Cordina Chicken Farms Pty Ltd v Thoa Hong Le
[2008] NSWWCCPD 125
•24 October 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 | ||||
| APPELLANT: | Cordina Chicken Farms Pty Ltd | ||||
| RESPONDENT: | Thoa Hong Le | ||||
| INSURER: | QBE Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC6635-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 3 July 2008 | ||||
| DATE OF APPEAL DECISION: | 24 October 2008 | ||||
| SUBJECT MATTER OF DECISION: | Circumstances in which a worker is entitled to two awards of weekly compensation against one employer; application of Sydney City Council v Ince (1989) 16 NSWLR 690; probable earnings but for injury; procedural fairness; total incapacity | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | McLachlan Chilton | |||
| Respondent: | Galic & Co | ||||
| ORDERS MADE ON APPEAL: | Paragraphs six, seven and eight of the Arbitrator’s determination of 3 July 2008 are revoked and the following orders made: “1. Award for the worker (Thoa Hong Le) under section 37 at the statutory rate for a worker with no dependents from 12 December 2005 until 26 April 2007. 2. The worker’s claim for weekly compensation from 27 April 2007 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3. Costs of the second arbitration are to follow the event of that arbitration.” Paragraphs one, two, three, four, five, and nine of the Arbitrator’s determination of 3 July 2008 are confirmed. | ||||
| Each party is to pay her or its own costs of the appeal. | |||||
INTRODUCTION
This appeal concerns whether and, if so, in what circumstances a worker who sustained two injuries is entitled to two awards of weekly compensation against one employer and the correct method of calculation of such compensation.
BACKGROUND
The worker, Thoa Hong Le (‘Ms Le’) sustained a serious crushing injury to her left non-dominant hand (predominantly the index, middle and ring fingers) at work for Cordina Chicken Farms Pty Ltd (‘Cordina’) on 26 August 2004 (‘the first injury/crush injury’). She required surgery and underwent a partial amputation of the middle finger and full thickness skin grafts.
Ms Le returned to work on light duties (lifting less than two kilograms) for restricted hours (initially, four hours per day, three days per week) from 6 December 2004. Her light duties required her to repetitively use her hands to sort chicken parts into tubs. In October 2004, her hours were increased to six per day for four days per week.
After performing light duties for a period, Ms Le developed pain in her wrists. She was diagnosed with bilateral carpal tunnel syndrome and certified unfit for work from 18 November 2004 (‘the second injury/carpal tunnel injury’). She last worked on 11 November 2005 and her employment was terminated on 5 February 2007.
Her claim for compensation was initially accepted, but denied by letter from Cordina’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’) dated 20 December 2005.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 31 August 2007, Ms Le sought weekly compensation in the sum of $611.65 from 20 December 2004 to date and continuing (later amended to date from 12 December 2005), hospital and medical expenses, and lump sum compensation in respect of two injuries; first, the crush injury to her left hand on 26 August 2004 and, second, injury to her arms and wrists due to the nature and conditions of her employment between December 2004 and October 2005 (later amended to be December 2004 to 11 November 2005).
Cordina filed a blanket Reply on 21 September 2007 purporting to seek leave to deny every possible issue relating to injury, incapacity and the entitlement to medical expenses.
The matter was listed for conciliation and arbitration on 17 October 2007 when, by consent, the hearing was vacated and the matter was, without admission of liability, referred to an Approved Medical Specialist (‘AMS’) for assessment of Ms Le’s whole person impairment resulting from each injury. Counsel for Ms Le outlined that, if there was a finding that Ms Le had sustained two discrete injuries, then he would be submitting that she would be entitled to two awards under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) and two awards of weekly compensation in accordance with the authority of Sydney City Council v Ince (1989) 16 NSWLR 690.
In a Medical Assessment Certificate (‘MAC’) dated 14 December 2007, an AMS, Dr Bodel, assessed Ms Le to have an 8% whole person impairment as a result of her bilateral carpal tunnel syndrome and 11% whole person impairment as a result of the crush injury to her left hand.
At a conciliation conference on 7 April 2008, Cordina agreed to pay weekly compensation in respect of the first injury on a voluntary basis under section 40 of the 1987 Act at the maximum rate from 7 April 2008 until the next teleconference on 11 June 2008. The matter was referred to the Registrar for referral to an AMS for assessment of the scarring of the left hand as a result of the first injury. Cordina was ordered to pay $14,000 in respect of the 11% whole person impairment assessed by Dr Bodel.
The impairment resulting from the first injury was re-assessed by a second AMS (Dr Mastroianni) on 6 May 2008, and a new MAC issued certifying a whole person impairment of 13%.
The matter was again listed for conciliation and arbitration on 26 June 2008, when both parties were represented by counsel. In her Statement of Reasons for Decision (‘Reasons’) delivered on 3 July 2008, the Arbitrator identified the following issues as being in dispute (Reasons, paragraph 11):
“a)In relation to the frank injury of 26 August 2004 a determination on the quantum of Ms Le’s entitlement to s67 compensation for pain and suffering.
b)Injury in relation to the claim for nature and conditions for the injury [sic] bilateral carpal tunnel syndrome for the period December 2004 to 11 November 2005 (ss 4 and 9A).
c)Weekly benefits compensation pursuant to s36 and s40 in relation to the claim for bilateral carpal tunnel syndrome.
d) A determination as to probable earning.
e) A determination regarding capacity to earn pursuant to s40.
f)Medical expenses pursuant to section 60 in relation to the nature and conditions claim for bilateral carpal tunnel syndrome.”
After hearing lengthy submissions from both sides, the Arbitrator made the following determinations in a Certificate of Determination issued on 3 July 2008:
“1.In accordance with the Medical Assessment Certificate issued by Dr Tommasino Mastroianni dated 6 May 2008 the Respondent to pay the Applicant 2% WPI for scaring in relation to the injury to the left upper extremity. This represents an additional award under s66 for the injury that occurred on 26 August 2004.
2.The Respondent to pay the Applicant $14,000 pursuant to s67 of the 1987 Act for pain and suffering in relation to the injury to the right [sic, left] upper extremity that occurred on 26 August 2004.
3.Award in favour of the Applicant for the injury bilateral carpal tunnel syndrome resulting from the nature and conditions of her employment during the period December 2004 to 11 November 2005.
