Yang v Topline Holdings Pty Ltd
[2010] NSWWCCPD 117
•5 November 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Yang v Topline Holdings Pty Ltd [2010] NSWWCCPD 117 | ||||
| APPELLANT: | Sui Wen (Bill) Yang | ||||
| RESPONDENT: | Topline Holdings Pty Limited t/as Topline Shower Screens & Wardrobe | ||||
| INSURER: | GIO General Limited | ||||
| FILE NUMBER: | WCC A1-2698/10 | ||||
| ARBITRATOR: | Ms D Moore | ||||
| DATE OF ARBITRATOR’S DECISION: | 14 July 2010 | ||||
| DATE OF APPEAL DECISION: | 5 November 2010 | ||||
| SUBJECT MATTER OF DECISION: | Application to extend time to appeal; s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Firths Compensation Lawyers | |||
| Respondent: | Rankin Nathan Lawyers | ||||
ORDERS MADE ON APPEAL: | Leave to appeal is refused. Each party is to pay his or its own costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
The appellant, Sui Wen Yang (also known as Bill Yang) was employed by the respondent employer ,Topline Holdings Pty Limited trading as Topline Shower Screens, as a process worker.
In a claim form dated 28 June 2007, Mr Yang claimed he suffered a neck strain on 31 May 2007 while assembling shower screens.
In a subsequent claim form dated 9 May 2008, Mr Yang alleged he injured his neck, back and chest on 31 May 2007 due to a greater than usual amount of lifting and hammering. He also alleged his injuries were due to the ‘nature and conditions’ of his employment.
Liability in respect of the injury on 31 May 2007 was initially accepted by GIO and payments were made to Mr Yang from that time until 18 August 2009.
Pursuant to a s 74 notice dated 8 July 2009, GIO disputed Mr Yang had suffered an injury to his back in the incident on 31 May 2007. GIO accepted that Mr Yang suffered an injury to his neck in the course of his employment on 31 May 2007, but alleged that the injury was a temporary aggravation of a pre-existing degenerative condition, the effects of which had ceased. It denied liability for medical expenses, permanent impairment and denied any injury to the chest arising from the alleged injury on 31 May 2007.
Mr Yang filed an Application to Resolve a Dispute (the Application) in the Commission on 10 April 2010. He alleged that he sustained a number of work-related injuries during the course of his employment:
(a) in or about April/May 2006, injury to the lumbar spine as a result of lifting a glass panel;
(b) on or about 31 May 2007, injury to the neck and right sternoclavicular joint as a result of repetitive lifting and hammering;
(c) in or about February/March 2008, aggravation of neck, sternoclavicular joint and lumbar spine as a result of lifting and hammering shower screens into aluminium rims, and
(d) alternatively, aggravation of a disease of gradual onset in the cervical and lumbar spines due to the nature and conditions of employment from 19 June 2003 to 27 March 2008 involving heavy and repetitive lifting, carrying, bending and repetitive hammering and screwing shower screens.
He claimed weekly compensation from 18 August 2009 to date and continuing, lump sum compensation in respect of a 29 per cent whole person impairment in respect of injuries to the cervical and lumbar spine, and compensation for pain and suffering pursuant to s 67 of the Workers Compensation Act 1987 (the 1987 Act). Mr Yang also claimed payment of his medical expenses.
Mr Yang did not lose any time from work after the alleged injury in April/May 2006. After the alleged injury on 31 May 2007, he continued working for several weeks. In mid-June 2007, he consulted Dr Lau and was off work for one week. He returned to work performing suitable duties on restricted hours and continued doing so until he ceased work on 26 March 2008. He has not returned to any form of gainful employment since 27 March 2008.
In a Reply filed on 27 April 2010, the respondent confirmed that the matters in dispute were those listed in GIO’s s 74 notice of 8 July 2009 in respect of the previously notified matters. In a supplementary s 74 notice dated 29 June 2010, the respondent also denied liability for the new allegations of injury in 2006 and February/March 2008 which were pleaded in the Application, but had not been previously notified by Mr Yang.
