Zancolich v Bluescope Steel Limited
[2007] NSWWCCPD 138
•13 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Zancolich v Bluescope Steel Limited [2007] NSWWCCPD 138
APPELLANT: Paul Zancolich
RESPONDENT: Bluescope Steel Limited
INSURER:Bluescope Steel Limited (self insurer)
FILE NUMBER: WCC17950-05
DATE OF ARBITRATOR’S DECISION: 4 December 2006
DATE OF APPEAL DECISION: 13 June 2007
SUBJECT MATTER OF DECISION: Adequacy of evidence in respect of an award pursuant to section 40 of the Workers Compensation Act 1987; adequacy of reasons.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Russell McLelland Brown
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 4 December 2006 is revoked.
2.The matter is remitted to the Arbitrator at first instance for reconsideration of the source material and, if applicable, any relevant awards attached to the occupations identified in the vocational assessment report, dated 1 February 2006, as suitable, for the purposes of recalculation of the Appellant’s entitlements to a section 40 award.
3.The Respondent is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 December 2006, Paul Zancolich (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 4 December 2006.
The Respondent to the appeal is Bluescope Steel Limited (‘the Respondent’).
The Appellant commenced employment with the Respondent in 1986 as an apprentice fitter and turner, subsequently progressing to the position of crane driver/operator in 2001. His employment was terminated on 16 June 2005.
The Appellant claimed that on 6 December 2003 whilst operating a crane he suffered an injury to his back. He was absent from work until May 2004 during which time, he received weekly benefits compensation from the Respondent. In May 2004 he returned to work on selected duties until 28 October 2004 when he suffered a further injury to his back. Following that incident, he was again paid weekly benefits of compensation pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) until 16 June 2005 when his services were terminated since he was unable to resume his duties as a crane driver.
On 16 August 2005 the Respondent advised the Appellant that it denied ongoing liability for his claim, and weekly benefits continued to be paid up until 26 September 2005.
On 20 October 2005 the Appellant lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical expenses and non-economic loss compensation.
The parties attended an arbitration hearing on 10 February 2006. On 14 February 2006 the Arbitrator issued a ‘Certificate of Determination’ together with a ‘Statement of Reasons – Ex Tempore Orders’. The decision of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation from 26 September 2005 to 28 November 2005 of $560.00 per week under section 38 of the Workers Compensation Act 1987.
2.That the Respondent pay the Applicant weekly compensation at the maximum statutory rate under section 38 of the Workers Compensation Act 1987 for a worker with two dependant children from 29 November 2005 to date and continuing in the future.
3.That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 18 March 2006 the Respondent lodged an ‘Appeal Against Decision of Arbitrator’ in the Commission against that decision. The appeal was determined by Deputy President Byron on 13 July 2006. The orders made on appeal were as follows:
“The decision of the Arbitrator, dated 14 February 2006, in relation to orders 1 and 2 of her award, is revoked, and the matter is remitted to the Arbitrator concerned for determination afresh in accordance with these reasons. The Arbitrator is directed to prepare and provide a written Statement of Reasons for Decision.”
Following remittance of the matter to the Arbitrator at first instance, a Teleconference was held on 25 September 2006 at which the parties agreed to an amendment to order 1 of the determination dated 14 February 2006 under the “slip rule” to read:
“That the Respondent pay the Applicant weekly compensation at the rate of $563.00 from 26 September 2005 to 28 November 2005 under Section 38 of the 1987 Act.”
At the initial Teleconference on 19 January 2006 the Arbitrator had referred the Appellant to an Approved Medical Specialist (‘AMS’) for assessment of whole person impairment. The parties accepted the assessment, and an award was made in the Appellant’s favour under section 66 of the 1987 Act in the sum of $7,500.00 in respect of 6% whole person impairment .
At the post-appeal Teleconference on 25 September 2006, that determination was confirmed.
The remaining issue in dispute between the parties was the claim for weekly benefits from 29 November 2005 onwards. The parties attended a further conciliation/arbitration hearing on 10 November 2006. The parties made further oral submissions, and the Appellant gave sworn evidence set out in the transcript of that date.
On 4 December 2006, a further ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1.That the Respondent pay the Applicant weekly compensation at the rate of $377.00 from 29 November 2005 to date under section 40 of the Workers Compensation Act 1987.
2.Such weekly payments to continue in accordance with the provisions of the Act.
3.The Applicant is to credit the Respondent with the over payment of weekly compensation from 10 February 2006 to the present calculated as the maximum weekly statutory benefit less $377.00 per week.”