4.The Respondent to pay the Applicant’s medical expenses pursuant to s60 of the 1987 Act in relation to the injury bilateral carpal tunnel syndrome sustained as a result of the nature and conditions of her employment between December 2004 and 11 November 2005.
5.In accordance with the Medical Assessment Certificate issued by Dr James Bodel on 14 December 2007 the Respondent to pay the Applicant 8% WPI pursuant to s66 in relation to the claim for bilateral carpal tunnel syndrome resulting from the nature and conditions of her employment between December 2004 and 11 November 2005.
6.The Respondent to pay weekly benefits compensation in relation to the crush injury sustained on 26 August 2004 at the maximum statutory rate for a single worker with no dependents from 12 December 2005 to date and continuing. The Respondent to be credited for any amounts already paid.
7.The Respondent to pay weekly benefits compensation pursuant to ss36, 37 and s40 in accordance with the Act in relation to the injury bilateral carpal tunnel syndrome resulting from a claim for nature and conditions between 11 December 2005 to date and continuing. The Respondent to be credited with any payments already made.
8.The total of the payments to be made under paragraphs 6 and 7 above are not to exceed the probable earnings of the Applicant determined to be $830/week.
9.The Respondent to pay the Applicant’s costs as agreed or assessed. For the purposes of costs this matter is to be treated as a separate claim.”
By an appeal filed on 31 July 2008, Cordina seeks leave to appeal the Arbitrator’s determination.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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 EVIDENCE
Neither party seeks leave to rely on fresh evidence or additional evidence on appeal.
THE EVIDENCE
Ms Le was born in Vietnam in 1957 and is currently 51 years of age. After completing her schooling in 1973, she assisted in her family’s grocery business for two years before she married and commenced her own family. In her statement of 23 August 2007, she said that she was a homemaker between 1983 and 1997. She came to Australia in 1998 and lived in Western Australia for four years, working as a farm hand between 2000 and 2001.
Ms Le moved to Sydney in 2001 or 2002. She initially had difficulty in finding employment because of her limited command of English. She started work for Cordina as a process worker on 16 February 2004. A letter of particulars from Cordina dated 23 September 2004 suggests that Ms Le had worked for it “previously as a contractor” for “several years”. Nothing of significance turns on this apparent discrepancy.
She worked eight hours per day five days per week, plus overtime on Saturdays and public holidays. Her duties included, but were not limited to:
(a)checking chickens on the process line;
(b)separating different chicken parts, for example, hearts from the kidneys;
(c)clean giblets;
(d)collect the kidneys and livers from the process line, and
(e)using a ‘giblet machine’, which cut and washed the giblets.
On 26 August 2004, the giblet machine clogged and Ms Le used her left hand to clear it when the tip of her glove caught and pulled her left hand into the machine causing her a serious crushing injury. She was admitted to Auburn Hospital and underwent emergency surgery that day at the hands of Dr Sackelariou, plastic and reconstructive surgeon. Two full thickness skin grafts were performed on the index finger, the middle finger required amputation at the mid middle phalanx, and the ring finger required reduction and fixation of the fractured distal phalanx with K-wire. She underwent further surgery to remove a K-wire on 12 October 2004.
Ms Le’s general practitioner, Dr Luong, certified her fit for suitable duties from December 2004. She was restricted to lifting weights less than two kilograms for four hours per day for three days per week, but was to use both hands.
At the request of the insurer, Dr Crane, consultant surgeon, examined and reported on Ms Le on 3 March 2005. He recorded her injuries to be:
· Amputation of the distal phalanx of the left middle finger.
· Skin loss requiring full thickness skin graft to the left index finger.
· Fracture of the distal phalanx of the left ring finger requiring internal fixation.
· Deformity of the nail of the ring finger.
He noted she had a significant restriction of movement of her injured fingers. Ms Le did not believe she could work longer hours, mainly due to the pain in her fingers. She did most things with her right hand. She was unable to continue embroidery, something she used to enjoy.
On 8 March 2005, Dr Sackelariou changed her restriction to four hours per day for four days per week with the two kilogram lifting restriction only applying to the left hand. Her certificate of 30 May 2005 (also from Dr Sackelariou) stated that the two-kilogram lifting restriction continued and added that she was not to use her left hand in work involving ice or ice-cold objects. On 20 September 2005, Dr Sackelariou increased her hours to five per day (for two weeks, then six per day) for four days per week with an increase in the lifting restriction to four kilograms, but still to avoid work involving ice.
Ms Le’s suitable duties initially required her to sort chicken kidneys and hearts, which she did using her right hand (Ms Le’s statement, paragraph 32). Later, her duties involved repetitively “flicking hearts and livers into tubs”. To do this job her hands and wrists had to “bend” and she started to get pain in her wrists (Ms Le’s statement, paragraph 34). After a period doing this work, Ms Le’s right wrist became swollen and was very sore.
Ms Le saw Dr Luong in May 2005. Dr Luong’s report of 25 October 2005, records that Ms Le complained of right shoulder pain and pain in the right wrist in May 2005, which she noticed while hanging chickens on a line. He also recorded that she complained of numbness in both hands and could not fully flex the fingers in her left hand. He observed that she had “smooth blue discolored [sic] shiny skin over the left 2nd, 3rd, 4th fingers consistent with a sympathetic dystrophy”. She also complained of pain from the right side of the neck down the right arm into the whole of the right hand.
Dr Luong referred Ms Le to Dr Teychenne, consultant neurologist, who saw her on 14 June 2005. He recorded her complaint of constant pain in her right shoulder over the previous two weeks and pain over the lateral aspect of the right wrist over the previous week. There was no complaint of numbness in the hands, but she was unable to fully flex the fingers of her left hand. She noticed some neck pain, particularly in cold weather. EMG nerve conduction studies were consistent with bilateral carpal tunnel syndrome, but did not reveal any evidence of cervical nerve root compression. In the light of these tests, he thought that the carpal tunnel syndrome was most probably the cause of the pain down the right arm.
Ultimately, the pain in her wrists was “too bad” and Dr Luong certified her unfit for one day on 10 October 2005 and again on 3 November 2005 (see Dr Luong’s clinical notes). Though Ms Le attempted to continue her suitable duties, she was unable to do so because of her bilateral wrist pain and Dr Luong ultimately declared her unfit for work from 14 November 2005 because of her carpal tunnel syndrome. It is agreed her last day of work was 11 November 2005 and that she has not returned to any employment since that date.
