Wiech v Aldi Stores
[2017] NSWWCCPD 19
•5 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Wiech v Aldi Stores [2017] NSWWCCPD 19 | |
| APPELLANT: | Teodozja Wiech | |
| RESPONDENT: | Aldi Stores | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-3134/16 | |
| ARBITRATOR: | Ms E Beilby | |
| DATE OF ARBITRATOR’S DECISION: | 21 November 2016 | |
| DATE OF APPEAL DECISION: | 5 May 2017 | |
| SUBJECT MATTER OF DECISION: | Alleged factual and discretionary errors: weight of evidence; s 37 of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Kells the Lawyers |
| Respondent: | Edwards Michael Powell Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Paragraphs 1, 3 and 4 of the Arbitrator’s Certificate of Determination of 21 November 2016 are confirmed. 2. Paragraph 2 of the Certificate of Determination of 21 November 2016 is revoked and the following order is made in its place: “2. There is to be an award for the applicant in the sum of $879.61 per week from 19 July 2014 to 27 August 2016.” | |
INTRODUCTION
This appeal concerns a claim for weekly compensation under Pt 3 Div 2 of the Workers Compensation Act 1987 (the 1987 Act). In particular, the worker challenges the Arbitrator’s finding that she had a current capacity to work 30 hours per week as a librarian.
For the reasons that follow, the appeal is successful on that challenge.
BACKGROUND
Teodozja Wiech, the appellant worker, was employed by Aldi Stores, the respondent, as a buying administration assistant. In November 2013 Ms Wiech suffered an elbow and wrist injury which resulted in a period of incapacity.
Following Ms Wiech’s return to duties in January 2014, a series of incidents took place involving conflicts with management and other staff which Ms Wiech alleges culminated in a psychological injury. The pleaded date of injury is 9 January 2014.
It is apparent that at some point prior to September 2014 Ms Wiech made a claim for workers compensation benefits. However, the details of the claim are not in evidence. She was paid weekly compensation.
On 19 September 2014, Gallagher Bassett Workers Compensation NSW (Gallagher Bassett), then workers compensation insurer for the respondent (now Allianz Australia Workers Compensation (NSW) Ltd), wrote to Ms Wiech declining liability for the claim on the basis that she had not sustained a psychological injury in the course of her employment with the respondent. In the alternative, if such an injury was established, Gallagher Bassett alleged that it was the result of reasonable actions taken by the respondent with respect to performance appraisal and discipline. As a consequence, it declined liability pursuant to s 11A of the 1987 Act.
On 17 January 2016, Ms Wiech lodged an Application to Resolve a Dispute in the Commission alleging a major depressive disorder and co-morbid anxiety. She relied on a series of incidents previously occurring in the workplace. Ms Wiech claimed weekly compensation from 19 July 2014 to 27 August 2016 pursuant to s 37 of the 1987 Act, that is, weekly compensation during the second entitlement period (weeks 14–130).
On 8 July 2016, the respondent filed a Reply to the Application denying liability for the reasons explained in the s 74 notice referred to above.
On 12 October 2016, the matter came before a Commission Arbitrator. Both parties were legally represented. No oral evidence was called. The Arbitrator reserved her decision.
On 21 November 2016, the Arbitrator delivered her determination and provided a written statement of reasons. She found in favour of Ms Wiech and entered an award for weekly payments of compensation in her favour. On 21 November 2016, the Commission issued a Certificate of Determination in the following terms:
“The Commission determines:
1. The applicant suffered a psychological injury within the meaning of section 4 of the Workers Compensation Act 1987.
2. There is to [be] an Award for the applicant in the sum on $429.61 per week from 19 July 2014 to 27 August 2015.
3. The respondent is to pay the applicants reasonably incurred section 60 expenses.
4. Credit is to be given to the respondent for payments made to date.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
Ms Wiech appeals the Arbitrator’s determination on limited grounds.
