Woolworths Limited v Kassem
[2010] NSWWCCPD 72
•12 July 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Woolworths Limited v Kassem [2010] NSWWCCPD 72 | |||||
| APPELLANT: | Woolworths Limited | |||||
| RESPONDENT: | Ziad Kassem | |||||
| INSURER: | Woolworths Limited | |||||
| FILE NUMBER: | A1-9320/09 | |||||
| ARBITRATOR: | Ms A Nicholl | |||||
| DATE OF ARBITRATOR’S DECISION: | 17 March 2010 | |||||
| DATE OF APPEAL DECISION: | 12 July 2010 | |||||
| SUBJECT MATTER OF DECISION: | Rejection of relevant evidence; Commission not bound by the rules of evidence; section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998; admissibility of return to work co-ordinator’s case notes | |||||
| PRESIDENTIAL MEMBER: | Acting President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bartier Perry | ||||
| Respondent: | Cameron Gillingham Boyd | |||||
| ORDERS MADE ON APPEAL: | For the reasons given in this decision, the Arbitrator’s determination of 17 March 2010 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed. | |||||
BACKGROUND
The respondent worker, Ziad Kassem, started work with the appellant employer, Woolworths Limited, as a reserve stock hand on 1 June 2006. He claims to have received injuries to his ankles, lumbar spine, neck and shoulders in the course of his employment as a result of an incident on 10 October 2006. On that day, he was unloading boxes from a truck into roll cages when one of the cages hit the side of a ramp and fell onto him, causing a fracture to his left ankle.
Woolworths accepted liability in respect of the injury to Mr Kassem’s left ankle and lumbar spine, but disputed liability in respect of alleged injuries to his neck, shoulders and right ankle. It paid voluntary weekly compensation for all periods up to August 2008.
After several weeks off work, Mr Kassem returned to work on suitable duties, initially on restricted hours but eventually on full hours (38 per week), but with significant restrictions. In August 2008, he applied for his hours to be reduced to 24 per week and then 16 per week. The issue in dispute concerns the reason for his application to reduce his hours.
Mr Kassem claimed lump sum compensation in respect of a 47 per cent whole person impairment as a result of his injuries, weekly compensation in the sum of $249.55 per week from 5 August 2008 to 24 August 2008 and in the sum of $392.16 per week from 25 August to date and continuing.
Woolworths disputed the claim for lump sum compensation on the ground that Mr Kassem had not injured his neck, shoulders or right ankle. In addition, in a section 74 notice issued on 17 November 2009, it disputed the claim for weekly compensation on the ground that Mr Kassem had reduced his work hours from full time to part time in August 2008 in order to accommodate his “study requirements”, not because of his injury. In view of this late notice, the Arbitrator gave leave for Mr Kassem to file a supplementary statement in response to the issue raised. He filed no further statement.
The Commission listed the matter for conciliation and arbitration on 16 February 2010. On that day, each side was legally represented and the Arbitrator heard lengthy submissions, but took no oral evidence.
Before dealing with the merits of the claim, the Arbitrator upheld an objection by Mr Kassem’s counsel to the admissibility of a return to work co-ordinator’s case note, which stated that Mr Kassem had reduced his hours “due to his university commitments”.
The Arbitrator identified the issues in dispute to be:
(a)whether Mr Kassem injured his neck, shoulders and/or right ankle in the incident on 10 October 2006;
(b)whether Mr Kassem was partially incapacitated for work from 5 August 2008 and, if so, his entitlement to weekly compensation, and
(c)Mr Kassem’s entitlement to lump sum compensation in respect of whole person impairment as a result of his injuries.
In respect of the first issue, the Arbitrator was not satisfied that Mr Kassem had injured his neck, shoulders or right ankle and she made an award in favour of Woolworths in respect of that part of the claim.
In respect of the claim for weekly compensation, the Arbitrator accepted that Mr Kassem had been unable to continue working full time because of the effect of his accepted injuries to his back and left ankle. She found that the reduction in his working hours from August 2008 and continuing resulted from his injuries and not from any need to attend to his studies, as had been urged by Woolworths. She rejected Mr Kassem’s argument that comparable earnings should be calculated on the assumption that, but for his injury, he would have progressed to a management position.
