Woolworths Ltd v Cosgrave
[2009] NSWWCCPD 69
•17 June 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Woolworths Ltd v Cosgrave [2009] NSWWCCPD 69 | |||||
| APPELLANT: | Woolworths Ltd | |||||
| RESPONDENT: | Warren Patrick Cosgrave | |||||
| INSURER: | Self insured | |||||
| FILE NUMBER: | A1-10215/08 | |||||
| ARBITRATOR: | Mr M. Oldfield | |||||
| DATE OF ARBITRATOR’S DECISION: | 27 February 2009 | |||||
| DATE OF APPEAL DECISION: | 17 June 2009 | |||||
| SUBJECT MATTER OF DECISION: | Challenge to factual findings; partial incapacity; section 40 Workers Compensation Act 1987 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bartier Perry | ||||
| Respondent: | Rishworth Dodd & Co | |||||
| ORDERS MADE ON APPEAL: | Paragraph 1 of the Arbitrator’s decision is revoked and the following order is made in its place: “1. That the respondent pay to the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follow: · $354.40 per week from 1 March 2007 to 31 March 2007 · $357.00 per week from 1 April 2007 to 30 September 2007 · $357.00 per week from 21 October 2007 to 24 March 2008 · $357.00 per week from 1 April 2008 to 14 August 2008” Paragraphs 2, 3 and 4 of the Arbitrator’s determination dated 27 February 2009 are confirmed. | |||||
| The appellant is to pay the respondent’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
On 24 March 2009 Woolworths Ltd (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 February 2009.
The respondent to the Appeal is Warren Patrick Cosgrave.
The respondent, who is 40 years of age, commenced employment as a baker with the appellant on 25 October 2005. It is alleged that the respondent received injury in the course of his employment on 6 December 2005 in two separate incidents. It is firstly alleged that he suffered a lower back injury when carrying two bags of flour. It is further alleged that he received an injury to his back, left arm, shoulder and neck as he was pulling dough out of a bowl.
The respondent ceased work on 7 December 2005 by reason of painful symptoms, particularly affecting his left shoulder. A claim for compensation benefits was made and liability in respect of weekly payments and medical expenses was accepted by the appellant.
The respondent was absent from work by reason of incapacity for a period of one week. He then returned to work on selected duties working reduced hours. He remained on selected duties throughout 2006 during which time he received treatment from Professor David H. Sonnabend.
Professor Sonnabend had treated the respondent concerning left shoulder disability prior to the subject work injury. The respondent had sustained injury to his left shoulder in a skiing accident in approximately 1989 leading to a left shoulder capsule repair which was conducted by Professor Sonnabend on 14 March 1990. The respondent had received a further injury to his left shoulder in approximately 2004 when he was involved in an altercation with a security guard at a suburban hotel. Following that injury an arthroscopy was conducted by Professor Sonnabend on 23 June 2004 which revealed a capsulolabral lesion. Professor Sonnabend subsequently, on 21 October 2004, conducted a further surgical procedure which was described as an “open revision anterior stabilisation of a repeat Bankart repair”.
On 11 December 2006 Professor Sonnabend conducted a surgical exploration of the respondent’s left shoulder joint which involved excision of a bony fragment and tendon repair.
It appears that the respondent returned to work performing suitable duties which were to be upgraded towards the end of February 2007. The respondent resigned his position with the appellant on 1 March 2007.
The appellant declined liability in respect of workers compensation benefits on 26 February 2007.
A dispute arose between the parties concerning entitlement to and liability for workers compensation benefits and an ‘Application to Resolve a Dispute’ (‘Application’) was filed on behalf of the respondent in the Commission on 19 December 2008. The Application came before an arbitrator for conciliation/arbitration on 25 February 2009 at which hearing each party was represented. A determination of the dispute was made on that day and Certificate of Determination issued on 27 February 2009.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 27 February 2009 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. That the Respondent pay to the Applicant weekly payments of compensation pursuant to s40 of the Workers Compensation Act 1987, as follows:
· $354.40 per week from 1 March 2007 to 31 March 2007.
· $361.30 per week from 1 April 2007 to 30 September 2007.
· $367.70 per week from 21 October 2007 to 30 September 2007 [sic, 24 March 2008].
· $374.90 per week from 1 April 2008 to 14 August 2008.