It is in relation to that determination that the Appellant now seeks leave to appeal.
On 13 February 2007, the Respondent filed a ‘Notice of Opposition to Appeal’. In brief, the Respondent submits that the Arbitrator’s award was proper in the circumstances and the appeal ought be dismissed.
LEAVE TO APPEAL
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’).
The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act. The appeal was filed in time in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.”
Both parties submit that the matter is suitable for a determination ‘on the papers’.
Both parties have prepared detailed submissions on appeal. Having regard to Practice Directions numbers 1 and 6, and all the documents that are before me, including the transcript, 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.
FRESH EVIDENCE
The Appellant seeks to adduce fresh evidence on appeal being a document entitled “Employee Earnings and Hours” issued by the Australian Bureau of Statistics in May 2004. The Appellant claims that this was “… the source document for the report of Michelle Danforth, which report was accepted by the Arbitrator as providing evidence of what the Appellant was capable of earning in suitable employment”.
The Appellant submits that leave is not required because “… The [Commission] is a specialist tribunal taken to be aware of Australian Bureau of Statistics material relevant to its specialist jurisdiction.” In the alternative, it is submitted that “… leave is sought to tender the document on the basis that the Arbitrator acted upon acceptance of assertions in an expert’s report which are unsubstantiated by the source document said to substantiate them.”
In addition, on 2 February 2007, the Appellant filed an ‘Application to Admit Late Documents’ being a statement from the Appellant dated 31 January 2007 essentially addressing the Arbitrator’s findings as to the Appellant’s capacity for employment in various occupations. Annexed to that statement are various documents from prospective employers or from employment “websites”.
No reference is made to the Appellant’s ‘Application to Admit Late Documents’ in the Respondent’s submissions. In relation to the Australian Bureau of Statistics report, the Respondent makes the following submission:
“The source material (Employee Earnings and Hour) was available to the Appellant at the time of the hearing. The criticisms of Ms Danforth’s report have never been raised on either hearing date nor has any opportunity been afforded to the Respondent to deal with such criticisms. If any of these criticisms have any validity, which is not conceded, these were matters for ventilation at the hearing or made possible [sic] give ground for a future review. They are not matters on appeal.”
Section 352(6) of the 1998 Act provides that, in an appeal, leave is required for the admission of fresh evidence or evidence in addition to that which was before the Arbitrator.
The principles relevant to the introduction of fresh evidence in appellate proceedings was considered by Deputy President Fleming in Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7 where she said at paragraph 11 as follows:
“The relevant tests are firstly, that the evidence which is sought to be admitted on appeal was not available to Appellant at the time of the original proceedings or could not have been discovered at that time without reasonable diligence, and secondly, that the evidence is of such probative value that it is reasonably clear that it would change the outcome of the case … These tests are addressed to the underlying principle of the need for finality in litigation and the importance of the ability of the successful party to rely on the outcome of the litigation. They are also addressed to the fundamental demands of fairness and justice in the instant case.”
Deputy President Fleming also emphasised (paragraph 13):
“The subject matter of the original proceedings is a critical factor in considering the exercise of the discretion to admit fresh evidence … [para 14] It is important to consider what opportunity the parties had to fully and fairly present their evidence. Compliance with the statutory scheme should lead to particularisation of a claim and the gathering of evidence to support or refute it early in the life if a dispute, well before an application to the Commission is contemplated.”
In the present case, the Respondent relied on a vocational assessment conducted by Ms Michelle Danforth for Colin Bass Human Resources Pty Limited on 1 February 2006. It is an 11 page document which sets out “appropriate positions” for the Appellant which include machine operator/bulk materials handling plant operator, weigh bridge operator, control room operator, water and waste water plant operator and museum or gallery attendant. In relation to each occupation, Ms Danforth set out “average weekly earnings” which were said to be derived from “The Australian Bureau of Statistics. Employee Earnings and Hours Australia 6306.0 May 2004. Released March 2005.”
That source document was not attached to Ms Danforth’s report.
No reference is made by the Arbitrator in her ‘Certificate of Determination’ dated 4 December 2006 to that source document forming part of the “documentary evidence” before her. Thus it is not clear, as the Respondent asserts, that the source document was in fact available to the Appellant at the time of the hearing before the Arbitrator.
In my view, the document is of significant probative value. It sets out in considerable detail average weekly earnings for both males and females in various industry sectors.
In all the circumstances, and in the interest of doing justice between the parties, leave to admit this fresh evidence is granted.