In respect of the third issue, the Arbitrator remitted the claim for lump sum compensation to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of permanent impairment, if any, resulting from the injury to the left lower extremity (left ankle) and the lumbar spine on 10 October 2006.
The Commission issued a Certificate of Determination on 17 March 2010 in the following terms:
“1. Award for the Respondent in respect of the Applicant’s claim of injury to the neck, right shoulder, left shoulder and right ankle.
2.The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 40 of the 1987 Act at the rate of $249.55 per week from 5 August 2008 to 24 August 2008 and at the rate of $392.16 per week from 25 August 2008 to date and continuing.
3.I remit the matter to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of permanent impairment, if any, in respect of the left lower extremity (ankle) and the lumbar spine as a result of the injury on 10 October 2006. That assessment is to be undertaken in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment. The documents to be sent to the AMS are those accepted into these proceedings. I direct that a copy of this Statement of Reasons is to be sent to the AMS.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In an appeal filed on 13 April 2010, Woolworths seeks leave to challenge the Arbitrator’s findings and determination in respect of the claim for weekly compensation. Mr Kassem has not challenged any of the Arbitrator’s findings against his interests.
LEAVE TO APPEAL
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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 Numbers 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
The issue in dispute is whether the arbitrator erred in excluding from evidence the return to work co-ordinator’s case note dated 13 October 2008. This document appeared at page 173 of Woolworths’ Reply and it is convenient to refer to it as “document 173”.
THE EVIDENCE
Mr Kassem
Mr Kassem’s evidence was set out in his statement of 3 November 2009. He completed a Bachelor of Business Administration Management and Human Resources at the American University of Technology in Beirut in 2005. He migrated to Australia in February 2006 and started work with Woolworths as a full-time reserve stock hand on 1 July 2006. He worked 38 hours per week from 6 am to 3 pm. His duties involved loading and unloading trucks, moving stock from the ground floor to the basement using trolleys and roll cages, moving pallets with forklifts and pallet jacks, dropping roll cages from the basement to the lower pit, marking off stock, receiving paper work, and office duties including answering the telephone.
On 10 October 2006, Mr Kassem was manually unloading pallets into roll cages because the forklift trucks were not working. One of the roll cages fell onto him, striking his left foot and ankle, and causing him to fall onto his back. An ambulance took him to St Vincent’s Hospital where x-rays revealed a fracture of his left ankle. Plaster was applied and he was allowed home. He returned to work after approximately eight weeks, initially on reduced hours but ultimately on full hours, but performing light duties.
His back and ankle symptoms continued. Subsequent scans of his left ankle in June 2009 demonstrated an “ununited lateral tip fracture of the talus below the lateral malleolus”, which the radiologist felt was likely to remain un-united as comparisons with earlier scans were essentially unchanged from March 2008.
In July 2007, Mr Kassem saw Dr Kuo, foot and ankle surgeon, who recommended surgery on the left ankle.
Mr Kassem said that he continued to experience pain and stiffness in his left ankle, which radiated to his left knee and caused difficulty with prolonged weight bearing. He also complained of low back pain that radiated to both feet. He experienced difficulties with his studies and suffered from a loss of confidence, anxiety and depression. He had difficulty with lifting, pushing, standing, negotiating stairs, running, jumping and squatting.
In respect of Mr Kassem’s change from full-time to part-time work in August 2008, he said (at [33]) of his statement:
“I was unable to continue working full hours and now work 8 hours per 2 days per week, carrying out light duties with a maximum of [sic] lift of 1 kg. I get paid $17.82 per hour and I earn an average $285.12 gross per week. I have difficulty with being on my feet most of the day on the shop floor. I have back pain on sitting and standing. I need to lie down which I can’t do at work. I have difficulty walking for prolonged periods and my back pain limits my movements. I can’t do heavy lifting. I tried to return on my full hours however it was very hard and painful for me to keep up with the work. I tried pain killers but the pain was much stronger than the medicine. My hours had to be reduced from 38 hours to 16 hours per week. I work 2 days and what is left of the week allows me to rest and ease my pain.”
