight on the evidence of Mr Whittaker himself. She was entitled to do so. She heard his evidence first hand and found him to be credible and persuasive. The conclusions the Arbitrator drew from Dr Lyons and Dr McClure’s evidence were open to her. They are neither unfounded nor unreasonable, and, when the medical evidence is viewed in the light of Mr Whittaker’s own evidence it was open to the Arbitrator to conclude that he was not capable of working as a security guard in a control room. The Arbitrator took into account his psychological condition as a result of the assault and his evidence that in attempting to return to the control room he suffered anxiety and panic on the way home from his shift.
The Arbitrator did not err in finding that Mr Whittaker was unfit to return to work as a security guard in a control room.
The Arbitrator erred by failing to consider the worker’s capacity to earn in employment as a dispatch clerk or similar administrative role
Abacus submit that:
·The Arbitrator failed to take Mr Whittaker’s concession “that he was fit to work as a dispatch clerk on a full-time basis” into account.
·As a Member of a specialist tribunal, the Arbitrator was attributed with knowledge of the labour market and wage levels and was qualified to make assessments of wages in the absence of detailed evidence.
·It was impossible for it to collect wages information on a wide array of administrative jobs Mr Whittaker could perform.
·The Arbitrator ought to have found that the worker was able to earn $15.00 per hour in such employment with an earning capacity of $600 per week.
In response, Mr Whittaker submits that he did admit he was fit to work as a dispatch clerk but if Abacus contended that he was fit for such work then the onus was on them to submit evidence of relevant income and this was not done.
It is not correct to state that the Arbitrator failed to consider Mr Whittaker’s capacity as a dispatch clerk or a similar administrative role. The Arbitrator directly addressed this issue when she stated (Transcript at page 34):
“It was also suggested that the applicant [Mr Whittaker] could carry out the work of a dispatch clerk, and it was conceded that in evidence before me that the applicant may be able to do this work. Unfortunately, however, no evidence has been put before me as to what a dispatch clerk might be able to earn. In any event, the applicant is currently working for Illawara Health as a car park attendant…I am satisfied, therefore, that this employment is suitable and that he is capable of carrying it out given his physical and mental restrictions placed on him by his treating practitioners.”
Abacus refer, in the submissions on appeal, to Akawa Australia Pty Limited v Cassells (1995) 25 NSWCCR 385 (‘Akawa’), to support the argument that the Arbitrator should have used her ‘specialist’ knowledge to assess Mr Whittaker’s ability to earn in the broad labour market available to him. In Akawa the worker had not been employed for some 4 years prior to the Compensation Court proceedings. Justice Rolfe A-JA, on appeal, noted that no wages information was before the Compensation Court, “other than those representing what the respondent [worker] had actually earned in employment in which he was not able to continue”. In that matter the Court was left without probative evidence upon which to determine the extent to which the workers ability to earn in suitable employment was reduced as a result of the injury. His Honour assessed this at 11%, which was “in conformity” with the alternative submission actually made by the employer. In Mr Whittaker’s case the Arbitrator had weighty evidence going to Mr Whittaker’s ability to earn in suitable employment post injury, namely the amount he was in fact earning. This, coupled with the medical evidence as to his restrictions at work and his own evidence as to his ability to perform the duties required of him, was persuasive. The Arbitrator would have erred if, in the face of this evidence and without evidence as to the duties, remuneration and availability of work as a ‘dispatch clerk’, she determined on the basis of assumed knowledge that Mr Whittaker could perform such work and how much he could earn.