The statement by the Appellant dated 31 January 2007 together with annexures was served on the Respondent on 2 February 2007, but no reference is made to it by the Respondent in its ‘Notice of Opposition’ filed on 13 February 2007.
Essentially, the Appellant’s statement dated 31 January 2007 relates to further attempts he has made to obtain employment, and contains extracts from various websites in relation to certain occupations identified by Ms Danforth in her report to which I have referred previously.
In proceedings before the Arbitrator, conducted on 13 November 2006, the Appellant gave oral evidence as to his attempts to find employment. The material the Appellant now seeks to rely upon, although relevant to the issue raised on appeal, seems to me to reflect an attempt by the Appellant to “expand” his case and raise new arguments on appeal. It was obtained well after the conclusion of proceedings before the Arbitrator. To admit this material would create some prejudice to the Respondent in that it has not had an opportunity to respond to the Appellant’s allegations. To admit this evidence would be to effectively turn the appeal into a de novo hearing contrary to the provisions of section 352 of the 1998 Act and numerous decisions on this point, for example, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6.
As Deputy President Fleming said in M & S Shipman Pty Limited v Larry John Matters [2003] NSWWCCPD 19 at paragraph 23:
“…It is undesirable, and potentially unfair, to allow a party to effectively present a new and different case on appeal, to that which was before the primary decision-maker. The comments of the High Court in relation to the introduction of new evidence following a trial are relevant to the consideration of these issues. In Coulton v Hollcombe (1986) 162 CLR 1 the Court, (per Gibbs CJ, Wilson, Brennan and Dawson JJ), held that
. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish (at [9]).”
Bearing in mind principles of procedural fairness and in the interests of justice between the parties, I am not persuaded that any proper grounds exist for the admission of this evidence. Accordingly, leave to admit this evidence is refused.
THE ISSUES IN DISPUTE
The Appellant submits that the Arbitrator erred in fact in finding that he was able to earn, in suitable employment, $1,023.00 per week. It was agreed between the parties at the hearing before the Arbitrator that the Appellant’s pre-injury earnings with the Respondent were $1,400.00 per week. It is also submitted that the Arbitrator failed to have regard to factors set out in section 43A of the 1987 Act in particular, the Appellant’s age, education, skills and work experience.
The Appellant submits that the occupations identified by Ms Michelle Danforth, a Vocational Assessor, on whose report the Arbitrator clearly relied, required either certification or 12 months training “… according to the Australian Standard Classification of Occupations”.
The Appellant submits that the Arbitrator has either ignored or failed to evaluate its submission to the effect that the Appellant’s ability to earn would not in fact be the average weekly wages identified by Ms Danforth “… but more in the vicinity of $700.00 p/w.”
Finally, the Appellant submits that the Arbitrator failed to adequately explain her reasoning process that led to her ultimate conclusions, and failed to provide adequate reasons for rejecting the Appellant’s arguments in accordance with her obligations pursuant to Rule 73 of the 2003 Rules.
The Respondent submits that the Appellant’s challenge to the Arbitrator’s findings in relation to step two of the five step approach to section 40 enunciated in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) is flawed for a number of reasons to which I will refer more fully below.
THE ARBITRATOR’S DETERMINATION
The Arbitrator provided a detailed ‘Statement of Reasons’ accompanying the ‘Certificate of Determination’ dated 1 December 2006. The Arbitrator considered the extensive medical evidence noting that, in relation to the Appellant’s capacity for work, it was “conflicting”. The Respondent also relied upon a number of surveillance reports to which the Arbitrator referred, together with the evidence of the two Approved Medical Specialists (‘AMS’) namely Dr Maxwell and Dr Korbel, to whom the Appellant was referred.
The Arbitrator concluded (paragraph 51) that the majority of medical evidence was to the effect that there were some physical restrictions on the Appellant’s working capacity “… such as lifting, bending and carrying …”. The Arbitrator accepted that the Appellant had some physical restrictions noting that Dr Maxwell, the AMS, had assessed him as having a 6% WPI in respect of permanent impairment of his lumbar spine.
The Arbitrator concluded (para 51) that the Appellant “… is capable of working fulltime but not in his pre-injury position.”.
