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

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Andrews v Concept Eleven Pty Ltd t/as B MacLean Haulage [2012] NSWWCCPD 25
APPELLANT:		Paul Andrews
RESPONDENT:		Concept Eleven Pty Ltd trading as B MacLean Haulage
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-10165/11
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:		23 February 2012
DATE OF APPEAL DECISION:		21 May 2012
SUBJECT MATTER OF DECISION:		Fresh evidence or additional evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; s 38 of the Workers Compensation Act 1987; rate of compensation in first 26 weeks of incapacity
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	William Purdon
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		Paragraphs 1(b) and (c) of the Arbitrator’s determination of 23 February 2012 are revoked and the following orders made in their place: “1. (b) $1,102.54 per week from 10 January 2011 to 24 April 2011 pursuant to s 38 of the Workers Compensation Act 1987; (c) $881.60 per week from 25 April 2011 to 2 June 2011 pursuant to s 38 of the Workers Compensation Act 1987; (d) At the maximum statutory rate for a single worker from 3 June 2011 to date and continuing pursuant to s 40 of the Workers Compensation Act 1987.” Paragraphs 1(a), 2, 3, 4 and 5 of the Arbitrator’s determination are confirmed. Each party pay his or its own costs of the appeal.

INTRODUCTION

This appeal primarily concerns a worker’s entitlement to compensation under s 38 of the Workers Compensation Act 1987 (the 1987 Act) and whether the award under that section should be for the period ordered by the Arbitrator (just under five months) or for 12 months as claimed by the worker.

BACKGROUND

The appellant worker, Paul Andrews, worked for the respondent employer 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 his 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 to which the worker was entitled. The matter proceeded to arbitration on 20 February 2012 with submissions from both sides, but no oral evidence, and the Arbitrator delivered an oral decision on 22 February 2012. Unless otherwise stated, all transcript references in this decision are to the transcript of 22 February 2012.
The Arbitrator found that, because of his bicep injury, the worker was totally unfit for work from 1 November 2010 until 9 January 2011 when his general practitioner, Dr Dixon, certified him fit for truck driving work, but 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 (referred to by the Arbitrator as the left elbow condition) played no part in the worker’s incapacity, but the worker remained partially incapacitated because of his back injuries. Though the jaw injury may have caused pain from time to time, the Arbitrator concluded that it 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 it was not entirely clear from the evidence, the Arbitrator felt that the respondent’s “rehabilitation arm” (T7.40) may have been instrumental in finding that work for him. The worker worked as a security guard for eight days in June 2011 and six days in July 2011. The Arbitrator said it was “not altogether clear whether [the worker] was unable to continue that work, [or] whether there was some other intervening matter that caused him to cease employment as a security guard” (T7.46).
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 (T12.2–7).
In addition, the worker had travelled to the United Kingdom on 25 July 2011 and returned to Australia on 30 August 2011. The Arbitrator said 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 (T12.11). 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.
As a result of the findings set out in the two preceding paragraphs, 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.
The Commission issued a Certificate of Determination on 23 February 2012 in the following terms:
“1. Award for the applicant at the following rates:
a) $1102.54 per week from 1 November 2010 to 9 to January 2011 pursuant to section 36 of the Workers Compensation Act 1987;
b) $881.60 per week from 10 January 2011 to 2 June 2011 pursuant to section 38;
c) At the maximum statutory rate applicable to a single worker from 3 June 2011 to date and continuing pursuant to section 40.
2. Respondent to have the credit for payments of weekly compensation paid to date.

3. Respondent to pay the applicants medical and hospital expenses pursuant to section 60.
4. Respondent to pay the applicants costs as agreed or assessed.
5. Certify the matter as complex and order a 10% uplift on the costs of each party.”