The Commission listed the matter for conciliation and arbitration on 6 July 2010. There was no evidence given before the Arbitrator, but both parties made lengthy oral submissions.
In a reserved decision delivered on 14 July 2010 the Arbitrator found:
“1. On 31 May 2007 the Applicant suffered injury to his cervical spine and right sterno-clavicular joint that arose out of or in the course of his employment with the Respondent.
2. The Applicant’s employment with the Respondent was a substantial contributing factor to that injury as required by section 9A of the 1987 Act.
3. From 19 August 2009 to date and continuing the Applicant has been partially incapacitated for work.”
Consistent with the Arbitrator’s decision, the Commission issued a Certificate of Determination on 14 July 2010 in the following terms:
“1. Award in favour of the Respondent in respect of any claim for injury to the lumbar spine arising out of or in the course of employment with the Respondent.
2. The Respondent is to pay the Applicant weekly benefits at the rate of $95.00 per week from 19 August 2009 to date and continuing.
3. The Respondent is to pay reasonably necessary section 60 expenses arising as a consequence of the injury to the cervical spine and right sterno-clavicular joint.
4. Award in favour of the Respondent in respect of any other claim for section 60 expenses.
5. The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the degree of whole person impairment (WPI), if any, in respect of the cervical spine resulting from a date of injury of 31 May 2007. The documents to be sent to the AMS are the same as those accepted into these proceedings as noted at paragraph 9 of this decision. I direct that a copy of this Statement of Reasons is also to be sent the AMS.
6. The Respondent is to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2003 I certify this matter as complex with 10% increase in the costs otherwise available to both parties.”
In an appeal filed on 26 August 2010, Mr Yang sought leave to challenge the quantum of the Arbitrator’s award of weekly compensation from 19 August 2009 and the Arbitrator’s findings in respect of the alleged injury to the back. In a Notice of Opposition filed on 11 October 2010, the respondent submits that the appeal is out of time and that an extension of time ought not be granted to the appellant.
The respondent submits that the test of “exceptional circumstances” under Rule 16.2 of the Workers Compensation Commission Rules 2010 (the Rules) has not been satisfied. In the event that the appellant is granted leave to appeal, the respondent submits that the Arbitrator’s findings were correct and that the appeal should be dismissed.
LEAVE
Monetary threshold
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The monetary thresholds in s 352(2) of the 1998 Act are satisfied.
Time
Section 352(4) of the 1998 Act provides:
“(4) An appeal can only be made within 28 days after the making of the decision appealed against.”
The appeal was filed out of time on 26 August 2010. The last day for filing the appeal was 12 August 2010 and the appellant seeks an extension of time in which to appeal.
The appellant submits that the appeal is 12 days out of time. That submission is incorrect. The appeal is in fact 14 days out of time.
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Rules.
Part 16 r 16.2 (12) provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The appellant submits that the Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. He relies on Gallo v Dawson (1990) ALR 479 (Gallo), where “Justice McHugh set out a number of principles in relation to the filing of a notice of appeal in the High Court”. The relevant extract from Gallo is found at 480, where Justice McHugh said:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
In terms of the history of the proceedings, the appellant makes no submissions other than to set out a chronology of relevant events, which is reproduced as follows:
DATE EVENT 8 July 2009 Inter alia, GIO disputed that the Appellant had sustained injury to the lumbar spine from the alleged incident on 31 May 2007 and that incapacity as a result of the neck injury had ceased 6 April 2010 The worker’s former solicitors, Wang & Associate, filed an Application to Resolve a Dispute 11 May 2010 Teleconference – leave was granted to the Respondent to issue a supplementary Section 74 Notice 29 June 2010 GIO disputed all pleaded injuries based on the statements of three witnesses and various medical reports 6 July 2010 Arbitration 14 July 2010 Certificate of Determination – proceedings remain on foot as impairment claim remitted to the Registrar for referral to an AMS 11 August 2010 Appellant’s counsel departed urgently to attend his paternal grandmother’s funeral in Fiji 16 August 2010 Appellant’s counsel returned from overseas to news that his maternal grandmother in Sydney will not survive the week 19 August 2010 Appellant’s counsel’s maternal grandmother passed away 25 August 2010 Appellant’s counsel’s maternal grandmother’s funeral 26 August 2010 Application – Appeal Against Decision of Arbitrator filed
The respondent submits Acting Deputy President Snell (as he then was) considered the meaning of “exceptional circumstances” in Roads and Traffic Authority of New South Wales v Cormick [2007] NSWWCCPD 220 at [25]–[27]:
“25. ‘Exceptional circumstances’ are necessary to enliven the discretion contained in rule 16.2(11). Recently in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 the New South Wales Court of Appeal considered the phrase, in the context of rule 31.18(4) of the Uniform Civil Procedure Rules 2005. Campbell JA (with whom Tobias JA and Handley AJA agreed) said:
‘66. Another question of construction concerned “exceptional circumstances” in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression “exceptional circumstances” in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912-913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912-913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005’.”