The issue of the extent of ‘specialised knowledge’ attributed to the Commission was discussed in BHP Steel (AIS) Pty Limited v Barbour [2004] NSWWCCPD 75, where I said:
“24. In ICI Australia Operations Pty Limited & 1 Ors v The WorkCover Authority of New South Wales [2004] NSWCA 55 (‘ICI’) the Court of Appeal (McColl JA, Mason P and Meagher JA concurring) referred to “a strong line of authority” that supported the claim that a Judge of the Dust Diseases Tribunal was “entitled to rely upon knowledge acquired as a member of a specialised tribunal” (at paragraph 219). Judges of the former ‘Workers Compensation Commission’ were also entitled to rely upon such knowledge in relation to, for example; conditions of employment and rates of pay (Bryer v Metropolitan Water Sewerage & Drainage Board (1939) 39 SR (NSW) 321); general knowledge of silicosis in order to form an opinion on the facts as they related the disease to injury (Tame v Commonwealth Collieries Pty Ltd (1947) 47 SR (NSW) 269).
25. In ICI, the Court referred to Cross On Evidence where the distinction between:“. . . ‘general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence, repeated and specialist knowledge which permits it to assert the existence of a particular fact.’ In the latter case, according to Cross, ‘it is not proper for the tribunal to act upon such specialised knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it’.”
26. The Commission is a statutory tribunal, not a court (Orellana Fuentes v Standard Knitting Mills Pty Ltd & Anor [2003] NSWCA 146). It has only those powers that are conferred by statute. Section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998 provides that the Commission “is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”. This does not mean that an Arbitrator may determine a dispute arbitrarily. Rule 70 of the Workers Compensation Commission Rules 2003 states that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”27. In my view the circumstances in which an Arbitrator could claim to rely upon the ‘general knowledge of the Commission’ are extremely limited. As Cross describes, the expertise of the Commission, through its Arbitrators, lies more in the ability to quickly analyse the evidence and draw the appropriate conclusions relevant to the statutory workers compensation framework. The proof of issues such as ‘injury’ and ‘causation’ must be discharged on the basis of evidence that complies with Rule 70. It would not be open to the Arbitrator to find, for example, that the worker suffered pain from an injury arising from the nature of his work, although the evidence was that he did not complain of it, simply on the basis that many people did not complain. Nor would it be permissible for an Arbitrator to find that a worker’s injury was long standing, when the evidence was of sudden onset, simply on the basis that ‘in general’ people did not complain of mild symptoms. These are not matters within the general knowledge of a specialised tribunal, but matters that must be decided on evidence in accordance with Rule 70 of the Commission’s Rules (Wallaby Grip (BAE) Pty Ltd (in Liq) v Macleay Area Health Service (1998) 17 NSW CCR 355).”
A Commission Arbitrator must determine the dispute before them according to law and to the evidence presented. While Arbitrators clearly have a level of knowledge and expertise gained from the specialised nature of the Commission’s work, it is not open to an Arbitrator to meet gaps in a party’s case by reliance upon ‘official notice’ in lieu of evidence of matters such as labour market and wages information. These are not matters that are so widely known as to be common knowledge, either in the community at large, or within a specialised tribunal. It is for the party relying upon a claim that certain employment and remuneration are available to the worker, to submit evidence in relation to that claim. This is not an onerous task, as suggested by Abacus. It is not unreasonable to expect a claim that the worker can carry out the tasks of a ‘dispatch clerk’ to be supported by evidence of what this job entails and what remuneration it attracts.
In any event the Arbitrator did not err in failing to consider Mr Whittaker’s capacity to earn in a broader labour market, in a job such as a dispatch clerk or similar administrative role. The approach to be taken to the construction of section 40 of the 1987 Act was considered by the Court of Appeal, Kirby P, Handley JA and Sheller JA, in J C Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580. Kirby P, concluded (at 593) that:
“... the preferable construction is that which has been repeatedly stated in the decisions of this Court. It is that where the worker is earning, the average weekly amount produced thereby is normally to be taken as the par (b) component of the equation. It is only otherwise where the decision-maker concludes that the worker is able to earn more than that sum in some suitable employment. Then, but then only, is a notional sum taken into account. It is subject to the maximum provided in par (b) itself. It is also subject to determinations as s 40(1A) and s 40(2) provide.
. . .