The worker has challenged the award on the grounds that the Arbitrator:
(a) failed to properly consider “suitable employment” in his application of s 38 (suitable employment);
(b) failed to identify the work undertaken by the worker as being “token in nature” in accordance with s 43A(3)(a) and, as such, incorrectly applied s 40 (s 43A), and
(c) determined the incorrect rate of compensation from 10 January 2011 to 24 April 2011 (correct rate of compensation).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

FRESH OR ADDITIONAL EVIDENCE

The worker has sought to tender the following documents as “new evidence” on appeal:
(a)     a sworn statement from the worker, dated 21 March 2011 (presumably this is an error and the correct date should be 21 March 2012);
(b)     a report from Dr Nichols, dental surgeon, dated 9 November 2007 (attachment “C”);
(c)     a report from Dr Graham Tier, oral and maxillofacial surgeon, dated 23 February 2008 (attachment “D”);
(d)     a WorkCover medical certificate from Dr Dixon, general practitioner, dated 2 June 2011;
(e)     a vocational assessment/planning report from Elizabeth Cambourn, rehabilitation consultant, dated 5 May 2011;
(f)      a document headed “Outline of Submissions” prepared by B MacLean on 21 November 2011 and filed in proceedings between the worker and the respondent in Fair Work Australia (attachment “G”), and
(g)     a witness statement by B MacLean, dated 21 November 2011, and filed in Fair Work Australia (attachment “H”).
In support of the application to rely on the above evidence, the worker has submitted:
“7. The new evidence relates to the injury to the face on 25.5.2007 which was not the subject of a Section 74 notice. Reason the evidence was not given in the proceedings. The matter was refered [sic] to the Commission to resolve a dispute of a Section 74 notice specifically about the injury to the applicant’s back. The Arbitrator in his determination made comment on the applicant’s other injuries and failed to consider their impact in his decision. No evidence was led at the time as it would have been outside the relevance of the application.
8. The admission of the new evidence that of the attachment ‘C’, ‘D’, ‘G’, ‘H’ is evidence held by the respondent and has not [been] previously served. It is vital to a proper and just determination. The admission of the statement from the applicant serves to assist the Commission.” (emphasis in original)

The respondent has opposed the introduction of fresh evidence or additional evidence on appeal.
The introduction of fresh evidence or evidence in addition to or substitution (fresh evidence) for the evidence at the arbitration is governed by s 352(6) of the 1998 Act, which states:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”