The respondent submits that the appellant has not provided any adequate explanation for the delay and has not established that “exceptional circumstances” exist such as to warrant an extension of time to file the appeal. Further, the respondent submits that the appeal has no reasonable prospects of success.
The chronology of events referred to at [23] above demonstrates that there is no explanation for the delay between the date of the Arbitrator’s Certificate of Determination and 11 August 2010, which is the day before the final day for an appeal to be lodged. On 11 August 2010, the appellant noted that the appellant’s counsel departed Australia to attend the funeral of his grandmother. There is no explanation offered as to whether counsel had been requested to draft submissions, if so, when such a request had been made and whether his personal circumstances contributed to the delay in filing the appeal.
Further, I note that the appeal against the decision of the Arbitrator was signed by the appellant’s solicitor, not by counsel. There is nothing before me to indicate to what extent, if any, counsel was involved in the preparation of the appeal documents.
The New South Wales Court of Appeal recently considered the application of Part 16 r 16.2(11) in Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce), where Allsop P (Beazley and Giles JJA agreeing) said at [8]:
“There is some awkwardness of the structure and terminology of subr (11) [now subr (12)]. The phrase ‘in exceptional circumstances,’ bounded as it is by commas, might conceivably be thought to be a jurisdictional fact. Aspects of the argument of the applicant put this today. In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
Allsop P added at [9]:
“Looking at the rule in that fashion, whether or not there are exceptional circumstances and whether or not to lose the right of appeal would work demonstrable and substantial injustice, were conclusions which were substantially factual conclusions.”
He went on to state at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression.”
I am not satisfied Mr Yang has demonstrated exceptional circumstances existed so that to lose that right would work a demonstrable and substantial injustice. For the first 27 days of the appeal period, no explanation at all is offered for the failure to lodge the appeal. There is simply no evidence or submissions as to what steps, if any, were taken to pursue the appeal in this period.
It may be inferred from the chronology that, between 11 August 2010 and 26 August 2010, Mr Yang’s counsel experienced the death of two of his grandparents and he was out of the country for four days, which might well be regarded as exceptional circumstances if those events impacted on the delay in filing the appeal, but there is no evidence or submissions regarding counsel’s involvement in drafting the appeal. Indeed, I note Mr Yang’s solicitor certified that she prepared the Application to Appeal the Decision of Arbitrator.
Whether Mr Yang will suffer any demonstrable and substantial injustice if the Commission refuses leave to appeal requires an assessment of his prospects of success on appeal. This requires a detailed assessment of the merits of the appeal.
The appellant relies on three grounds of appeal:
(a) that the Arbitrator erred in finding that the appellant had not suffered an injury to his back arising out of or in the course of his employment with the respondent;
(b) the Arbitrator erred in her assessment of the worker’s ability to earn under s 40 of the 1987 Act; and
(c) that the Arbitrator erred in the exercise of her discretion by reducing the mathematical difference between the worker’s probable earnings and his assessed ability to earn.
Ground One: was the Arbitrator correct in finding that the appellant did not suffer an injury to his back arising out of or in the course of his employment?