2. That the Respondent pay to the Applicant weekly payments of compensation pursuant to s37 of the Workers Compensation Act 1987, as follows:
· $374.90 per week from 15 August 2008 to 30 September 2008
· $381.40 per week from 1 October 2008 to date and continuing in accordance with the requirements of the Act.
3. That the Respondent pays the Applicant’s s60 of the Workers Compensation Act 1987 medical and related expenses upon production of accounts and/or receipts.
4. That the Respondent pays the Applicant’s costs as agreed or assessed.”
The form of the Certificate of Determination as set out above contains a typographical error in that the date 30 September 2007 appears where the date 24 March 2008 should appear. That last date maybe corrected by reference to the Arbitrator’s Reasons for Decision which were recorded on the day of hearing. A transcript of the sound recording of the proceedings (‘transcript’) and of the Arbitrator’s reasons (‘reasons’) are available.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in the following respects:
(i) in determining the respondent worked 50 hours per week pre-injury;
(ii) in determining that the worker was, from March 2007, partially incapacitated for employment;
(iii) in determining the worker’s ability to work from March 2007 as being 25 hours per week engaged in suitable duties;
(iv) in finding that, as from 15 August 2008, the worker was totally incapacitated for work, and
(v) in failing to “give appropriate weight to an intervening injury in November 2007”.
The issues as outlined above are taken from documentation filed in support of this appeal, in particular those matters appearing at paragraph 2.7 of Part B of the Application.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue on the appeal exceeds the thresholds provided by section 352(2) of the 1998 Act, which must be met before a grant of leave to appeal is made by the Commission.
The requirements of section 352(2) and (4) of the 1998 Act having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(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 appellant seeks to adduce additional evidence on this appeal being documentary material described at paragraph 2.4 of Part A of the Application. That evidence is described in a schedule as being “Workers compensation claim form and report of injury” and “Temporary employment agreement (3)”. I note that the appellant has complied with the requirements of Practice Direction No. 6 which regulates procedure in circumstances where a party seeks leave to aduce fresh or additional evidence on an appeal.
The respondent objects to the admission of the evidence, and submissions with respect to that objection are to be found at paragraph 2.4 of Part A of his Notice of Opposition to the Appeal.
The appellant states that the subject documents were “shown to the respondent’s representative during the course of the arbitration”. It is stated that the documents are relevant to the question of pre-injury earnings (number of hours worked). The appellant properly concedes in its submission that an application should have been made at the arbitration to have the documents admitted.
The respondent’s case at the arbitration was that that, pre-injury, he averaged 50 hours work per week and earned about $875.00 gross per week. That allegation is to be found at paragraph 3 of the respondent’s statement dated 1 December 2008 which was attached to his application.
The respondent’s evidence concerning working hours was to an extent challenged by the content of a document attached to the appellant’s Reply which was headed “Memorandum” and dated 16 January 2006 which appears at page 105 of the Reply. That document included the following notation, “Average weekly hours: 38”. The respondent’s base rate of pay was there recorded as being $641.62 and the relevant hourly base rate was noted as being “$16.8847”. Of significance the memorandum records the respondent’s average weekly earnings as being “$732.35”.
The “Temporary Employment Agreement” forms contain detail of the proposed hours of work to be carried out by the respondent between the dates 25 October 2005 and 12 December 2005. The “total weekly hours worked” noted in those three documents are stated to be significantly less than the 50 hours per week as alleged by the respondent.
It is impliedly accepted by the appellant that the additional evidence described above could, with reasonable diligence, have been adduced by application before the Arbitrator. No such application was made and I conclude, upon the assumption that the subject documents have at all times been in the possession of the appellant, that evidence could have been adduced at the time the Reply to the respondent’s Application was prepared for filing with the Commission.
Having regard to the content of the Workers Compensation Claim Form I am not satisfied that the detail concerning working hours is of any significant probative value. That document does not purport to record the actual hours worked by the respondent and, in my view, throw little light upon the matter in dispute between the parties concerning the respondent’s pre-injury average working hours.
The Employment Agreement (3 pages) appears to be a document which records the intended hours and relevant shifts to be worked by the respondent. Those documents do not, on their face, establish the actual working hours and it is to be noted that the last of the three documents relates to a period which concluded some days after the respondent was injured and had ceased work because of incapacity.
Having regard to the content of the memorandum dated 16 January 2006 which is in evidence before the Arbitrator it is clear that the content of the documents which the appellant seeks to adduce as additional evidence is less detailed and of significantly less probative value than that which is already before the Commission.