LEAVE
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The quantum in issue on the appeal is in excess of $5,000 and at least 20 per cent of the amount awarded in the decision appeal against. Therefore the threshold requirements in s 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision, in compliance with s 352(4) of the 1998 Act.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE ON APPEAL
Ground one
Ms Wiech alleges that the Arbitrator erred by limiting her claim for weekly compensation to the period from 19 July 2014 to 27 August 2015, in circumstances where the period of the claim was from 19 July 2014 to 27 August 2016. The respondent concedes that the Arbitrator erred as alleged.
Ground two
Ms Wiech alleges that the Arbitrator erred in fact and discretion by finding that she had a capacity to work 30 hours per week as a librarian. In particular, it is alleged that the Arbitrator erred:
(a) by finding that the work as a librarian was work that was reasonably accessible to Ms Wiech in the labour market;
(b) by finding that part-time study, which Ms Wiech had undertaken “online”, should be seen as “in addition” to her capacity to work, and
(c) by failing to give any, or any adequate, consideration to the report of Ms Wiech’s treating psychologist (Dr Anita Rowles) and the certificates of capacity issued by Ms Wiech’s treating general practitioner Dr Banares, in making her findings.
EVIDENCE
Ms Wiech
In evidence are several statements by Ms Wiech. Ms Wiech states that she has been unable to work from 8 July 2014. She states that she has received no assessment for suitable duties during her period of incapacity. She also states that she has attempted “to do studies” in order to assist her in future employment.
At the end of February 2015 Ms Wiech’s medical team cleared her for work “in non-stressful environment for 4 hours, two days a week.” She applied for “some volunteering in ACSO” and was awaiting a response.
In her statement dated 21 September 2016, Ms Wiech states that her current symptoms include severe tension, headaches, difficulty sleeping, depression and anxiety. She states that she has a “low tolerance for stress” and her symptoms of “difficulty breathing, dizziness, stomach aches, face twitching and shaking” intensified in times of uncertainty. She added that she had been diagnosed with temporomandibular joint disorder as a result of stress-related jaw clenching. She also added that she has difficulty concentrating for long periods of time and finds it difficult to tolerate loud noises or crowds.
Medical evidence
In evidence are a series of WorkCover medical certificates issued by Ms Wiech’s general practitioner, Dr Banares. Some of these certificates are incomplete and missing pages. The records available indicate that Ms Wiech was certified to have no capacity for work from 9 January 2014 to 14 February 2014, 19 July 2014 to 29 August 2014, and 28 February 2015 to 26 February 2016. From 27 February 2016 to 17 June 2016 and from 12 July 2016 to 4 November 2016, Ms Wiech was certified fit for four hours per day two days per week.
On 28 January 2014, Mrs Wiech attended on Dr Rosanna Genua, registered psychologist, following a referral by her general practitioner, Dr Banares. In 2014, Ms Wiech attended 15 counselling sessions with Dr Genua. In a report dated 12 May 2015, Dr Genua diagnosed Ms Wiech with elevated level of symptoms of depression, anxiety and stress. She recommended that Ms Wiech continue with counselling in order to minimise the elevated symptoms. She did not comment on Ms Wiech’s work capacity.
On 25 March 2014, Ms Wiech attended on Dr Graham Edwards, at the request of the insurer. In a report dated 28 March 2014, Dr Edwards recorded that Ms Wiech’s adjustment disorder with anxiety had resolved. He noted that Ms Wiech had returned to work four days per week and was keen to work full-time, which he endorsed. He found that Ms Wiech was fit to undertake her pre-injury role.
On 15 September 2014, Ms Wiech attended on Dr Balanza, consulting psychiatrist, following a referral from Dr Banares. In a report dated the same, Dr Balanza recorded a history of “mixed depressive and anxiety symptoms from” the beginning of 2014. He recorded Ms Wiech’s symptoms to have features of major depressive disorder, post-traumatic stress disorder, generalised anxiety disorder and panic attacks. He also recorded that Ms Wiech had somatic symptoms.
On 13 October 2014, Ms Wiech again attended on Dr Balanza. In a report dated the same, Dr Balanza recorded improvement since the last review. He recorded that Ms Wiech continued to have residual symptoms, now predominantly more anxiety, than pervasive mood.