He added that, when he was working 38 hours per week, he was required to make sure that the garbage bins were closed and locked. He had to push the bins from the pit into the gates. He found the bins to be “too big and too heavy” and that they were causing pain in his ankle and back. He asked for assistance, but it was not always provided. He was also required to push trolleys loaded with stock. He told his manager that he was having problems; however, he was “yelled at” if he did not do “as they wanted”. At the end of the day, he has severe pain in his left ankle and back and just wants to go home and lie down and elevate his leg. Standing hurts his left leg, so he tries to put as much weight as possible on his right leg.
In July 2008, Mr Kassem commenced part-time studies for a Masters of Professional Accounting at the University of Technology, Sydney. He said that his studies have been affected by his injuries and continuing disabilities, and that he failed three subjects. His pains have affected his concentration. He added that, as his lectures were at night, if he was fit, he would be able to work full time. He did not reduce his hours of work because of his studies. Because his lectures were at night, he “would be available to work”. He said that Woolworths only wanted him to work two days per week.
Medical evidence
Though I have read and considered all of the medical evidence, I will only refer to those parts of it that are relevant to the issue in dispute.
The evidence in respect of Mr Kassem’s left ankle injury is largely uncontroversial. Dr Kalnins, the treating orthopaedic surgeon, reported on 20 July 2007 that Mr Kassem walked with a slight limp. On examination, there was thickening generally around the left ankle and slight tenderness just below the fibular tip. There was pain when Mr Kassem attempted to stand on his heels and/or toes. Dr Kalnins concluded that Mr Kassem had sustained a severe injury to his left ankle which resulted in an avulsion type of fracture.
The doctor felt Mr Kassem was fit to continue his light duties. He anticipated that there would be a slow recovery, but felt that the worker should be able to get a significant return of normal function with further conservative management.
In his report of 31 December 2007, Dr Kalnins noted that there was still some thickening of the left ankle and hind foot, but ankle joint movements were “just about full” and Mr Kassem was able to heel stand and walk, but had difficulty in toe standing and walking.
Dr Kalnins reviewed the worker again on 28 February 2008. By this time, Mr Kassem had stopped physiotherapy because he felt it was causing an increase in his symptoms. Dr Kalnins noted a restriction in ankle joint movement. A repeat MRI scan suggested some degenerative changes starting to appear in the subtalar joint. The doctor prescribed Mobic and encouraged Mr Kassem to exercise regularly within the limits of his pain.
At review in March 2008, Dr Kalnins did not think that any operative treatment was warranted as the bony fragments were not impinging upon the joint, and surgical excision would not improve the worker’s symptoms.
In his report of 22 July 2008, Dr Kalnins noted that investigations revealed that the fracture was still un-united, but was in an excellent position and “not impinging upon anything”. He assumed it had “been stabilised by scar tissue”, which was responsible for his residual symptoms of pain.
An MRI scan of the left ankle on 15 February 2008 revealed “persistent marrow oedema in the lateral talar process fracture with sclerosis across the fracture site” that, in the radiologist’s opinion, raised the possibility of instability across the fracture. The scan also confirmed early “degenerative osteoarthrosis of the anterolateral portion of the posterior facet of the subtalar joint”.
Mr Kassem came under the care of Harry Touma, physiotherapist, in January 2009. Mr Touma reported on 30 January 2009 that the worker had been complaining of persistent lower back pain that had gradually worsened over the previous 12 months. As at January 2009, the pain was at a level where he was suffering from a constant “5-7/10 ache at rest” which increased to 8-9/10 following work. The pain also radiated down the lateral aspect of the left upper thigh. Lumbar movements were markedly restricted.
Dr Bornstein, consultant orthopaedic surgeon, examined Mr Kassem for Woolworths on 16 April 2008 and reported on 18 April 2008. At the time of that examination, Mr Kassem was working 24 hours per week on light duties (six hours a day, four days per week). His light duties consisted of working “primarily around the office, receiving stock but not actually moving it around”. Mr Kassem complained of pain around the ankle and that he could not run, jump or squat. The pain was aggravated from time to time and occasionally he needed to elevate his leg otherwise the pain would increase. Dr Bornstein concluded that Mr Kassem was fit for light duties on a full-time basis. He could see no reason why working four days a week would make any difference to working five days. Strenuous work on the leg was “probably not appropriate” at the time of the examination. If the ankle failed to settle, Mr Kassem may require the area to be explored surgically.