Parliament included the reference to what the worker “ is earning” for a purpose. The phrase cannot be ignored. The earnings are not mere evidence of what the worker is “able to earn”. In fact, if the worker is “ earning” that will normally be the end of the inquiry. It is only if, for some reason, that amount, where it exists, or existed, is suggested to be an under-estimate or a false measure of the worker’s ability to earn that the alternative inquiry will be embarked upon.”In this case Abacus did not put probative evidence before the Arbitrator to support a claim that Mr Whittaker could earn more. The evidence was that Mr Whittaker was in fact working in a different capacity, as a car-park attendant, 6.45 hours per day, five days a week. The question then to be considered by the Arbitrator is whether, on the evidence before her, that amount is an under-estimate of Mr Whittaker’s ability to earn in suitable employment, taking into account the factors outlined in the definition of that term in section 43(A)(1) of the 1998 Act. The Arbitrator was entitled, on the evidence before her, to conclude that this represented Mr Whittaker’s ability to earn in suitable employment and this view was reinforced by the fact that this employment was “approved by Dr Deveridge in his report dated 7 November 03”. Her finding is consistent with Mr Whittaker’s own evidence and the medical evidence. (The facts of this case may be contrasted with those in Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSW WCC PD 5 where there was no persuasive evidence in relation to the availability of suitable employment.)
The Arbitrator did not err in failing to consider Mr Whittaker’s capacity to earn in employment as a dispatch clerk or similar administrative role.
The Arbitrator erred in finding that Mr Whittaker was unfit to work as a carpark attendant on a fulltime basis from 4 July 2002 to 31 October 2004
Abacus submits that this finding was against the weight of the evidence and point to various parts of the medical evidence in support of their contention. Abacus submits that Mr Whittaker, in his statement, admitted that his hours of work had been reduced because of a company ‘restructure’ and not as a result of his injury. Abacus argue that the Arbitrator should have found, on the evidence, that Mr Whittaker was able to work as a carpark attendant on a full time basis, i.e. 40 hours per week, equating to a capacity to earn $676.00 per week (40 x $16.90).
In reply, Mr Whittaker submits that his evidence and evidence from Dr Manohar and Dr Samaraweera, which supported the Arbitrator’s finding.
With respect to the period 4 July 2002 to 31 October 2004, the Arbitrator made the following findings:
“I note that initially the applicant was employed at Easy Park to carry out 32.5 hours per week but that after a few months these hours were halved to 32.5 hours per fortnight. I accept that the applicant’s evidence that this was because of his physical and mental restrictions and not for any other reason.
I note that this is inconsistent with Dr McMahon’s report dated 12 August 03, but, as I’ve stated earlier, I found the applicant to be credible and I prefer his evidence over what was recorded in that report. I’m satisfied that the reduced hours were due to his injuries sustained with the respondent.” (Transcript page 35)
Later in the transcript the Arbitrator states:
“I note that the applicant has WorkCover certificates up to 18 December 03, in which the applicant’s treating doctor certifies him fit for suitable duties 6.5 hours per day, five days per week. It is a difficult task to make an assessment as to whether the applicant could have performed full-time work as a car park attendant between July 02 and November 04. I note that the applicant tried to perform 32.5 hours per week but after a few months found that he could not, for reasons of his injury. I have also already found that he applicant is genuine and committed to his own rehabilitation and has made a genuine and committed attempt to return to full-time employment within his capacities despite his ongoing difficulties.
I therefore find that he was working to his capacity during this period, and when his work environment changed sufficiently, in that he was exposed to less conflict, he increased his hours. I, therefore, find that his actual earnings for the period 4 July 02 to 31 October 04 truly reflected his ability to earn in some suitable employment.”
These findings were open to the Arbitrator on the evidence. Both Dr Manohar and Dr Samaraweera expressed opinions that Mr Whittaker was fit for only restricted duties, and restricted hours of work. The Arbitrator found Mr Whittaker’s evidence to be persuasive and she was entitled to do so. There was logically probative evidence to support her findings.