In considering the Appellant’s ability to earn, the Arbitrator referred to the report of Ms Danforth (paragraph 52), and noted the Appellant’s submission in paragraph 53 as follows:
“The Applicant submitted that the most he could earn initially in the positions listed by Ms Danforth would be below the average weekly wage as he would start at a lower wage and work up to the average wage. He submitted it would be more in the vicinity of $700.00 per week. This was the figure the Arbitrator understood the Respondent had conceded at the initial hearing would be the Applicant’s earning capacity if he was determined to be capable of fulltime work. As stated above, this had not been conceded by the Respondent.”
At paragraph 54, the Arbitrator again considered Ms Danforth’s report, the Appellant’s oral evidence, and a number of reports from CRS.
At paragraph 55 the Arbitrator stated:
“Given all the above it is more probable than not that the Applicant is capable of earning the average weekly amount set out in Ms Danforth’s report to … Bluescope which took into account the lifting restrictions placed on the Applicant by his various doctors. Therefore, I find the weekly amount the Applicant would able to earn in some suitable employment in the general labour market reasonably accessible to him is $1023.00 per week.”
This figure was the average weekly wage of the six suitable occupations identified by Ms Danforth.
Applying the steps in Mitchell, the Arbitrator, having deducted the sum of $1,023.00 from $1400.00, determined that the Appellant was entitled to an award pursuant to section 40 of the 1987 Act in the sum of $377.00 per week.
THE SUBMISSIONS, EVIDENCE AND FINDINGS
It is clear from the Arbitrator’s determination that her assessment of the Appellant’s capacity to earn, in dollar terms, was based on the report of Ms Danforth to which I have referred previously. The Appellant does not appear to significantly dispute the Arbitrator’s finding that he was capable of fulltime employment with some restrictions. The real dispute seems to be with the source material upon which Ms Danforth’s findings as to average weekly wages was based.
As the Appellant points out:
“The source document … does not give average weekly wages in any of those jobs. The source document gives earnings for ‘Males’, in various sectors of employment. The figures for average earnings quoted by Ms Danforth do not correspond with any figures in the source document.”
The source document is lengthy and detailed, but after careful consideration, the Appellant’s submission appears to be correct. Ms Danforth identified the following jobs and earnings as suitable for the Appellant:
1. Machine Operator – average weekly wages $923.60.
2. Bulk Materials Handling Plant Operator – average weekly wage
$1,079.80.
3. Weigh Bridge Operator – average weekly wages $1,079.80.
4. Control Room Operator – average weekly wages $1,083.10
5. Waste Plant Operator – average weekly wages $1,079.80.
6. Museum Gallery Attendant – average weekly wages $891.90.
The source document sets out average weekly total earnings for various industry categories. They are listed as follows (page 12):
· Mining.
· Manufacturing.
· Electricity, gas and water supply.
· Construction.
· Wholesale trade.
· Retail trade.
· Accommodation, cafes and restaurants.
· Transport and storage.
· Communication services.
· Finance and insurance.
· Property and business services.
· Government administration and defence.
· Education.
· Health and community services.
· Cultural and recreational services.
· Personal and other services.
Further categories are set out on page 14 relating to managers, professionals, tradespersons, intermediate, elementary, clerical and labourers. Occupations are also set out on a State by State basis, and for males and females.
None of the occupations identified by Ms Danforth are listed. It seems to me that the first five occupations identified would possibly fall under the category of “manufacturing” and that the occupation of museum gallery attendant would probably fall into the category of “cultural and recreational services”. The average weekly total earnings for males in manufacturing (non-managerial adult) is $971.50 per week and for “cultural and recreational services” is $921.20. Higher amounts are paid to “managerial adult”.
Ms Danforth noted three occupations which returned average weekly wages of $1,079.80. That figure is similarly not represented in the source document. The sum of $1,079.90 is payable to non managerial adults in the “communication services” sector.
As the Appellant points out, none of the occupations identified by Ms Danforth appear to relate to the “communications services” sector.
Accordingly, the average weekly wages identified by Ms Danforth do not on the fact of it appear to correspond to the source document to which she referred, a copy of which is annexed to the Appellant’s appeal application.
As to rates of pay generally, the Appellant submits:
“The Commission is a specialist tribunal and taken to be familiar with the going rates of pay under various awards for various jobs. See Bryer v Metropolitan Water Sewage & Drainage Board (1939) 39 SR (NSW) 321 at 330-331 (Bryer); Australian Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87 at 94 (Elliott); and J & H Timbers Pty Limited v Nelson (1972) 126 CLR 625 at 634 and 651 (Nelson).
The award rate of pay for a museum gallery attendant would be $504.40 p/w under the award s.45 – Theoretical Employee Recreations and Leisure Industry Award. (Level 1 attendant). The award rate of pay for a Weigh bridge operator would be $602.90 under the Asphalt & Bitumen Industry (state) Award. The award rate [of] pay for the other specified jobs would be similar (approx $600.00 p/w) for beginners.”
The Appellant’s submission in principle is correct, certainly in the context of proceedings before the former Compensation Court and indeed the previous Workers Compensation Commission. As the court pointed out in Bryer (page 330):
“The Commission were not restricted to applying the their commonsense to the evidence placed before them in the present proceedings. Such a tribunal, investigating, as it does, thousands of cases in which evidence is given as to conditions of employment and rates of pay, acquires an immense fund of information on these subjects; and it has been pointed out that it would lead to unnecessary and deplorable reduplication of expense if the tribunal were not at liberty to use the general data which it has acquired in this way in the determination of particular cases which come before it … the tribunal is entitled to use this general knowledge not only for the purpose of supplying gaps in the evidence given before it as to matters which it is required by statute to determine, and must therefore determine as best it can on such material as is available to it …”
Similar observations were made in both Elliott and Nelson. In Elliott, the Court held (page 94):
“The parties do not seem to have raised the question of quantum, or to have placed before his Honour any evidence on which he might determine … the amount proper to be awarded … being content, apparently, to leave all questions of quantum to his Honour’s decision in reliance on the fund of information as to conditions of employment and rates of pay which the Commission should be taken to possess …”
However, as the High Court pointed out in Nelson, the onus of proving the difference between the weekly amount which a worker would probably have been earning but for injury and the average weekly amount was able to earn, after the injury, rested upon the worker seeking the award and not upon the employer opposing the application. In that case, Gibbs J noted (page 651):
“…I do not think that the question where this onus lies is of much importance in an ordinary case. This is because of the well-established rule that the Commission is entitled to make use of its judicial knowledge as to such matters as rates of wages and availability of employment …”
The present Commission operates somewhat differently. The rules require all parties to lodge at the outset all information and documents on which they intend to rely, and it seems to me that an Arbitrator, charged with the task of conciliation and arbitration in accordance with the rules and procedures of the Commission, is not in the same category as judges in the Commission’s prior guises. An Arbitrator is required to determine a matter on the basis of material supplied with the Application or Reply. Section 290(3) of the 1998 Act is in the following terms:
“Any document or information that a party to a dispute has failed to provide in contravention of this section cannot be admitted on behalf of the party in proceedings on the dispute before the Commission.”
Whilst exceptions can apply, Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) provides as follows:
“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.”
In these circumstances, whilst an Arbitrator may indeed be familiar with rates of pay under various awards, ultimately, an Arbitrator’s determination is to be based on relevant, logical and probative evidence before the Commission.
It is not clear from what source or upon what basis the Appellant asserts that the award rate of pay for a Museum Gallery Attendant would be $504.40 per week. It seems to me that evidence of award rates of pay sought to be relied upon can be fairly readily obtained by practitioners in this jurisdiction, and the Appellant ought properly to have obtained that material prior to the Arbitration hearing.
Having said that, it does appear that Ms Danforth’s calculation of average weekly wages is flawed, and not in accordance with a source document to which she referred in her report.
As a consequence, I accept the Appellant’s submission that the Arbitrator’s findings as to the Appellant’s ability to earn, based on Ms Danforth’s assessment, appears to be based on an error of fact that thus ought be set aside.
The Appellant also takes issue with the Arbitrator’s consideration of factors to be taken into account in determining what is “suitable employment” within the meaning of section 43A of the 1987 Act. I do not propose to reiterate all those factors but in particular, the Appellant submits that the Arbitrator has “failed to evaluate” section 43A(1)(b), ie, the worker’s age, education, skills and work experience.
There was considerable evidence on these issues contained not only in the CRS reports but also Ms Danforth’s report. Ms Danforth had noted that the Appellant had applied for many positions and indeed, his oral evidence in the proceedings on 10 November 2006 was extensive as to the types of jobs for which he had applied, and the bookkeeping course he was undertaking. (See pages 23 – 30 of the transcript).
True, the Appellant said he had applied for a number of jobs in sales work which he felt he could do but indicated that he had not been trained in that area. He did not indicate any difficulties with the bookkeeping course, but he was not asked about the jobs identified by Ms Danforth as suitable.
The consensus of medical opinion was to the effect that the Appellant had some restrictions in tasks such as lifting and bending. The occupations identified by Ms Danforth were in accordance with those restrictions. CRS reports indicated that the Appellant had gained a number of interviews for positions but had not as yet been successful in obtaining employment.
The Arbitrator’s analysis of all of the evidence in my view adequately took into account all of the factors set out in section 43A, and I am not persuaded that the Appellant has demonstrated that the Arbitrator had failed to “evaluate” the Appellant’s age, education, skills and work experience. It was open to the Arbitrator on all of the evidence before her to find that the Appellant was capable of fulltime employment, other than his pre-injury position, in occupations identified by Ms Danforth as suitable to his restrictions, age, skill and experience.
The final matter to consider is the Appellant’s assertion that the Arbitrator failed to provide adequate reasons for her findings and “… failed to make the Appellant aware of her views of his case in failing to state why she rejected it.”
It is now well established that an Arbitrator is not required to give lengthy and detailed reasons since to do so would be unreasonable and inconsistent with the objectives of the Commission. (See Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56). Nonetheless, as Mahony JA said in Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247:
“Reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted … it is necessary that the essential grounds upon which the decision rests should be articulated.”
The Arbitrator at paragraph 35 noted the oral submissions made by the parties both at the initial hearing in February 2006 and at the further hearing on 13 November 2006. The Appellant had also made written submissions dated 25 September 2006. The Appellant’s submissions were summarised at paragraph 36 of the ‘Statement of Reasons’.
In her “findings and reasons”, the Arbitrator considered the medical evidence as to the Appellant’s capacity to work, the surveillance material, the report of the two AMS and the vocational evidence. At paragraph 53, she noted the Appellant’s submission as to what he considered he would be able to earn i.e, $700.00 per week. Ultimately, the Arbitrator accepted the opinion of Ms Danforth given all of the evidence to which she had referred in paragraphs 37 to 54 inclusive. The Arbitrator, as I said, accepted that the Appellant had some restrictions, notwithstanding medical evidence to the contrary and the extensive surveillance material.
Whilst the Arbitrator did not explicitly accept or reject the Appellant’s submission on this point, implicit in her acceptance of the evidence of Ms Danforth was a rejection of the Appellant’s argument as to his ability to earn. The Appellant’s position may well be vindicated, as may Ms Danforth’s, depending on the re-evaluation of the source material, but this is mere speculation and not relevant to my determination of the issue raised.
In all the circumstances, I am of the view that the Arbitrator’s reasons are adequate and in accordance with the requirements of the 2006 Rules, and that she has adequately apprised the parties of the essential grounds upon which her decision was based.
CONCLUSION
The Arbitrator’s determination as to the Appellant’s ability to earn in suitable employment appears to be based on flawed source material and as such, constitutes an error of fact. For this reason, the Arbitrator’s determination should be set aside. However, her determination in all other respects is sound, and consistent with the totality of the evidence before her. Her reasons in the context of her task are adequate, and clearly set out the basis of her determination.
Given the error of fact to which I have referred, the appropriate course is to remit the matter to the Arbitrator at first instance for reconsideration of Ms Danforth’s report and the source material, which is now admitted, upon which it is said to be based. This may necessitate further evidence from Ms Danforth, but I do not consider that extensive further evidence from either party on this issue is necessitated. What is essentially required from Ms Danforth is an explanation as to her interpretation of the source material as to average weekly wages. The Arbitrator’s acceptance of Ms Danforth’s assessment as to the Appellant’s capacity to undertake the jobs she identified as suitable is appropriate, and in line with all of the evidence, particularly the MAC of Dr Maxwell and the surveillance material.
Simply put, Ms Danforth’s “average weekly earnings” do not appear to accord with the source document, and this needs to be explained. It may be that there exists particular award rates of pay in respect of the occupations identified by Ms Danforth and if so, that material ought be made available to the Arbitrator.
It may be that this can be achieved by way of further submissions or Teleconference, or statement from Ms Danforth. That is a matter for the Arbitrator to determine.
DECISION
The decision of the Arbitrator dated 4 December 2006 is revoked.
The matter is remitted to the Arbitrator at first instance for reconsideration of the source material and, if applicable, any relevant award attached to the occupations identified in the vocational assessment report, dated 1 February 2006, as suitable for the purposes of recalculation of the Appellant’s entitlements to a section 40 award.
COSTS
The Arbitrator does not appear to have made any award as to costs of proceedings before her on 13 November 2006. The Respondent is to pay the costs of those proceedings and the costs of the appeal.
Deborah Moore
Acting Deputy President
13 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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