Colquhoun v Roads & Traffic Authority of New South Wales - [2006] NSWWCCPD 117

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Colquhoun v Roads & Traffic Authority of New South Wales [2006] NSWWCCPD 117
APPELLANT:  Melanie Colquhoun
RESPONDENT:  Roads & Traffic Authority of New South Wales
INSURER:Treasury Managed Fund
FILE NUMBER:  WCC3656-04
DATE OF ARBITRATOR’S DECISION:          4 July 2005
DATE OF APPEAL DECISION:  13 June 2006
SUBJECT MATTER OF DECISION: Partial incapacity, section 40 assessment
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant:      Whitelaw McDonald
Respondent:   Thompson Cooper Lawyers

ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator, dated 4 July 2005, is revoked and the following decision is made in its place:
“1. That the respondent pay the appellant weekly payments of compensation under section 40 of the 1987 Act, in the amount of $310.75 for the period 1 May 2002 to 18 August 2002, and in the amount of $102.70 for the period from 19 August 2002 to date and continuing. Credit to be given to the respondent for weekly compensation payments already made.”

Paragraphs 2,3 and 4 of the decision of the Arbitrator dated 4 July 2005 are confirmed.

The respondent is to pay the appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 August 2005 Melanie Colquhoun (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 July 2005.

The Respondent to the Appeal is the Roads & Traffic Authority of New South Wales (‘the respondent’).

The appellant was initially employed by the respondent on a part-time basis, twenty hours per week, as a telephone services operator. From about 6 April 2002 her duties became those of a receptionist, working the same hours. The claim as pleaded arose from injury allegedly suffered by the appellant on 1 May 2002 when she was loading paper into a photocopying machine, and bending over for an extended period. It involved injury to the appellant’s lower back, and she sought ongoing weekly payments from 1 May 2002 to date and continuing, a general order for medical and related expenses, and lump sums pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). As ultimately presented, the allegation of injury extended to the appellant’s activities at work over a period of about one month prior to and including 1 May 2002, effectively the period she was doing receptionist work.

The appellant’s statement dated 14 January 2003 describes her background. She was born on 12 April 1983, and thus was nineteen at the time of the alleged injury. She was educated to year eleven at high school, and did not complete the Higher School Certificate. Her working background involved working as a strapper for a horse trainer from when she was in year ten. She stopped this after being kicked by a horse, resulting in injury (from which she said she recovered) and a loss of confidence with horses. She then worked as a receptionist for a medical practice for about one year. She describes commencing with the respondent in early 2001. She did twenty hours per week, for which she was paid $310.75. Her letter of appointment describes the position as a call centre traineeship, to commence 5 March 2001. The duties were clerical, and included accessing the respondent’s ‘DRIVES’ database.

The appellant’s duties were changed to those of a receptionist, after the respondent received a complaint the appellant had accessed its database for an unauthorised purpose. A statement of Mr Ralston (a manager with the respondent) dated 7 June 2004 was used by the respondent at the arbitration. It describes certain enquiries he made in early April 2002, and he then told the appellant on 6 April 2002 that he would give her other duties which did not require that she access the database. The appellant in her statement of 14 January 2003 denies wrongdoing. Her reception duties are described in that statement. She says they involved answering the telephone, and also photocopying job packages for people applying for jobs with the respondent. She says this involved spending hours at the photocopying machine “preparing hundreds of job packages”, and was “quite arduous”.