The power to admit fresh evidence on appeal is discretionary. Under s 352(6), the Commission is not to grant leave to a party to rely on fresh evidence on appeal unless it is satisfied that:
(a) the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned, or
(b) failure to grant leave would cause substantial injustice in the case.
Consistent with the subsection and the principles discussed in Akins v National Australia Bank (1994) 34 NSWLR 155 and Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, an applicant seeking leave to rely on fresh evidence or additional evidence on appeal must establish:
(a)     that the evidence could not have been obtained with reasonable diligence for use at the arbitration;
(b)     that the evidence is such that there is a high degree of probability that there would be a different result;
(c)     that the evidence is credible, or
(d)     that, in the circumstances of the case, it is just to admit the evidence.
In the event that evidence sought to be tendered is evidence that was available to the party, or could reasonably have been obtained by the party, before the proceedings concerned before the Arbitrator, then, in addition to the matters identified in the preceding paragraph, it will be necessary to establish that the failure to grant leave to admit the evidence will cause “a substantial injustice in the case”.
Essentially, the power to admit fresh evidence (or evidence in substitution) on appeal exists to serve the demands of justice. In an appeal from the Full Court of the Family Court of Australia dealing with what is arguably a broader provision relating to fresh evidence on appeal (s 93A(2) of the Family Law Act 1975) than exists in s 352(6), McHugh, Gummow and Callinan JJ said in CDJ v VAJ [1998] HCA 67; 197 CLR 172 (at [111]):
“Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”
Two documents sought to be tendered as “new evidence” can be dealt with immediately. The vocational assessment report from Ms Cambourn dated 5 May 2011 and the medical certificate from Dr Dixon dated 2 June 2011 were both in evidence before the Arbitrator and do not come within s 352(6).
The remaining documents sought to be tendered as fresh evidence or additional evidence (and the information in them) were clearly available to the worker prior to the arbitration and the worker has offered no satisfactory explanation as to why they were not tendered at the arbitration. In these circumstances, the Commission is not to grant leave to rely on fresh evidence unless the refusal to do so would result in a substantial injustice.
The reports from Drs Nichols and Tier deal with the injury to the worker’s jaw and do not refer to his capacity for work. As the Arbitrator correctly observed, though the jaw injury may have caused pain from time to time, it did not incapacitate the worker. Those reports therefore have no relevance to the issue of the worker’s entitlement to compensation under s 38 from 3 June 2011.
The only potential relevance of the Fair Work Australia documents is that they contain 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 the Arbitrator made (at T11.50) that the respondent was unable to provide light work. It therefore adds nothing to the relevant evidence about the worker’s entitlement under s 38 after 2 June 2011.
The worker’s sworn statement of 21 March 2012 contains the following:
“1. I am the applicant named in matter number 010165/11 NSW Workers Compensation Commission.
2.    From the 10^th January 2011 my Nominated Treating Doctor, Doctor Dixon at my request certified me fit for suitable duties in order I returned [sic] to work with my employer.
3.    I had made requests on many occasions during 2011 to my employer to return to work. My employer told me initially I could not return to work until my nominated treating doctor certified me as completely fit for work. After my employer told me this he then simply would not answer or return any of my telephone calls. I had no contact from my employer until I received a notice of termination On [sic] 19 July 2011.
4.    In early 2011 I had a discussion with a friend who was a security officer at the Engadine Hotel[.] I explained to him that I was currently on workers’ compensation as I had been seriously injured in 3 separate workplace incidents and my boss would not give me any work. He told me I should be able to obtain work as a security officer for short hours at the weekends. I was offered a few shifts at a local hotel through Global Security to see if I was able to do this type of work. It was only on a trial basis. I cannot stand for long periods of time so this work was not feasible with my back injury. I was never regarded as an employee, and I was not given a PAYG summary after the end of the year 30 June, 2011.
5.    On my visit to my nominated treating doctor, Doctor Dixon I mentioned to him what I had been doing. He seriously rebuked me reminding me of the fragility of my facial injury and the catastrophic consequences I would suffer if I was struck in the face as well as the potential risk the work would put on my back injury.
6.    On the advice of my nominated treating doctor I immediately stopped this weekend work.”
All of the information in the above statement was available to the worker before the arbitration. The worker’s explanation for not tendering this evidence at the arbitration is that the facial injury on 25 May 2007 was not the subject of the s 74 notice and therefore not relevant to the proceedings before the Arbitrator. The respondent disputes this and has submitted that, while liability for the facial injury had not been denied, the worker relied on it as an injury giving rise to an entitlement to the compensation claimed in Pt 4 of the Application to Resolve a Dispute (the Application).
It is correct that the s 74 notice made no reference to the facial injury and that no issue about that injury was before the Arbitrator. If there was no issue about the facial injury before the Arbitrator, because it was not in the s 74 notice, it is difficult to see how it can be an issue on appeal.
More importantly, if the facial injury was an issue before the Arbitrator, counsel for the worker placed no reliance on it in his submissions at the arbitration. The attempt to argue on appeal that the worker is incapacitated because of his facial injury is an attempt to run an argument that is inconsistent with the evidence and argument presented at the arbitration and is not permissible. A party is bound by the conduct of his or her case at arbitration (University of Wollongong v Metwally (No 2) (1985) 60 ALR 68, at 71). There is no reason to depart from that principle in this case.
Regardless of the terms of the Application and the s 74 notice, 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 certificates from Dr Dixon dated 4 March 2011, 2 June 2011, 5 September 2011 and 6 January 2012. As far as the facial injury was concerned, all of those certificates certified the worker fit for his pre-injury duties from 5 September 2010. That evidence was consistent with the Arbitrator’s finding (at T11.50) that, though the jaw injury may have caused pain from time to time, it did not incapacitate the worker. No other medical evidence suggests that the worker’s facial injuries have affected his capacity to earn.
The worker’s counsel chose to run the case at arbitration with what the Arbitrator described (at T4.27) as “meagre and unsatisfactory” evidence. The fresh evidence sought to be tendered on appeal seeks to raise a new issue, namely, that the worker’s ability to work in suitable duties is not only reduced because of his back injury but also because of his facial injuries. That is an entirely new case that is unsupported by any medical evidence and is inconsistent with the evidence tendered at the arbitration. The worker has advanced no persuasive argument why that should be permitted.
The Arbitrator declined to make an award under s 38 beyond 2 June 2011 because, 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, he was not satisfied that the worker was ready, willing and able to perform suitable employment for the respondent from 3 June 2011. Further, it was not clear whether, after 2 June 2011, the worker had made a further application for suitable employment or done any of the other things necessary to bring him within s 38. Both these findings were open to the Arbitrator.