On 25 May 2015, Dr Banares issued a report to Ms Wiech’s legal representatives. In that report, Dr Banares records that on 15 February 2014 Ms Wiech showed some improvement emotionally after a few sessions with a psychologist. Dr Banares certified Ms Wiech fit for suitable duties three days per week, which she gradually increased to four days per week on 28 February 2015. (Dr Banares’ opinion expressed in her report appears to be at odds with the WorkCover medical certificate issued on 27 February 2015, certifying Ms Wiech as having no current capacity for employment from 28 February 2015 to 22 May 2015. However, it is conceivable that the discrepancy is the result of typographical errors.)
Dr Banares further records that on 8 July 2014 Ms Wiech presented with symptoms of panic attack and anxiety and had not been able to work following an incident with her new manager. She presented again on 29 August 2014 with worsened anxiety symptoms, following the insurer’s decision to decline the claim.
On 12 May 2015, Ms Wiech again attended on Dr Balanza. In a report dated the same, Dr Balanza recorded that Ms Wiech had experienced a recent relapse of her symptoms and had a “plateaued response to the medication”.
On 31 July 2015, Ms Wiech again attended on Dr Balanza. In a report dated the same, Dr Balanza recorded recent “mood lability and feeling ‘sensitive’ to various emotional triggers”.
On 26 August 2015, Ms Wiech attended on Dr Leonard Lee, consultant medico-legal psychiatrist, at the request of her legal representatives. In a report dated the same, Dr Lee recorded a history that Ms Wiech was studying a mental health diploma part-time online between 10 to 20 hours per week, “with many breaks”. He recorded that Ms Wiech was “coping better”. He noted that Ms Wiech previously tried to study in 2015 but could not “continue past 15 minutes” and had to “drop a mental health subject”.
Dr Lee recorded that Ms Wiech complained of “constant tension headaches”. Dr Lee also recorded that Ms Wiech “feels too scared to return to work this year” due to headaches and fluctuating severe depressive episodes. On good days, she can “do light house work”. He further recorded that Ms Wiech “believes she could cope with less stressful work, like in a library.”
In response to a question, what is the effect of the injuries on Ms Wiech’s capacity to work, Dr Lee recorded that Ms Wiech was “fit for restricted duties commencing at about three hours per day in an alternate location such as in a library. This could be gradually increased depending on her response.”
On 7 October 2016, Dr Rowles issued a report. Dr Rowles recorded that Ms Wiech continues to experience symptoms of adjustment disorder, generalised anxiety disorder, panic disorder, and posttraumatic stress disorder. These symptoms were said to affect Ms Wiech’s “cognitive functioning, emotion regulation and physiological state”. Dr Rowles recorded that it is likely Ms Wiech will continue to experience some ongoing symptoms such as tension headaches and a reduced capacity to manage stress. She found Ms Wiech to have capacity to work on a part-time basis, 4 hours per day, 2 days per week, in a low stress environment.
THE ARBITRATOR’S REASONS
The Arbitrator’s findings and reasons in relation to injury and the s 11A defence are not challenged. The only challenge on appeal concerns the Arbitrator’s findings on Ms Wiech’s current work capacity. Her reasons in relation to that issue are brief. It is convenient to set them out in full:
“79. The applicant claims an incapacity to work for the period 19 July 2014 to 27 August 2015 [sic, 2016]. The applicant has provided WorkCover certificates that indicate that she is capable of working some 8 hours per week. Dr Lee, psychiatrist takes a history that the applicant is studying some 10 to 20 hours per week and also is capable or [sic, of] working some 15 hours per week in an alternate location such as a library.
80. Dr Edwards was of the opinion in March 2014 that the applicant was fit to return to pre-injury duties. I am of the view that Dr Edwards’s opinion should be given less weight as his opinion was that the injury has resolved which is against the opinions of the treating experts in this case such as Dr Balanza and also Dr Lee.
81. I have formed the view that Dr Lee, being a psychiatrist is in a good position to be able to assess the capacity of the applicant. He says that the applicant is fit to work some 15 hours per week in an alternate location such as a library. The parties agreed that the rate of pay as described in ‘what jobs pay’ would be the relevant hourly rate to be used if I were to find capacity to work as a librarian.
82. The capacity to work as librarian must be seen to be in addition to the applicants [sic, applicant’s] studying which has been some 10 to 20 hours per week. I will use the mid figure of these estimates being 15 hours.
83. That leads me to a finding of a capacity of 30 hours per week as a librarian earning $30 an hour, that is $900.00 per week.
84. The respondent has not put the applicant’s pre-injury earnings in dispute that were claimed at $1,662.02, 80 per cent of which is $1,329.61.
85. There is to be an Award for the applicant in the sum of $429.61 per week from 19 July 2014 to 27 August 2015.
86. The respondent is to be given credit for payments made to date.”
SUBMISSIONS
Ms Wiech’s submissions
The Arbitrator erred by assessing Ms Wiech’s work capacity against a capacity to work as a librarian.
The Arbitrator’s assessment was not consistent with Dr Lee’s evidence. Dr Lee did not opine that Ms Wiech could work as a librarian, but instead stated that she had a capacity to work in “an alternative location such as a library”. Ms Wiech submits it should be inferred that Dr Lee was expressing an opinion that given Ms Wiech’s psychological injury that any work should be undertaken in a low stress environment. This was consistent with the evidence of Dr Rowles.
Incapacity is reduced by the earning capacity of the worker in the open labour market reasonably accessible to the worker as a result of his or her injury: Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339; 71 NSWLR 593 (Muir). Ms Wiech submits that the Arbitrator erred by finding that work as a librarian was reasonably accessible to her. There was no evidence as to the availability of work as a librarian in the labour market reasonably accessible to Ms Wiech: Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237.
Ms Wiech was not reasonably able to pursue work as a librarian. She did not have the training or qualification such work requires.
The Arbitrator erred by finding that Ms Wiech could work as a librarian in addition to the time occupied by her studies, namely 10-20 hours per week.
The Arbitrator’s findings were not consistent with the evidence of Dr Lee or the contemporaneous evidence in relation to Ms Wiech’s capacity for work (Dr Rowles and the certificates of capacity). Dr Lee found:
(a) a history that Ms Wiech tried to study in 2015 but could not continue past 15 minutes and had to drop a mental health subject;
(b) at the time of his assessment Ms Wiech was studying a mental health diploma part time on line between 10 and 20 hours per week with many breaks and felt that she was “coping better”, and
(c) in relation to Ms Wiech’s capacity, Dr Lee opined “I believe she is fit for restricted duties commencing about three hours per day in an alternative location such as a library. This could be gradually increased depending on her response”.
Ms Wiech’s capacity to study should be seen as different from her capacity to work in an employment environment. The study was part time and Ms Wiech was able to work at her own pace.
In making her findings the Arbitrator failed to give appropriate weight to the following matters:
“a. [Ms Wiech’s] statement of 21 September 2016 in which she stated that her symptoms included severe tension, headaches, difficulty sleeping, low tolerance for stress, difficulties breathing, dizziness, stomach aches, face twitching and shaking. [Ms Wiech’s] statement that she had been diagnosed with TMJ (Temporomandibular Joint Disorders) as a result of stress-related jaw clenching and that she had difficulty concentrating for long periods of time and found it difficult to tolerate loud noises or crowds. In the same statement, [Ms Wiech] stated that she was currently taking antidepressant medication daily on pain medication and use a mouthguard to adjust her jaw muscles while sleeping [ALD42].
b. The Certificates of Capacity admitted into evidence which provided:
i. 10 October 2015 to 18 December 2015 – no current work capacity;
ii. 12 July 2016 to 26 August 2016 – capacity for some type of employment for four hours, two days per week (8 hours per week);
c. The psychological report from [Ms Wiech’s] treating psychologist, Ms Rowles dated 7 October 2016 in which Ms Rowles opined that [Ms Wiech] was likely to return to healthy levels of functioning, but was likely to continue to experience some ongoing symptoms such as tension headaches and reduce capacity to manage stress, and opined that [Ms Wiech] had capacity to work on a part-time basis (four hours per day, two days per week) in a low stress environment. Ms Rowles had treated [Ms Wiech] since December 2014 and her evidence was the most contemporary medical evidence before the arbitrator on capacity.”