She submitted a claim form on 16 November 2005 and the insurer arranged for her to be examined by Dr Stapleton, hand, plastic and reconstructive surgeon, on 6 December 2005. As a result of that examination, the insurer denied Ms Le’s claim by letter dated 20 December 2005.
In his report of 6 December 2005, Dr Stapleton concluded that there was no doubt that Ms Le had carpal tunnel syndrome, but the condition was unrelated to her work (though he took no history of what that work involved) because carpal tunnel syndrome is “a genetically predetermined problem involving compression of the median nerve at the wrist” and that the aggravating factor in the case was her menopausal state, “as the majority of suffers [sic] of this condition are female and the majority of them are women of menopausal age (between the ages of 48-54) and half of those menopausal women are unemployed” (Dr Stapleton, 6 December 2005, page two). Dr Stapleton stated that Ms Le was not fit for employment (page five) and “not fit for so called pre-injury duties” (page six), and that she needed surgery for her condition.
Dr Stapleton reviewed Ms Le on 26 July 2006 and repeated essentially the same opinion he expressed in his first report.
In response to Dr Stapleton’s evidence, Ms Le prepared a supplementary statement dated 3 April 2008, in which she said that she told Dr Stapleton that she was not menopausal.
An MRI of the right wrist on 29 November 2006 revealed extensive synovitis involving all compartments of the wrist joint with a focal tear of the triangular fibrocartilage at each radial attachment.
Dr Teychenne reviewed Ms Le on 24 April 2007. He recorded that because of the injury to her left hand, she mainly used her right hand and then experienced pain in both wrists extending up the dorsal aspect of the right and left lower forearms into the upper arms and the right and left sides of the neck. The pain was more marked extending up the right arm. She noticed weakness in her hands, which tended to come on when she had more severe pain in her wrists. In addition to the bilateral carpal tunnel syndrome, Dr Teychenne thought she had a clinical history consistent with a bilateral cervical radiculopathy. In view of the carpal tunnel syndrome, Dr Teychenne did not think Ms Le was fit to continue work on a process line. She was not fit for activity that required repeated use of the hands, normal strength in the arms, normal grip strength, nor occupations that required repeated movement of the neck, heavy lifting associated with rapid, excess or extreme movements of the neck or occupations which required her to lift or hold objects in either hand for a prolonged period of time (see Dr Teychenne’s report 6 May 2007, page three). He considered that her conditions could be attributable to the nature and conditions of her employment and that employment was a significant contributing factor to her complaints.
In a certificate dated 23 July 2007, Dr Luong certified Ms Le fit for suitable duties for four hours per day four days per week. He restricted her to lifting less than two kilograms, but added, “no lifting no pulling”. He stated her diagnosis to be “crush injury left hand; bilateral carpal tunnel syndrome”.
In her statement dated 23 August 2007, Ms Le said that she feels she could do light duties with restrictions, for example, as a shop assistant and that she has asked for work without success (Ms Le’s statement, paragraph 48). Some of her more significant continuing problems, as listed in her statement, include:
(a)an inability to grip things well;
(b)numbness in the left hand;
(c)inability to cook;
(d)inability to do much housework;
(e)inability to make dresses;
(f)pain and pins in both hands, and
(g)pain in both wrists.
Though it has not formed part of the Application, Ms Le also complained of continuing emotional problems, such as anxiety, sadness due to her inability to make dresses, and an inability to form relationships due to feeling self conscious because of the appearance of her left hand.
Dr Bodel assessed Ms Le’s left hand in his MAC of 14 December 2007 and noted (at page four):
“Inspection of the left hand shows that there has been an amputation of the middle finger at the level of the distal interphalangeal joint. She has full wrist flexion on the left hand side of 60 degrees but only 50 degrees of extension of the wrist. There is no restriction of radial or ulnar deviation and no restriction of forearm pronation or supination. There is no restriction of movement of the thumb or little finger of the left hand. There is a 10 degree restriction of flexion at the metacarpophalangeal joint of the index, middle and ring fingers of the left hand and a slight restriction of flexion and extension at the proximal interphalangeal joint of the index, middle and ring fingers. The exact measurements are again contained in the accompanying worksheets. There is an amputation at the level of the distal interphalangeal joint of the middle finger and there is also a 20 degree restriction of flexion into the distal interphalangeal joint of the index and ring fingers. In addition to that there is a 30 degree ulnar deviation at the distal interphalangeal joint in the left ring finger. There is no objective sign of sensory loss in the left hand. There is scarring and pigmentation in the scarring, particularly over the index finger and over the donor site on the front of the left wrist. Because of the complexity of this scarring this should be separately assessed by a plastic surgeon.”
Dr Meares, hand, plastic and reconstructive surgeon, examined Ms Le’s left hand at the request of the insurer on 21 February 2008 and reported on 1 April 2008. He concluded that Ms Le’s crush injury left her with stiffness in her left index finger, a partial amputation of her middle finger with altered sensation, and altered sensation and stiffness in the ring finger. He thought that she was fit for office and retail work, but she was unfit for her pre-injury duties and it was unlikely that she would return to work in the chicken industry.
THE ARBITRATOR’S REASONS
The Arbitrator set out the background to the claim and found:
(a)accepting Dr Teychenne’s evidence in preference to Dr Stapleton’s, Ms Le developed bilateral carpal tunnel syndrome after she commenced light duties that involved repetitive work flicking chicken parts into tubs for 24 hours per week for the best part of nine months (Reasons, paragraph 26);
(b)Ms Le was clearly partially incapacitated for work, as a result of her crush injury, at the time she stopped work because of her carpal tunnel syndrome (Reasons, paragraph 27);
(c)having found that the carpal tunnel syndrome resulted from the nature and conditions of Ms Le’s employment, and not the guarding of her left hand, it followed that the carpal tunnel syndrome was a discrete injury separate from the crush injury and Ms Le was entitled to two awards for incapacity such that the combined amounts should not exceed her actual earnings (Reasons, paragraph 28);
(d)based on the information in Cordina’s letter of 23 September 2004, Ms Le’s “probable earnings” were $830.00 per week ($20,748.97 divided by 25 weeks = $829.95 per week) (Reasons, paragraph 30);
(e)in relation to the crush injury, Ms Le has an entitlement to the maximum statutory rate from 12 December 2005 to date and continuing (Reasons, paragraph 31);
(f)in relation to the second injury (the carpal tunnel syndrome) Ms Le “has an entitlement to weekly benefits pursuant to ss 36, 37 and s40” (Reasons, paragraph 31);
(g)since 23 July 2007, Ms Le has been certified fit for suitable duties for only 16 hours per week, but before the carpal tunnel injury she had been “deemed fit to work 24 hours per week” on suitable duties (Reasons, paragraph 33);
(h)Ms Le has an understanding of English, but her oral skills are weak. She is embarrassed about her hand and the scarring and this may impact on the type of work she might be comfortable seeking. She was well presented and is keen to identify employment for herself. Ms Le would be able to earn at least $272.00 per week (equivalent to 16 hours per week at $17.00 per hour) since 23 July 2007 (Reasons, paragraph 33), and
(i)compensation for pain and suffering under section 67 of the 1987 Act to be $14,000.