I am not satisfied, having regard to all the circumstances and in particular the content of the subject material, that it is appropriate to grant leave to admit those documents on this appeal.
EVIDENCE AND SUBMISSIONS
A statement made by the respondent on 1 December 2008 was in evidence before the Arbitrator. The respondent makes reference to surgery which he had undergone to his left shoulder in October 2004 and states that he informed the manager of the appellant’s store that he was “fit to work suitable duties for full hours and I would have to be careful with any heavy lifting and any overhead work.” It is stated that the manager accepted that proposal as being “satisfactory”. The respondent proceeds to state that he was so employed for about one month and earned “about $875.00 gross per week” and worked up to 50 hours per week. The 50 hours per week was said to include overtime including work on Saturdays and Sundays.
The respondent describes in his statement the occurrence of two distinct injuries which occurred on 6 December 2005. The first injury involved a twisting injury to his lower back when carrying two bags of flour. The second injury concerned an injury to his left arm and shoulder when working with dough. The respondent states that he was absent from work for approximately one week. Upon returning to work he performed light duties working with a baker, however experienced worsening of his symptoms in his shoulder. The respondent’s duties where changed to shelf stacking which, it is stated, was carried out with the use of one hand. These duties continued throughout the year 2006.
The respondent further states that he received treatment from Professor Sonnabend and that surgery was conducted by that practitioner in December of 2006. The respondent states he returned to work on or about 14 January 2007 and remained working until 25 February that year. Up until cessation of work the respondent was performing approximately 20 hours work per week which he had some difficulty performing. A request was made by the appellant that the respondent increase his hours to fulltime on suitable duties which request, it is stated, prompted the respondent to resign his position.
The respondent states that since his resignation he has worked for a period of three weeks in October 2007 at a café at Palm Beach. That work was light duties making sandwiches. He also performed some work as a telemarketer at North Ryde in March of 2008.
The respondent states that Professor Sonnabend had performed an arthroscopy in July of 2008 and conducted a major “restabilisation” of his left shoulder in August 2008.
The respondent states that he has been totally unfit for work since the shoulder surgery in August 2008.
The respondent’s statement makes reference to the report of Professor Sonnabend dated 30 November 2007. The respondent states that an incident there referred to by Professor Sonnabend was not a “workplace incident” but that he was “helping a friend at home and my shoulder did get worse and then settled down and recovered to the condition it had been prior to holding that heavy object.”
Attached to the Application were nine reports from Professor Sonnabend dated between 8 May 2006 and 30 November 2007. Those reports outlined the surgical history of the respondent including detail of left shoulder capsule repair which occurred on 14 March 1990 and arthroscopic debridement of the left rotator cuff on 23 June 2004. Professor Sonnabend records that the respondent underwent open revision anterior stabilisation of a repeat Bankart repair on 21 October 2004. The respondent was recorded as being virtually symptom free in July 2005 when examined by Professor Sonnabend.
Professor Sonnabend records in his reports the surgical procedure which took place on 11 December 2006 which involved an exploration of the subacromial space and the location of “a sizable bony fragment embedded within the substance of the supraspinatus tendon”. It is noted that the bony fragment was excised and the tendon, which was torn, was repaired.
In a report dated 30 March 2007 Professor Sonnabend noted that the respondent had “good strong and pain free range of left shoulder movement”. It was stated that “he appears fit to return to work as a pastry cook.”
Professor Sonnabend in his report of 30 November 2007 records that the respondent “was doing reasonably well until Monday of this week, when holding a heavy object over his head to help a friend at work, he experienced sudden burning pain in his left shoulder.” The respondent on that occasion was reporting ongoing discomfort and a feeling that his shoulder had “seized up”. Professor Sonnabend could find little objective abnormality other than minor wasting.
A report of doctor JM Ellis dated 2 October 2007 was attached to the Application. That practitioner had been qualified to provide a medico legal opinion. Dr Ellis recorded the occurrence of a skiing accident when the respondent was 21 years of age causing a tear to the rotator cuff of the left shoulder which caused recurrent dislocation. The subsequent treatment by Professor Sonnabend is recorded in that report. A further injury to the left shoulder said to have occurred when the respondent was assaulted at a hotel in 2003 causing the left shoulder “to be pulled out of its socket” is recorded. The subsequent treatment by Professor Sonnabend is also noted. The history as recorded by Dr Ellis includes a description of the respondent’s work duties with the appellant, that he was working 40-50 hours per week and detail of the subject injuries which occurred on 6 December 2005 are recorded. Later treatment by Professor Sonnabend is recorded as are the results of various investigations.