The respondent tendered statements from a number of witnesses going to the allegation which was extant against the appellant when her duties changed, and thereafter. The limited use the respondent sought to make of this material was described by its counsel at the arbitration hearing:

“I have indicated the weight which the respondent seeks to place on them, and briefly being not as to a suggestion that this claim is in any way a response to those allegations but, rather, that the allegations were in the background at the time that the alleged injury occurred.” (at T2.35)

The appellant gave oral evidence, without objection, to expand on the material in her statements. She described her duties in the “one month or so prior to 1 May 2002”. She lifted boxes of photocopying paper from ground level, turned and twisted to put them on a “cart kind of thing”, took them to the photocopier, unloaded them into a cupboard, and then filled the photocopying machines. The weights of these boxes “varied on 15 kilos, give or take”. She said over the month prior to 1 May 2002 she noticed “I was a little bit more stiff in my movements”. She said on 1 May 2002 she was lifting a load of photocopying paper to stack in the cupboard, and as she was lifting she twisted to put one of them in at ground level. “My back just sort of jerked and I felt something like – it felt like I had been pinched or something”. The appellant was cross-examined on histories she had given to various doctors, and the fact these did not indicate the presence of any back symptoms prior to 1 May 2002. She conceded not giving that particular history, although maintained her back was sore in the “few weeks leading up to” 1 May 2002.
The appellant described not going to work the following day due to back pain, ringing in and reporting the injury. She saw her GP Dr Long on 3 May 2002, and was given a certificate for restricted duties, which she resumed from 4 May 2002. She worked on, doing restricted duties, taking “intermittent days off work”. She states liability was initially accepted on a voluntary basis by the respondent. She resigned on 24 July 2002, the day before a disciplinary interview scheduled to deal with the allegations against her. She declined an invitation to attend the disciplinary interview notwithstanding the resignation. A letter of the respondent dated 12 September 2002 (annexed to its Reply) states the appellant’s resignation was not accepted, and terminates her employment. Her statement sets out a number of factors behind her decision to resign. She says her back was very painful and subject to muscle spasms, she was anxious and emotional about her back, and these factors coupled with the stress of the disciplinary hearing led to her decision.
The appellant commenced employment with Newcastle Taxis as a casual calltaker in the dispatch centre on 16 August 2002. Her hours there, up to 15 June 2003, are set out in a schedule attached to a letter from that organisation. They varied from nil to 26.5 per week. The appellant’s wage schedule contains figures for this employment. I calculate the average weekly earnings from this employment, which went from 16 August 2002 to 8 February 2004, at $208.05. The actual earnings in the appellant’s wage schedule were accepted by the respondent (T1.55). The appellant’s statement of 21 May 2004 deals with this employment. She said she had days off here and there because of the injury, she was in pain all the time, she took frequent breaks, and took a pillow for her back. She said the reason this work came to an end was that she found she couldn’t cope, and her doctor put her off work. She said in evidence she did what work she could when it was offered to her, whilst at Newcastle Taxis (T20.40). She has not had remunerative work since. In evidence she said she has, since that time, carried out an activity to help her father, without pay. This involved driving children to and from school in the mornings and afternoon, in a people mover van, for a total of about three hours per day (T18). She said she lost her licence at one point, it is unclear precisely the period over which this driving activity occurred.
In cross-examination she conceded she could carry out reception style work, if she had some rehabilitation to strengthen her back muscles (T17.35).
The matter was referred to an approved medical specialist, Dr Ostinga, who examined the appellant on 5 October 2004, issuing a certificate on 15 October 2004. He said of the appellant “Her history is consistent with an intradiscal rupture producing severe pain that has gradually resolved to low grade symptoms”. He assessed 6% whole person impairment. The appellant appealed unsuccessfully against that decision, to the Registrar, whose decision is dated 23 February 2005.
The respondent’s counsel, at the commencement of the arbitration, helpfully narrowed the issues down to “two principal issues”, being whether the nature of the work being carried out by the appellant at the time of onset of symptoms was sufficient to be a substantial contributing factor (section 9A of the 1987 Act), and if so, the level and extent of ongoing incapacity.
The questions of ‘injury’, and section 9A, were decided by the arbitrator in the appellant’s favour, and no challenge is made to those findings. The question which remains alive between the parties is that of ongoing incapacity, and its quantification.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 4 July 2005 records the Arbitrator’s orders as follows:

“1. That the Respondent pay the Applicant weekly payments of compensation under s40 of the Workers Compensation Act 1987 in the amount of $310.75 for the period 1 May 2002 to 18 August 2002. Award for the Respondent thereafter. Credit to be given to the Respondent for payments already made within that period.
2. That the Respondent pay the Applicant’s medical expenses under s60 of the Workers Compensation Act 1987 on production of accounts or receipts.
3. That the Respondent pay the Applicant as lump sum compensation under s66 of the Workers Compensation Act 1987 $7,500 in respect of 6% whole person impairment.
4. That the respondent pay the Applicant’s costs as agreed and assessed (sic).”
The arbitrator found injury at paragraph [40] of his reasons, and at [41] found the appellant’s work was “the” substantial contributing factor to her injury (which is a greater contribution than section 9A requires). At [43] he found the appellant to suffer 6% whole person impairment consistent with the binding assessment of the approved medical specialist. This was insufficient to entitle the appellant to compensation pursuant to section 67 of the 1987 Act. His reasoning on the weekly claim, which is the subject of this appeal, is to be found at [45] to [51] of his reasons. He found the appellant’s incapacity, on the whole of the evidence, to be partial rather than total. I do not understand this finding to be the subject of attack in this appeal. At [47] the arbitrator reviewed some of the evidence given by the appellant in cross-examination, and said “I did form the impression that the Applicant may have some difficulties with motivation, and this has been reflected upon by Dr O’Keefe and to some extent, the Approved Medical Specialist, Dr Ostinga. Having said that, the Applicant is a young person and no doubt her confidence has been affected by this injury.” The arbitrator did not express a view critical of the appellant’s credit.
The critical passage in the reasons is at paragraphs [48] to [51], which I will set out in full:

“48.Having regard to all of the evidence, including the oral evidence of the Applicant at the hearing it appears to me that any partial incapacity that the Applicant was suffering from after the injury on 1 May 2002 would have subsided by the time the Applicant commenced her employment with Newcastle Taxis on 16 August 2002. According to Newcastle Taxis correspondence dated 24 June 2003 the Applicant would work anywhere between 4 hours to 26.5 hours per week as a casual call taker. The average time worked between 18 August 2002 and 15 June 2003 was 13.73 hours each week and the Applicant would receive an average gross wage of $204.67 each week.
49. While I have considered the evidence of the Applicant that she would sometimes need to take a break, and would sometimes not attend work, the records demonstrate that she was capable of working hours in excess of the part-time hours that she worked for the Respondent.
50. The medical reports are not entirely helpful with respect to work capacity, although Professor Ghabriel says on 22 October 2003 that the Applicant is indefinitely unfit for heavy activities. The Applicant was undertaking telephone duties with the Respondent and undertook similar work for Newcastle Taxis as and from 18 August 2002. The wages earned by the Applicant at Newcastle Taxis are not significantly different from her earnings with the Respondent, and any diminution in her earnings cannot be ascribed to her injury. It is noteworthy that the Applicant resigned from her employment with the Respondent thereby effectively denying the Respondent the opportunity to engage the Applicant in a rehabilitation plan.
51. On balance, and particularly in view of the oral evidence of the Applicant and her work history at Newcastle Taxis, I am of the view that the Applicant suffered a partial incapacity for work and is entitled to be compensated for weekly payments of compensation by the Respondent for the period 1 May 2002 to 18 August 2002. Under s40 I determine that the appropriate rate is $310.75 per week which is, according to s42(2)(a) the weekly amount that the worker would have been earning but for the injury. There is no deduction to be made pursuant to s42(2)(b) and I am of the view that no further deduction is necessary pursuant to s40(1).”

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the finding that the appellant had ceased to be incapacitated by 18 August 2002 was against the evidence or the weight of the evidence, and whether the arbitrator applied an appropriate test in making this finding. In particular it is asserted the arbitrator failed to distinguish between concepts of physical and economic incapacity. The respondent submits the decision of the arbitrator should be upheld.