The Arbitrator did not err in finding that Mr Whittaker was unfit to work as a car park attendant on a full time basis from 4 July 2002 to 31 October 2004.
The Arbitrator erred in failing to consider the worker’s capacity as a carpark attendant for other employers.
The Arbitrator referred to Mr Whittaker’s earnings at Ezi Park Pty Limited and found that:
“ . . . for the period 1 November 04 to 5 January 05, a period of nine weeks, the applicant earned about $6,115,35, which translates to $679.50 per week. I note that his hourly rate of $16.90 per hour, multiplied by 40 hours would amount to $676. I find, therefore, that the applicant is able to earn in some suitable employment in a market reasonably accessible to him approximately $677 per week, which is an average of those two figures.”
Abacus submit that the Arbitrator made an error in accepting Mr Whittaker’s actual earnings with Ezi Park as reflecting his capacity to earn and in failing to consider his ability to earn in some suitable employment. It submits that there were “numerous carpark attendant positions within that labour market [Wollongong and Sydney CBD] that would provide the worker with the necessary degree of separation from the public, such as a screen or a booth, in which case the Arbitrator accepted that the worker could perform work on a fulltime basis”.
In response, Mr Whittaker asserts that the Arbitrator did not deal with the issue of the capacity to work as a carpark attendant for other employers because it was not submitted by Abacus and as such there was no evidence on this issue.
I agree with Mr Whittaker’s submission on this issue and repeat my comments, above, in relation to the requirement that the Arbitrator make his or her determination on the basis of evidence, not supposition, speculation or suggestion from legal representatives. Abacus did not make this argument before the Arbitrator nor was any evidence submitted to support the contention that work in a car park, given Mr Whittaker’s particular restrictions and concerns, was reasonably available to him in the relevant labour market. The Arbitrator considered Mr Whittaker’s capacity to work in suitable duties, namely as a car park attendant. The best evidence before her was that Mr Whittaker was, in fact, carrying out those duties in particular employment. His evidence of how he accommodated the effects of his injury to this work, in the real sense, was persuasive evidence before her.
The Arbitrator did not err in failing to consider Mr Whittaker’s capacity as a carpark attendant for other employers.
The Arbitrator erred in finding that the worker was unfit to work overtime
With respect to the issue of overtime, the Arbitrator stated as follows:
“Mr Turner submitted that the applicant could not only do full time employment but also overtime. However, given the applicant’s evidence, which I accept, that he does not feel capable of performing overtime as he is still being treated by Dr Dragutinovic and he still experiences panic attacks, I am not satisfied that he is able to perform overtime at this stage. I find, therefore, that the applicant is not able to perform overtime in his employment.”
Abacus state that “unfortunately the oral evidence of the worker was not recorded”. While this statement may have reflected the quality of the recording of the arbitration it is not born out in the transcript, which does record Mr Whittaker’s evidence fully. The transcript was sent to the parties on 25 February 2005, however no further submissions were made on this issue in the appeal. Abacus submit that Mr Whittaker worked significant overtime in his pre-injury employment and that when addressing the issue of overtime, the Arbitrator:
·erred by failing to give proper reasons for her finding (set out above);
·should have relied on medical evidence in relation to this issue and to the extent that Dr Dragutinovic is referred to, he did not place restrictions on Mr Whittaker’s hours of work;
·made a finding against the weight of evidence if she relied on Dr Samaraweera’s medical certificates which placed restrictions on Mr Whittaker’s hours of work; and
·ought to have found Mr Whittaker was fit to work overtime in suitable employment (e.g. security guard in a control room, dispatch clerk or carpark attendant).
Mr Whittaker submits that Abacus did not cross-examine him regarding the issue of overtime and although the doctors did not express an opinion on this issue, it is implicit in all the reports that he is suffering from psychological and physical conditions that preclude him from working overtime. Further, Mr Whittaker submits that there was evidence to support the Arbitrator’s finding.