ISSUES IN DISPUTE
Cordina argues that the Arbitrator erred in:
(a)finding that Ms Le suffered total incapacity due to carpal tunnel syndrome;
(b)her determination that the total of weekly benefits payments are not to exceed Ms Le’s “probable earnings”;
(c)her determination that Ms Le’s “probable earnings” were $830.00 per week;
(d)finding that Ms Le suffers two separate incapacities (as opposed to one incapacity resulting from two separate injuries);
(e)failing to apportion liability to pay weekly compensation pursuant to section 22 of the 1987 Act;
(f)failing to properly assess, under section 40 of the 1987 Act, the extent of Ms Le’s partial incapacity resulting from two separate injuries, and
(g)determining that Ms Le is entitled to two awards of weekly compensation.
Essentially, the appeal comes down to the following issues:
(a)is Ms Le entitled to two awards of weekly compensation (‘two awards’) and, if so, the method by which such compensation is to be calculated (‘method of calculation of compensation’);
(b)was Ms Le totally incapacitated from 12 November 2005 until 23 July 2007 (‘total incapacity’);
(c)what is the correct figure for probable earnings but for injury under section 40(2)(a) of the 1987 Act (‘probable earnings’), and
(d)whether the provisions of section 22 of the 1987 Act apply so as to require apportionment of the award of weekly compensation (‘apportionment’).
Cordina does not dispute the Arbitrator’s finding in respect of cause of the carpal tunnel syndrome, but does dispute the entitlements that are said to flow from that finding.
SUBMISSIONS DISCUSSION AND FINDINGS
Two Awards
Cordina submits:
(a)Dr Luong attributes Ms Le’s incapacity (inability to work full hours or to lift weights greater than two kilograms) to both injuries and, therefore, there is only one incapacity. The ongoing incapacity may well be considered to be due to two separate and discrete injuries, however, the proper approach is to apportion liability to pay weekly compensation between the two injuries under section 22 of the 1987 Act;
(b)the relevant authorities are Harwood v Wyken Colliery Co [1913] 2 KB 158 (‘Harwood’); Doudie v Kinneil Cannel & Coking Coal Company Limited [1947] AC 377 at 384 (‘Doudie’); Biegelmann v Eglo Engineering Pty Ltd [1979] 2 NSWLR 522 (‘Biegelmann’); Sydney City Council v Ince (1989) 16 NSWLR 690 (‘Ince’); Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583 (‘Holmes’);
(c)Ince is authority for the proposition that, in certain circumstances, where a worker is partially incapacitated in the course of his employment with one employer and thereafter suffers another injury resulting in partial incapacity when employed by another employer, each state of partial incapacity may attract a separate award of weekly benefits. This result is not inconsistent with Holmes, and
(d)in Nowakowska v Home Care Services of NSW [2008] NSWWCCPD 62 (‘Nowakowska’), President Keating extended the Ince principle to a situation where a worker suffered partial incapacity as a result of an injury occurring in 2002 and then suffered total incapacity (whilst employed by the same employer) as a result of a later injury in 2005. Nowakowska was wrongly decided and that:
(i)the plain wording of section 40(5) of the 1987 Act prevents weekly payments of compensation being awarded to an injured worker in respect of any period of partial incapacity for work in excess of the weekly payment that would be payable to the worker as “if it were a period of total incapacity for work”. This statutory provision should take precedence over earlier decided cases which were decided under the Workers Compensation Act 1926 (‘the 1926 Act’) or the English workers compensation legislation, and
(ii)in Ince, the Court of Appeal was not concerned with a situation where the worker suffered two injuries with one employer, or the situation where a worker suffered an injury resulting in partial incapacity followed by an injury which resulted in total incapacity. The facts in Nowakowska were more analogous to those in Biegelmann and the President should have preferred the reasoning in Biegelmann.
Ms Le submits:
(a)she suffered two discrete injuries with two discrete pathologies that have given rise to two discrete incapacities;
(b)the partial incapacity resulting from the crush injury relates to the loss of dexterity and strength in her left hand. Dr Luong’s certificate of 22 December 2004 restricted her to suitable duties (lifting less than two kilograms) for four hours per day for three days per week. Dr Sackelariou certified similar restrictions in his certificate of 8 March 2005. Ms Le increased her hours on suitable duties to 24 per week and then stopped work because of her carpal tunnel syndrome. On 23 July 2007, Dr Luong certified Ms Le to be fit for suitable duties (lifting less than two kilograms, “no lifting no pulling”, and “restricted” keying) for 16 hours per week. The incapacity from the second injury relates to a loss of dexterity and strength in both arms and wrists. Thus, the second injury reduced Ms Le’s capacity by a further eight hours per week;
(c)the circumstances are consistent with the observations of Acting Deputy President Handley in Mistral Plantations Pty Ltd v McIntyre [2005] NSWWCCPD 65 at [36], and
(d)since Ince, the law has developed consistently along the line that two awards of weekly compensation are, in the appropriate case, possible.
The relevant authorities, and their effect, are summarised in the judgment of Clarke JA (Hope and Meagher JJA agreeing), in Ince. In Doudie, a worker receiving fifteen shillings a week compensation in respect of a partial incapacity subsequently suffered a second accident whilst working for the same employer and became totally incapacitated. The House of Lords held that he was entitled to compensation upon the basis of total incapacity in addition to the sum of fifteen shillings a week, which he was already receiving in respect of the partial incapacity. Clarke JA noted the established principle:
“that liability to pay compensation under the Act for partial incapacity does not cease because at a later date the worker becomes totally incapacitated for work as a result of events unconnected with the accident for which he is being compensated, for example, by supervening illness: M’Cann v Scottish Co-operative Laundry Association Ltd 1936 SC (HL) 12; [1936] 1 All Eraring 475 and Harwood v Wyken Colliery Co [1913] 2 KB 158 at 170.” (emphasis added)
In Harwood, Buckley LJ (at 167) well illustrated the point in an example reproduced by Clarke JA, at 697G – 698A in Ince:
“…Suppose the man before sustaining any injury was earning 28s a week, and that he suffers…a first injury which reduces his earning capacity to 21s, and suppose that he then suffers…an injury which produces total incapacity, and would still produce total incapacity even if the first injury had not been sustained. At the date of the first accident he was a 28s man reduced by injury to 21s. At the date of the second accident he was a 21s man reduced by injury to total incapacity. For the second injury he will be compensated on that latter footing. His compensation for the first injury, by which he was reduced from a 28s man to a 21s man, ought to continue also…This view of the matter shews that although there is in a sense no continuing inability to earn wages due to the first accident after the second and greater injury, yet there is a continuing depreciation of the wage earner which produces its effect when he is affected by the second accident.”
His Honour observed that the principle for which Doudie stands has been “continuously applied in this State: Shaw v Darling Island Stevedoring & Lighterage Co Ltd [1957] WCR 134; Beaton v Yips & Co [1966] WCR 78; Gatti v Penfolds Wines Pty Ltd [1969] WCR 197 and Holmes v Civil & Civic Pty Ltd (1970) 72 SR (NSW) 583; 92 WN (NSW) 1021”.
In Holmes, the Full Court of the Supreme Court applied Doudie in holding that it was open to the tribunal to make separate awards of compensation in respect of two separate partial incapacities. Sugarman A.C.J. (Holmes JA agreeing) said (at 589):
“Section 11(1) is not, of course, the source of the right to compensation for partial incapacity. That comes from s.7 read with s.9. Section 11(1) merely prescribes the maximum amount which may be awarded, with a discretion conferred within that maximum. There is no provision in the Act which prevents a worker enjoying the benefit of more than one award for partial incapacity at the same time, whether against the same employer or different employers. Whenever there is an injury resulting in partial incapacity a right to compensation arises subject to the possibility that, causing no present loss of earnings, it may for the time being result only in a declaration of liability. In each case the formula in s.11(1) must be applied in determining the maximum of the weekly payment. It would appear, however, that the scheme is so devised that in its normal working no excess over the original pre-injury earnings, such as is complained of here, can occur; the possibility of that may only arise in an unusual sequence of events, such as happened in this case.”
His Honour expressly noted (at 592) that, whilst compensation for a partial incapacity will not be “eliminated or reduced merely because the worker is receiving weekly payments from another employer”, he was not referring to the discretion embodied in the words “but shall bear such relation to the amount of that difference as under the circumstances of the case may appear proper” (see section 11(1) of the 1926 Act). This provision is substantially reproduced in section 40(1) of the 1987 Act, which reads “but shall bear such relation to the amount of that reduction as may appear proper in the circumstances of the case”.
Thus, Doudie is clear authority, accepted and applied in New South Wales, that, in the appropriate case, a worker is entitled to recover an award of partial incapacity and, in respect of a “different total incapacity” (Ince, at 698F), an award of total incapacity. However, the recovery of such awards is subject to two important qualifications. First, there must be a finding that there are two separate and distinct incapacities, and, second, the quantification of the award for partial incapacity is subject to the application of the discretion in section 40(1) of the 1987 Act (see below at [59(c)] and [83]).
To the extent that Cordina relies on Biegelmann, I do not accept that that authority advances its position, or establishes that Nowakowska was wrongly decided. In Biegelmann, the Court held that the worker was not entitled to recover an award for partial incapacity under section 11(1) of the 1926 Act and an award for partial incapacity deemed total under section 11(2). In Ince, the Court gave leave to argue that Biegelmann was wrongly decided and Clarke JA concluded (at 701F) that he was “unable to accept the reasoning of the majority in Biegelmann”, and declined to follow it. Therefore, Biegelmann did not stand as a barrier to the maintenance of an award for partial incapacity and an award for total (whether actual or deemed) incapacity, though, for reasons not relevant to the appeal before me, the trial judge’s finding (in Ince) of two awards “as if his incapacity were total” (under section 11(2) of the 1926 Act) could not stand.
Significantly, in the context of the present appeal, Clarke JA expressly noted (at 701D) that Buckely LJ’s reasoning in Harwood (see [52] above) would apply “whether or not the injuries were received while working for this same employer”, though “the example is easier to understand when different employers are involved”. His Honour also considered the authority of National & General Insurance Co Ltd v South British Insurance Co Ltd (1982) 149 CLR 327, where it was observed that a single incapacity may be attributable to more than one injury, and noted (at 702D) that the decision was to be distinguished from “the case of a worker who receives a number of injuries leading to a number of separate incapacities”.
The effect of the above authorities may be summarised as follows:
(a)a worker who has received two injuries that have resulted in two separate and distinct incapacities may, in the appropriate case, supported by relevant evidence, recover two concurrent awards of weekly compensation regardless of whether the second injury has resulted in total or partial incapacity (Doudie, Holmes and Ince);
(b)the two injuries do not have to be received with different employers in order for the worker to be entitled to two awards (Ince at 701D and Holmes at 592);
(c)whilst a finding of a total incapacity, subsequent to a finding of partial incapacity, will not eliminate the liability for the initial partial incapacity, the calculation of compensation payable under section 40 for the initial partial incapacity calls for the application of the discretion in section 40(1) (Holmes at 592) in determining the amount of compensation that is “proper in the circumstances of the case” (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50). The proper application of the discretion in such a case (where the subsequent incapacity is total) may well result in the award for the initial partial incapacity being reduced to a nominal amount because the subsequent total incapacity will have eliminated the workers ability to earn in any event. The exercise of the discretion may also be relevant in a situation where the subsequent incapacity is partial, but the precise impact on the initial partial incapacity will depend on the facts of the particular case, and
(d)an entitlement to two awards is subject to the following limit on the quantum of compensation that may be awarded. The combined compensation under the two awards, plus the worker’s residual earning capacity, must not exceed the amount the worker would have earned had he or she remained uninjured (Alcan Australia Ltd v Jordan (1995) 11 NSWCCR 475 at 482E (‘Jordan’)). This does not offend section 40(5) of the 1987 Act, which restricts the compensation payable for “any period of partial incapacity” as a result of an injury (see section 33 of the 1987 Act) but says nothing about the quantum of compensation payable in respect of multiple awards resulting from multiple injuries.