Dr Ellis records the complaints made by the respondent during the course of that examination which occurred on 1 August 2007 and his findings on examination. Dr Ellis expressed the view that “… A material degree of his present impairment is considered to be due to the incident 21.12.05 [sic]”. The report includes an assessment of whole person impairment which detail is not relevant to issues raised on this appeal. Dr Ellis records the incident involving injury to the back whilst carrying two bags of flour and appears to accept that “a degree of damage” was occasioned to the respondent’s back in that incident.
A report of Dr Richard Honner dated 12 December 2007 was attached to the respondent’s Application. That report was prepared at the request of the appellant company. Dr Honner had previously examined the respondent in October 2006. The report contains an updated history since the last examination. It is recorded that the respondent reported that he has suffered “a relapse”. The report includes detail of Dr Honner’s findings on examination and a notation of diagnosis as being “a recurrence of impingement symptoms in a shoulder that has been treated with excision of calcification from the supraspinatus tendon in December 2006 and that he has had previous major injuries to the left shoulder with reconstructive surgery in 1991 [sic] and 2004.” Dr Honner expressed the view that he considered the respondent unfit to return to his previous job as a pastry cook and baker at Woolworths and that he considered “his employment was a substantial contributing factor to the present condition in his left shoulder.”
Also attached to the Application were a number of medical certificates, reports following radiological studies and a report from Dr Graham A MacDougal. There is also a copy of discharge summary from the Royal North Shore Hospital concerning the respondent’s admission and treatment by Professor Sonnabend on 14 August 2008, as well as detail of benefits voluntarily paid to or on behalf of the respondent by the appellant. Relevant detail of these documents is addressed hereunder.
The Arbitrator granted leave to the respondent at the hearing to adduce late evidence being a supplementary statement by the respondent dated 16 February 2009. That statement makes reference to regular attempts by the respondent to obtain suitable work and his failure to commence work at a nursery by reason of the physical demands of the job.
The Reply filed on behalf of the appellant had annexed to it two reports from Dr Honner, the first dated 18 October 2006 and the second being the report dated 12 December 2007, a copy of which had been attached to the respondent’s Application. The first of Dr Honner’s reports contains detail of the history of injury and treatment involving the respondent’s left shoulder. The report records the doctor’s findings on examination as well as the results of various investigations. Dr Honner observes that ten months had passed since the injury occurring at work on 6 December 2005, that he was still “bothered by severe ongoing symptoms” and it was Dr Honner’s view that it was “reasonable that further surgical intervention be considered”. The view was expressed in that report that the respondent was fit to carry out selected light duties, five hours per day, five days per week, avoiding any heavy lifting with the left arm and not working with the left arm at or above chest height. Dr Honner expressed the view that he considered employment as being a substantial contributing factor to the respondent’s present condition. The content of the report of 12 December 2007 had been summarised above at [46].
Attached to the Reply were a number of medical certificates, reports relating to radiological investigations and copies of reports from Professor Sonnabend. The reports of Professor Sonnabend have been addressed above and the content of the medical certificates and other material is, where relevant, addressed below.
Attached to the Reply are four reports from Dr Graham A. MacDougal dated between 11 December 2007 and 26 February 2008. The respondent had consulted Dr MacDougal for a second opinion concerning treatment of his shoulder. Dr MacDougal recorded the relevant history in the first of those reports including the notation that “… progress was okay until two weeks ago when he was reaching overhead and felt some pain in his shoulder. It’s a moot point as to what the cause of this [sic].”
Dr MacDougal in the last of those reports reported on the findings of an arthrogram being that the rotator cuff repair was intact. The respondent’s continuing complaints were noted and the view was expressed that further arthroscopic assessment was warranted.
A report dated 20 September 2006 from Dr Sam Perla was attached to the Reply. That report addressed the respondent’s then symptoms, findings on examination and a study of various investigations. Dr Perla concluded that the Respondent should upgrade his hours of work gradually to normal hours whilst maintaining restrictions as defined by the respondent’s general practitioner. A later report dated 2 March 2007 from Dr Perla contained that practitioners expression of opinion that the respondent was fit for pre-injury hours of work but that the work should be restricted with no lifting, pulling or pushing of more than five kilograms and a temporary (3 to 4 week) avoidance of work above shoulder level.