ON THE PAPERS REVIEW

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.”
The appellant submits the parties should be heard orally on the appeal. The respondent submits the appeal should be decided on the papers. Neither party seeks to adduce fresh evidence. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the respondent 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.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

The appellant has failed in her claim for weekly compensation payments subsequent to 18 August 2002. That claim was pleaded at a rate of $332.00 per week. Clearly the sum of $5,000 prescribed in section 352(2)(a) is exceeded. The quantum of compensation at issue in the appeal significantly exceeds twenty percent of the amount awarded, and section 352(2)(b) is satisfied. The respondent has not submitted that leave should be refused.

The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

In all of the circumstances it is appropriate that leave to appeal be granted.

DISCUSSION AND FINDINGS

The arbitrator has accepted the binding opinion of the approved medical specialist as regards quantum of the claim pursuant to section 66 of the 1987 Act, and has entered an award accordingly, based upon 6% whole person impairment. It is inherent in this, that there is an acceptance of a level of permanent physical impairment of the appellant’s back, diagnosed by Dr Ostinga as being consistent with an intradiscal rupture, which has gradually resolved to low grade symptoms. The arbitrator has then gone on to find a partial incapacity from 1 May 2002 to 18 August 2002, entitling the appellant to an award pursuant to section 40. The appellant was in employment for part of this period, with the respondent, before her resignation on 24 July 2002. The way in which the arbitrator has calculated the entitlement is inconsistent with the requirements of the section, in that he has failed to determine the lower figure in the section 40 equation as required by section 40(2)(b), either while she was employed, or thereafter (see generally Mitchell v Central West Health Service (1997) 14 NSWCCR 526). This error is not challenged in this appeal.
The arbitrator has found as a fact, at the passage at paragraph 48 of his reasons quoted above, that the partial incapacity would have subsided by the time the appellant commenced her employment at Newcastle Taxis on 18 August 2002. The arbitrator has not expressed this finding in terms of the appellant having recovered physically from the effects of the injury he had found, and indeed any such finding would have been inconsistent with the award which he entered pursuant to section 66 of the 1987 Act. Accordingly that finding can only be understood on the basis the arbitrator regarded the economic consequences of the injury as having ceased by 18 August 2002.
The appellant makes reference to the well known authority of Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 (‘Yacob’), as supporting the proposition that incapacity for the purposes of the Act exists, where there is a reduced physical capacity to actually do work in the labour market in which a worker was working, or might reasonably be expected to work.
The nature of ‘incapacity’ has been dealt with in many cases at appellate level. Yacob draws a distinction between ‘incapacity’ in the sense which may be sufficient to justify the operation of section 11(2) of the Workers Compensation Act 1926 (‘the 1926 Act’) (the issue in Yacob), and incapacity which will produce an entitlement pursuant to section 11(1) of the 1926 Act (the equivalent of section 40 of the 1987 Act):

“It follows that the concept of partial incapacity for work is that of reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which the employee was working or might reasonably be expected to work. Under s 11(1), an applicant’s entitlement to compensation will depend on his loss of earning power. This flows, not from the concept of partial incapacity for work, but from the nature of the express limitation which the sub-section places on the amount of compensation payable. On the other hand the words “partial incapacity for work” in sub-s. (2) must be given their natural and established meaning, there being no limitation or other restricting context which confines the employer’s obligation to offer suitable employment to an injured employee who is suffering actual economic loss.” (per Mason, Wilson, Deane and Dawson JJ at 178).

The majority in Yacob had previously quoted from the judgment of Dixon J in Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431:

