Issue 6: June 2012

Chep Australia Ltd v Strickland [2012] NSWWCCPD 27

Fresh evidence on appeal, s 352(6) of the 1998 Act; consequential conditions from the effect of medication prescribed in the treatment of work-related injuries; haemorrhage from a cerebral aneurysm; causation and the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

Keating P

24 May 2012

Facts:

Ms Strickland was employed by the appellant, Chep Australia Ltd (Chep), as a machine operator/factory worker. She worked on a process line, which required her to undertake repetitive work lifting crates onto a conveyer line.

The worker began to experience symptoms in her right elbow, left shoulder and left wrist in around 2008. The symptoms continued throughout 2009.

On 19 August 2010, Ms Strickland was prescribed Mobic for the treatment of her symptoms. It was accepted that taking Mobic can cause an elevation in blood pressure, a known risk factor in aneurysmal haemorrhage.

Ms Strickland ceased taking Mobic on 7 October 2010 and complained of symptoms of hypertension and headache to her general practitioner on 11, 12 and 15 October. She resumed taking Mobic on 28 October 2010, at which time her blood pressure was normal.

On 17 November 2010, Ms Strickland experienced symptoms of extreme pain in her head and eyes, and other neurological symptoms. She was diagnosed with a grade I subarachnoid haemorrhage secondary to a left posterior communicating artery aneurysm.

She underwent a procedure known as coiling, which was to block blood flow into the aneurysm and prevent rupture. She was incapacitated from 17 November 2010 until 4 November 2011.

Ms Strickland alleged that the haemorrhage from the aneurysm was caused by a sudden increase in blood pressure brought about by consuming Mobic.

Ms Strickland’s claim for weekly workers compensation benefits and medical expenses was declined by Brambles.

In an Application to Resolve a Dispute Ms Strickland claimed weekly compensation on an ongoing basis from 12 November 2010 but prior to hearing, it was agreed that the benefits claimed were for a closed period between 12 November 2010 and 4 November 2011.

The only issue before the Arbitrator was “whether or not the rupture of the aneurysm was caused by the Mobic medication which had been prescribed for the accepted work-related injuries”. The Arbitrator found “that the rupture of the aneurysm resulted from the consumption of Mobic, which was treatment for work-related injuries.”

Chep appealed on nine grounds that are outlined below.

Held: Arbitrator’s decision confirmed.

Fresh evidence

1. The appellant sought to rely on fresh evidence, namely, report of Dr Affleck dated 5 March 2012, report of Professor Kiernan dated 8 March 2012 and clinical notes of Dr Hedge of 12 February 2010 to 2 December 2010.

2. The admission of fresh evidence on appeal is discretionary [63]. The principles relevant to the exercise of the discretion were considered in Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 at [70]–[72].

3. The discretion to admit fresh evidence on appeal is not an opportunity to address a weakness in the appellant’s original case as revealed by the primary decision-maker (Marks v Ricegrowers’ Co-operative Ltd [2006] NSWWCCPD 46 at [18] and NSW Police Force v Kearns [2008] NSWWCCPD 29 at [26]). The submission that the admission of the report of Dr Affleck was to “respond” to the Arbitrator’s findings was rejected. Dr Affleck’s report added nothing to the evidence already before the Arbitrator and would not have made a difference to the result [88].

4. Professor Kiernan’s first report dealt with the probable causes of the aneurysm itself [90] whereas the further report was directed to the cause of the rupture of the aneurysm which was the issue at the arbitration. Professor Kiernan’s opinion in his further report was a bare conclusion without any attempt to explain the reasons for his opinion [103] and he addressed the wrong test of causation [104]–[105]. The report was of no probative value.

5. The significance of Dr Hedge’s clinical notes was obvious to the appellant well before the arbitration hearing as a Direction for Production was issued to Dr Hedge at the appellant’s request [119]. No reason was provided as to why the clinical notes were not obtained prior to the arbitration. The submission that the evidence was to demonstrate that Ms Strickland suffered from elevated blood pressure before she started taking Mobic was a different case to that presented to the Arbitrator [121]. The notes added nothing to the evidence that was before the Arbitrator [124].

Did the Arbitrator err in finding as a fact that, when the worker consulted Dr Malcolm Webb on 7 October 2010, he recorded that she was experiencing a migraine?

6. Whether the reference to “migraines” in the history obtained by Dr Webb was a reference to a previous history of migraines or to current complaints of migraines was ambiguous. The Arbitrator noted that there was unchallenged evidence that Ms Strickland had complained to Dr Hedge and to Dr Webb in early October of hypertension and headaches [127]. Given the worker’s unchallenged evidence, it was open to the Arbitrator to interpret the notes by concluding that they referred to symptoms of migraine at the time of the consultation with Dr Webb on 7 October 2010 [128].

Did the Arbitrator err in drawing inferences that Dr Webb was sufficiently concerned to cease the Mobic, that he monitored her blood pressure and, once it had normalised, he resumed prescribing the Mobic?

7. The inference that Dr Webb was concerned to ensure Ms Strickland did not suffer from elevated blood pressure before prescribing a resumption of Mobic was correctly drawn from the fact he took her blood pressure on 28 October 2010 and obtained a normal blood pressure reading (128/80) before re-prescribing Mobic.

8. The Arbitrator erred in drawing the inference that Dr Webb advised a cessation of the Mobic because of his concern over the worker’s blood pressure. It was the worker who believed that she no longer needed Mobic to control the symptoms of her orthopaedic injuries [140], [143].

Did the Arbitrator err in drawing the inferences that Ms Strickland’s blood pressure was elevated and that was the reason for cessation of Mobic?

9. The Arbitrator erred in inferring that the reason for the cessation of Mobic was because of elevated blood pressure. However, consistent with the worker’s evidence and the report of Dr Hedge, it was reasonable to infer that the worker was suffering from an elevation in blood pressure on 26 August 2010, and between 11 and 15 October 2010 [144].

Did the Arbitrator err in finding that there was no other reason recorded for the cessation of Mobic?

10. Another reason for the cessation of Mobic was recorded by Dr Webb in his notes on 7 October 2012, that is that the worker no longer considered she needed to take Mobic. This ground of appeal was sustained [145]–[148].

Did the Arbitrator give adequate reasons for drawing the inferences she did?

11. Reasons for a determination by the Commission must be provided to parties to disputes (s 294 of the 1998 Act and Pt 15 r 15.6 of the 2011 Rules). Failure to provide adequate reasons constitutes an error of law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280) [149]–[152].

12. The Arbitrator not only satisfied the statutory requirements, but expressed the reasons for her opinion in clear and concise terms [154]–[155].

Did the Arbitrator err in finding that the consumption of Mobic caused the rupture of the congenital aneurysm?

13. Dr McKechnie’s evidence was the only evidence before the Arbitrator on causation. In his initial report dated 7 March 2011, Dr McKechnie was cautious in accepting any causal relationship between the rupture of the aneurysm and the consumption of Mobic. His further opinion in report dated 6 July 2011 was based on his review of documentation forwarded to him which included material that confirmed that Ms Strickland had been attending Dr Hedge for headache and hypertension review on four occasions between 26 August and 15 October 2010 [159]–[160].

14. The contention that the rupture would have occurred shortly after the resumption of taking Mobic had it been the cause of a significant and sudden rise in blood pressure was pure speculation and was not raised at the Arbitration [161].

Did the Arbitrator err in finding that the report of Dr Hedge states that the worker complained of hypertension at her visits to him on 26 August 2010, 11 October 2010, 12 October 2010 and 15 October 2010?

15. It was Ms Strickland’s unchallenged evidence that she made complaints of severe headaches and hypertension to Dr Hedge on those dates. The finding of fact made by the Arbitrator was the only finding that could have been made.

16. The appellant submitted that Dr Hedge’s report merely records that he “followed up” hypertension [163]. This was rejected as Dr Hedge was sufficiently concerned about the worker’s condition that he saw her several times within a few days in October 2010 [166].

Did the Arbitrator err in finding that Professor Kiernan only expressed a view regarding whether Mobic caused the aneurysm and not whether the Mobic caused its rupture?

17. Professor Kiernan clearly expressed the view that, on the balance of probabilities, the consumption of Mobic was not a factor in the cause of the aneurysm. It was impossible to infer, as suggested by the appellant, that Professor Kiernan turned his mind to the question of whether or not the consumption of Mobic caused the rupture of the aneurysm [170].

18. The Arbitrator’s finding of fact was the only finding available to her on the evidence.

Did the Arbitrator err in finding that the appellant had discharged the onus of proof?

19. The Arbitrator applied the correct test for establishing causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). She noted that the worker had to establish that the condition, that is, the haemorrhage of the aneurysm, on the balance of probabilities, “results from” the ingestion of Mobic [178].

20. Based on the evidence presented at the arbitration, the only conclusion that could be reached was that the consumption of Mobic was causative in precipitating the rupture of the aneurysm [185].

21. The identified errors by the Arbitrator made no difference to the outcome of the appeal. Whether the trial cessation of Mobic on 7 October 2010 was due to elevated blood pressure or other causes was immaterial to the resolution of whether the consumption of Mobic was causally related to the haemorrhage of the aneurysm [188].

Milburn v Veolia Environmental Services (Australia) Pty Ltd [2012] NSWWCCPD 26

Deemed date of injury; incapacity; s 16(1)(a)(i) of the 1987 Act; entitlement to weekly compensation; annual holiday leave, sick leave and rostered days off work whilst incapacitated; ss 49 and 50 of the 1987 Act; application of the decision in Steggles Pty Ltd v Vandenberg [1987] HCA 35; 163 CLR 321; s108A(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth); application of the Commonwealth Act and exclusion of State law.

O’Grady DP

23 May 2012

Facts:

Mr Gregory Milburn had been employed as a high pressure water blaster since 1990.  Whilst his duties remained constant over the years, the identity of his employer changed on a number of occasions. His employer at relevant times up to 30 June 2007 was Veolia Environmental Services (Australia) Pty Limited. It seemed the business was then taken over by Transpacific Industries Pty Limited which company employed Mr Milburn from 1 July 2007. On 1 July 2008, Transpacific was granted a licence pursuant to Pt VIII of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), from which date Transpacific was no longer subject to the provisions of the New South Wales workers compensation legislation.

Mr Milburn alleged that on 22 May 2006, and as a result of the nature and conditions of his employment, he received an injury to his left hip being an aggravation of a disease diagnosed as osteoarthritis affecting that joint.

In May and June 2008, WorkCover NSW medical certificates were issued by Mr Milburn’s general practitioner, Dr Albert Tran, which concerned injury to his left hip. The Doctor certified that the injury was caused by years of use of the left hip for support whilst high pressure water blasting and that Mr Milburn’s employment was a substantial contributing factor to the left hip injury. The diagnosis was that of severe osteoarthritis. Mr Milburn was certified as fit for suitable duties from 26 May 2008 to 26 July 2008. Medical certificates in respect of total incapacity were subsequently issued by Dr Tran.

Suitable duties were provided to Mr Milburn by Transpacific for four weeks commencing 26 May 2008. Workers compensation benefits were paid by Transpacific during this period. The evidence concerning Mr Milburn’s duties following this period was unclear.

Mr Milburn ceased work by reason of hip pain on 23 August 2008. He underwent left hip replacement surgery on 27 March 2009 and remained absent from work until 5 July 2010. Claims made by Mr Milburn against both Veolia and Transpacific in respect of compensation benefits were declined.

Mr Milburn lodged an application in the Commission which concerned entitlement to weekly benefits from 26 May 2008 to 4 July 2010, medical expenses and lump sums.

The Arbitrator stated that the injury “is clearly a disease which falls within the definition of injury pursuant to s 4 of the [1987 Act]”. A further finding was made that “the claim falls clearly within the ambit of s 16 of the 1987 Act”. The Arbitrator identified the task before her as being “fixing of a date of injury and a determination as to the mechanism of compensation”. The Arbitrator applied s 16(1)(a)(i) to the question of the deemed date of injury in respect of the claim for weekly compensation and found that date to be 23 August 2008, being the date Mr Milburn ceased work.

The Arbitrator then determined that given the circumstances that Transpacific had “from 1 July 2008 ... ceased to participate in the NSW WorkCover scheme, and had ‘joined the Comcare scheme’ its workers compensation obligations were governed by [the SRC Act]”.

The issues on appeal were whether the Arbitrator erred in:

(a) determining that the deemed date of injury was 23 August 2008;

(b) failing to find, upon a proper application of s 16 of the 1987 Act, that the deemed date of injury was either 26 May 2008, 11 June 2008 or 17 June 2008, and

(c) determining that the deemed date of injury was such that the 1987 Act had no operation by reason of the application of s 108A of the SRC Act.

Held:  Arbitrator’s decision revoked

1. It was necessary to determine whether incapacity resulted from the admitted injury. If so, the date of relevant incapacity was to be determined in accordance with the principles stated in the authorities.  It was necessary to examine the relevant factual matters before consideration was given to the correctness or otherwise of the Arbitrator’s conclusion [77].

2. The evidence regarding Mr Milburn’s weekly payments claim was in a confused state, as was the manner in which the Application had been drafted. The Application particularised a number of dates “of compensation claim”. It was significant that the first dates particularised were 20 May 2006 and 26 May 2008. The 26 May 2008 date corresponded with the commencement date of Transpacific’s Injury Management Plan. That Plan concerned the left hip injury and recorded a date of injury as 22 May 2006, a date before Mr Milburn commenced with Transpacific [79].

3. Transpacific, through its insurer QBE, was on risk between 1 July 2007 and 30 June 2008, and initially denied liability in June 2008. However, before the insurer’s rejection of the claim, Transpacific had, in May 2008, offered Mr Milburn suitable duties.  That offer was accepted by him [82].

4. The nature of the duties performed by Mr Milburn between 27 May 2008, the commencement date of the Injury Management Plan, and 22 August 2008, the date he ceased work, and his earnings at that time were of particular relevance to the determination of the deemed date of injury. Unfortunately these matters, having regard to the state of the evidence, were not immediately clear [83].

5. Mr Milburn’s four statements contained some contradictions. It was clear that his statement made in August 2009 that he “continued on with work as best [he] could until August 2008” omitted details of Dr Tran’s certification concerning unfitness for normal duties and also omitted details of the Injury Management Plan. That evidence, and his subsequent statement made in November 2009 concerning the work he performed was unreliable [84].

6. Mr Milburn, with the exception of the weeks ending 8 July, 15 July, and 22 July 2008, had consistently (in the relevant period) worked considerably fewer hours than the average of 38 hours per week stipulated in the Metal Engineering and Associated Industrial Award 1998. His gross pay included payments to which he was entitled by way of annual leave, sick leave or rostered days off. Of significance, Mr Milburn was also paid the sum of $311.88 being workers compensation in the week ending 10 June 2008. In addition to the paid leave noted above, Mr Milburn, in the relevant period, took two days leave without pay (16 hours) [91].

7. Hours of work under the EBA were those hours as stipulated in the Award. The Award stated at 6.1.1(a) that “the ordinary hours of work for day workers are to be an average of 38 hours per week but not exceeding 152 hours in 28 days.” From the payslips in evidence it appeared that Mr Milburn was required to work 40 ordinary hours per week, and that two of those ordinary hours would be deducted from his pay and accrued towards a rostered day off (8 hours). Whilst this inference was open on the evidence, the method of calculation and detail of any agreement for this practice was not evident in either the Award or the EBA [92].

8. The Deputy President reached the view that the lay and medical evidence, including the certificates of Dr Tran dated 26 May 2008 and 26 June 2008, established that Mr Milburn had been and remained physically incapacitated from, at least, 26 May 2008. The Arbitrator, when considering the question of deemed date of injury, correctly relied upon the decision of Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 [93].

9. Whilst it was clear that the Arbitrator was afforded little, if any, assistance during submissions concerning the proper evaluation of that evidence, the Deputy President held that, in concluding that relevant incapacity occurred on 23 August 2008 she erred in that she overlooked or gave too little weight to the following matters:

(a)     Mr Milburn had been certified as fit only for suitable duties as at 25 May 2008;

(b)     suitable duties had been provided;

(c)     Mr Milburn’s actual working hours for the week ending 3 June 2008 were reduced to 23.5 hours. During the week ending 10 June 2008 his gross pay was in respect of 20.5 hours actual work (some 12.5 of which was paid as overtime and double time), 16 hours annual leave, 8 hours public holiday and 8 hours being a rostered day off;

(d)     liability for weekly compensation payments was, at first, accepted by Transpacific and $311.88 was paid in respect of that admitted liability in the week ending 17 June 2008;

(e)     liability was subsequently denied by Transpacific and payments ceased at a time Mr Milburn was performing suitable duties in accordance with a Return to Work Plan;

(f)      that between weeks ending 27 May 2008 and 1 July 2008 Mr Milburn’s actual working hours had been significantly reduced (as demonstrated by the Table at [90]);

(g)     whilst it is the case, as found by the Arbitrator, that overtime had been performed by Mr Milburn, such overtime was not, prior to the week ending 8 July 2008, in addition to a full weeks work of normal time, and

(h)     the overtime for which Mr Milburn was paid at this time was explained in his evidence at [9] of his statement made 22 April 2011 [99].

10. A significant feature of the evidence before the Arbitrator was the very substantial periods of leave taken by Mr Milburn by way of annual leave, sick leave and rostered days off following Dr Tran’s certification that he was fit for suitable duties. The evidence established that a significant proportion of his weekly earnings, as evidenced by the wage records, represented payment for such leave. At that time Mr Milburn was in significant pain, had considerable physical disability and that those periods of leave were, on the probabilities, taken by him by reason of that pain and disability [100].

11. Compensation is payable in respect of any period of incapacity even though the worker has received payment by way of annual holiday leave as has Mr Milburn on the present facts (s 49 of the 1987 Act).

12. So far as the rights and liabilities concerning weekly payments were concerned in circumstances where sick leave has been paid by an employer to an incapacitated worker, s 50 of the 1987 Act had application [103]. The rostered days off taken by Mr Milburn from 26 May 2008 may be described as being similar to the “rostered leisure day” which was considered by the High Court in Steggles Pty Ltd v Vandenberg [1987] HCA 35; 163 CLR 321 (Vandenberg). That authority was raised at the hearing of the appeal and no argument was put which suggested that a worker was not entitled to payment of compensation in respect of incapacity suffered on a day taken as a rostered day off [104].

13. It was clear that the reduction of actual working hours performed by Mr Milburn during weeks between that ending 3 June 2008 and that ending 1 July 2008 established that he had suffered economic loss by reason of his physical incapacity on a date earlier than 23 August 2008 as found by the Arbitrator. The fact that he had received payment for hours not worked as earlier discussed did not affect his right to claim compensation in respect of wage loss by reason of those absences. It was apparent that the Arbitrator’s error in finding no economic incapacity earlier than 23 August 2008 was founded upon her reliance upon the figures which appear in the wages records [105].

14. Mr Milburn’s wage loss was apparent in the week ending 3 June 2008 and such loss followed the issue of Dr Tran’s first WorkCover certificate on 26 May 2008. That wage loss was occasioned by Mr Milburn’s physical incapacity as a result of the subject injury. He claimed and was entitled to weekly payments from 26 May 2008. The date of incapacity within the meaning of s 16(1)(a)(i) was 26 May 2008 and that that date was the deemed date of injury (Alfonzo and GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 per Priestley JA at [28]). Transpacific was at that time an employer whose liability in respect of workers compensation benefits was regulated by the 1987 and the 1998 Acts. Transpacific had earlier been the employer who had last employed Mr Milburn in employment that was a substantial contributing factor to the aggravation of his diseased hip. Any compensation to which he was entitled was payable by Transpacific (s 16(1)(b)) [106].

15. The liability of Transpacific under the New South Wales Acts extended to not only weekly payments but also medical expenses and lump sums as claimed by Mr Milburn. Whilst it was correct that the lump sums were claimed by Mr Milburn on a date after 26 May 2008 (the earliest such claim having been made on 17 December 2008) the date of such claim was not relevant to the question of deemed date of injury. This conclusion was reached following consideration of the decisions in Alto Ford Pty Ltd v Antaw[1999] NSWCA 234; 18 NSWCCR 246, Alfonzo and Stone. Those authorities have, in the past, given rise to some confusion as to the proper approach to be taken when applying the provisions of ss 15 and 16 to relevant facts where a claim is made for benefits upon death brought by a widow or one made by a worker in respect of, not only weekly payments, but also lump sum compensation.

16. In the present matter, as was the case in Alfonzo, a finding of deemed date of injury in respect of both claims may be fixed by reference to s 16(1)(a)(i), that is by reference to date of incapacity. The choice of date of claim to determine the deemed date of injury (s 16(1)(a)(ii)) may be chosen, as stated by Sheller JA in GIO “only ... if the injury giving rise to the claim has not resulted in the worker’s death or incapacity for work” (at 195E–F). The difficulty which was presented in GIO was that the worker had suffered incapacity for work and, subsequently, died as a result of the subject disease. In such circumstances, as stated by Sheller JA, “incapacity” as it appears in the relevant provision “is a reference to incapacity for which compensation is claimed” (at 196). As was stated by Roche DP in Collingridge v IAMA Agribusiness Pty Ltd[2011] NSWWCCPD 31, that statement by his Honour “is undoubtedly correct, but it does not apply where a worker has made a claim, had that claim determined, suffered no further injury, and then brings a claim for additional lump sum compensation as a result of the original injury”. The difficulty presented in GIO was not here present. The present facts concerned a loss being whole person impairment suffered as at 26 May 2008 being the date of relevant incapacity and the deemed date of injury. There being no relevant injury or further loss thereafter, that date was the deemed date of injury in respect of each claim [112].

17. The Arbitrator’s error concerning the finding as to the deemed date of injury affected her decision. The consequence of that finding was that, by reason of the application of s 108A(7) of the SRC Act, the 1987 and 1998 Acts had no application to Transpacific, a licensee under the Commonwealth Act. In the circumstances the award entered in favour of Transpacific was revoked. The award in favour of Veolia was also revoked given that it may be argued that Veolia is liable to make contribution pursuant to s 16(2) of the 1987 Act to any compensation payable [113].

18. The state of the wages records which were in evidence was such that clear analysis needs to be made by the parties concerning the quantum of Mr Milburn’s entitlement pursuant to s 40 of the 1987 Act up until he ceased work on 23 August 2008. That analysis will no doubt give rise to the need for further argument to be put concerning the matters touched upon during argument on this appeal. It was appropriate that the matter be remitted to the Arbitrator for determination of the quantum of Mr Milburn’s entitlement to weekly benefits. Appropriate orders may then be made concerning the outstanding claims made in respect of lump sums and medical expenses [114].

19. Mr Milburn’s arguments concerning the relevance and operation of s 108A(7) were rejected. The matters raised were recently considered by Keating P in Lennon v TNT Australia Pty Ltd [2012] NSWWCCPD 18. In that matter the President dealt with a question of law referred by an Arbitrator concerning the operation of s 17(1)(a)(i) of the 1987 Act in circumstances where relevant injury was deemed by the State law to have occurred on a date when the employer was licensed under the SRC Act. His Honour concluded that the provisions of s 108A(7) of the SRC Act excluded the operation of any State or Territory law, including the 1987 Act and the 1998 Act, in respect of injuries received after a licence is granted to an employer under the SRC Act [118].

Andrews v Concept Eleven Pty Ltd t/as B MacLean Haulage [2012] NSWWCCPD 25

Fresh evidence or evidence on appeal; s 352(6) of the 1998 Act; s 28 of the 1987 Act; rate of compensation in first 26 weeks of incapacity

Roche DP

21 May 2012

Facts:

The appellant worker, Paul Andrews, worked for the respondent as a truck driver. His work involved lifting, bending and twisting. He suffered four injuries in the course of his employment. First, he fractured his jaw and lost teeth in an incident on 25 May 2007. Second, he injured his back when he slipped while getting into a truck on 9 September 2009. Third, he again injured his back while lifting at work on 1 February 2010. Last, he ruptured a bicep tendon at the left elbow while lifting at work on 30 October 2010. He did not return to work for the respondent after the last injury.

The main issue before the Arbitrator was the extent of the worker’s incapacity, the cause of that incapacity and the quantum of weekly compensation.

The Arbitrator found that, because of the bicep injury, the worker was totally unfit for work from 1 November 2010 until 9 January 2011 when his general practitioner certified him fit for truck driving work, without heavy lifting. He also found that, from 10 January 2011 until 14 September 2011, the worker was partially incapacitated because of his bicep injury and his back injuries.

He found that, from 14 September 2011, the bicep injury played no part in the worker’s incapacity, but the worker remained partially incapacitated because of his back injuries. The Arbitrator concluded the jaw injury did not incapacitate the worker.

With respect to the claim for compensation from 10 January 2011, the Arbitrator found that, in respect of the period up to 2 June 2011, the worker had sought suitable duties from the respondent and produced to the respondent the necessary medical certificates certifying him fit for suitable employment, that the worker was ready, willing and able to perform suitable duties in that period, and that the respondent had been unable to provide suitable duties. As a result, the worker was entitled to an award of weekly compensation under s 38 from 10 January 2011 until 2 June 2011.

In respect of the period after 2 June 2011, the Arbitrator said the worker had found employment as a security guard on 3 June 2011. Though the evidence was not clear, the Arbitrator felt that the respondent’s “rehabilitation arm” may have been instrumental in finding that work. The worker worked as a security guard for eight days in June 2011 and six days in July 2011. It was not clear whether the worker was unable to continue that work, or whether he ceased working as a security guard due to some intervening matter.

As there was no evidence that the worker would have left the security guard job to perform suitable employment for the respondent, if it had been offered to him, the Arbitrator was unable to find that the worker was ready, willing and able to perform suitable employment for the respondent from 3 June 2011.

In addition, the worker had travelled to the United Kingdom on 25 July 2011 and returned to Australia on 30 August 2011. It was not clear from the evidence whether, at that stage, the worker had made a further application for suitable employment or did any of the things necessary to bring him within s 38 of the 1987 Act. The worker’s employment with the respondent was terminated on 19 August 2011, with the respondent having given notice of the termination by letter dated 15 July 2011. The Arbitrator was unable to find, on the balance of probabilities, that the worker was entitled to compensation under s 38 after 2 June 2011. Nevertheless, he was satisfied that the worker remained partially incapacitated and he made an award under s 40 of the 1987 Act.

Held:  Arbitrator’s confirmed

Fresh or additional evidence

1. The worker sought to tender a number of documents as new evidence on appeal. However, the documents were rejected as two of the documents were in evidence before the Arbitrator and the remaining documents were available to the worker prior to the arbitration and the worker offered no satisfactory explanation as to why they were not tendered at the arbitration [23]-[24].

2. The reports from Drs Nichols and Tier dealt with the injury to the worker’s jaw and did not refer to his capacity for work. They were not relevant to the issue of the worker’s entitlement to compensation under s 38 from 3 June 2011 [25].

3. The Fair Work Australia documents contained an admission that the respondent did not provide suitable duties to the worker prior to the termination of his employment. That admission was consistent with the finding made by the Arbitrator that the respondent was unable to provide light work [26].

4. The worker’s statement of 21 March 2012 contained information available to him before the arbitration. His explanation for not tendering the evidence was that the facial injury was not the subject of the s 74 notice and therefore not relevant to the proceedings before the Arbitrator. Counsel for the worker placed no reliance on that injury is his submissions at the arbitration. The attempt to argue on appeal that the worker was incapacitated because of his facial injury was an attempt to run an argument that was inconsistent with the evidence and argument presented at the arbitration and was not permissible. The worker was bound by the conduct of his case at arbitration (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, at 71) [30].

5. The only evidence before the Arbitrator dealing with the facial injury, so far as it related to the worker’s capacity for work, was in medical certificates dated 4 March 2011, 2 June 2011, 5 September 2011 and 6 January 2012 which certified the worker fit for his pre-injury duties from 5 September 2010, which was consistent with the Arbitrator’s finding [31].

Suitable employment

6. Mr Andrews submitted that the Arbitrator failed to properly consider “suitable employment” in his application of s 38. The term “suitable employment” is defined in s 43A and the worker “does not fit within the definitions as described by this section”. The work as a security guard was not part of any rehabilitation or return to work program and the worker’s doctor warned him it was inappropriate and potentially dangerous to his physical condition [36].

7. This argument was not put at the arbitration. The only evidence tendered about any incapacity resulting from the facial injuries was in Dr Dixon’s certificates which certified Mr Andrews fit from 5 September 2010 [37].

8. The worker’s argument was misconceived as the Arbitrator did not find that the work as a security guard was “suitable employment”. He found that there was no evidence that the worker would have left the security job to perform suitable employment for the respondent, had it been offered to him. He was not satisfied that the worker had an entitlement to a s 38 award beyond 2 June 2011. That finding was open and disclosed no error [39].

Section 43A

9. Mr Andrews submitted that the Arbitrator incorrectly “commented upon the rehabilitation provider as providing for the employment of [the worker] as a security guard”. The rehabilitation consultant identified truck driving as the only re-employment option “advised to the respondent”. Mr Andrews undertook his own endeavours to find employment and was advised by his treating doctor to discontinue. The security job was employment of a token nature (s 43A(3)(a)) [40].

10. Mr Andrews further submitted that the Arbitrator incorrectly stated the worker was not “ready, willing and able” to return to work. The worker had asked the respondent for his job back but the respondent would not re-engage the worker until the insurance company “certified him clear to return to full duties” [41].

11. Last, it was submitted that it was uncontested that the worker had been looking for work “continuously” [42].

12. The Arbitrator’s statement that the worker “may” have obtained the security job through the respondent’s rehabilitation services was irrelevant to the dispute on appeal, namely, whether the worker was entitled to an award under s 38 beyond 2 June 2011 [43].

13. The Arbitrator was entitled to take into account the security work in determining whether the worker was ready, willing and able to return to work on suitable duties with the respondent, if such duties had been offered to him. The Arbitrator referred to the absence of evidence that the worker was prepared to leave the security job to accept an offer of suitable employment from the respondent. He also referred to the worker performing work in June and July 2011 before going overseas for five weeks.  As at 3 June 2011, the worker had obtained alternative employment. Though the evidence before the Arbitrator did not disclose full details of that employment, or the circumstances in which it ceased, the Arbitrator was entitled to take it into account in determining the worker’s entitlement under s 38 beyond 2 June 2011. The Arbitrator’s conclusion was open to him and disclosed no error [44]-[45].

14. The Arbitrator was satisfied that the worker had complied with s 38 for the period up to 2 June 2011, but not after that date. In reaching that conclusion, he had regard to the termination of the worker’s employment by letter dated 19 July 2011 and his five-week trip overseas, which prevented him accepting an offer of suitable employment from 25 July 2011 until 31 August 2011 [46].

15. Following the worker’s return from overseas, the evidence was silent on three issues:

(a) whether the worker was ready, willing and able to accept an offer of suitable employment;

(b) whether the worker had in fact made any approach to the respondent requesting suitable employment, and

(c) what steps the worker took to obtain suitable employment from someone other than the respondent. [47]

16. The submission that the worker had been looking for work “continuously” was based on an interjection by the worker at the conclusion of submissions at the arbitration. The interjection was not a proper way for evidence to be adduced at the arbitration. The worker’s counsel had not sought to call him to give oral evidence and the employer had no opportunity to cross examine on the interjection. In these circumstances, there was no evidence properly before the Arbitrator that the worker had been looking for work “continuously” [54].

Correct rate of compensation

17. The respondent conceded that the Arbitrator erred in awarding compensation under s 38 from 10 January 2011 to 2 June 2011 at the rate of $881.60 per week, which was said to be 80 per cent of the worker’s current weekly wage rate. As the first 26 weeks of incapacity did not cease until 24 April 2011, the worker was entitled to receive under s 38 his current weekly wage rate of $1,102.54 until that date and then 80 per cent of that rate until 2 June 2011 [57]-[58].

Pacific National (NSW) Pty Ltd v York [2012] NSWWCCPD 29

Notice of dispute; s 74 of the 1998 Act; previously unnotified matters; discretion to hear or otherwise deal with previously unnotified matters; s 289A(4) of the 1998 Act; obligation to give reasons for decision; consequences of denial of an opportunity to fully state case; application of principles stated in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141

O’Grady DP

31 May 2012

Facts:

Mr York commenced employment with the State Rail Authority, the predecessor of Pacific National in 1967. He has worked as a train driver for the past 28 years.

In the course of his employment he experienced exposure to sunlight. He alleged that such exposure caused and/or aggravated numerous skin lesions. Mr York had his skin lesions treated many times over the years with cryotherapy. He also had two skin cancers surgically excised. Grafting was required at those sites. In 2010 a basal cell carcinoma was surgically excised.

Mr York made a claim against the appellant in respect of “skin cancer”. The appellant arranged for Mr York to be medically examined by Dr John Sippe.

On 11 July 2011 Mr York made a claim against the appellant in respect of lump sum compensation for injury to the skin.

On 8 August 2011, the appellant offered Mr York $11,000 in respect of eight per cent whole person impairment. That offer was rejected and Mr York lodged an application in the Commission in respect of an 11 per cent whole person impairment and $20,000 pursuant to s 67. The date of injury was particularised as 31 March 2011.

In its Reply, the appellant sought leave to dispute liability on the basis that employment with the appellant was not a substantial contributing factor to injury.

The Registrar referred the matter to the Senior Arbitrator to conduct a teleconference.

At the teleconference the Senior Arbitrator issued a Certificate of Determination – Consent Orders. No leave was granted to the appellant pursuant to s 289A to raise a defence founded upon s 9A, there being no s 74 notice. The Senior Arbitrator remitted the matter to the Registrar for referral to an AMS for an assessment of whole person impairment in respect of injury to the skin (facial disfigurement).

The AMS assessed Mr York’s facial disfigurement at five per cent whole person impairment.

The grounds of appeal were expressed as follows:

“(a)    The [Senior] Arbitrator is in error in refusing to allow the Appellant to make application for leave pursuant to Section 289A(4) of the WIM.

(b)     The [Senior] Arbitrator is in error in giving no reasons for the decision.

(c)     The [Senior] Arbitrator is in error in failing to afford to the Appellant procedural fairness.”

Held:  Arbitrator’s decision confirmed

1. Whilst there was some inconsistency between the records made by each party concerning the precise events at the teleconference, it was clear that the Senior Arbitrator made a ruling refusing the appellant leave to raise a dispute relating to any previously unnotified matter. It was clear that the Senior Arbitrator acknowledged the proposed application which had been foreshadowed in the Reply [50].

2. Without a transcript or any evidence concerning the events at the teleconference, it was not possible to reach a conclusion as to which, or indeed whether either, notation made by the parties was a correct recording of the matters [51].

3. The Senior Arbitrator’s ruling refusing to grant leave constituted an exercise of the discretion granted by the statute and may be described as being interlocutory in nature. In such circumstances, having regard to that stated by McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, the Deputy President considered there was a need for reasons to be provided, but that such reasons need not have been “lengthy or elaborate” (Soulemezis per McHugh JA at 280) [52].

4. If the notation of events recorded by the worker’s solicitor were correct, it was the Deputy President’s view that the brief observations recorded, being “no evidence” and “late notice of denial” constituted a summary of a sufficient statement of reasons for the refusal of such an application. By inference the grounds for rejection may have been that the Senior Arbitrator was not satisfied that there was any evidence in support of the suggested defence and that delay in raising the matter, being a factor relevant to the exercise of her discretion, had been established and not sufficiently explained or excused. However, no conclusion could be reached concerning those events [53].

5. A party is entitled to an opportunity to properly put its case (see discussion by the High Court in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (at 145)). However, the qualification to the general principle is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility [56].

6. The appellant had the opportunity on appeal, in particular during the teleconference on 18 May 2012, to elucidate the grounds upon which it had intended to seek the order as foreshadowed in its Reply. The appellant’s argument failed to identify with any precision any evidence that would suggest that Mr York’s employment was anything other than a substantial contributing factor to his injury.  Further, the evidence annexed to the Reply, a memorandum from the appellant concerning recommended settlement of the claim, supported Mr York’s case [57].

7. The determination made in Arcade Pharmacy Pty Ltd v Gauci [2009] NSWWCCPD 107 afforded the appellant no comfort given the facts of the present matter were distinguishable from those in Gauci. In Gauci the dispute was referred for an assessment by an AMS by the Registrar’s delegate without referral of the matter to an Arbitrator to permit the adjudication of matters addressed in the employer’s reply and in subsequent correspondence sent by it to the Registrar.  In the present matter, a telephone conference conducted by the Senior Arbitrator was convened expressly for that purpose. The appellant’s application had been acknowledged and refused [61].

8. Nothing raised by the appellant concerning the suggested availability of a defence founded upon s 9A was in any way persuasive.  Referral of the matter to an arbitrator to hear the application fresh would inevitably result in the making of the same order. Such remitter would be a futility [69].

9. The obligation to give notice of such denial of liability arose from the terms of s 74. The appellant asserted that it was “out of time” to file such a notice and, as a consequence, it was obliged to place reliance upon the provisions of s 289A(4). There is no provision in the Acts that prevents service of a s 74 notice outside those periods prescribed concerning management of a claim.  Section 74 requires that notice be given to a claimant of a dispute as to liability. Only matters previously notified as disputed may be referred for determination by the Commission (s 289A(1)) [64].

10. The appellant’s failure to comply with the notice requirements of s 74 had the consequence, given its wish to belatedly raise a liability issue, that an application seeking to persuade the Commission to exercise its discretion pursuant to s 289A(4) needed to be made. The discretion granted by s 289A(4) did not provide, as  suggested by the appellant, an alternative to compliance with the notice requirements of s 74 [66].

11. The Arbitrator’s refusal to permit the previously unnotified matter (s 9A defence) had the inevitable consequence that the dispute was referred to an AMS in accordance with Practice Direction 11 [67].

Woolworths Ltd v Sterrett [2012] NSWWCCPD 24

Application of s 42(6) of the 1987 Act to overtime regularly worked

Keating P

4 May 2012

Facts:

Mr Sterrett was employed by the appellant employer, Woolworths Ltd, at the BWS Liquor Store in Taree pursuant to the 2007 Agreement as a Retail Employee Grade 2 (2007 Agreement). On 4 April 2010, Mr Sterrett was lifting cases of beer in the course of his employment, when he suffered an injury to his back. The injury was not disputed and it was agreed that he was totally incapacitated as a result.

The quantification of his entitlement to weekly compensation pursuant to ss 36 and 37 of the 1987 Act was in dispute, and the calculation of his “current weekly wage rate”.

Mr Sterrett was employed on a part-time basis to work 25 “core hours” per week, being five hours per day Wednesday to Sunday. However, he routinely worked 32–33 hours, which included working on Sundays, for which he was paid at a higher hourly rate. It was accepted that he earned an average of $601.24 per week.

The issue before the Arbitrator was whether those hours worked in excess of the core hours should be excluded from the calculation of his “current weekly wage rate” under s 42(6) of the 1987 Act, or whether the correct application of s 42(6) required that the uplift in the hourly rate for work regularly performed on Sundays was to be excluded from the calculation of the current weekly wage rate.

The Arbitrator held that all hours regularly worked by Mr Sterrett, not just the contracted core hours, were to be included for the purpose of calculating the current weekly wage rate, subject to an adjustment that removed from the calculation an uplift in the hourly rate for Sunday work. Mr Sterrett’s current weekly wage rate was found to be $580.39 per week as at the date of injury.

The employer appealed this decision. The issues in dispute on this appeal were whether the Arbitrator erred in:

(a) determining that Mr Sterrett’s current weekly wage rate was $580.39 per week as at the date of injury, and

(b) failing to find that the current weekly wage rate was $453.43, reflecting 25 hours per week at an hourly rate of $18.1371 per hour.

The employer contended that the Sunday work (not just the higher hourly rate for Sunday work) should be excluded from the calculation of the current weekly wage rate by reason of s 42(6) [37]. Regard should only have been had to the 25 hours per week Mr Sterrett was contracted to work. It was submitted that the Arbitrator erred in finding that overtime was not undertaken until Mr Sterrett had worked more than 38 hours per week [37]–[39].

Mr Sterrett submitted that the Sunday work could not be regarded as overtime as overtime is not payable under the 2007 Agreement until more than 38 hours per week have been worked [40]–[42].

Held: Arbitrator’s decision confirmed.

1. The objective evidence did not support a finding that the Sunday work was overtime. The hourly rate for the Sunday work ($26) for the entire shift was inconsistent with payment at the overtime rate, which is time-and-a-half for the first two hours and double time thereafter, in accordance with cl 17.2 of the 2007 Agreement [52].

2. Mr Sterrett’s pay slip for the period 27 December 2009 to 30 December 2009, demonstrated that he worked 30 hours in that week. Notwithstanding the fact that he worked more than the core hours in that week, there was no indication that he was paid overtime [53]. There was no reference, in any of the pay slips tendered, to Mr Sterrett having been paid overtime [59].

3. In the case of part-time employees, the 2007 Agreement specifically provides, at cl 5.5.7.1(b), that any additional hours worked are to be remunerated at the “ordinary hours rate of pay”, subject to any loading payable. Those additional hours were not paid as overtime [54].

4. Mr Sterrett’s treatment of his regular Sunday shift as overtime in the claim form was not conclusive evidence that it was overtime [52].

5. For the purposes of calculating a worker’s current weekly wage rate, s 42(1)(a) requires that the Commission have regard to “the work being performed by the worker immediately before being incapacitated”. There was no dispute that Mr Sterrett was working 32 hours per week immediately before being incapacitated [56].

6. Section 42(6) of the 1987 Act does not require that the work itself be disregarded in circumstances where the evidence establishes that the work performed on Sundays was part of the worker’s regular working week and was not “overtime” [58]. The loading is to be disregarded, not the work itself [60].

Beaumonts Beach House v Baldwin [2012] NSWWCCPD 28

Procedural fairness; adequacy of reasons

Keating P

30 May 2012

Facts:

Ms Baldwin was employed as a manager by the appellant employer, Beaumonts Beach House. She alleged that she suffered an injury to her back in the course of her employment on 30 November 2009 while packing books and records into her car.

The employer’s insurer accepted liability and made payments of weekly compensation. On 14 January 2011, in a s 74 notice, liability for further payments was declined on the basis that Ms Baldwin was no longer incapacitated as a result of the alleged injury.

After Ms Baldwin’s solicitors made a claim for ss 66, 67 and weekly benefits for a closed period, a further s 74 was issued declining liability for these benefits on the basis that she no longer suffered from an injury and that the injury did not result in whole person impairment.

The matter was listed before an Arbitrator at the Commission on 21 December 2011 for hearing of a claim for weekly payments for a closed period from 14 January 2011 to 11 April 2011, medical expenses under s 60, and lump sum compensation under s 66. There was no attendance by the respondent and its insurer. The employer’s solicitor, who was located in Lennox Head, contacted the Commission seeking to participate in the hearing by telephone. This was refused, as was an adjournment. During the hearing, the Arbitrator determined that the dispute in respect of the claim for weekly compensation could not proceed and that issue was adjourned for hearing on 2 March 2012. The employer’s solicitor again contacted the Commission and sought to participate in the arbitration hearing by telephone. The Arbitrator refused this request and the hearing proceeded without representation for the employer. During the hearing, the Application to Resolve a Dispute was amended to extend the closed period initially claimed from 11 April 2011 to 14 March 2012.

In an extempore decision, the Arbitrator awarded payments under s 37 at the statutory rate from 14 January 2011 to 14 March 2012.

The employer appealed this decision on the following grounds:

(a)  that the Arbitrator failed to comply with the rules of procedural fairness/natural justice, and

(b)  that the Arbitrator failed to give adequate reasons for her decision to allow the worker to amend the application and for determining the weekly compensation claim in the worker’s favour.

Held: Arbitrator’s decision revoked and remitted to another Arbitrator for determination afresh.

1. It is well settled that, while s 354 of the 1998 Act modifies the common law rules of procedural fairness in some respects, it does not alter the fundamental rule that a party is entitled to be heard in relation to the case against it, before a decision-maker exercises the power to make a decision adverse to that party’s interests (Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106 applied in Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15) [30].

2. The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her and a reasonable opportunity to put evidence and submissions before the tribunal concerning that case (New South Wales Police Force v Winter [2011] NSWCA 330 at 84) [31].

3. These fundamental principles of procedural fairness were not applied by the Arbitrator. No notice of the proposed amendment had been given to the appellant [32].

4. Having excluded the appellant’s solicitor from participating in the final arbitration hearing by telephone, the appellant was excluded from any opportunity to put on any evidence or submissions on the amended claim for compensation before the Arbitrator entered an award in favour of the worker [33].

5. If a dispute is determined by the Commission, reasons for the determination must be provided to the parties (see s 294 of the 1998 Act and Pt 15 r 15.6(1) of the 2011 Rules) [34]–[36].

6. The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside an Arbitrator’s decision (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247) [37].

7. The dispute before the Arbitrator essentially concerned whether the worker’s continuing incapacity was due to an underlying congenital condition or whether it was due to the continuing effects of the accepted workplace injury. The Arbitrator made no attempt to reconcile the medical evidence presented by each party or to give reasons why she preferred the respondent’s expert evidence over the appellant’s (Tyack formerly t/as Country Kidz v Cain [2007] NSWWCCPD 119 at [102]).

8. His Honour Judge Keating noted that this decision should not be seen as condoning practitioners seeking to represent their clients’ interests at hearings by telephone and he described the solicitor’s conduct as “quite unsatisfactory” [43]–[44].