Dr Bornstein reviewed the worker on 4 December 2008 and prepared a supplementary report on 5 December. Mr Kassem stated that his ankle had not changed since the previous examination, but he had decreased his hours at work to 16 per week, primarily because of back pain but also because of ongoing problems with his ankle. On examination, Dr Bornstein noted a loss of range of movement of the ankle and some “puffiness”. Mr Kassem was unable to squat more than about halfway down. The worker also complained of low back pain, with his fingers only able to reach around knee level on flexion. A lumbar CT scan revealed spondylolysis with “minor slip at L5/S1”. Dr Bornstein remained of the view that Mr Kassem was “fit for sedentary duties without restriction”.
In a further report dated 22 December 2008, Dr Bornstein stated that the worker “should really be off his feet as much as possible”. He added that the restrictions for the ankle were different to the restrictions for the back. He clarified this statement in a further supplementary report dated 28 January 2009 in which he said that Mr Kassem should avoid steps and should limit his standing to no longer than half an hour at a time. In respect of his back, Mr Kassem should undertake no bending or lifting or carrying of weights in excess of 10 kg.
Dr Mahony examined the worker for medicolegal purposes on 25 June 2009 and reported on 29 June 2009. On examination, left ankle movements were noted to be restricted. There was little movement of the neck or back because of guarding. Accepting that all of Mr Kassem’s complaints had resulted from the October 2006 injury, Dr Mahony concluded that the worker was fit for activities “not involving significant bending or lifting or significant walking, climbing or squatting, working 8 hours a day, 2 days a week with a maximum lift of 1 kgs”.
Medical certificates
Mr Kassem has been variously certified either unfit for work or fit for suitable duties for various periods with varying restrictions. Throughout most of 2007, he was certified fit for suitable duties for four hours a day between one and five days per week with a lifting restriction of either 1 or 5 kg.
The first certificate for 2008 certified Mr Kassem fit for suitable duties from 3 January 2008 for five hours per day three days per week with a lifting restriction of 5 kg, a walking limit of 10 minutes and a standing limit of 30 minutes. Mr Kassem’s hours were gradually increased to eight per day five days a week and the lifting limit increased to 7.5 kg (avoiding pushing trolleys) on 2 June 2008. The restriction on walking for up to 10 minutes and standing for up to 30 minutes remained. These restrictions remained constant in several certificates issued between June 2008 and 9 September 2008. The next certificate, dated 30 September 2008, reduced the lifting limit to 5 kg, but maintained all other restrictions, including normal hours.
In a certificate issued on 25 November 2008, Mr Kassem’s hours were reduced to eight per day for three days per week. The lifting restriction was reduced to 1 kg on 24 December 2008 and Mr Kassem was not to engage in manual labour. The previous restrictions on walking and standing remained unaltered. These restrictions essentially remained in place until Mr Kassem was certified unfit from 4 to 11 November 2009. There are no other medical certificates in evidence.
Co-ordinator case notes
Woolworths sought to rely on two co-ordinator case notes. Both documents were prepared by Christine Khoury and both are dated 13 October 2008. Counsel for Mr Kassem objected to both documents at the arbitration. The Arbitrator admitted the case note appearing at page 174 of Woolworths’ Reply (“document 174”), but rejected document 173.
Document 174 appears to have been forwarded to Mirjana Cupac by facsimile by Ms Khoury on the afternoon of 13 October 2008. The following entry appears in it under the subheading “NOTES”:
“→ I have followed through on Ziad’s request to reduce his hours from 38 hr per week to 16 hrs per week (see contract attached).
→ I later spoke to IMA (Mirjana Cupac) about this and she requested he write a letter to reflect this as [sic] was because of study requirements not his injury.
→ I have followed up with Ziad numerous times and today he replied that all communications to [sic] go through his solicitor.
→ I called IMA to inform her about this and she want [sic] my statement.”
The excluded case note (document 173) is identical to document 174 but has the following additional sentence:
“→ Ziad’s reduction in hours is due to his university commitments.”
Document 173 appeared to have been forwarded to Mirjana Cupac by facsimile on 16 October 2008.
The reference in the case note to “contract attached” appears to be a reference to a document headed “FULL-TIME AND PART-TIME EMPLOYEE ROSTER” dated 1 August 2008 in which Mr Kassem agreed to work eight hours a day, three days a week from 4 August 2008. A further roster dated 18 August 2008 was attached, in which Mr Kassem agreed to work 16 hours per week starting from 25 August 2008.
SUBMISSIONS, DISCUSSION AND FINDINGS
Woolworths has submitted that the Arbitrator erred in excluding document 173 from evidence. The Arbitrator excluded this document because she was concerned about the unexplained variation between document 173 and document 174 and she considered it to be “extremely prejudicial” to the Applicant (T10.23).
It has been submitted on behalf of Woolworths on appeal that:
(a)the documents from pages 173 to 178 inclusive of the Reply formed an important part of the appellant employer’s case . Mr Kassem voluntarily reduced his working hours for reasons other than his injury, namely, to accommodate his study commitments. That fact was reflected in the document the Arbitrator excluded from evidence;
(b)the Commission is not bound by the rules of evidence, but may inform itself in such manner as the Commission thinks appropriate and as the consideration of the matter permits (section 354(2) of the 1998 Act). The excluded evidence was, in the context of the other evidence in the Reply, logical, probative, and relevant to the issues in dispute. By excluding the evidence “the Arbitrator did not ensure that the appellant had the fullest opportunity practicable to have its case considered”. Reliance was placed on Part 15 Rule 15.3 of the Workers Compensation Commission Rules 2006 (‘the Rules’);
(c)the Commission must apply fairness in determining the weight to be attached to evidence (Aluminium Louvres and Ceilings Pty Ltd v Xue Qin Zheng [2004] NSWWCCPD 26 (‘Zheng’), approved in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, (2007) 4 DDCR 421 (‘Edmonds’));
(d)the document excluded by the Arbitrator had been attached to the section 74 notice dated 17 November 2009 and the worker had been properly advised of the issue in dispute, and
(e)the Arbitrator excluded a crucial document which would have, together with the other documents relied upon by the appellant employer, supported the view that Mr Kassem’s decision to reduce his working hours reflected his study commitments rather than the effects of his injury.
It has been submitted on behalf of Mr Kassem that the Arbitrator was right to reject document 173. The following submissions were made in support of that position:
(a)relying on Part 15 Rule 15.2 of the Rules, it was submitted that the document was not logical or probative because the source of the knowledge in it had not been identified and the evidence was based on speculation or unsubstantiated assumptions. Ms Khoury’s position was not identified. The basis for Ms Cupac’s knowledge was not identified. It may have been something about which she had no personal knowledge. There was no suggestion that the information had come from the worker;
(b)such information would normally be set out in a statement from Ms Cupac. Without a statement, Mr Kassem was unable to reply because there was “just nothing to reply to” (T5.51). It is “potentially not even hearsay, just speculation, but to the extent that it is hearsay, it could be triple hearsay or quadruple hearsay” (T5.54);
(c)document 173 differed markedly from document 174 and there was no explanation of why the document had been amended, and
(d)it was unfair to the worker because he was unable to answer it.
There was no valid reason for rejecting document 173. The Arbitrator’s decision failed to acknowledge that the Commission is not bound by the rules of evidence (section 354(2) of the 1998 Act).
The worker’s reliance upon Part 15 Rule 15.2 of the Rules was misplaced. That rule provides:
“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.”
This rule is in substantially the same terms as Rule 70 of the Workers Compensation Commission Rules 2003. That rule (and section 354(2)) was considered by the Commission in Zheng, where it was held (at [24]):
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.”
The above passage was quoted with apparent approval by McColl JA in Edmonds at [128]. Her Honour added that, where the rules of evidence do not apply, in order to find error of law based on an absence of evidence, there must be an absence of material, whether strictly admissible according to the rules of evidence or not. As Lord Denning MR observed in T A Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 at 995:
“Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law.”
In considering a similar provision in the Administrative Appeals Tribunal Act 1975 (Cth), Brennan J observed in Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64:
“As the New South Wales Law Reform Commission has pointed out in its Report on the Rule against Hearsay, hearsay ‘has a wide scale of reliability’ (1979, LRC 29, p 35), and there is no reason why logically probative hearsay should not be given credence. However, the logical weakness of hearsay evidence may make it too insubstantial, in some cases, to persuade the Tribunal of the truth of serious allegations.”
The content of document 173 was clearly relevant to the issue in dispute, namely, whether Mr Kassem had sought a reduction in his hours because of his injury or because of his studies. In a tribunal not bound by the rules of evidence, all of Mr Kassem’s objections to the admissibility of the document go to the weight to be attached to it, not admissibility.
The evidence was within a very narrow compass. The assertion that Mr Kassem had reduced his work hours because of his university commitments was perfectly logical, relevant, and, if correct, probative of the issue in dispute. Though Ms Khoury did not identify the source of her information, that only goes to weight.
I do not accept that the admission of the document would have prejudiced Mr Kassem or resulted in any procedural unfairness. At the teleconference on 11 January 2010, the Arbitrator gave Mr Kassem leave to file further evidence in response to the issue of whether he had reduced his hours because of his university commitments. He did not do so, no doubt satisfied that he had already dealt with that issue in his original statement.
The submission that Mr Kassem was unable to respond to the issue as raised in the section 74 notice (which attached a copy of the relevant documents) because there was “nothing to reply to” (T5.50) is untenable. The allegation could not have been simpler or clearer. Uncertainty as to the source of the information did not prevent Mr Kassem from responding.
The assertion in document 173 (that Mr Kassem reduced his hours due to his study commitments) was also contained in document 174, which the Arbitrator admitted into evidence. On appeal, Mr Kassem has not renewed his objection to document 174. The admission of document 173 therefore involves no prejudice to him and the Arbitrator erred in rejecting it.
In any event, the case note concerned appears to have been part of the records kept by Woolworths in the course of, or for the purpose of, its business (section 69 Evidence Act 1995). As such, it may well be admissible as a business record and the hearsay rule would not apply if the representation was made by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact (Jackson v Lithgow City Council [2010] NSWCA 136). As this issue was not argued, and it is not necessary for the resolution of the appeal (because the Commission is not bound by the rules of evidence), I express no concluded view about it.
Woolworths’ further submission is that, if document 173 is admitted, “a review of the evidence would lead to a determination that the respondent’s claim for weekly compensation should not have succeeded” and there should be an award in its favour in respect of the claim for weekly compensation. As it has made no additional submissions on appeal as to the merits of the claim for weekly compensation, I assume that Woolworths relies on its submissions before the Arbitrator.
Those submissions were to the effect that:
(a) Mr Kassem reduced his hours in August 2008 because of his study requirements not because of his injury;
(b) the WorkCover medical certificate dated 5 August 2008 certified Mr Kassem fit for “normal hrs” from 3 August until 3 September 2008, with a lifting restriction of 7.5 kg and a restriction on walking and standing;
(c) taking the “broader view” of the medical certificates, there was no change in them “either before August 2008 or, indeed, after August 2008” (T15.27-31), and
(d) the medical certificates lend credibility to Woolworths’ argument that the reduction in hours occurred at Mr Kassem’s request to accommodate his studies.
I do not accept these submissions.
The principles applicable where a worker is earning were discussed in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (‘Aitkin’)). If a worker is working, then, prima facie, his or her earnings are taken to be the measure of his or her ability to earn. In Aitkin, Jordan CJ said (at 23):
“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: Jones v Amalgamated Collieries; but, if the compulsory outside influence, instead of reducing, increases his actual earnings beyond what his injury would make him otherwise capable of earning, his actual earnings must be taken as the basis: Heaney v B A Collieries. If, however, he is not earning anything, or, for some good reason, what he is earning cannot be treated as a proper basis, regard must be had to the alternative basis provided by the section – what he is ‘able to earn’.”
These principles are applicable in the present matter.
I find it difficult to see that document 173 adds anything of substance to Woolworths’ case or leads to a different result to that reached by the Arbitrator in her detailed and well reasoned decision. Document 174 stated that Ms Cupac requested Ms Khoury to request Mr Kassem to “write a letter to reflect” that the change in hours was “because of study requirements not his injury”. There is no such letter in evidence. Document 173 merely added a bald assertion by Ms Khoury that Mr Kassem’s reduction in hours was due to his “university commitments”.
Ms Khoury’s statement was unsupported by any other evidence or explanation. Other than the fact that Mr Kassem was studying part time and had lectures at night, it is not known what his “university commitments” were. As his lectures were in the evening, it can’t be suggested that he reduced his hours to attend lectures. The only direct evidence on the issue is from Mr Kassem, who said that, if he was fit, he would be able to work full time and that he did not reduce his hours because of his studies. None of the medical histories recorded by several treating and qualified doctors suggested that Mr Kassem reduced his hours because of his studies.
It is not disputed that Mr Kassem sustained a severe injury to his left ankle. The objective evidence supports Mr Kassem’s complaints of continuing symptoms and restrictions as a result of that injury. Investigations in July 2008 confirmed that the fracture was still un-united and that scar tissue was responsible for his residual pain. Investigations also confirmed the development of degenerative changes in the left ankle.
Mr Kassem’s evidence of continuing symptoms in his back was corroborated by Mr Touma’s January 2009 report that his back symptoms had gradually worsened over the previous 12 months.
The submission that there had been no change in the medical certificates before or after August 2008 was not accurate. The restrictions in Mr Kassem’s certificates varied over time. Through most of 2007, and the first five months of 2008, Mr Kassem had been certified fit for part-time work, but with significant restrictions on his lifting capacity, and his standing and walking tolerances. Apart from short periods of total incapacity, from November 2008 Mr Kassem has been certified fit for suitable duties for 24 hours per week. In December 2008, his lifting restriction was reduced from 7.5 kg to 1 kg, with a direction that he was not to engage in manual labour or pushing trolleys. This change is consistent with a worsening of Mr Kassem’s condition. The restriction on standing for up to 30 minutes and walking for up to 10 minutes remained.
The more recent variation in the restrictions in the certificates suggested, consistent with Mr Touma’s evidence, a deterioration in Mr Kassem’s condition (especially his back) and an increase in his symptoms during 2008. It is also consistent with Dr Bornstein’s history in his December 2008 report that Mr Kassem reduced his hours to 16 per week primarily because of his back pain, but also because of ongoing problems with his left ankle.
Though Dr Bornstein stated that Mr Kassem was fit to work full time in April 2008, his later reports noted that Mr Kassem had reduced his hours, but he made no express recommendation about hours other than to note that Mr Kassem “should be off his feet as much as possible”. In January 2009, Dr Bornstein agreed that Mr Kassem should limit his standing to no longer than 30 minutes at a time. Dr Bornstein’s evidence provides no support for the suggestion that Mr Kassem reduced his hours because of his studies, but is essentially consistent with Mr Kassem’s evidence that he had difficulty working full time.
Dr Mahony’s conclusion that Mr Kassem was only fit to work for 16 hours per week was based on an assumption that, contrary to the Arbitrator’s unchallenged findings, all of Mr Kassem’s complaints had resulted from the incident on 10 October 2006. For this reason, I do not place any weight on his opinion on this issue.
Apart from Mr Kassem’s evidence that he was required to push trolleys loaded with stock while on suitable duties, there is no direct evidence of the nature of the suitable duties Woolworths expected him to perform. There are no rehabilitation reports or functional assessment reports. There are no statements from either Ms Cupac or Ms Khoury. Mr Kassem’s statement that he complained to the manager that he was having problems (with the suitable duties) is unchallenged by any evidence from Woolworths. The absence of evidence from Woolworths (apart from the case notes) enabled the Arbitrator to more confidently accept Mr Kassem’s evidence.
Mr Kassem’s evidence of having severe pain at the end of the day and wanting to go home and elevate his leg is plausible (having regard to the serious injury he received) and consistent with Dr Bornstein’s evidence that he should be off his feet as much as possible. That Mr Kassem’s desire to work reduced hours resulted from his back and left ankle symptoms is consistent with the objective evidence of his continuing problems. In all the circumstances, I am comfortably satisfied that Mr Kassem’s reduction in working hours from August 2008 to date resulted from the continuing effects of his back and left ankle symptoms and not from his university commitments, and that, consistent with Aitken, his actual earnings are a proper measure of his ability to earn.
CONCLUSION
Having conducted a review on the merits, I have determined that, because the Commission is not bound by the rules of evidence, and because Mr Kassem had every opportunity to respond to document 173, the Arbitrator erred in refusing to admit that document into evidence. However, for the reasons given in this decision, the admission of that document makes no difference to the outcome.
DECISION
For the reasons given in this decision, the Arbitrator’s determination of 17 March 2010 is confirmed.
COSTS
The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Acting President
12 July 2010
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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