The determination of whether two injuries have resulted in separate and distinct incapacities is not done in the abstract, but is done by looking at the labour market in which the worker is working or may reasonably be expected to work or to look for work. It will be a question of fact in each case and it should not be assumed that it will be the norm for two injuries to result in two incapacities.
Applying the above principles to Ms Le’s case requires the following questions to be answered:
(a)has Ms Le received one injury or two;
(b)has she sustained one incapacity, or two separate and distinct incapacities, and
(c)what is the appropriate compensation payable.
The evidence establishes that Ms Le sustained two injuries with Cordina. The first was the crush injury on 26 August 2004 and the second was the carpal tunnel injury. These findings have not been challenged on appeal. Whilst there is some evidence that Ms Le’s right hand/wrist symptoms developed because she had been favouring her left hand (see Ms Le’s statement, paragraph 32 and Dr Teychenne’s report of 6 May 2007), the better evidence, which the Arbitrator accepted (rightly in my view) is that of Dr Teychenne that the carpal tunnel syndrome is attributable to the nature and conditions of Ms Le’s employment and is a separate injury. The Arbitrator correctly rejected Dr Stapleton’s evidence and, for the reasons she gave at paragraph 26 of her decision, I agree with her comments and findings about his evidence.
On the question of whether the above injuries have resulted in one incapacity or two, I do not accept Ms Le’s submissions. The evidence does not establish that Ms Le has two “separate” (per Clarke JA in Ince) or “distinct” (per Handley JA in Jordan) incapacities.
The facts in Jordan are a good illustration of the kind of situation where it was held to be appropriate to find that separate incapacities had resulted from multiple injuries. In that case, the worker developed “pot room asthma” in 1982. In August 1986 he injured his back, but continued working. In March 1989 he injured his left knee and back, and underwent knee surgery in September of that year. He lost no time from work until his employment was terminated in 1990. Because of the effect of the transitional provisions in the 1987 Act, his first back injury was deemed to have happened in March 1989 and these constituted a single injury for the purposes of the 1987 Act (at 483C).
The trial judge made three awards: first, a closed period in respect of the asthma (not the subject of appeal), second, under section 11(2) of the 1926 Act based on the asthma, and, third, under section 40 of the 1987 Act based on the knee and back injuries (the orthopaedic injuries). The Court of Appeal (Handley JA with Gleeson CJ agreeing) set aside the section 11(2) award on the basis that the orthopaedic injuries destroyed the mutuality, which is central to an employer’s obligation under section 11(2) (at 481G). The Court also found error in that the quantum of the awards exceeded the worker’s probable earnings had he not been injured. The Court added (at 483E), however, that the worker had “two distinct partial incapacities” (one as a result of his inability to work in the pot room because of his asthma and one as a result of his inability to engage in lifting heavy weights or traverse uneven ground or climb stairs because of his orthopaedic injuries) resulting from separate injuries and he was therefore “entitled to separate awards under section 40(1)”. The matter was remitted for the calculation of the quantum of those awards.
The matter of Cullen v Oceanic Coal Australia Limited (West Wallsend Colliery) (unreported 6 October 2004, Bishop CCJ, No. RJ18 of 2004) is also instructive. In that matter his Honour entered two separate awards against the employer for partial incapacities in addition to confirming the continuation of a third (existing) award of partial incapacity. His Honour found “separate” partial incapacities for a right shoulder injury in 1993, a right eye injury on 15 December 2000, and a left knee injury on or about 26 June 2001. No challenge was made to the fact that the total compensation payable greatly exceeded the maximum in section 40(5) of the 1987 Act.
Dr Luong’s report of 25 October 2005 provides no assistance on the issue of whether Ms Le has suffered two separate and distinct incapacities, but merely states, under “Incapacity & Prognosis”:
“- Mrs T H LE has restriction of flexion of the index middle and ring fingers of the left hand; her present condition is permanent.
- She has some difficulties with cooking, housework, particularly any activity involving gripping with both hands especially with [the] left hand (injury).
- I assess Mrs Le permanent disabilities and would estimate that she has 19% whole person impairment.”
It is difficult to discern in this report any separate or distinct incapacity as a result of the carpal tunnel injury, as opposed to the crush injury.
Dr Luong’s medical certificates are just as unhelpful. The first medical certificate in evidence dealing with the question of fitness, as a result of the carpal tunnel injury, is dated 14 November 2005 (not 29 March 2006, as Cordina has submitted). The November 2005 certificate merely gives a diagnosis of bilateral carpal tunnel syndrome, describes the management plan as “medication physio supervision”, and declares Ms Le unfit to work from 14 November 2005 to 18 November 2005. There are seven further certificates to the same effect between November 2005 and January 2006.
The certificate of 27 January 2006 refers to the crush injury to the left hand and the carpal tunnel syndrome and declares Ms Le unfit until 28 February 2006.
Dr Luong next provided two certificates dated 29 March 2006. Both declare Ms Le unfit from 18 December 2005 until 18 April 2006, one because of the carpal tunnel syndrome and the other because of the crush injury. Next, he provided two certificates dated 19 April 2006, one because of the carpal tunnel syndrome and the other because of the crush injury. Next, his certificate of 19 May 2006 declared Ms Le unfit until 20 June 2006 because of her carpal tunnel syndrome. His next eight certificates declared Ms Le unfit because of both conditions. The last of those certificates is dated 26 March 2007. It declared Ms Le to be unfit until 26 April 2007.
Dr Luong provided no further certificates until 23 July 2007, when he declared Ms Le fit for suitable duties (lifting up to two kilograms, no lifting or pulling, and restricted keying) for four hours per day four days per week, as a result of the crush injury and the carpal tunnel syndrome. No explanation is offered in the evidence for this change in the certification from unfit to fit for suitable duties. Ms Le’s statement does not suggest any change in her symptoms in that period. The evidence offers no explanation for the absence of certificates in the three months from the end of April 2007 until 23 July 2007.
Dr Luong provided three further certificates between August and November 2007 in the same terms as the certificate of 23 July 2007, namely, that Ms Le’s incapacity resulted from both injuries. The certificates of 20 December 2007 and 25 January 2008 are in similar terms, but the reference to “no lifting or pulling” is deleted. His last certificate is dated 21 February 2008. It declares Ms Le fit for suitable duties (no lifting over two kilograms and restricted keying) for four hours per day for three days per week as a result of the crush injury, amputation of the left middle finger, muscle atrophy of the right upper limb and bilateral carpal tunnel syndrome. There is no explanation for the reduction in hours and no explanation of the cause of the muscle atrophy.
In his report of 6 May 2007, Dr Teychenne was more detailed in his description of Ms Le’s restrictions, but essentially concluded that, in view of the carpal tunnel syndrome, Ms Le was unfit to continue work on a process line or for activity which required repeated use of the hands. He made no specific comment of her incapacity as a result of the crush injury.
In his report of 6 December 2005, Dr Stapleton considered Ms Le was unfit for employment, but made no specific comment about her incapacity as a result of her crush injury.
In Ms Le’s statement of 23 August 2007, no attempt is made to identify the restrictions she has as a result of one injury compared to the other. The crush injury has clearly affected Ms Le’s ability to carry out manual work because she “always guards her left hand” and she uses her right hand for everything. Similarly, the carpal tunnel syndrome has also affected her ability to engage in manual work because of pain and an inability to firmly hold objects. Having regard to the authorities of Ince and Jordan, however, I am unable to determine that the carpal tunnel syndrome has resulted in an incapacity that is separate and distinct from the incapacity resulting from the crush injury. On the limited and unsatisfactory evidence tendered, I am comfortably satisfied that, in the labour market reasonably accessible to her, Ms Le’s injuries have resulted in one incapacity, namely, an incapacity to engage in full time unskilled manual work requiring the lifting of objects heavier than two kilograms.
It follows that the Arbitrator erred in purporting to make two separate awards for weekly compensation.
Total Incapacity
Cordina submits:
(a)the only evidence in support of a finding of total incapacity is in the medical certificates from 12 December 2005 until 23 July 2007. When Dr Teychenne assessed Ms Le on 24 April 2007, he did not suggest that she was totally incapacitated for work;
(b)further, Dr Teychenne referred to Ms Le having symptoms in her neck and right shoulder, as well as her carpal tunnel syndrome. There is no allegation of any injury to the neck and shoulder. Therefore, the Arbitrator’s finding of total incapacity between 12 December 2005 and 23 July 2007 is not supported by Dr Teychenne;
(c)the first two certificates that relate to the period of total incapacity are dated 29 March 2006. These certificates “back date” the period of incapacity to cover the period from 18 December 2005 to 18 April 2005 and “constitute unsatisfactory evidence”. The first relates to the carpal tunnel syndrome and gives a date of injury of 14 November 2005; the second relates to the crush injury and gives a date of injury of “25/8/04”. The fact that the doctor has produced separate certificates on the same day attributing total incapacity to two separate injuries “raises doubts as to the validity of those certificates”. There are no certificates for the period from 19 May 2006 until 14 August 2006. From 14 August 2006 until 26 March 2007 there are certificates that certify Ms Le as being totally unfit for work from 19 August 2006 until 26 April 2007. In each of these certificates, Dr Luong attributes Ms Le’s unfitness to both “the 14 November 2005” injury (the carpal tunnel injury) and the crush injury. There is no certificate covering the period 27 April 2007 until 23 July 2007. On 23 July 2007, Dr Luong certified Ms Le fit for “suitable duties” (because of both injuries) until 23 August 2007;
(d)the Arbitrator’s finding of total incapacity based on the carpal tunnel injury is not supported by “the medical evidence referred to of Dr Luong” [sic, Dr Teychenne] and there are “gaps” in the periods covered by the medical certificates, and
(e)the nerve conduction study of 24 April 2007, revealed that the distal motor latency was not as markedly prolonged as it had been in the study done on 14 June 2005. This does not indicate a significant case of bilateral carpal tunnel syndrome and certainly not one that would support a finding of total incapacity.
Ms Le submits:
(a)Cordina did not attack Ms Le’s credit or the “validity” of Dr Luong’s certificates at the arbitration;
(b)incapacity is a question of fact. Ms Le was born in Vietnam and has limited English skills. Her employment experience in Australia has been as a farm hand and process worker. Her only saleable skill on the open labour market is her capacity to perform physical work. The onset of the carpal tunnel syndrome effectively destroyed her residual partial incapacity until 23 July 2007;
(c)“Dr Shakleton’s” [sic, Dr Stapleton’s] report of 6 December 2005, provided evidence that Ms Le was unfit for her pre-injury work;
(d)Dr Teychenne stated in his report of 6 May 2007 that, in view of the carpal tunnel syndrome, he did not consider Ms Le “was fit to continue to work on a process line” or for activity that required repeated use of the hands;
(e)a theoretical capacity for some work does not negative a finding of total incapacity (Moran Health Care Services v Woods (1997) 14 NSWCCR 499 and Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206). Ms Le’s inability to use her hands due to the carpal tunnel syndrome rendered her unemployable;
(f)regardless of the date of the certificates, it is an immutable fact that Ms Le was incapacitated after November 2005. She had been able to work until she suffered carpal tunnel syndrome and was unable to work thereafter, and
(g)that there are gaps in the period covered by the certificates is of no moment. The majority of the period was covered and there is no evidence suggesting any change in Ms Le’s condition over the period. Ms Le is entitled to rely on “the presumption of continuity” and need only establish her case on the balance of probabilities.
The gaps in the certificates are unsatisfactory and are unexplained. The gap from 27 April 2007 until 23 July 2007 is particularly troubling, as neither Dr Luong nor Ms Le gave evidence of her condition in that period.
It is correct that Dr Teychenne did not declare Ms Le to be totally unfit for work and that some of the restrictions he placed on her were the result of conditions that have not been pleaded against Cordina. That fact does not necessarily prevent a finding of total incapacity if other evidence supports it. Ms Le sustained a very serious injury to her left hand. Given the nature of that injury, and its consequences for her, she deserves credit for her efforts to return to work with Cordina, when certified fit to do so on suitable duties. She persevered with those duties until certified unfit by Dr Luong in November 2005. In December 2005, Dr Stapleton stated that Ms Le “was not fit for employment”. In his July 2006 report, he stated that “before Ms Le is considered as a candidate back for light duties, a nerve conduction study should be performed and consideration given to her having an endoscopic decompression of both carpal tunnels” (emphasis added). He added at page six that she had a significant incapacity for work. These statements tend to support Dr Luong’s evidence of total unfitness and help to partly offset the failure to obtain medical certificates for the July/August period in 2006.
Given the full history of this matter, the nature of her injuries, Ms Le’s limited education, and the evidence as a whole, I am satisfied that Ms Le was totally unfit for work from 12 November 2005 to 26 April 2007, as a result of a single incapacity caused by her crush injury and her carpal tunnel injury. There is no evidence, however, that Ms Le was totally unfit from April until July 2007 and there is no explanation for the change in certification on 23 July 2007. The “presumption of continuity” may well have assisted Ms Le if she had given evidence that she remained totally unfit in that period. She did not give that evidence.
It follows, for the reasons set out at [67] to [76] above, that I do not accept that Ms Le is entitled to recover an award for partial incapacity resulting from the crush injury in addition to the award for total incapacity. Had I determined Ms Le to be entitled to a second award for partial incapacity resulting from the crush injury, such an award would only have been for a nominal amount in any event. That is because the discretion in section 40(1) of the 1987 Act requires a factual enquiry to be undertaken to determine the actual loss sustained by the worker by reason of his or her partial incapacity (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87). If, contrary to my finding, Ms Le’s carpal tunnel syndrome had, on its own, rendered her totally unfit, then her ability to earn (step one in assessing her entitlement to a section 40 award in respect of the crush injury) would have been, effectively, nil. Whilst the discretion cannot be used to reduce an entitlement to nil (Kesen v Luke Singer Pty Ltd (1989) 5 NSWCCR298), it would certainly have warranted a very significant reduction in the difference between Ms Le’s hypothetical probable earnings and her ability to earn.
Probable Earnings
Cordina submits:
(a)the weekly compensation claimed at Part 5.1 of the Application is “$611.65 per week per s 36”. Under “Schedule of Wages Claimed” at Part 5.2 of the Application, the sum of $611.65 is stated to be the figure for “comparable/probable earnings” and the “award at pre-injury employment”. It was not until the arbitration on 26 June 2008 that any suggestion was made that probable earnings should be anything other than $611.65 per week. No amendment was made to the Application;
(b)procedural fairness dictates that, if Ms Le wished to increase the amount alleged for probable weekly earnings, leave should have been sought from the Arbitrator to amend the pleadings and the employer given an opportunity to respond, and
(c)no authority has been advanced as to why probable earnings should be higher than the amount claimed in the Application ($611.65 per week) and the Arbitrator erred in finding probable earnings to be “$830/week”
Ms Le submits:
(a)by letter dated 23 September 2004, Cordina provided the following wage information:
“3. Earnings Information - $16.09616 per hour equal to $611.65 per 38 hour week. Earnings between 22/2/04 to 15/08/04 were $20,748.97 gross, $16,063.17 nett.”
(b)at the arbitration, Mr Trainor submitted that Ms Le’s actual earnings were, based on the letter of 23 September 2004, $800 per week (T7.4);
(c)even if the figure in the Application was in some way misleading, Cordina could have sought to adduce further evidence on Review, which it has not done;
(d)it was open to the Arbitrator to find probable earnings of $830 per week and would have been erroneous, given the evidence before her, if she had not done so, and
(e)the fact that Ms Le’s probable earnings were pleaded inaccurately should not disentitle her of the opportunity of having the Arbitrator, after considering the totality of the evidence, substitute an incorrect figure with the correct figure.
The Arbitrator found probable earnings to be $830 per week.
Cordina’s challenge to the Arbitrator’s finding on probable earnings is well founded. Counsel for Cordina objected to Ms Le relying on the figure arrived at after an analysis of the figures in the letter of 23 September 2004 (T7.7). Counsel for Ms Le did not seek to amend his client’s claim and the Arbitrator did not rule on Cordina’s objection, but proceeded to find probable earnings to be $830 per week. In the absence of an amendment being made to claim the higher figure, which would have required that Cordina be given the opportunity to put on evidence in response, the Arbitrator erred in determining probable earnings to be a figure that was never claimed. In these circumstances Cordina has been denied procedural fairness in that it has been denied the opportunity to call evidence as to the amount Ms Le would probably have been earning had she not been injured.
In view of this error and in light of the evidence in Cordina’s letter of 23 September 2004, the proper course to adopt is to remit the calculation of Ms Le’s entitlement to weekly compensation from 27 April 2007 to date and continuing to a different Arbitrator for re-determination in accordance with the reasons in this decision and to give each party leave to adduce such further evidence as may be appropriate.
Apportionment
Cordina submits that, as the Arbitrator found that Ms Le suffers from an incapacity resulting from “more than one injury”, she was “required” to apportion liability under section 22 of the 1987 Act. It relies on section 22(4) of the 1987 Act, which provides:
“(4) Liability to pay compensation under this Act may be apportioned by the Commission even though it is the liability of a single insurer in respect of different periods of insurance, but only if the employer or the Authority applies for such an apportionment.”
The term “may” in section 22(4) indicates that the power to apportion is discretionary. No reasons have been advanced as to why the discretion should be exercised in the present matter and I decline to make an order apportioning liability. This does not prevent Cordina renewing this application at the re-determination, if some proper basis is advanced in support of it.
CONCLUSION
Having conducted a review on the merits (per Sigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am comfortably satisfied that the evidence does not establish that Ms Le sustained two separate and distinct incapacities as a result of her injuries and, as a result, her claim for weekly compensation from 27 April 2007 to date and continuing must be re-determined in accordance with the reasons in this decision. In light of the issue surrounding probable earnings but for her injury, the Application will have to be amended and both sides will need to consider if additional evidence is required.
DECISION
Paragraphs six, seven and eight of the Arbitrator’s determination of 3 July 2008 are revoked and the following orders made:
“1.Award for the worker (Thoa Hong Le) under section 37 at the statutory rate for a worker with no dependents from 12 December 2005 until 26 April 2007.
2. The worker’s claim for weekly compensation from 27 April 2007 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
3. Costs of the second arbitration are to follow the event of that arbitration.”
Paragraphs one, two, three, four, five, and nine of the Arbitrator’s determination of 3 July 2008 are confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
24 October 2008
I, TUYET WALLIS, 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
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