A memorandum dated 16 January 2006, which is noted as being an “amended memo” was attached to the Reply. That document related to management of payments to the respondent of workers compensation benefits. Among the matters noted in that document were the respondent’s base rate of pay being $641.62, the hourly base rate being $16.8847 and average weekly earnings which were noted as $732.35.
A copy of written formal resignation signed by the respondent, effective 1 March 2007, was also attached to the Reply. The reasons stated in that document for resignation was “… due to depression regarding work environment and opportunity.”
A number of items of correspondence were also annexed to the Reply, the contents of which do not have direct relevance to the issues raised on this appeal.
Appellant’s submissions
The appellant at the hearing before the Arbitrator relied upon the expression of opinion of Professor Sonnabend that the respondent was as at March 2007 fit for pre-injury duties. Reference was also made in the course of submissions to the “incident” which occurred in November 2007 which had been recorded by Professor Sonnabend. The thrust of the appellant’s argument was that the incident then occurring “caused the last operation to take place, resulting in the incapacity”.
The appellant’s submissions before the Arbitrator also challenged the respondent’s allegation as to his pre-injury earnings. Reference was made to the memorandum annexed to the Reply and the submission was put that the appropriate figure on the evidence is $732.35 per week.
The appellant’s submissions on appeal appear at paragraph 2.8 of Part B of the Application filed in relation to this appeal.
The first challenge to the Arbitrator’s determination relates to his finding of fact that the respondent worked “on average” 50 hours per week prior to the subject injuries. It is clear that the appellant asserts that the Arbitrator’s conclusion was against the evidence and the weight of the evidence. Reference is made to the documentary evidence, in particular the content of medical certificates and the memorandum referred to in [54] above in support of the argument that error had been committed with respect to the finding that the respondent worked an average of 50 hours per week.
The appellant further challenges the Arbitrator’s finding of fact concerning the worker’s ability to work 25 hours per week engaged in suitable duties as from March 2007. The appellant draws attention in submissions to the form of medical certificates issued by the respondent’s general practitioner Dr K. Forfa in support of the contention that there was no evidence in those certificates concerning restricted ability to perform fulltime suitable work. Reliance is also placed upon the opinion expressed by Professor Sonnabend in February 2007 concerning the respondent’s fitness for unrestricted activities. It is put that such expression of opinion supports, at least, a conclusion that the respondent was fit for fulltime duties.
A similar challenge is made by the appellant to the Arbitrator’s conclusions concerning the respondent’s total incapacity for work from 15 August 2008. The appellant draws attention to the respondent’s lengthy history of left shoulder disability and treatment which occurred prior to the subject injury. Reference is made to the November 2007 incident and it is argued that Dr Macdonald’s recommendation of surgery was “an indication of the severity of the injury sustained in November 2007”.
The last “ground” of appeal relied upon by the appellant was that the Arbitrator committed error in “failing to give appropriate weight to an intervening injury in November 2007.” Reference is made in the course of submissions to the Arbitrator’s finding of total incapacity following surgery which was conducted in August 2008. It is put on behalf of the appellant that the finding as to total incapacity as being causally related to the subject injury constitutes error in that insufficient weight is given by the Arbitrator to evidence of non work related injuries.
The appellant in submissions concedes the occurrence of injury to the respondent’s left shoulder in the incident of 6 December 2005. It appears to be the appellant’s argument that the relevance of that injury has not been properly evalued by the Arbitrator when addressing the question of causation of incapacity following the last surgical intervention which occurred in August 2008. Reference is again made to the antecedent history of injury and surgical intervention which is recorded in the reports of Professor Sonnabend.
The appellant in earlier submissions outlined the relevant history as recorded in the medical evidence and sought to emphasis the significance of the incident which occurred in November 2007 concerning the need for the last surgical procedure and the respondent’s ongoing incapacity.
Respondent’s submissions
The respondent in submissions put to the Arbitrator at the hearing argued that an appropriate assessment of capacity from January 2007 up until the date of surgery being August of 2008 was 24 hours per week performing suitable work. It was argued that the respondent’s evidence should be accepted concerning his need to resign by reason of the demands that his hours of work be upgraded to fulltime.
The respondent further argued that the optimistic views concerning capacity as expressed by Professor Sonnabend should not be accepted in their totality.
The suggestion that the November 2007 incident constituted a “novus actus” was disputed in the course of submissions before the Arbitrator. Reference was made to the respondent’s supplementary statement and the argument was put that the occurrence in November 2007 constituted a “temporary aggravation” which subsequently settled.
A “concession”, contrasting with earlier argument, was made in the course of submissions that up until July 2008 the respondent was “fit to go back to suitable light work for 30 hours per week” (transcript page 5). The transcript of submissions reveals some confusion as to the relevant chronology, however it is clear that the respondent’s argument at the hearing was that from the date of the last surgical intervention in August 2008 the respondent was totally incapacitated.
The respondent has provided written submissions in support of his opposition to this appeal. With respect to each of the challenges raised by the appellant the respondent has argued that the Arbitrator’s findings of fact were available to him on the evidence. With respect to the Arbitrator’s finding concerning the respondent’s pre-injury work being “on average 50 hours per week” reference is made to the memorandum which has been tendered by the appellant. It is argued that document supports an inference that the respondent worked longer than a 38 hour week as contended by the appellant. It is further stated in argument that the Arbitrator was “entitled to reach the decision that he did on the evidence that was available before him”.
DISCUSSION AND FINDINGS
Before dealing with the arguments raised on this appeal it is to be noted that the Arbitrator made the following finding concerning the occurrence and nature of injury:
“On 6 December 2005 he injured his left shoulder and lower back by two incidents that were pleaded in the evidence on that same day.”
There has been no challenge raised on this appeal to the Arbitrator’s findings concerning injury to the respondent’s back. I note that the Arbitrator, when considering the question of incapacity, has addressed the consequences of the shoulder injury and there has been little if any reference to any consequence, so far as capacity for work is concerned, flowing from the back injury. A similar approach has been adopted by the parties in their submissions both on this appeal and when the matter was argued for the Arbitrator.
The first matter of complaint raised by the appellant is that the Arbitrator has concluded that, pre-injury, the respondent worked 50 hours per week on average. The only evidence in support of that conclusion is the assertion contained in the respondent’s statement dated 1 December 2008. The Arbitrator has expressly stated his acceptance of that evidence in the course of his reasons.
It is to be regretted that there is no clear evidence relating to this matter of dispute. It is reasonable to conclude that the respondent held documentary evidence such as pay slips or group certificates that would have plainly established the matter of pre-injury hours/earnings. If he did not have such material, steps may have been taken to require production by the appellant at the hearing. The appellant is a major retailer and it may reasonably be expected that an orderly method has been adopted for maintenance of earnings records. Neither party has taken steps to adduce the primary evidentiary material to establish this matter of contention.
The Arbitrator has made no reference to the documentary evidence, in particular the memorandum referred in [53] above. In accepting the evidence of the respondent on this matter without reference to the appellant’s evidence on the point constitutes, in my view, error in failing to adequately provide reasons for the relevant conclusion of fact. That memorandum forms part of the business records of the appellant and, in my view, reliance may be placed upon its contents when addressing the question as to what hours, on the probabilities, the respondent worked pre-injury. The document notes average weekly hours as being “38”. Average weekly earnings are noted as $732.35. Hourly base rate is noted as $16.8847. A simple arithmetic calculation, which makes no allowance for any increased hourly rate for overtime, demonstrates that to generate the average weekly earnings as noted the respondent would need to work approximately 43 hours per week. Whilst that calculation may be criticised as a means of calculating the hours worked the real enquiry required by application of the relevant provisions of section 40 of the 1987 Act is determination of the respondent’s probable earnings but for injury. It is my view that the best evidence before the Commission in respect of that question is to be found in the memorandum presented in evidence by the appellant. I conclude that, on the probabilities, the respondent’s pre-injury earnings averaged $732 per week (rounded off). The relevance of this finding is addressed hereunder following consideration of the other matters raised for consideration on this appeal.
The appellant’s complaint concerning the Arbitrator’s determination as to partial incapacity of the respondent as at the date of his resignation in March 2007 concerns the following finding found at page 13 of the transcript:
“I find that when partially incapacitated Mr Cosgrave would have been able to work on average five hours per day for five days per week on suitable duties.”
The appellant submits that the Arbitrator has erred in that the weight of the evidence would establish that the worker was “fit for at least pre-injury hours, if not pre-injury duties, at a time when he resigned his employment.”
The evidence as to the extent of the respondent’s incapacity at the relevant time comprises his own evidence as found in his statement, the various medical certificates issued by the general practitioner Dr Forfa, the evidence of Professor Sonnabend, the evidence of Dr Honner and that of Dr Perla.
The respondent states that he was “not coping terribly well even with these reduced hours”, they being 20 hours per week as at January 2007. The respondent asserts that he was prompted to resign his position when the appellant made a request that those hours be increased.
The medical certificates issued by Dr Forfa support the worker’s assertion of partial incapacity however, as correctly stated by the appellant, those certificates contain no “time restriction” concerning capacity to carry out restricted duties.
The evidence of Professor Sonnabend as at the end of March 2007, that is 14 weeks post operatively, was that the respondent “appears fit to return to work as a pastry cook”.
Dr Honner in his report dated 12 December 2007 expressed the view that the respondent was not fit to return to his previous job however expressed the view that he was “fit for suitable duties only, not lifting greater than five kilograms in weight with the left arm, and not working with his arms at or above chest height.” It was Dr Honner’s view that, having regard to the respondent’s youth, he was a suitable candidate for vocational assessment and retraining.
The evidence of Dr Perla as it appears in his report of 2 March 2007 was that the respondent was “fit for pre-injury hours” but that he was capable of performing suitable duties only with lifting, pulling and pushing restrictions up to five kilograms and avoidance of work about shoulder level (the latter restriction, it was suggested, should apply for the ensuing three or four weeks).
The expert medical witnesses varied in their assessment of the respondent’s capacity at the relevant time however it is clear that, with the exception of the treating specialist, each practitioner placed a restriction of significance upon the respondent’s work capacity.
It is clear that the Arbitrator has accepted the evidence of the respondent concerning the difficulty encountered performing restricted hours and stacking work and I am of the view that it was open to the Arbitrator to accept that evidence. The significant restrictions placed by the majority of the medical witnesses as well as Dr Honner’s view that “retraining” was a real option leads me to conclude that acceptance of the worker’s self assessment as to the capacity for work was reasonable. The Arbitrator’s finding, being one open to him on the evidence, demonstrates no error and his expressed view is one with which I respectfully agree.
The views which I have expressed in the proceeding paragraph concerning the Arbitrator’s conclusion as to the extent of incapacity address the matters raised by “grounds” two and three. I note that the Arbitrator appears to have disregarded the contradictory “concession” made by the respondent in the course of submissions. This has not been a matter of complaint on this appeal. As stated, I conclude that the Arbitrator’s determination that the respondent was fit to work “only 25 hours per week” was open to him on the evidence and was a conclusion with which I would not disagree.
The matters of complaint concerning the Arbitrator’s finding of total incapacity dating from 15 August 2008 essentially relate to questions of “causation”. The appellant in written submissions seeks to emphasis the pre-injury history of shoulder injury, disability and surgical intervention. The appellant also seeks to emphasize the occurrence of a “further injury” to his left shoulder in November 2007. Reference is made to the opinion of Dr MacDougal which involved a recommendation for surgery which was expressed shortly after that incident.
The Arbitrator (transcript page 12) made a finding that the “…incident of November ’07 was not an intervening act but more so an exacerbation of an unresolved injury suffered in December 2005. Dr Honner and Dr Ellis’ opinions confirm.”
The Arbitrator’s observation that Dr Ellis’ opinion supports the conclusion stated above cannot be correct. The consultation and examination conducted by Dr Ellis occurred on 1 August 2007 and was the subject of his report dated 2 October 2007. There is no other evidence from Dr Ellis, in particular there is nothing that post dates the November 2007 incident, and it is clear that the Arbitrator has erred in reliance upon Dr Ellis’ evidence to reach the aforementioned conclusion.
The Arbitrator’s reliance upon the expression of opinion made by Dr Honner in his report dated 12 December 2007 is, no doubt, founded upon the statement by that practitioner appearing at page 5 of his report:
“In Mr Cosgrave’s case I consider his employment was a substantial contributing factor to the present condition in his left shoulder.”
It is to be noted that Dr Honner recorded, at page 2 of his report, “a relapse” causing the respondent’s left shoulder to feel tight and that he experienced much more severe pain and “locking up” of the shoulder joint.
Having regard to the Arbitrator’s erroneous reliance upon the opinion of Dr Ellis with respect to the relevance or otherwise of the November 2007 “incident” it is necessary, in my view, to review the facts to determine whether the Arbitrator’s ultimate finding was sound.