Mr Whittaker gave oral evidence (page 23 of the transcript) that he had worked up to 70 hours per week with Abacus, which included up to 22 hours of overtime. He stated that as at the date of the arbitration (21 January 2005) he had not worked overtime for a year and that he had not yet even returned to full-time hours. When asked if he thought he could work overtime he replied “ No, I don’t think I could because I go home with headaches now. Eight hours would be plenty”. At that point he was still consulting Dr Dragutinovic once per month for anxiety and panic attacks. Mr Whittaker was not cross-examined on the issue of his ability to work overtime.
The Arbitrator’s reasons on this point are brief but, in my view, adequate. She made clear in the reasons that she gave considerable weight to Mr Whittaker’s evidence. There was no medical evidence that specifically addressed the question of whether Mr Whittaker could work overtime. It is consistent with the medical evidence of his restrictions and his ongoing anxiety, including ongoing visits to his Psychiatrist, that he was incapable of doing so. In my view this is a conclusion reasonable open to the Arbitrator when considering the whole of the evidence.
The Arbitrator did not err in finding that Mr Whittaker was unfit to work overtime.
The Arbitrator erred in finding that the worker’s probable earnings should be based upon his pre-injury earnings plus an allowance of 3% per annum for CPI
Abacus challenge the following finding by the Arbitrator:
“As I stated earlier in this decision, it was agreed that the applicant’s pre-injury earnings were $801.45 gross per week. It was submitted by the applicant’s representative that his probable earnings but for the injury should be either $801.45 per week with CPI increases at yearly intervals so that it increases to $825 for the period 4 July 02 to 24 June 03 and $850 for the period 25 June 03 to 20 June 04…
The Arbitrator rejected Mr Peisley’s wage as a comparable wage and continued:
“Given the dearth of information before me and doing the best I can, I am of the view that it is reasonable the applicant’s wages would have increased over the three and a half years since the incident and that the figures of $825 per week and $850 per week are reasonable in all the circumstances.”
Abacus submit that the Arbitrator’s finding represents an allowance for increased wages in accordance with the CPI figure of 3% per annum but there was no evidence to support this finding as the hourly rate at Ezi Park Pty Ltd has not increased nor has the Award rate for security guards. Further, Abacus submit that CPI was less than 3% per annum over 2003 and 2004. Therefore the Arbitrator should have found that Mr Whittaker’s probable earnings remained at $801.45 gross per week.
Mr Whittaker submits that in the absence of evidence of comparable earnings for the period, the Arbitrator was correct her approach. Mr Whittaker also notes that the Arbitrator rejected the evidence of Mr Peisley and refers to the ‘Application to Admit Fresh Evidence’. Mr Whittaker submits that the Arbitrator’s specialised knowledge was sufficient to allow her to increase the figures by 3% for CPI.
With respect to the submission that the Arbitrator should rely upon her ‘specialised’ knowledge to increase Mr Whittaker’s probable earnings over time I repeat the comments that I make on this argument, set out above. In this matter the Arbitrator specifically and expressly rejected the evidence presented by Mr Whittaker as to the earnings of a comparable employee, Mr Peisley. This left no evidence before her at all on this issue. On appeal Abacus argue that in fact wage rates for comparable work have not increased over the relevant period. This may or may not be the case, but at the end of the day it is for the Arbitrator to determine these matters on evidence. There was no persuasive evidence before her on this issue, which was for Mr Whittaker to make out. I am not satisfied that the difficulties with Mr Peisley’s evidence can be cured on appeal by the admission of his statement as ‘fresh evidence’. In my view the concerns about the lack of probity of that evidence, in particular that Mr Peisley worked in a different industry, are valid and I accept the Arbitrator’s finding that this gave the evidence less weight.