“It is a commonplace that incapacity is not total if some other employment is reasonably open to the injured man. If he is disabled from his former employment, that in itself implies some incapacity. But s. 11(1) says that in case of partial incapacity, the weekly payment shall in no case exceed the difference between the amount of his average weekly earnings before the injury and the average weekly amount he is earning or able to earn in some suitable employment or business after the injury. That means that his capacity for other work is taken into account and in such a way that it may reduce the compensation to nothing.” (at 449)
The arbitrator has made a finding of permanent impairment consistent with the binding certificate of Dr Ostinga. At [50] he refers to the views of Professor Ghabriel on incapacity, that the appellant is indefinitely unfit for heavy activities. He does not reject or accept this view, merely acknowledges it. Overall, it was a case which did not present a great conflict of medical evidence on the issue of incapacity. Apart from Professor Ghabriel, the appellant also had evidence from Dr Laycock, a rehabilitation consultant who had treated her. He impliedly accepted the appellant’s complaints, and in his report of 4 December 2002 said the cause of these was unclear, but “it is likely that she has injured a mid to lower lumbar disc…a less likely cause of her complaint would be one arising from her lower lumbar zygapophyseal joints”.
In the respondent’s case Dr O’Keefe, examining the appellant on 7 June 2002, found intense muscle spasm on examination, which he thought significant. He said “I am unable to make a clinical diagnosis in this case but Ms Colquhoun obviously has muscle spasm, which cannot be feigned, and she therefore has some underlying pathology in her back. It is odd that a woman this age should have a narrowed lumbosacral disc as reported on her x-ray and this certainly predates the injury.” He said (apparently in response to a specific question from the respondent) that the appellant could have damaged her back at karate, it would be very unusual to get severe muscle spasm such as this from merely bending over at the photocopying machine. The reference to karate related to matters arising in the respondent’s investigations of the claim, and the respondent’s counsel, in addresses, fairly conceded “I’m not suggesting that such an injury was caused at karate. There’s no evidence of that and I don’t make that submission.” (at T22.30) Dr O’Keefe thought the appellant “fit to continue to work on selected duties”. This does not suggest he thought her fully fit in a physical sense.
Dr Sage examined the appellant on 13 January 2004 at the respondent’s request. At that stage she was still employed by Newcastle Taxis. He diagnosed some degenerative changes, and thought an acute annular tear of a disc was “a high probability”. He thought the incident of 1 May 2002, together with lifting over the preceding three weeks, represented a substantial contributing factor. He thought the appellant’s “present work arrangements where she can be sitting or standing” (at Newcastle Taxis) were ideal. Again, this does not suggest he thought the appellant fully fit in a physical sense.
This evidence, on both sides of the record, is consistent with the finding made by the arbitrator that there was injury in the relevant sense, resulting in physical impairment, and a partial incapacity for the purposes of section 40. How then is the conclusion reached that the partial incapacity which the arbitrator found to exist up to 18 August 2002, had “subsided” by the time she commenced at Newcastle Taxis on 18 August 2002? The arbitrator appears to rely on three factors.
The first is that the records produced by Newcastle Taxis “demonstrate that she was capable of working hours in excess of the part-time hours that she worked for the Respondent”. The record of the appellant’s hours at Newcastle Taxis, attached to the letter of 24 June 2003 (itself attached to the Application to Resolve a Dispute), cover a period of forty-three weeks, from 18 August 2002 to 15 June 2003. They demonstrate three weeks over that period, where the appellant worked over the twenty hours per week which represented her normal hours with the respondent, and the highest of those three weeks is 26.5 hours. As the arbitrator had himself noted (at [48] of his reasons) the average weekly working hours revealed by that material were 13.73. Thus overall, the working hours managed by the appellant at Newcastle Taxis were not, of themselves, indicative of the economic consequences of the appellant’s physical incapacity having ceased.
The second factor the arbitrator refers to (at [50] of his reasons) was that “The Applicant was undertaking telephone duties with the Respondent and undertook similar work for Newcastle Taxis from 18 August 2002.” This implies the appellant became fit for the type of work she carried out with the respondent. The appellant’s original work with the respondent had been clerical, including telephone work and accessing a database. However this was not the full scope of her duties. After she was moved in early April 2002 to the reception work, her duties involved many other activities about which she gave evidence. These included lifting boxes of paper weighing in the vicinity of fifteen kilograms, twisting to load them on to a “cart kind of thing”, moving the cart to another place, unloading the paper into a cupboard, and filling the photocopying machines. There was bending, lifting and twisting (see T6 to 7). Thus the evidence does not establish the appellant ever became fully fit for her previous duties with the respondent.
The third factor mentioned by the arbitrator was that “The wages earned by the Applicant at Newcastle Taxis are not significantly different from her earnings with the Respondent, and any diminution in her earnings cannot be ascribed to her injury.” The appellant’s earnings with the respondent before she ceased were $310.75 per week. The arbitrator found her earnings at Newcastle Taxis between 18 August 2002 and 15 June 2003 averaged $204.67 per week. I calculate the average earnings over the whole period at Newcastle Taxis from 18 August 2002 to 8 February 2004 (based upon the figures in the appellant’s wage schedule, which the respondent accepted as to actual earnings) at $208.05 per week. This represents a reduction in the appellant’s earnings of about one third. One cannot say this does not represent a significant difference. The arbitrator does not say what the reduction should be ascribed to, other than injury. This may be a reference to the appellant’s resignation, it is not clear. If that is what is being referred to, it suggests the reason the appellant suffered a reduction in her earnings was because she resigned from selected duties with the respondent, which paid as much as her pre-injury work. That is, her ability to earn post-injury should be calculated on the basis she could have continued to earn the same moneys as before her injury, had she not resigned from the selected duties. That argument is inconsistent with the decision of the NSW Court of Appeal in Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693. In addition, the fact that a worker can, post-injury, earn more in some employment than he would have earned in his pre-injury employment, is not inconsistent with there being an entitlement pursuant to section 40 of the 1987 Act (see Akawa Australia Pty Ltd v Cassells (1995) NSWCCR 385). However clearly there is not an entitlement pursuant to section 40 whilst the worker is actually earning more than his probable earnings if not for injury (J C Ludowici & Sons Ltd v Cutri (1992) 26 NSWLR580).
Thus I cannot see that any of the reasons relied upon by the arbitrator, in reaching his conclusion that incapacity had “subsided” by 18 August 2002, justify the conclusion he reached. The reasons to some extent misdescribe the evidence, as there was a significant difference in the average hours worked in the two positions, in the average earnings received in the two positions, and in the physical duties involved in the two positions.
Having found a physical impairment resulting from injury, which resulted in partial incapacity, it was incumbent upon the arbitrator to go through the steps required by section 40. Only in this way could a finding be made regarding whether the section entitled the appellant to weekly compensation, or whether, when the appellant’s capacity for other work was taken into account, it reduced the compensation to nothing (to paraphrase the passage from Dixon J quoted at [28] above). This the arbitrator failed to do. Accordingly I am of the view there have been errors of fact (referred to at [36] above), and also a failure to apply the appropriate legal test in determining the appellant’s entitlement to compensation, if any, subsequent to 18 August 2002. These matters are such as to justify disturbance of the arbitrator’s decision on review (see South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18).
Having upheld the appeal, it is desirable that I finally determine the matter, if possible (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344). Whilst I have not had the advantage of seeing the appellant give evidence, I have transcript of the arbitration hearing, including such evidence. As I have already observed, the arbitrator did not criticise the appellant’s credit. In my view it is appropriate I determine the matter.
No challenge has been made by either party to the award prior to 18 August 2002. Although the method used to calculate that award was erroneous (see [24] above), I will not in the circumstances disturb it.
The medical evidence overall, and the evidence of the appellant (see particularly T16 to 17) supports a finding that the appellant has, since 18 August 2002, suffered from a partial incapacity which would render her unfit for activities involving heavy lifting, excessive bending, excessive twisting, or prolonged periods of sitting or standing. This is consistent with the views of Professor Ghabriel, and with concessions made by the appellant in cross-examination. Having regard to the medical evidence overall, the work duties carried out by the appellant whilst she worked for Newcastle Taxis, and her more recent activities driving children to and from school in a people mover, I do not accept the appellant is totally incapacitated.
Subsequent to 18 August 2002 the appellant’s probable earnings but for injury, in the same or some comparable employment to that with the respondent (section 40(2)(a)), I find to be $310.75 per week. This is the figure the arbitrator found in respect of the earlier period, and that finding was not challenged in this appeal. That is the figure in the appellant’s wage schedule. The respondent’s wage schedule does not proffer any figures for probable earnings if not for injury. This figure represents the appellant’s actual earnings whilst she worked for the respondent.
During the period from 18 August 2002 to 8 February 2004, I have calculated the actual earnings with Newcastle Taxis at an average of $208.05 per week. The respondent’s wage schedule suggests certain other payments were made to the appellant, after her resignation on 24 July 2002. Having regard to the appellant’s statement at [23], these may well have represented payments of salary of some description, before the respondent terminated her employment, it having failed to accept her resignation. It is appropriate to take into account only those amounts the worker earns simply by her own ability as a worker, not sums which may be paid for other reasons (Steggles at 704D). Whatever these payments may represent, it is difficult to see they represent payments to the appellant for her abilities as a worker, given she had not carried out any employment duties for the respondent after submitting her resignation on 24 July 2002. Accordingly, they should be disregarded. Where a partially incapacitated worker is in employment and actually earning, normally the actual earnings will be taken as representing the lower end of the section 40 equation (section 40(2)(b)), unless evidence establishes the actual earnings are not a proper test, as for example if the worker was shirking, or deliberately taking lower paid work than he could get (see Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 62 WN (NSW) 233, Pira Pty Ltd t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26). The evidence of the appellant was that she did what work she could at Newcastle Taxis, when it was offered to her (T20.35). Dr Sage, qualified by the respondent, regarded those duties as “ideal for her”. In my view it is proper to take the figure of $208.05, being the actual earnings, as the appropriate figure for the purposes of section 40(2)(b), whilst the appellant was working at Newcastle Taxis, from 18 August 2002 to 8 February 2004.
The difference between these two figures in the section 40 equation is $102.70.
There is a statement of the appellant dated 21 May 2004, that is, after she left Newcastle Taxis. It describes her symptoms whilst she was at Newcastle Taxis, and around the time of the statement. It does not really deal with the precise reason why the appellant left Newcastle Taxis, or with what there was (if anything) about that employment that she found beyond her physical capacity. It does say that after attempting some more work at Newcastle Taxis around the beginning of January 2004, she found she couldn’t cope and her doctor put her off work again. For reasons previously set out at [40], I do not accept the appellant is totally incapacitated. Having regard to the appellant’s own assessment of her working capacity (at T16 to 17), and to Dr Sage’s assessment in his longer report of 13 January 2004, that the work arrangements at Newcastle Taxis were ideal for the appellant, I have formed the view that the type of work, and hours, carried out by the appellant at Newcastle Taxis were within her capacity, and have remained so. The earnings from such work represent a reasonable reflection of the appellant’s ability to earn in some suitable employment since 8 February 2004. Accordingly I find the amount which the appellant would be able to earn in some suitable employment, from 9 February 2004 to date, to be a sum of $208.05.
Again, the figure produced by the section 40 equation is $102.70.
In my view there are no matters requiring a reduction in this figure on a discretionary basis, pursuant to section 40(1).
The parties were content to approach the matter previously on the basis that the respondent be given credit for payments previously made by way of weekly compensation, and like the arbitrator I will adopt this approach.

DECISION

Paragraph 1 of the arbitrator’s decision dated 4 July 2005 is revoked, and the following decision is made in its place:

“1. That the respondent pay the appellant weekly payments of compensation under section 40 of the 1987 Act, in the amount of $310.75 for the period 1 May 2002 to 18 August 2002, and in the amount of $102.70 for the period from 19 August 2002 to date and continuing. Credit to be given to the respondent for weekly compensation payments already made.”
Paragraphs 2,3 and 4 of the arbitrator’s decision dated 4 July 2005 are confirmed.

COSTS

The respondent is to pay the appellant’s costs of the appeal.

Michael Snell
Acting Deputy President
13 June 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE