Woolworths Limited v Buckland
[2012] NSWWCCPD 57
•10 October 2012
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Woolworths Limited v Buckland [2012] NSWWCCPD 57 | ||||
| APPELLANT: | Woolworths Limited | ||||
| RESPONDENT: | Barry George Buckland | ||||
| INSURER: | Self-insured | ||||
| FILE NUMBER: | A1-10291/11 | ||||
| ARBITRATOR: | Mr Jeffrey Phillips SC | ||||
| DATE OF ARBITRATOR’S DECISION: | 27 June 2012 | ||||
| DATE OF APPEAL DECISION: | 10 October 2012 | ||||
| SUBJECT MATTER OF DECISION: | Section 40 of the Workers Compensation Act 1987; quantification of entitlement to weekly compensation; actual earnings post injury; prima facie evidence of ability to earn in incapacitated state; evidence of facts in issue | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Bartier Perry Lawyers | |||
| Respondent: | Peacockes Solicitors | ||||
ORDERS MADE ON APPEAL: | 1. The orders made in paragraphs 1 and 2 of the Certificate of Determination dated 27 June 2012 are confirmed. 2. The appellant is to pay Mr Buckland’s costs of the appeal. | ||||
BACKGROUND
Mr Barry George Buckland commenced employment as a loss prevention officer with Woolworths Limited (the appellant) in 1997. His duties included surveillance of customers present at the appellant’s store in Orange, New South Wales. He described his position as being “an undercover store detective”. He was required to detect shoplifting activity which, on many occasions, required him to apprehend those he believed had attempted to steal property belonging to the appellant.
On 2 December 2008 in the course of that work, Mr Buckland was assaulted when he attempted to discipline a group of young persons. The group, which comprised five young men as well as a young female, were throwing balls around the Woolworths store premises. When Mr Buckland directed them to stop that activity one of the group assaulted him and pushed him to the ground. As he fell he struck a metal trolley causing injury to his left shoulder. He followed the group from the store at which time he was again assaulted.
Mr Buckland sought treatment at Orange Base Hospital and was thereafter treated by Dr Kwa, orthopaedic surgeon. By reason of incapacity he was absent from work for one week, following which he returned to work and was provided with suitable employment.
By reason of Mr Buckland’s left shoulder injury he has been unable to return to his pre-injury duties given the physical requirements involved in apprehending suspected offenders. The appellant provided suitable duties, for which Mr Buckland was paid an amount equivalent to his pre-injury earnings, until he was summarily dismissal from his employment on 7 May 2009.
The appellant terminated Mr Buckland’s employment by reason of alleged serious misconduct. That misconduct was said to have arisen during the apprehension by Mr Buckland of a female customer at the Orange store whom he believed had committed a shoplifting offence. The relevant facts are addressed below. Mr Buckland denied the suggested serious misconduct and commenced proceedings against the appellant alleging wrongful dismissal. That dispute was settled when agreement was reached between the parties concerning payment by the appellant to Mr Buckland of pay for five weeks in lieu of notice. That agreement, which included other terms, was the subject of a deed executed by the parties on an unspecified date in 2009.
Following his dismissal, Mr Buckland sought alternative employment in Orange. He obtained a casual position driving taxis in that city. However, his earnings were considerably less than his pre-injury earnings in the employ of the appellant.
On 19 May 2009 the appellant wrote to Mr Buckland advising that it was their view that his entitlement to any ongoing weekly benefits in relation to the workers compensation claim he had lodged in respect of the shoulder injury had “ceased”.
In late 2010 Mr Buckland claimed, and was paid, lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) in respect of whole person impairment and pain and suffering resulting from the left shoulder injury. In 2011 a claim was made on Mr Buckland’s behalf by his solicitors in respect of weekly payments pursuant to s 40 of the 1987 Act. Liability in respect of that claim was denied by the appellant and notice of that dispute was given to Mr Buckland by the appellant in correspondence dated 3 November 2011. That notice made it clear that the appellant did not dispute the occurrence of injury and it was stated that “liability continues to be accepted in relation to medical expenses”. That notice also included the following statement:
“You were performing suitable duties as a loss prevention officer when your employment was terminated with effect from 7 May 2009 on account of serious misconduct.
Had your employment not been terminated due to your serious misconduct suitable duties would have remained available to you, and you would not have suffered any loss of income as a result of your injury”.
The terms of the notice referred to immediately above raised issues relevant to the operation of s 40(2A) of the 1987 Act. The application of that section to the relevant facts was the subject of submissions and was considered by Arbitrator Jeffrey Phillips SC in proceedings which had been commenced by Mr Buckland against the appellant. Those proceedings were heard before the Arbitrator on 28 March 2012 and a Certificate of Determination was issued on 27 June 2012. That determination was accompanied by a Statement of Reasons (Reasons). The Determination was as follows:
“The Commission determines:
1. The respondent will pay the applicant pursuant to section 40 of the Workers CompensationAct 1987 the amount of $300 per week from the 9 May 2009 to date and continuing. The respondent will have credit for payments made for the first five weeks of that period.
2. The respondent will pay the applicant’s costs as agreed or assessed to which costs I provide an uplift to both sides for complexity of 20 per cent.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
There is but one ground of appeal raised which appears at [2.8] of Part B of the appellant’s Application filed in respect of this appeal which is as follows:
“The appellant submits that the Arbitrator fell into error by determining, and quantifying, an entitlement to weekly compensation in the absence of medical evidence to support his findings.”
The “ground” as it appears immediately above lacks precision. However, it appears to raise two distinct matters of complaint. Firstly, it seems to suggest error of fact on the part of the Arbitrator in determining that Mr Buckland was entitled to weekly compensation as quantified. The second complaint appears to be that the finding concerning entitlement to weekly compensation was made in the absence of any medical evidence to support such determination. That second complaint seems to suggest error of law on the part of the Arbitrator in making a finding in the absence of relevant evidence.
I note in passing that the appellant has raised no ground of complaint concerning the Arbitrator’s determination of the question, which was the subject of much evidence and argument at the hearing, concerning Mr Buckland’s alleged unreasonable rejection of suitable duties.
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.
THE ARBITRAL PROCEEDINGS
The proceedings before the Arbitrator were recorded, a transcript (T) has been produced and a copy has been provided to the parties. The documentary evidence before the Arbitrator was identified by him as recorded at T1 and T2 and at [8] of Reasons. Leave was granted to adduce oral evidence of Mr Buckland. That evidence is summarised by the Arbitrator between [9] and [12] of Reasons.
Agreement between the parties was reached at the hearing that Mr Buckland’s probable earnings but for injury and his actual earnings were at all relevant times $819 per week and $519 per week respectively.
It was not disputed that, as a result of the subject injury, Mr Buckland had suffered a tear to his left supraspinatus tendon. A medical certificate issued by Dr N Overton tendered on behalf of the appellant, issued on 17 December 2010 included a statement that from that date Mr Buckland “has reached maximum medical improvement and is fit for permanently modified duties”. The restrictions placed by Dr Overton in that certificate were that lifting should be limited to 10 kilograms and that his duties should not require “work above shoulder level” and, further, that Mr Buckland was not to work as a loss prevention officer.
Mr Buckland tendered a report of Dr Raymond Wallace, orthopaedic surgeon, dated 23 March 2010. The following opinion concerning Mr Buckland’s fitness for work was expressed by Dr Wallace:
“Mr Buckland remains unfit to return to his pre-injury duties at work as a Loss Protection Officer.
He would not be fit for activities requiring repetitive bending or twisting movements at his left shoulder, any overhead tasks at his left arm, repetitive lifting above 5kgs at his left hand, or prolonged use of hand tools at his left hand.
He is currently fit to return to work at full-time light duties, with due consideration given to restrictions on his activities detailed above.”
In a written statement made 28 March 2012, Mr Buckland described the circumstances leading to the termination of his employment as follows:
“On Monday, 4 May 2009 whilst in the store I saw a woman shoplift some underwear which she placed down the front of her pants. I waited for her to leave the store, which is the normal procedure. As I was on light duties and not able to apprehend offenders I asked the Manager, Nathan to ask her to return back inside the shop. I then asked her to go into a room with a female employee and pull out the underwear she took.
She didn’t have it but admitted she took it and rolled it up and put it down her pants and changed her mind and put it back where she got if from.
My boss claims that I was wrong in apprehending this lady and went about it the wrong way. I wasn’t wrong and didn’t do it the wrong way. I just followed normal procedure.
The boss didn’t accept that and I got the sack on 7 May 2009.”
The appellant relied on statements made by Nathan Howard and Cheryle Weekes, each a fellow worker of Mr Buckland, concerning the circumstances surrounding the apprehension of the suspected shop lifter on 4 May 2009.
Each of those witnesses had been present, assisting Mr Buckland at the time he sought to detain the suspect shopper. Both Mr Howard and Ms Weekes state that Mr Buckland said to the suspect that she was to “strip” in front of Ms Weekes and that Mr Howard and Mr Buckland left both women in a closed room for a time. Ms Weekes stated that the suspect did, in fact, remove her outer garments in the room where they had been directed by Mr Buckland. No goods belonging to the appellant were found on the suspect’s person.
Those statements and a record of interview of Mr Buckland, which were relied upon by the appellant, contained considerable detail which, having regard to the issues raised on this appeal, need not be summarised.
Mr Buckland stated that since his termination in May 2009 the only work he has been able to obtain, given his age and the state of his shoulder, has been taxi driving in Orange. He further stated that he did not consider that he was capable of returning to his pre-injury job because he “[needs] the use of both arms”.
In oral evidence Mr Buckland stated that he commenced work as a taxi driver two or three days after his employment with the appellant was terminated. That work was performed for “several owners” and the work occupied him “from 20 to 25, 30 hours a week”. Mr Buckland described the work as “quite difficult” when he was required to lift luggage in and out of the vehicles. Mr Buckland stated that the 30 hours work was all that was available to him from the two owners for whom he drove, and that he could “probably go looking for more but you know whether me [sic] shoulder can handle it”. When questioned by counsel as to what he meant by “not sure how [his] shoulder would go” Mr Buckland replied:
“Well you know as to how much, its a bit hard to put. I have difficulty, as I say I have difficulty lifting heavy suitcases from the ground up into the back of the wagon at times. Sometimes I can’t do it”.
Mr Buckland also described other lifting activities that he found difficult. It was further stated by Mr Buckland that following a 30 hour week he “[looked] forward to having a couple of days off you know to, to go again”.
Mr Buckland was cross examined at length concerning the circumstances of his apprehension of the suspected shoplifter in May 2009.
Mr Buckland was cross examined concerning his capacity to perform taxi driving duties, and it was put that there was plenty of such work available, a proposition with which he agreed. It was then put by counsel that Mr Buckland “could do more hours than you are presently doing as a taxi driver” to which Mr Buckland replied:
“Well I wouldn’t do more than what I’m doing because I’m physically un [sic], you know able, only able to do what I’m doing. That’s simple as that.”
Submissions before the Arbitrator
Counsel appearing for Mr Buckland argued that the duties provided following Mr Buckland’s return to work were not “suitable duties” having regard to the medical evidence. Particular reliance was placed upon the medical certificates which, it was submitted, certified that Mr Buckland was to work in the company of a fellow loss prevention officer. It was also put that his employment was wrongfully terminated. Those arguments appear to be directed to the apparent reliance by the appellant upon the provisions of s 40(2A) of the 1987 Act concerning alleged unreasonable rejection of suitable employment by Mr Buckland.
Reference was made by counsel to the decision of Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin) in support of an argument that, when determining entitlement pursuant to s 40 of the 1987 Act, a worker’s actual earnings post injury represent, prima facie, his ability to earn in his incapacitated state. Having regard to the evidence as to earnings, and the state of the evidence generally, it was Mr Buckland’s case that he was entitled to an award in the sum of $300 per week.
Counsel appearing on behalf of the appellant sought to refute the suggestion that Mr Buckland had not been provided with suitable work following his injury. Particular reliance was placed upon the absence of any evidence from Mr Buckland that he was “unable to do the work that he was given by [the appellant]”.
Counsel proceeded to address the circumstances of the termination of Mr Buckland’s employment. It was put that the evidence supported an inference that the misconduct giving rise to that termination concerned Mr Buckland’s behaviour when the suspected shoplifter was apprehended in May 2009. Lengthy submissions were put concerning the evidence of the fellow workers, in particular Ms Weekes. It seems that the appellant was advancing an argument that any entitlement to compensation should be assessed having regard to the terms of ss 40(2A) and 40(2B) of the 1987 Act.
Counsel further argued that there was no medical evidence that suggested that Mr Buckland “can’t do 40 hours a week of taxi driving”. The tenor of the submissions put appears to suggest that, having regard to the availability of taxi driving work in Orange, and the state of the medical evidence as to his capacity, Mr Buckland would not have an entitlement to an award of weekly compensation.
The Arbitrator’s decision
Following a summary of the evidence and submissions put on behalf of the parties the Arbitrator addressed the question as to whether, on the facts, the provisions of ss 40(2A) and 40(2B) had relevance to the determination of Mr Buckland’s claim for weekly compensation.
The Arbitrator found that proof of the fact that Mr Buckland had unreasonably rejected suitable employment would require evidence that established that his conduct constituted “a wilful repudiation of the contract of employment” (at [16] of Reasons). The Arbitrator proceeded to find that, regardless of which account was accepted concerning the conduct of Mr Buckland when apprehending the suspected shoplifter, proof of an intention “no longer to be bound by an essential term of the contract” was not established. Those findings constituted a rejection by the Arbitrator of the appellant’s arguments concerning the relevance of ss 40(2A) and 40(2B).
The Arbitrator proceeded to consider the question as to whether Mr Buckland was entitled to weekly payments as claimed. It was noted that the question as to the existence or otherwise of incapacity had been addressed in the judgment of Campbell JA (Basten JA and Rein J agreeing) in Ric Developments Pty Ltd t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339.
A finding was made by the Arbitrator that “in considering [Mr Buckland’s] medical condition it appears that he is incapacitated and his earning capacity on the open labour market available to him has been reduced” (at [19] of Reasons).
The Arbitrator found, having regard to the decision of the Full Court in Aitkin, that Mr Buckland’s agreed earnings as a taxi driver constituted prima facie evidence of his “ability to earn in the open labour market available to him in the town of Orange”.
The Arbitrator noted that there was an absence of evidence or relevant argument that would “dispel that prima facie position”. It was further noted that nothing had been put in argument in support of the exercise of the Commission’s discretion to reduce the arithmetic difference between Mr Buckland’s probable earnings as agreed and those actual earnings when determining weekly entitlement. The Arbitrator proceeded to make the award noted at [9] above.
SUBMISSIONS, DISCUSSION AND FINDINGS
Mr Buckland’s claim was in respect of alleged partial incapacity and he sought an award pursuant to s 40 of the 1987 Act which, relevantly, provides:
“40 Weekly payments during partial incapacity—general
(cf former ss 9, 11)
(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.Note. Section 35 limits the maximum weekly payment of compensation under this section.
(2) Calculation of reduction in earnings of worker—general
The reduction in the worker’s weekly earnings is (except as provided by this section) the difference between:(a)the weekly amount which the worker would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment, and
(b)the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury.
Note. The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.
(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment
If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:(a)the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b)the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).
Note. The difference between (a) and (b) is the maximum amount of compensation payable to the worker. It is not a limit on the combined total of compensation and earnings.
(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:
(a) a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or
(b)the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.
…”
I have earlier made comment concerning the shortcomings of the manner in which the ground of appeal has been expressed. Submissions which seek to support that ground, it must be said, are unhelpful. The drafter of the documentation indicated that the material was prepared before the transcript had been received, and an assertion was made that the appellant “reserves its right to make further submissions” (at 2.9.5 of Part B of the Application).
The Registrar made a transcript available to the appellant’s solicitors on 30 July 2012. At that time a direction was made permitting the filing of further submissions within 28 days of that date. No supplementary submissions have been received by the Commission.
It is convenient to set out the appellant’s submissions before an attempt is made to address any relevant issues raised therein:
“1. The Arbitrator determined the respondent’s entitlement to weekly compensation at $300 per week, representing the difference between his actual earnings ($519 per week) and an agreed comparable figure of $819 per week.
2. But in the appellant’s submission there was no evidence before the Arbitrator of a medical nature to suggest that the respondent had a reduced capacity for employment in terms of hours.
3. Medical certificates since January 2009 [Reply 13] impose no restriction in terms of hours per week that the respondent is able to work.
4. The respondent put before the Commission a medical report of Dr Wallace [ARD 1-7] wherein Dr Wallace [ARD 6] comments that the respondent is able to work on a full time basis.
5. The appellant has not had the opportunity to view the transcript referred to by the Arbitrator in the Statement of Reasons, but reserves its right to make further submissions.
6. But the appellant submits that the Arbitrator has failed to properly consider the medical evidence before him. The critical findings are set out within paragraph 20 of the Statement of Reasons, but there is no consideration of the medical evidence to which the appellant has referred.”
The appellant is correct to assert that there is no expert medical evidence which suggests that Mr Buckland is unable, by reason of incapacity, to work full-time. It is also correct that Dr Wallace states in his evidence that Mr Buckland is able to work on a full-time basis.
It seems to be implied in those submissions that Mr Buckland has no incapacity and thus no entitlement to weekly compensation because the evidence establishes that he is fit to work a full week. The difficulty with that implied suggestion is that Dr Wallace in evidence states that Mr Buckland has suffered “significant injuries at his left shoulder” as a result of the subject injury; that he is unfit to return to his pre-injury duties as a loss prevention officer; he would “not be fit for activities requiring repetitive bending or twisting movements at his left shoulder, any overhead tasks at his left arm, repetitive lifting above 5 kgs at his left hand, or prolonged use of hand tools at his left hand”, and that he is fit “to return to work full-time light duties, with due consideration given to restrictions on his activities [as stated]”.
The appellant has not challenged the evidence of Dr Wallace. In those circumstances there exists uncontroverted evidence of physical incapacity. Mr Buckland is prevented from carrying out his pre-injury duties and those tasks and activities described by Dr Wallace.
It seems to be suggested that Mr Buckland is capable of working full-time as a taxi driver and that such work would generate an income greater than his present earnings. It is not clear as to whether it is suggested that such earnings would equal, or be greater than, his probable earnings as agreed, or something less.
The difficulty the appellant is confronted with when making that suggestion is that Mr Buckland, as emphasised in submissions put on this appeal, had asserted in evidence that he experienced certain difficulty with the taxi work and that he would not do more hours than he had performed following the termination of his employment with the appellant because he was “only able to do what [he was] doing”.
It is clear that the Arbitrator has, as was open to him, accepted Mr Buckland’s self assessment of his capacity to perform suitable duties, namely taxi driving. The question of entitlement to weekly compensation in such circumstances was considered by him with guidance from the decision of the Full Court in Aitkin where the Court was considering s 11 of the now repealed Workers’ Compensation Act 1926, the predecessor of s 40 of the 1987 Act, where the following appears:
“As to the phrase ‘is earning,’ it has been held that if the partially incapacitated worker is earning something his actual earnings must prima facie be taken as the basis, and the rate of compensation provided for by s. 9 reduced by a calculation based on the excess of his pre-injury average weekly earnings above what he is actually earning: Blakemore v. Delta Mill (1919) Ltd. (1) If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, what he is “able to earn,” must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power ...”
The Arbitrator, having accepted the evidence of Mr Buckland, had plainly rejected the appellant’s argument that the agreed actual earnings were not a true reflection of Mr Buckland’s capacity to earn following his injury. That approach to the evidence and his conclusion concerning Mr Buckland’s ability to earn were open to him and I conclude that the appellant has failed to demonstrate any relevant error on the Arbitrator’s part. In particular, I find that the appellant has failed to demonstrate any error concerning the quantification of Mr Buckland’s entitlement to weekly compensation. Further, I reject the appellant’s argument that the Arbitrator’s determination is made in the absence of evidence. The Arbitrator’s determination should be confirmed. Appropriate orders appear below.
DECISION
The orders made in paragraphs 1 and 2 of the Certificate of Determination dated 27 June 2012 are confirmed.
COSTS
The appellant is to pay Mr Buckland’s costs of the appeal.
Kevin O'Grady
Deputy President
10 October 2012
I, TAMI O'CARROLL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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