Mr Whittaker argues that the employer refused to produce evidence of “comparables” when issued with a ‘Direction for Production’. However it remained for Mr Whittaker to prove his economic loss and to submit logically probative evidence to the Arbitrator so that she could come to a determination of his entitlement. Mr Whittaker in his acclaim form (attached to the Reply in the proceeding before the Arbitrator) identified that he was employed under an Agreement ( either an Enterprise Agreement or a Registered Industrial Agreement). I do not accept that it is so difficult to obtain evidence of the changes that have been made to pay rates in that agreement over the relevant period that he should not be expected to produce it, or that the Arbitrator could not request it from the employer. This information is not common knowledge such that it can be assumed. There was no evidentiary basis for awarding a 3% increment for CPI over each twelve-month period during the relevant period of this claim. I appreciate that the Arbitrator “given the dearth of information before” her was “doing the best she can” (transcript page 36) and that she was, in giving an oral decision at the conclusion of the arbitration, seeking to finalise the matter for the parties in a timely way. The conduct of this matter was clearly in accordance with the Commission’s objective of fairness, economy and timeliness in the resolution of the dispute. However the decision must ultimately be based on evidence. A further inquiry of Mr Whittaker for evidence of relevant, comparable award rates should have been made, with the expectation that this evidence also be produced in a timely manner.
The Arbitrator erred in arbitrarily awarding this increment and I accept Abacus’ submission that the evidence does not support a finding that Mr Whittaker’s probable earnings exceeded $801.45 gross per week. The result of this error is that the award of weekly benefits should be adjusted.
The Arbitrator erred in finding that the worker had an incapacity for work
Abacus submit that the Arbitrator erred in finding that Mr Whittaker had an incapacity for work. They assert although it was agreed that he was unfit for his pre-injury employment as a roving security guard he had a large capacity to perform other work given that the only restrictions placed on him were heavy physical work and situations involving actual or potential conflict. Abacus further submit that Mr Whittaker failed to produce evidence that the restrictions produced an economic incapacity for work on the open labour market.
In response, Mr Whittaker submits that there is medical evidence supporting the Arbitrator’s finding that he has an incapacity for work which has produced an economic incapacity. He asserts that this is supported by the fact that his capacity for work after 4 July 2002 produces an income much less than his pre-injury capacity.
There was medical evidence before the Arbitrator to support the finding that Mr Whittaker remained partially incapacitated for work. Dr Deveridge, Dr Dragutinovich, Dr Manohar and Dr Glicksman support this finding. The Arbitrator was also persuaded by Mr Whittaker’s own evidence on this issue and of the evidence of his loss of income post injury.
The Arbitrator did not err in finding that Mr Whittaker suffered an incapacity for work.
DECISION
The decision of the Arbitrator should be set aside and a new decision made in its place to reflect the error in the calculation of 3% CPI on the probable earnings post injury. I note that in making these adjustments the entitlement for the various periods claimed do not exceed the maximum statutory rate for a worker plus dependent spouse and two dependent children (for the period until December 2004 and thereafter for a worker with a dependent spouse and one child). The revised award is as follows:
The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
i.$448.27 per week for the period 4 July 2002 to 24 June 2003 ($801.45 less $353.18)
ii.$486.76 per week for the period 25 June 2003 to 30 June 2004 ($801.45 less $314.69
iii.$469.45 per week for the period from 1 July 2004 to 31 October 2004 ($801.45 less $332.00) and
iv.$124.45 per week from 1 November 2004 to date and continuing ($801.45 less $677.00).
Credit is to be given to the Respondent for payments already made to Mr Whittaker.
COSTS OF THE APPEAL
The award of costs in an appeal is governed by section 345 of the 1998 Act. In this matter Abacus has been partly successful and the result is an adjustment to the award of weekly benefits. The amount change in favour of Abacus in terms of the amount awarded to be paid in the decision appealed against is greater than $5000 but is not 20% of the amount awarded to date. (There are obvious difficulties in making this calculation on a continuing award). In all the circumstances of the case I am of the view that Abacus should pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
12 May 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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