It is the respondent’s evidence that the November 2007 “incident” caused a worsening of his shoulder pain and that such “settled down and recovered to the condition it had been prior to holding that heavy object”.
Whilst it is true that the respondent has a complex history of pre-injury treatment concerning significant left shoulder disability it is clear that the incident in the course of his employment in 2005 was one of significance. The weight of expert medical evidence supports the proposition that the subject work injury continues to cause disability and resultant incapacity. It is my view that having regard to the evidence as a whole, including Dr Forfa’s certificate dated 29 September 2008, the Arbitrator’s conclusion reached with respect to ongoing total incapacity resulting from the subject injury was one open on the evidence and a conclusion with which I respectfully agree.
With respect to ground five, the appellant’s complaint concerning the suggested disregard by the Arbitrator of the relevance of the November 2007 “incident” is addressed above. There can be no doubt that the appellant is correct in its assertion that the pre-injury state of the respondent’s shoulder “contributes” to his incapacity. I have earlier stated my view that there is an abundance of evidence supporting the view that the subject injury is causally related to past and ongoing incapacity as found by the Arbitrator.
It may be seen from the matters which I have attempted to summarise above that, with the exception of the Arbitrator’s conclusion concerning the respondent’s pre-injury hours of work, I conclude that the Arbitrator’s findings of fact which otherwise have been challenged by the appellant were true and correct conclusions having regard to the evidence. I have reached this view following a merits review and have been guided in my approach to such review by the observations of the Court of Appeal concerning the nature of appeals such as the present found in Sapina v Coles Myer Limited [2009] NSWCA 71 (12 March 2009, unreported).
The determination which I have made on this appeal as found in [75] above concerning the respondent’s earnings requires review of the award entered by the Arbitrator dealing with the respondent’s entitlement to weekly compensation during partial incapacity between 1 March 2007 to 14 August 2008.
Calculation of entitlement to compensation during a period of partial incapacity is to be made in accordance with the principles stated in the matter of Mitchell v Central West Health Services (1997) 14 NSWCCR 527 (‘Mitchell’). Adhering to the steps enumerated in the matter of Mitchell I make the following findings:
(i)the weekly amount that the worker would have been earning but for injury between 1 March 2007 and 14 August 2008 is $732.00. I have reached this conclusion given my finding as to the respondent’s pre-injury working hours and given the circumstance that there is no evidence adduced by either party as to probable earnings relevant to the post injury period;
(ii)I determine that the weekly amount that the respondent was able to earn in suitable employment during the aforementioned period of partial incapacity was $375.00. In so concluding I express my agreement with the reasoning and conclusions of the Arbitrator to be found at page 13 of the transcript. That is that the respondent had the capacity to work an average of five hours per day for five days per week on suitable duties and that the value of such labour would equate to $15.00 per hour;
(iii)the arithmetic difference between the respondent’s probable earnings and his ability to earn in his incapacitated state is $357.00 per week, and
(iv)I conclude having regard to the state of the evidence before the Commission and the arguments raised both at the hearing and on this appeal that there is no basis upon which there should be a reduction of entitlement.
Having regard to the scant evidence concerning the respondent’s short periods of employment in October 2007 and March 2008 I conclude that there should be no weekly award during that period and in that respect I agree with the Arbitrator’s conclusion concerning the claim.
Having regard to the findings set forth above and to the statutory maximum weekly rates of benefits the respondent is entitled to weekly payments as follows:
1 March 2007 to 31 March 2007 $354.40 per week (section 40)
1 April 2007 to 30 September 2007 $357.00 per week (section 40)
21 October 2007 to 24 March 2008 $357.00 per week (section 40)
1 April 2008 to 14 August 2008 $357.00 per week (section 40)
DECISION
Paragraph 1 of the Arbitrator’s decision is revoked and the following order is made in its place:
“1. That the respondent pay to the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follow:
·$354.40 per week from 1 March 2007 to 31 March 2007
·$357.00 per week from 1 April 2007 to 30 September 2007
·$357.00 per week from 21 October 2007 to 24 March 2008
·$357.00 per week from 1 April 2008 to 14 August 2008”
Paragraphs 2, 3 and 4 of the Arbitrator’s determination dated 27 February 2009 are confirmed.
COSTS
The appellant is to pay the respondent’s costs of the appeal.
Kevin O’Grady
Deputy President
17 June 2009
I, MARIE JOHNS 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.
ASSOCIATE
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