Any assessment of Ms Wiech’s capacity to work in a library should have been measured against the earnings of a library assistant, a position in a low stress environment that does not require formal qualifications or training, not the position of a librarian.
Ms Wiech’s submissions attach a document described as “Annexure A”, being an extract from the publication “What Jobs Pay”. It identifies an hourly rate “only fractionally lower than that of a librarian”, namely $25.42 per hour, as opposed to $30 per hour for a librarian.
The respondent’s submissions
The respondent submits:
“4. In relation to Ground 2 of the Appeal Counsel for [Ms Wiech] at the hearing conceded that [Ms Wiech’s] ability to earn could be assessed by reference to ‘an applicable industrial award, for example, covering librarians’. (Transcript page 27.30)
5. Further, Counsel for [Ms Wiech] conceded that the applicable rate for such a position was $30 per hour. (Transcript page 28.5)
6. Further, it was accepted that [Ms Wiech] was able to work, studying, at home for between 10-20 hours per week. (Transcript page 27.1)
7. Accordingly it is submitted that it was open to the Arbitrator to assess [Ms Wiech’s] ‘ability to earn’ at 15 hours in addition to the hours which she ‘worked’ at home.
8. Accordingly it is submitted that the Arbitrator correctly assessed [Ms Wiech’s] work capacity.” (emphasis in original)
DISCUSSION
The respondent correctly concedes that the Arbitrator erred in respect of the period of the award entered in [Ms Wiech’s] favour. It is agreed that the period of the award should have been from 19 July 2014 to 27 August 2016. In the circumstances, subject to the remaining grounds, the award will be amended accordingly.
Ground 2(a) is misconceived. Ms Wiech’s submissions and the authorities upon which she relies are those that pertain to the law as it stood prior to the passage of the Workers Compensation Legislation Amendment Act 2012 (the amending Act). As the pleaded date of injury is 9 January 2014, s 37 as amended by the amending Act applies.
Section 37 of the 1987 Act (as amended by the amending Act) provides:
“37 Weekly payments in second entitlement period (weeks 14-130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − D, or
(b) MAX − D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 95%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a) (AWE × 80%) − (E + D), or
(b) MAX − (E + D),
whichever is the lesser.” (emphasis added)
The factors referred to in s 37 are defined in s 35 of the 1987 Act. Factor “D” means the “deductible amount”, that is, the sum of the value of each non-pecuniary benefit (if any) that is provided by the employer to a worker in respect of that week. It is not relevant on the circumstances of this case. Factor “E” means the amount to be taken into account as the worker’s earnings after the injury, calculated as whichever of the following is the greater amount:
(a) the amount the worker is able to earn in suitable employment,
(b) the worker’s current weekly earnings. (emphasis added)
The amending Act also introduced s 32A which defines the meaning of “current work capacity”, which is defined as follows:
“‘current work capacity’, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.”
The term “suitable employment” is also defined in s 32A to mean:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited:
(a) having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place of residence.”
Prior to the commencement of the amending Act, “suitable employment” was defined in s 43A of the 1987 Act. That provision specifically provided that, in identifying suitable employment, regard should be had to the nature of the worker’s pre-injury employment and the worker’s place of residence. Established authority provides that partial incapacity in that context is to be determined “having regard to the realities of the labour market in which the employee was working or might reasonably be expected to work”: Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171 at [9] and Muir.
In stark contrast, the definition of “suitable employment” in s 32A directs that the employment for which the worker is currently suited is to be determined “regardless of” whether the work or employment is “available” and whether the work or employment is “of a type or nature that is generally available in the employment market”. The worker’s place of residence is also immaterial to an assessment of suitable employment.
It follows that the submissions in support of ground 2(a) cannot be accepted and that ground must fail.
The remaining grounds of appeal, as Ms Wiech submits, allege errors of fact and discretion. To determine whether such errors have occurred, I am guided by the principles discussed by Barwick CJ at 506 in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; 140 ALR 227). Those principles were summarised by Deputy President Roche in Raulston v Toll Pty Ltd[2011] NSWWCCPD 25 at [19]–[20] as follows:
“19. ...
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd[2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
The Arbitrator correctly recorded Dr Lee’s opinion, namely, that Ms Wiech was fit for restricted duties about three hours per day in an alternative location such as a library. His opinion was based upon a detailed history, mental state examination and document review. Informing his opinion Dr Lee recorded that Ms Wiech was studying a mental health diploma online between 10–20 hours per week “with many breaks” which Ms Wiech felt she was coping with. He noted that she had been achieving well in the course, having achieved a credit in the previous semester. However, he also noted her reluctance to return to work was due to headaches and because of fluctuating depressive episodes. Dr Lee noted Ms Wiech’s concession that on good days she could do light housework and he noted that Ms Wiech conceded that she could cope with less stressful work “like in a library”.
The substance of Ms Wiech’s complaint is that the Arbitrator failed to place any or any adequate weight on evidence which would have limited Ms Wiech’s capacity to work at eight hours per week, namely four hours on two days per week. I do not accept that submission. The Arbitrator noted that evidence, in particular she noted (at [79]) that Ms Wiech had provided WorkCover certificates issued by Dr Banares indicating a capacity to work at only eight hours per week.
The Arbitrator weighed all the evidence as to Ms Wiech’s capacity to work. That evidence varied from that of Dr Edwards who considered that Ms Wiech was fit to return to pre-injury duties, to the evidence of Dr Banares who opined a limitation of eight hours per week.
The Arbitrator expressed (at [80]) a preference for the opinions of Dr Lee. Dr Lee provided a reasoned analysis for the conclusion reached. It was open to the Arbitrator to conclude that he provided the most reliable guide to Ms Wiech’s current work capacity. The finding does not speak of error.
Ms Wiech submits that the Arbitrator gave insufficient weight to Ms Wiech’s statement of her symptoms as set out at [21] above. I accept that the Arbitrator failed to make specific reference to Ms Wiech’s stated symptoms. However, Ms Wiech’s symptoms as recorded in her statement of 21 September 2016 are broadly consistent with the recorded symptoms by Drs Lee, Balanza, and Genua and provided a fair climate for the acceptance of their opinions (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844).
Given that the evidence of the nature and extent of the severity of the symptoms varied as outlined above, it was open to the Arbitrator to find the contemporaneous history recorded by Dr Lee was likely to be a more reliable guide to Ms Wiech’s ongoing symptoms than those recorded in her statement made one year later, in September 2016.
However, for the reasons that follow, I accept Ms Wiech’s submission that the Arbitrator erred by finding that her capacity to work as a librarian included a capacity for work equivalent to the average hours spent studying. I also accept that that finding was inconsistent with Dr Lee’s evidence. At [82] the Arbitrator found:
“The capacity to work as librarian must be seen to be in addition to the applicants [sic, applicant’s] studying which has been some 10 to 20 hours per week. I will use the mid figure of these estimates being 15 hours.”
It is apparent from the Arbitrator’s calculation of the award that she found Ms Wiech to have a capacity for work of 30 hours per week. I infer that the calculation is comprised of 15 hours as assessed by Dr Lee, plus an additional 15 hours per week. The additional hours appears to be based on the Arbitrator’s inference that time spent studying at home was notionally equivalent to an ability to return to the workforce working in a library. There is no evidence to support that inference. Dr Lee’s evidence was to the contrary. Dr Lee acknowledged that Ms Wiech was undertaking studies at home and was coping provided she took “many breaks”. Noting that to be the case, he opined that Ms Wiech was fit to return to duties in a non-stressful job such as in a library commencing at 15 hours per week. He did not opine that Ms Wiech was fit to work for 30 hours per week. The Arbitrator’s conclusion to that effect was an error.