The fresh evidence sought to be tendered on appeal does not address the findings referred to in the preceding paragraph in any meaningful way. It is irrelevant that the worker did not obtain the security work through the respondent’s “rehabilitation arm”, as the Arbitrator suspected. It is also irrelevant (accepting the worker’s fresh evidence on this point) that the worker stopped the security work because of advice from Dr Dixon. It follows that the additional evidence sought to be tendered on appeal makes no difference to the result. The worker has not discharged the onus of establishing an entitlement to compensation under s 38 after 2 June 2011.
In these circumstances, there is no substantial injustice to the worker if the fresh evidence sought to be tendered on appeal is not admitted and the application to rely on fresh or additional evidence is refused.

SUBMISSIONS, DISCUSSION AND FINDINGS

Suitable employment

Submissions

The worker has 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 worker’s written submissions filed 22 March 2012). 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.

Discussion and findings

No argument of the kind put in the preceding paragraph was put at the arbitration. The only evidence tendered about any incapacity resulting from the facial injuries was in the certificates from Dr Dixon referred to at [31] above, which certified the worker fit from 5 September 2010.
Even if I had admitted the additional evidence from Drs Nichols and Tier, that evidence would not have advanced the worker’s case on this point because neither doctor dealt with incapacity resulting from the facial injuries. They dealt with the need for ongoing treatment and the presence of “impairment” but said nothing about capacity for work.
The worker’s argument on appeal is misconceived. The Arbitrator did not find that the work as a security guard was “suitable employment” under the terms of s 43A. 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 therefore not satisfied that the worker had an entitlement to an award under s 38 beyond 2 June 2011. That finding was open and discloses no error.

Section 43A

Submissions

The worker submitted that the Arbitrator incorrectly “commented upon the rehabilitation provider as providing for the employment of [the worker] as a security guard”. Ms Cambourn identified truck driving as the only re-employment option “advised to the respondent”. The worker received no training or employment from Ms Cambourn. He undertook his own endeavours to find employment “which were not regarded as employment” and he was “advised by his Nominated Treating Doctor to discontinue”. The security job was employment of a “token nature” (s 43A(3)(a)).
It was further submitted that the Arbitrator incorrectly stated that the worker was not “ready, willing and able” to return to work. The worker had, on numerous occasions, approached the respondent and “asked for his job back”. The respondent refused to re-engage the worker until the insurance company “certified him clear to return to full duties”. The respondent refused to communicate with the worker during 2011.
Last, it was submitted that the worker’s counsel “told the Arbitrator he would call on him” (the worker’s submissions filed on 27 April 2012) and it was uncontested that the worker had been looking for work “continuously” (T18.50–55 on 20 February 2012).

Discussion and findings

As to the first point, as I noted earlier in this decision, the Arbitrator’s statement that the worker “may” have obtained the security job through the respondent’s rehabilitation services is irrelevant to the dispute on appeal, namely, whether the worker is entitled to an award under s 38 beyond 2 June 2011.
As to the second submission by the worker, 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. After referring 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, the Arbitrator added (at T12.9–20):
“After performing work in June and July of 2011, the Applicant went overseas for a period of five weeks and returning, as I said, on the 30^th of August 2011. It is not clear from the evidence whether, at that stage, the Applicant sought out his employer and made a further application for light work or did any of the things necessary to bring him within section 38 of the Workers Compensation Act.
And on the evidence, as it is, I’m not able to find on the balance of probabilities that the Applicant is entitled to section 38 after the 2^nd of June of 2011.”

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 discloses no error. Nothing in the fresh evidence sought to be tendered on appeal supports a different result.
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 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.
As the respondent submitted on appeal, following the worker’s return from overseas, the evidence was silent on three critical 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.
As to the worker’s submission that his counsel “told the Arbitrator he would call on him” and it was uncontested that the worker had been looking for work “continuously”, it is necessary to consider the evidence in detail.
The exchange about whether counsel would call the worker to give oral evidence commenced at T3.1 on 20 February 2012:
“MR WOOD: Orders with respect to section 36, 38 and 40 and if it’s necessary I would call Mr Andrews, he is still unemployed and is still endeavouring to find employment.
ARBITRATOR: Alright, well it’s a matter for you whether you wish to call him.
MR STOCKLEY: I’m not going to be making a submission that he’s not unemployed or having my friend to recall me from the bar table.
ARBITRATOR: Alright.
MR WOOD: Well on that basis, I would call upon him.
ARBITRATOR: I should ask, does anyone wish to adduce any other evidence other than the documentary evidence that I’ve referred to?
MR WOOD: Including the fresh evidence, no.
ARBITRATOR: Well, Mr Stockley do you mind kicking off?” (emphasis added)

The matter then proceeded with submissions by both counsel.
I have listened to the recording of the submissions on 20 February 2012, which reveals that the highlighted parts of the transcript at [49] above are inaccurate. In fact, Mr Stockley said “I’m happy for my friend to inform me from the bar table”. Mr Wood’s response was “[w]ell on that basis, I won’t call him”. This exchange is consistent with the Arbitrator then hearing submissions. Had Mr Wood sought to call the worker, the Arbitrator would have had to rule on that application (because oral evidence is only allowed by leave) before hearing submissions. That the Arbitrator made no ruling on whether the worker could give oral evidence is consistent with Mr Wood having made no application to adduce oral evidence.
The submission that the worker was “continuously” looking for work comes not from the evidence, but from an interjection by the worker at the conclusion of submissions in reply by Mr Stockley. The transcript records, at T18.52 on 20 February 2012:
“ARBITRATOR: Yeah, okay, now, does your client want to say something Mr Wood? Do you want to—
MR ANDREWS: I just want to point out that I’ve been looking for work continuously and I’ve been knocked back for over 1000 jobs.
ARBITRATOR: Right. I think …
MR ANDREWS: As soon as you mention there’s WorkCover or you’ve got a bad back when you’re filling out the forms, you get a knockback straight away.
ARBITRATOR: Alright, well I hear that, but it’s in the statement in any event.”

The Arbitrator correctly observed (at T3.39) that the worker’s interjections on 20 February 2012 were not evidence and that the worker was not called to supplement the evidence in his statements with oral evidence. It is not clear which matter the Arbitrator felt was “in the statement in any event”, but there is no evidence in the worker’s statements that would support a conclusion that he had complied with s 38 after 2 June 2011.
The worker’s interjection was not a proper way for evidence to be adduced at arbitration. His counsel declined to call him to give oral evidence and the employer was given no opportunity to cross-examine him on his interjection. In these circumstances, there was no evidence properly before the Arbitrator that the worker had been looking for work “continuously”, as has been submitted on appeal.
In any event, it is unclear what Mr Andrews meant when he said he had been “looking for work continuously” and whether it extended to the period after 2 June 2011. It clearly could not have included the period when he was overseas. The Arbitrator correctly observed that it was not clear from the evidence whether, after Mr Andrews returned from overseas, he sought out his employer and made a further application for light work or did any of the things necessary to bring him within s 38.
It follows that the Arbitrator did not err in his finding that, in respect of the period after 2 June 2011, the worker had not satisfied the requirements of s 38.

Correct rate of compensation

The Arbitrator awarded 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.
The respondent has conceded this was an error because the first 26 weeks of incapacity did not cease until 24 April 2011. Therefore, 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.

CONCLUSION

The application to rely on fresh evidence or additional evidence on appeal is refused because the evidence sought to be tendered was available at the arbitration and because no substantial injury results from the refusal to admit that evidence on appeal as it makes no difference to the result. The Arbitrator did not err in finding that, for the period after 2 June 2011, the worker had not satisfied the requirements of s 38. The respondent has consented to the award being amended to correct the error in the third ground of appeal and the award will be amended accordingly.

DECISION

Paragraphs 1(b) and (c) of the Arbitrator’s determination of 23 February 2012 are revoked and the following orders made in their place:
“1. (b) $1,102.54 per week from 10 January 2011 to 24 April 2011 pursuant to s 38 of the Workers Compensation Act 1987;
(c)$881.60 per week from 25 April 2011 to 2 June 2011 pursuant to s 38 of the Workers Compensation Act 1987;
(d)At the maximum statutory rate for a single worker from 3 June 2011 to date and continuing pursuant to s 40 of the Workers Compensation Act 1987.”
Paragraphs 1(a), 2, 3, 4 and 5 of the Arbitrator’s determination are confirmed.

COSTS

The appellant worker has failed with his substantive grounds of appeal, but succeeded on the third ground, which the respondent conceded. The error in the third ground was one that could have been corrected under the slip rule without the need for an appeal under s 352. In these circumstances, the appropriate order is that each party pay his or its own costs of the appeal and that is the order I make.

Bill Roche

Deputy President
21 May 2012

I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE