DHL Exel Supply Chain (Australia) Pty Ltd v Hyde [2011] NSWWCCPD 22

Partial incapacity; ability to earn in some suitable employment; s 40 of the1987 Act; exercise of the discretion where overtime opportunities declined by worker

Keating P

4 April 2011

Facts:

Mr Hyde was employed by the appellant DHL at the Holbech Road premises as a high-reach forklift operator. The high-reach forklift was operated in a standing position and involved the operation of a dead man’s pedal operated with the left foot. Mr Hyde alleges that, over time, he suffered injuries to his left foot as a result of operating the forklift.

Mr Hyde was unfit for a short period of time and then certified fit to return to work provided he avoided operating the high-reach forklift. In the absence of suitable duties at the Holbech Road premises, and after repeated unsuccessful attempts to return to work at the Holbech Road premises, Mr Hyde was transferred to DHL’s freight centre at Huntingwood effective on 25 May 2009. His work there involved loading and unloading trucks using a forklift operated from a seated position.

Mr Hyde claimed that, at his new location, he was denied the opportunity of working the amount of overtime that was available to him at the Holbech Road site. He claimed weekly compensation pursuant to s 40 of the 1987 Act in the sum of $135.79 per week from 25 May 2009 to date and continuing. DHL accepted injury but declined the claim on the basis that the worker was no longer incapacitated, the effects of the injury had ceased and that Mr Hyde’s transfer was within the terms of the enterprise bargaining agreement under which he was employed. He continued to perform his duties as a storeman. Any alleged wage loss was incidental to the transfer and was not compensable. DHL disputed Mr Hyde’s actual earnings reflected his ability to earn, and argued he had unreasonably refused offers of overtime in his current role.

Senior Arbitrator’s Decision – Award for the worker under s 40

The Senior Arbitrator found that the worker suffered left-sided plantar fasciitis, with the possibility of tendonitis. The condition had been aggravated by Mr Hyde’s employment and the aggravation was continuing. The parties agreed that Mr Hyde’s probable earnings but for the injury were $1,092.50 per week. It was also agreed that Mr Hyde’s actual earnings were $952.26 per week.

The Senior Arbitrator was satisfied that, in the circumstances of this case, there was no reason for him to depart from the principles enunciated in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (Aitkin). The Senior Arbitrator found that Mr Hyde’s current earnings accurately reflected his ability to earn in suitable employment.

The Senior Arbitrator made an award in favour of Mr Hyde pursuant to s 40 of the 1987 Act in the sum of $135.79 per week from 25 May 2009 to date and continuing.

Appeal

DHL challenged the Senior Arbitrator’s findings on incapacity and his assessment of the worker’s entitlements under s 40. The grounds of appeal included an alleged error by the Senior Arbitrator in finding that s 40(2A) of the 1987 Act did not apply to Mr Hyde’s failure to accept offers of overtime and in failing to exercise his discretion under s 40(1).

It was also alleged that the Senior Arbitrator failed to consider the prejudice that was suffered by the appellant by the late admission of Mr Hyde’s statement which was served on the appellant on 29 November 2010.

Held: Senior Arbitrator’s decision confirmed

1. The evidence established that Mr Hyde was unfit to perform his pre-injury duties, in that he was incapacitated for work which required him to stand continuously throughout the working day, or, alternatively, he was deemed by virtue of s 47 of the 1987 Act, to be incapacitated for such work on the evidence of Dr Stephenson that such work is likely to result in further injury.

2. The lack of precision in Mr Hyde’s supervisor Mr Beveridge’s statement as to the frequency with which overtime was actually offered to him and also having regard to Mr Hyde’s evidence concerning the infrequent occasions he declined overtime, led the Senior Arbitrator to find that Mr Hyde had not acted unreasonably on those occasions.

3. The Senior Arbitrator concluded that Mr Hyde was not failing to exercise his residual capacity or was minimising his earnings. Applying Aitkin, the Senior Arbitrator concluded that the worker’s actual earnings was the proper measure of his ability to earn under s 40(2)(b) and was confirmed on appeal.

4. On appeal DHL submitted that Mr Hyde’s alleged failure to undertake available overtime amounted to an unreasonable rejection of suitable employment. DHL submitted that, as Mr Hyde was aware that overtime was available to him and elected not to pursue it, that should be “viewed as having rejected the overtime that was available to him”, and that overtime must be quantified at less than $135.79 per week.

Leave refused to argue the application of s 40(2A)

5. This submission was rejected and DHL was refused leave to argue the s 40(2A) issue on appeal for a number of reasons:

(a) the argument that the worker had rejected suitable employment within the meaning of s 40(2A) was not argued before the Senior Arbitrator;

(b) the s 74 notice did not raise as an issue Mr Hyde’s unreasonable refusal of suitable employment within the meaning of s 40(2A). As the Commission has noted in numerous decisions, the s 74 notice must clearly state the reasons for disputing the claim. It must state in plain language in the body of the document the reason the insurer disputes liability and the issues relevant to that decision: Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488;

(c) parties are bound by the conduct of their case at first instance. It would be unfair to allow, by discretionary amendment, the allegation by one party of a new matter whereby the other party would be subjected virtually to a new trial on an issue different from that already litigated: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7–8; Metwally v University of Wollongong (No 2) [1985] HCA 28; 60 ALR 68; 59 ALJR 481, and

(d) no application was made, either before the Senior Arbitrator or on appeal, under s 289A(4) of the 1987 Act for leave to pursue a previously unnotified issue.

6. DHL submitted that the Senior Arbitrator erred in the exercise of his discretion under s 40 of the 1987 Act by failing to accept that any loss of earnings suffered by Mr Hyde was not the result of any incapacity, but was due to Mr Hyde’s attitude to the pursuit of overtime, leaving work at the precise scheduled finishing time, and the general availability of overtime. DHL further submitted that its actions in approaching Mr Hyde to perform overtime and providing him with a worksite at which ample overtime was available were sufficient to place the onus on the worker to show that he pursued overtime and still suffered a wage loss.

7. The submission that the Senior Arbitrator should have exercised his discretion to reduce the worker’s entitlements due to an onus on the worker to show that he had pursued overtime was to reverse the onus on this issue. Once a worker establishes that comparable earnings exceed his or her ability to earn, the evidentiary burden shifts to the employer to lead evidence as to why, in the exercise of the discretion, that difference should be reduced: Sutherland Shire Council v Wurzel [2010] NSWWCCPD 79 at [92].

8. The Senior Arbitrator correctly took into account Mr Hyde’s willingness to cooperate with the return to work program and that he continued to work overtime from time to time. Mr Hyde had not unreasonably rejected offers of overtime: the overtime available to him post-injury was substantially less than that which was available to him before he was injured. Therefore, there was no valid reason to exercise a discretion to reduce Mr Hyde’s entitlements.

Late evidence

9. DHL submitted that the Senior Arbitrator failed to consider the prejudice suffered by the appellant by the late admission of the worker’s statement signed on 26 October 2010 and served on 29 October 2010, the day before the hearing. It submitted that the further statement was in response to Mr Beveridge’s evidence. DHL alleged it had insufficient time to respond to the evidence.

10. At the commencement of the arbitration, both parties applied for leave for the admission of late documents. The application dated 29 October 2010 was admitted into evidence without objection (T2.13). It was clear from the worker’s statement contained in the Application to Resolve a Dispute filed on 31 August 2010 that the availability of overtime was an issue in these proceedings. Notwithstanding this, Mr Beveridge’s statement was not obtained until 25 October 2010, and the application to have it admitted as a late document was not filed until 26 October 2010, that is, four days before the arbitration hearing.

11. Notwithstanding the late service of the evidence, Mr Hyde’s solicitors acted extremely promptly in obtaining a response from him on 26 October 2010 and filing an application to have it admitted as a late document the next day.  Further, there was no application to adduce oral evidence from Mr Beveridge, nor any suggestion that he would not have been available to give evidence. In these circumstances there was no prejudice suffered by DHL by the late admission of Mr Hyde’s statement, which was obtained in response to the late evidence from DHL.

Section 60 – general orders

12. DHL submitted that the Senior Arbitrator was in error in entering a general order for the payment of medical expenses pursuant to s 60 as there was no evidence attached to the Application to Resolve a Dispute of any medical expenses having been incurred. It further submitted that the Senior Arbitrator did not have jurisdiction to make an order under s 60: NSW Sugar Milling Co-operative Ltd v Manning [1998] NSWCC 33; 16 NSWCCR 606; 44 NSWLR 442 and Widdup v Hamilton [2006] NSWWCCPD 258; 5 DDCR 85 (Widdup). DHL submitted that s 60 benefits only accrue where there is evidence that the amount claimed has been incurred. In the absence of evidence of an expense being incurred, the Commission does not have power to make declaratory orders: Widdup.

13. DHL’s submissions were rejected as the submission that the Commission does not have jurisdiction to make a general order under s 60 is incorrect. The issue was considered in Widdup, where the then President, Justice Sheahan, held that the Commission does not have power to make a declaratory order regarding liability for the payment of medical expenses not yet incurred. However, his Honour went on to say at [19]:

In determining the above disputes [on injury, causation and the need for medical treatment] it is accepted practice in the Commission that, after making the requisite findings of worker, injury, incapacity and/or permanent impairment and the making of appropriate orders that result from those findings, it also makes an order for the payment of reasonably necessary medical expenses incurred and properly verified together with a ‘general order’ under s 60. This practice was expressly noted by Egan J in Brespro Pty Limited v Garry John Keenahan NSWCC 11155 of 1991, 12 May 1992 (‘Brespro’), unreported.

14. Widdup is not authority for the proposition that the making of a “general order” for the payment of s 60 expenses exceeds the Commission’s jurisdiction. The Commission does have jurisdiction to order the payment of section 60 expenses; however, such an order is limited in its efficacy to medical expenses “reasonably necessary” as a result of the injury. Such an order does not determine liability for any particular treatment.

Abou-Sleiman v P & V Masonry Pty Ltd [2011] NSWWCCPD 21

Personal injury; s 10 of the 1987 Act; late evidence on appeal

Keating P

1 April 2011

Facts:

Mr Abou-Sleiman was injured in a car accident on a journey between his place of abode and place of employment. He alleged that he sustained an injury to his lumbar spine and claimed compensation for permanent impairment.

The issue for determination by the Arbitrator was whether Mr Abou-Sleiman suffered a personal injury to his lumbar spine in the motor vehicle accident on 4 March 2009 within the meaning of s 10 of the 1987 Act, noting the distinction between the meaning of ‘injury’ in s 4 and in s 10 of the 1987 Act.

Counsel for Mr Abou-Sleiman, submitted that he suffered a personal injury in the nature of an injury to the L4/5 disc consistent with the evidence of Dr Qidwai.

Arbitrator’s Decision – Award for the respondent

The Arbitrator determined that, whilst it was likely that Mr Abou-Sleiman suffered an aggravation of degenerative changes in his lumbar spine and he failed to prove that he had sustained a “personal injury” within the meaning of s 10(1) of the 1987 Act during a periodic journey, in that the injurious event did not result in a sudden identifiable pathological change.

Appeal

Mr Abou-Sleiman appealed on the basis that the Arbitrator erred in not finding that there was a sudden identifiable pathological change in the worker’s condition which caused his injury.

Held:

1. To succeed with a claim under s 10 of the 1987 Act, a worker must have received a personal injury, that is, a sudden identifiable pathological change brought about by an internal or external event. That such a change also causes, or can be characterised as, an aggravation of a disease does not prevent it being a personal injury (see Armao v Ladue Holdings Pty Ltd [1992] NSWCC 16; 8 NSWCCR 440 and Yum Restaurants Australia Pty Ltd t/as Pizza Hut Restaurants v Watters [2001] NSWWCCPD 31).

2. The respondent’s medical evidence was preferred. The appellant’s medical evidence was inconsistent with the radiological findings and failed to explain the basis for the conclusions that the worker had suffered a disc prolapse in the accident.

3. Whilst the President accepted that Mr Abou-Sleiman was subjected to a significant impact when his vehicle was struck from behind and that it may have been reasonable to infer from the available facts that Mr Abou-Sleiman may have suffered an aggravation of a pre-existing degenerative condition in his lumbar spine, that was a different proposition from accepting, by inference only, that he suffered a sudden identifiable pathological change.

4. The President rejected the alternative submission that the appellant suffered a soft tissue injury. The appellant failed to identify, other than in vague general terms, the muscles and tissues allegedly subjected to any pathological change, the nature of the change, or its persisting effect and the President declined to draw the inference.

5. The more compelling inference was that Mr Abou-Sleiman may have suffered (at most) an aggravation of the degenerative changes already present in his lumbar spine.

6. Having made that finding, the President observed that he did not exclude the possibility that, in an appropriate case, proven injuries to the soft tissues in the spine could be sufficient to establish a “personal injury” under s 10.

7. The President concluded that the evidence did not support a finding the worker suffered a sudden identifiable pathological change in his lumbar spine as a result of his involvement in the motor vehicle accident.

Solicitor Certification

8. The appellant’s solicitor identified five grounds of appeal in the ‘Application to Appeal Against Decision of Arbitrator’ and signed and certified the application. Several of those grounds were untenable at the outset and others were unsupported by any reasoned argument or authority. At the appeal hearing, counsel for the appellant took the unprecedented step of withdrawing all of the grounds of appeal and substituting only one ground. Further, it was noted that the appellant’s submissions on the appeal were also significantly different from the submissions that were put to the Arbitrator.

9. No criticism was made of the appellant’s counsel.

10. However, practitioners were reminded of their duty under s 352(7A) of the 1998 Act and s 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success. Practitioners were also reminded that certifying reasonable prospects of success without justification is capable of being unsatisfactory professional conduct (Beale v Walgett District Hospital [2009] NSWWCCPD 60.

Manuel v BOC Limited [2011] NSWWCCPD 20

Section 17 of the 1987 Act; Blayney Shire Council v Lobley (1995) 12 NSWCCR 52; tendencies, incidents or characteristics of employment

O’Grady DP

1 April 2011

Facts:

Mr Manuel, aged 83 years, was employed by the respondent, BOC Limited (BOC), as a fitter and turner until his retirement in 1990. He commenced that employment in approximately 1967 at which time BOC was known as CIG Limited.

The work performed by Mr Manuel exposed him to significant industrial noise. Following his retirement he made a claim against BOC in respect of lump sum compensation alleging a 12.12 per cent binaural hearing loss. This claim was settled and a consent award dated 24 February 1995 recorded that Mr Manuel was entitled to the sum of $2695.67 in respect of 4.58 per cent loss of hearing in both ears together with payment of the cost of hearing aids, interest and costs.

In January 2010 Mr Manuel made a claim against BOC in respect of 15.15 per cent binaural hearing loss. The date of injury specified in that claim was 1 January 1990. That claim was declined by BOC.

The dispute between the parties was referred to the Commission and the Arbitrator entered an award for BOC in respect of Mr Manuel’s claim for further lump sum compensation for binaural hearing loss.

The issues in dispute in the appeal were whether the Arbitrator erred in:

(a) failing to correctly apply relevant authority, in particular, the decision of the Court of Appeal in Blayney Shire Council v Lobley (1995) 12 NSWCCR 52 (Lobley), to the facts;

(b) deciding that the question of causation, namely whether the employment concerned was “noisy enough” to damage hearing, needed to be determined;

(c) asking an incorrect question being “was the employment capable of producing ongoing hearing loss?”, and

(d) rejecting the evidence of Dr Tamhane concerning causation.

Mr Manuel argued that the dispute was a medical dispute and required remitter to the Registrar for referral to an AMS for assessment. Mr Manuel asserted that s 17 operates, as construed by the court in Lobley, to negate any question of causation. He also submitted that, if the question of causation was found to be relevant, Dr Tamhane’s evidence should be preferred to that of Dr Seymour (BOC’s expert evidence).  BOC argued that there was a dispute as to liability and that Mr Manuel’s further loss of hearing was not an injury to which the provisions of s 17 applied. BOC asserted that the relevant loss of hearing was not boilermaker’s deafness or deafness of similar origin within the meaning of s 17(2) of the 1987 Act.

Held: Arbitrator’s decision confirmed.

1. As the deemed date of injury was 1 January 1990 and the claim was made in January 2010, it was necessary to have regard to the transitional provisions found in Sch 6 Pt 18C to the 1987 Act in determining Mr Manuel’s entitlement and BOC’s liability. [58]

2. Lump sum compensation may not be awarded, where there is an impairment dispute, unless the dispute has been assessed by an AMS under Pt 7 of Ch 7 of the 1998 Act: Sch 6 Pt 18C cl 4(1).  Part 7 applies to the dispute as if it were a medical dispute under that part (Sch 6 Pt 18C cl 4(3)).  [59]

3. Under s 319 of the 1998 Act, a medical dispute means a dispute about “the nature and extent of loss of hearing suffered by a worker”. [60]  Section 321(4)(a) of the 1998 Act was also considered.  It states that a medical dispute involving permanent impairment (including hearing loss) where liability is in issue cannot be referred for assessment by an AMS.

4. Handley AJ in Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun) stated (at 141):

The scheme for the settlement of compensation disputes established by the 1998 Act read with the Workers Compensation Act 1987 (NSW) (the 1987 Act) is to have factual and legal issues resolved by an Arbitrator subject to an appeal to a President or Deputy President, and to have certain medical issues decided by an AMS subject to appeal to a Panel.

5. Cole JA in Lobley stated:

It follows from these authorities that in determining whether, at the time when notice of injury was given, Mr Lobley was “employed in an employment to the nature of which the injury was due”, attention must be directed not to whether the employment then engaged in actually caused the injury but whether the ‘tendencies, incidents or characteristics’ of that employment were of a type which could give rise to the injury in fact suffered. (at 64D, emphasis added)

6. The injury “in fact suffered” in the present case is a “further loss” of hearing.

7. There was a factual dispute as to whether the “tendencies, incidents or characteristics” of Mr Manuel’s employment were such that they could give rise “to the injury in fact suffered”: Lobley (at 64D). [66] The factual dispute required determination prior to the referral for assessment by an AMS. [67]

8. The evidence did not establish that the tendencies, incidents or characteristics of Mr Manuel’s employment with BOC gave rise to the further loss of hearing in fact suffered by him. [68]–[76]

Irvin v LA Logistics Pty Ltd [2011] NSWWCCPD 23

Admission of fresh or additional evidence: s 352(6) of the 1998 Act; Notice of claim: s 261(1) of the 1998 Act; failure to make a claim by reason of ignorance: s 261(4) of the 1998 Act; first awareness of receipt of injury: s 261(6) of the 1998 Act

O’Grady DP

12 April 2011

Facts:

Mr Irvin, the appellant, commenced proceedings in the Commission on 3 September 2009 against LA Logistics Pty Ltd (LAL) and Cemex Group Ltd (Cemex) seeking lump sum compensation in respect of injury received in the course of employment with Cemex and LAL, being hearing loss resulting from noise exposure.

At an arbitration hearing on 26 November 2009 an award was entered in favour of each of the employers. That determination was appealed and heard on the papers by the President, Judge Keating. Additional evidence admitted on the appeal demonstrated that the evidence before the Arbitrator was “unreliable”. His Honour, at [69] of his reasons, concluded that there was not sufficient material before the Commission to enable findings to be made regarding the date of injury or the date of Mr Irvin’s claim for compensation. His Honour said that it would be necessary for the parties to be given an opportunity to gather further evidence for presentation at a further arbitral hearing. On 16 April 2010, his Honour ordered that the arbitrator’s decision be revoked and the matter be remitted to a different arbitrator for determination afresh (Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40).

The matter came before Arbitrator Phillips SC on 4 August 2010. After hearing argument and considering written submissions, the Arbitrator entered an award in favour of Cemex and LAL.  Unfortunately the evidence referred to by his Honour (documents from an organisation described as “Linfox” and any records held by Cemex concerning an alleged claim made by Mr Irvin in early 2008) was not presented at the arbitration.

Mr Irvin appealed against the decision of Arbitrator Phillips SC.