I reject the respondent’s submission that, “it was accepted that [Ms Wiech] was able to work, studying, at home for between 10-20 hours per week. (Transcript page 27.1)”. As I read the Arbitrator’s remarks she was merely posing a question regarding how the study hours should be treated in terms of Ms Wiech’s current work capacity. Time spent studying in the privacy of one’s home when the hour of study may be spread out or punctuated with “many breaks” is quite a different proposition to undertaking permanent employment for the equivalent number of hours. If the respondent’s submission is accepted, the graduated return to work would commence at 30 hours per week, almost the equivalent of full-time work. As I have said there is no evidence to support that submission, and I reject it.
For the reasons stated, I find that Ms Wiech was fit to resume work, during the relevant period, working in a suitable low stress environment, such as a library, for 15 hours per week.
On appeal, Ms Wiech sought to introduce fresh evidence by way of an “annexure” to the appeal submissions, namely an extract from a publication entitled “What Jobs Pay”. This was said to be in support of a submission that the hourly rate of pay for a “library assistant” amounts to $25.42 per hour. That evidence was in support of a submission that as Ms Wiech was unqualified to work as a librarian that any current capacity for work should be assessed by reference to the earnings of a library assistant.
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6) sets out the process for seeking leave of the Commission to grant leave to admit ‘new evidence’ on appeal.
In CHEP Australia Ltd v Strickland [2013] NSWCA 351 Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“31. ... The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous: Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 per Sackville AJA (Ward JA agreeing) at [66].
No attempt has been made to comply with s 352(6) or Practice Direction No 6.
Clearly the first limb of s 352 cannot be satisfied. The evidence sought to be introduced was readily available in the form of a published industrial instrument and was undoubtedly available in advance of the hearing. Further, I am not satisfied that a different result would emerge if the evidence is taken into account. The quantification of Ms Wiech’s current capacity for work is a discretionary matter. If the evidence sought to be tendered was taken into consideration, it may influence the final assessment, however it could not be said with certainty that it would. Therefore, continued unavailability of the evidence would unlikely cause a substantial injustice in the case.
For these reasons, I refuse leave to introduce the fresh evidence on appeal. As a consequence I do not propose to have any regard to the document described as “Annexure A” to the application.
As the respondent submits, Ms Wiech conceded (at T28.9) that the appropriate hourly rate under the applicable industrial award for a librarian amounted to $30 per hour. It is trite law that parties are bound by the conduct of cases at first instance (University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483). Therefore, Ms Wiech should be bound by her admission in relation to the appropriate hourly rate for work in a library.
It follows that I will approach the quantification of Ms Wiech’s entitlements to weekly compensation on the basis of the concession made before the Arbitrator, namely, that the appropriate hourly rate under the applicable industrial award amounted to $30 per hour.
CONCLUSION
The parties agree that the period of the award in favour of Ms Wiech spans the period from 19 July 2014 to 27 August 2016.
There is no dispute that Ms Wiech’s pre injury average weekly earnings amounted to $1,662.02. In accordance with the provisions of s 37, eighty per cent of that sum amounts to $1,329.61 per week.
The amount Ms Wiech is capable of earning in suitable employment during the relevant period is $450.00 per week, namely 15 hours per week at $30 per hour. Therefore there shall be an award for Ms Wiech in the sum of $879.61 from 19 July 2014 to 27 August 2016.
ORDERS
Paragraphs 1, 3 and 4 of the Arbitrator’s Certificate of Determination of 21 November 2016 are confirmed.
Paragraph 2 of the Certificate of Determination of 21 November 2016 is revoked and the following order is made in its place:
“2. There is to be an award for the applicant in the sum of $879.61 per week from 19 July 2014 to 27 August 2016.”
Judge Keating
President
5 May 2017
0
11
0