The appellant relies on Mr Yang’s evidence in his supplementary statement concerning the tasks that were required of him in or about February/March 2008. He says that he was required to undertake “heavier tasks of lifting shower screens and hammering them into the aluminium rim … Moreover, the pain in my lumbar spine significantly increased with the repetitive lifting of shower screens”. Mr Yang said that the work aggravated his cervical and lumbar conditions, and was so severe that it caused him to cease work on 27 March 2008. The appellant submits that that evidence is essentially unchallenged.
The appellant submits that Mr Yang reported his lumbar pain to Dr Tai, his general practitioner, on 21 April 2008. He submits that the delay of between one and two months from the alleged injury to the back and when he first sought treatment is explicable on the basis that he was more focused on the injuries to his neck and on his right sternoclavicular injury.
The appellant relies on the history recorded by Dr Woo, which was consistent with an aggravation of lumbar pain in February/March 2008.
The respondent relies, without restating them, on the submissions made by counsel at the arbitration. The respondent submits that the findings made by the Arbitrator were open to her on the evidence.
The respondent submits that the evidence established that the worker did not seek any medical treatment for a back injury until 21 April 2008, after he had ceased work with the respondent, notwithstanding the fact that he had regularly visited his doctors in the 12 months preceding April 2008.
I have had regard to the medical evidence submitted by both parties and the Arbitrator’s summary of it in so far as it concerns the back injury (Reasons [11]–[44]). It is an accurate summary of the evidence and I do not propose to repeat it.
For the following reasons, I agree with the Arbitrator’s conclusions that the totality of the evidence does not support a finding that the worker injured his back in the circumstances alleged:
(a) His evidence that he first injured his back in April or May 2006 is not corroborated by any contemporaneous record and is denied by Mr Foster, his supervisor at the relevant time.
(b) Neither Mr nor Mrs Perkins, the principals of the respondent company, were aware of any injury having been sustained by Mr Yang in April or May 2006, and nor did they observe any limitations or restrictions in his work.
(c) The reports of injury in April or May 2006 to Drs Ellis, Woo and Harbison were not made until several years after the relevant events.
(d) Mr Yang’s solicitor conceded at the arbitration that there was no contemporaneous medical evidence to support the allegation of back injury in or about April or May 2006.
(e) The respondent denies Mr Yang’s allegations that he wore a back brace after his injuries in 2006.
(f) The contemporaneous records from treating doctors do not support the worker’s claim that he injured his back in the incident on 31 May 2007. The worker first consulted Dr Lau at the Hurstville Medical Centre on 21 June 2007, complaining of neck pain. He saw Dr Lee-Shoy of that practice on 23 June 2007. He complained of sternoclavicular neck pain, but made no mention of any injury to the back. He continued to attend the practice regularly throughout June to September without reference to any injury to his back.
(g) Mr Yang made no complaint to Dr Sun, whom he consulted on 14 July 2007, of injury to the back. On the contrary, his complaints were limited to the right shoulder and arm.
(h) Dr Stanford, to whom the worker was referred by Dr Tai, obtained no history of injury to the back, and noted the presenting problems as “neck pain and sterno-clavicular pain”.
(i) The first reference in Dr Tai’s notes to back pain occurred on 21 April 2008, which recorded “low backache – L4/5 tenderness”.
(j) In respect of the allegation of back injury in February/March 2008, the evidence of Mr Foster and Mrs Perkins establishes that Mr Yang was working on light duties in accordance with the certificates issued by Dr Lee-Shoy. He was working four hours per day, four days per week. He made no complaints in February /March 2008 of an injury to his back and, although he was seeing Dr Tai regularly at this time, he did not complain of back pain.
(k) Concerning the ‘nature and conditions’ claim, Mr Yang’s statement to Dr Woo that his work involved “frequent heavy lifting” is inconsistent with the description of his duties by Mr Perkins. Mr Perkins stated that the work involved standing, walking, bending and lifting and operating a circular saw. Although Mr Yang worked with lightweight material, he was cautioned by Mr Perkins to seek assistance from another employee if he required any help with lifting. I agree with the Arbitrator’s assessment that this work could best be described as moderately heavy factory work.
(l) At the arbitration, Mr Yang offered no explanation as to why there was a delay of between one and two months in reporting the symptoms of back injury after he ceased work. On appeal, Mr Yang submits that his failure to report symptoms of a back injury were because his concerns at that time were focused on his more troubling neck and right sternoclavicular injury. That submission is not supported by Mr Yang’s evidence. In his statement of 2 May 2008 at [10], he said, “In February 2008 I was required to assemble shower screen. I noticed more pain in my neck, chest and back. The pain in my back became significant”. In his supplementary statement of 10 September 2009 at [4], he said, “The aggravation of my neck, collarbone and lumbar conditions in February/March 2008 was so severe that I ceased work on 27 March 2008 and I have not worked since”.
Mr Yang submits that Dr Woo correctly recorded a history of aggravation of lumbar pain in February/March 2008 and supported his claim. Dr Woo obtained a history of injury to the back, chest and neck arising from the incident of 31 May 2007 and from the period of work between February and March 2008. In Dr Woo’s opinion, Mr Yang suffered from degenerative disease in the neck and back, and accepted that those conditions had been aggravated by the work. Dr Woo accepted the radiological evidence of degenerative changes at C6/7 and C4/5, and diagnosed a strain to the cervical and lumbar spine as a result of the work injuries. Dr Woo made no attempt to explain why any continuing incapacity should be attributed to the ongoing effects of those aggravations, rather than to the underlying disease condition. To that extent, the Arbitrator found that the weight to be attached to his opinion is therefore diminished (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705). That finding was certainly open to the Arbitrator and I agree with it.
Given the totality of the evidence, I am not persuaded that the Arbitrator erred in failing to find that the worker suffered any injury to his lumbar spine or that he suffered an aggravation of a disease in his lumbar spine to which his employment was a substantial contributing factor.
Ground Two: did the Arbitrator err in her assessment of Mr Yang’s ability to earn under s 40 of the 1987 Act?
The parties are agreed that the worker’s pre-accident earnings amounted to $625. The Arbitrator found that the worker was capable of doing light to moderate work on a part-time basis from the time that he ceased work with the respondent in accordance with the certificate issued by Dr Tai on 26 March 2008. The Arbitrator found that, since that time, the worker had been capable of working up to 24 hours a week in suitable employment within his restrictions. She found that the worker could earn in such casual or part-time work $20 per hour. On that basis, she concluded that his probable earnings in suitable employment amounted to $480 per week. Applying the steps in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526, the Arbitrator then determined the difference between the worker’s probable earnings and the amount that he is able to earn in suitable employment at $145 per week. In view of her findings that the injuries to the worker’s back were unrelated to his employment, she then exercised the discretion available to her under s 40(1) and reduced the difference by a further $50 per week, ultimately awarding the worker $95 per week from 19 August 2009 to date and continuing.
The appellant asserts that the Arbitrator made two errors. First, she failed to refer to any award rate or specific medical evidence to support a finding that the worker was fit to perform light to moderate work on a part-time basis other than the certificate of Dr Tai. Second, she failed to have sufficient regard to the worker’s age, education and extremely limited English.
The respondent submits that the Arbitrator was correct to find the worker’s ability to earn in the sum of $480 and that she was not required to refer to any specific award in making her finding on the appellant’s ability to earn. Further, the respondent submits that there is “ample evidence” to support the finding that the appellant has a significant residual earning capacity.
It is unsurprising that the Arbitrator did not refer to any specific award in reaching her conclusions. The appellant failed to adduce any evidence concerning any particular form of employment the appellant might be suited to, or assist the Arbitrator in any way with wage rates or award earnings the worker might be expected to earn. The respondent’s ‘Schedule of Wages Claimed’ in Pt 4 of the Reply was left blank, and neither counsel addressed the Arbitrator in specific terms in a manner that would assist her in quantifying Mr Yang’s residual ability to earn.
The Arbitrator carefully assessed the medical evidence to determine the extent of Mr Yang’s incapacity (Reasons [62]–[64]). Her finding that he should be capable of light to moderate work on a part-time basis is consistent with the medical evidence. Although the earnings rate as found by the Arbitrator is more than the worker’s hourly rate ($16.40) in his pre-injury employment, the figure of $20 found by the Arbitrator would be consistent with a modest increase in that rate over the two years since Mr Yang last worked, and with an increment for casual work. The Commission, as a specialist tribunal, is entitled to use its knowledge of the labour market and wage rates to calculate probable earnings (Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385; J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 633).
I reject the submission that the Arbitrator failed to have sufficient regard to Mr Yang’s age, education and limited oral English skills. These were factors that were specifically addressed by the Arbitrator at [66] of her Reasons.
Ground Three: did the Arbitrator err in the exercise of her discretion under s 40(1) of the 1987 Act?
The Appellant submits;
“(12) The Commission must exercise its discretion judicially; Queensland v JL Holdings Pty Limited (1997) 189 CLR 146.
(13) With respect the Arbitrator did not exercise its discretion under s.40 (1) judicially as it was an error to reduce the mathematical difference because of the adverse finding on injury to the lumbar spine. In effect the Arbitrator penalised the Appellant twice for the same issue [see paragraphs 69 of the Arbitrator’s Statement of Reasons].”
The reference to Queensland v JL Holdings Pty Limited is misplaced. It concerned the principles applying to the exercise of discretion in the context of amendments and adjournments, and it has no application to the exercise of an Arbitrator’s discretion under s 40(1) of the 1987 Act.
The Arbitrator concluded that Mr Yang’s ability to earn in the labour market reasonably accessible to him is $480.00 per week.
The appellant submitted to the Arbitrator that any award of compensation should be reduced by half due to Mr Yang’s statement to Dr Ellis that his neck and back injuries were equally severe. However, the Arbitrator exercised her discretion to reduce her assessment of the difference between the worker’s agreed probable earnings and his assessed ability to earn by an amount of $50. This was in recognition of the fact that the Arbitrator found that Mr Yang’s back condition had not resulted from an injury arising out of or in the course of his employment with the respondent. The extent to which the non-work-related condition of Mr Yang’s back would inhibit his prospects of obtaining and retaining suitable employment was a relevant factor and was entirely within the Arbitrator’s discretion (Australian Wire Industries Pty Ltd v Nicholson (1985) I NSWCCR 50; Australian Iron & Steel v Elliott (1966) 67 SR (NSW) 87).
For these reasons, I consider that the appeal has no reasonable prospects of success.
Other matters
The appellant further submits that the respondent was granted the liberty to issue a supplementary s 74 notice at the teleconference. The appellant submits it would be against the interests of justice to deny it the opportunity to appeal the findings of injury and incapacity which were raised in the supplementary s 74 notice and in the proceedings which remain on foot in respect of the quantification of the lump sum claims. I reject that submission. The further s 74 notice was required only because the appellant sought to rely on further injuries in the Application to Resolve a Dispute that had not previously been notified to the respondent. These included the allegation of injury to the back and the allegation that the worker’s injuries arose, in the alternative, from the aggravation of a disease of gradual onset in the cervical and lumbar spine due to the “nature and conditions” of his employment.
There has been no suggestion either before the Arbitrator or on appeal that any prejudice arose from the supplementary s 74 notice. Although these were previously un-notified matters, the appellant was granted the indulgence to be permitted to argue those matters at the arbitration. Having been granted that indulgence, which provoked the supplementary s 74 notice to dispute those allegations, it is disingenuous for the appellant to now argue that that should be a factor in its favour in the exercise of discretion to grant leave to appeal out of time. The two issues are clearly separate and distinct.
CONCLUSION
The appellant has not established that, in exceptional circumstances, to lose the right of appeal will work a demonstrable and substantial injustice. He has failed to explain why the appeal was lodged out of time. Having considered the merits of the appeal, I am not satisfied that it has any prospects of success.
DECISION
Leave to appeal is refused.
COSTS
Each party is to pay his or its own costs of the appeal.
Judge Keating
President
5 November 2010
I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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