He sought leave to adduce fresh or additional evidence under s 352(6) of the 1998 Act. That material included a copy of results of an audiogram conducted on 28 February 2008 at the request of Linfox and a statement by his solicitor concerning the procedure undertaken to obtain the audiogram results. Cemex opposed the application. Mr Irvin argued that if the additional evidence was to be admitted on appeal, the content of that evidence “demonstrates an error of fact” made by the Arbitrator.

Cemex opposed the admission of the additional evidence on the following bases:

(a) The material could have been obtained, with reasonable diligence, at an earlier date for presentation before the Arbitrator (at [20]);

(b) The admission of the material would give rise to extreme prejudice (at [22]);

(c) The material is of limited probative value, and

(d) The material would not alter the outcome (at [23]).

Mr Irvin argued that the additional evidence was relevant to the issues raised concerning the obligation to make a claim under s 261 of the 1998 Act. The audiogram was conducted in February 2008 and not, as stated by Mr Irvin in his statement dated 23 November 2009, at the end of his employment with Cemex in September 2005. He asserted that he had assumed that his deafness was age-related until he was informed, at the time of the audiogram, that it was industrial deafness. Therefore, for the purposes of s 261, the injury could be taken to have been received at the time he first became so aware: s 261(6).

Mr Irvin asserted error by the Arbitrator in his evaluation of the evidence as to “date of injury”, being that he imposed a burden of proof that was “higher than the appropriate civil standard”.  Mr Irvin’s complaint concerning the Arbitrator’s reasoning was that he failed to infer from the circumstantial evidence (Dr Seymour’s report) that Mr Irvin first became aware of injury in or around February 2008, which would have satisfied the provisions of s 261(6). It was put that the Arbitrator wrongly declined to draw such inference given his preferred view that the evidence of Mr Irvin was inconsistent and that such inconsistency was not adequately addressed in the evidence.

Held: Arbitrator’s decision confirmed.

Additional evidence

1. The principles relevant to the exercise of the discretion granted to the Commission by the terms of s 352(6) of the 1998 Act were summarised by President, Keating J, in Irvin v LA Logistics Pty Ltd [2010] NSWWCCPD 40 (between [46] and [48]).

2. Mr Irvin failed to establish that the copy of the results of the audiogram could not, with reasonable diligence, have been obtained for presentation at the second arbitration.  The additional evidence did not give rise to a “high degree of probability” that there would be a different verdict as discussed in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158.  There was no question as to the credibility of that evidence.

3. The question raised in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 as to whether it was just to admit the further evidence was determined having regard to “the need to balance public interest concerning the conduct of litigation and the need to ensure that justice is done.” (at [45]).  Cemex and LAL should not have to defend endless litigation concerning Mr Irvin’s claim.

4. Leave to rely on the additional evidence was refused.

Grounds of appeal

5. Mr Irvin could only be excused from compliance with s 261(1) if he established:

(a) he first became aware of injury shortly before making the claim which led to Dr Seymour’s examination, or

(b) if he failed to prove the facts noted in (a) above, that his failure to give notice as required by s 261(1) was occasioned by ignorance, mistake, absence from the state or other reasonable cause and the claim made was made within three years after the date of injury, being September 2005, his last date of employment with Cemex: s 17(1)(a)(ii) of the 1987 Act, and s 261(4) of the 1998 Act.

6. Much of the evidence suggested that Mr Irvin was aware earlier than February 2008 of the relationship between his significant hearing difficulties and his work conditions with Cemex. Mr Irvin’s bare assertion concerning first awareness made in his statement dated 1 December 2009 was made only once the evidentiary problems regarding notice became apparent.

7. The question of ‘ignorance’ in terms of s 261(4) and evidence of same was considered.  Burke J in Gregson v L and MR Dimasi Pty Ltd 20 NSWCCR 520 stated at [61]:

The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim…

8. There was no evidence of any weight before the Commission as to Mr Irvin’s state of knowledge concerning his rights and obligations under the Acts. He failed to discharge the onus upon him to establish ignorance in terms of s 261(4) and was not relieved of the obligation to comply with the relevant notice provision.