CSR Limited v Jong

[2008] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		CSR Limited v Jong [2008] NSWWCCPD 69
APPELLANT:		CSR Limited
RESPONDENT:		Joao Alcino Martins Jong
INSURER:		CSR Limited (self insurer)
FILE NUMBER:		WCC7020-07
DATE OF ARBITRATOR’S DECISION:		5 March 2008
DATE OF APPEAL DECISION:		3 July 2008
SUBJECT MATTER OF DECISION:		Sections 4, 9A, 38 and 38A of the Workers Compensation Act 1987; fresh evidence; adequacy of evidence to support findings of injury and incapacity; adequacy of reasons; impact of video evidence; decision to permit amendment of the claim; section 261(1) of the Workplace Injury Management & Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:		Leigh Virtue & Associates
Respondent:		Frisina Lawyers
ORDERS MADE ON APPEAL:		(1)     The decision of the Arbitrator dated 5 March 2008 is revoked and the following decision made in its place. (a) The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the 1987 Act as follows: (i) From 28 May 2007 at the rate of $568.50 per week for a period of 26 weeks to 27 November 2007; and (ii)From 28 November 2007 to 27 May 2008 at the rate of $568.50per week. (b)     The Respondent to pay the Applicant’s section 60 expenses. (c)     The Respondent to pay the Applicant’s costs as agreed or assessed. (2)   The matter is remitted to the Arbitrator at first instance for the determination of the Applicant’s entitlements to weekly compensation (if any) after 27 May 2008. (3)   The Appellant, CSR, is to pay 80% of the Respondent, Mr Jong’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 1 April 2008 CSR Limited (‘the Appellant/CSR’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 5 March 2008.

1. The Respondent to the Appeal is Joao Alcino Martins Jong (‘the Respondent/Mr Jong).

1. Mr Jong is presently 53 years of age. He was born in East Timor and came to Australian in 1980. He commenced employment with CSR in September 1987. He was principally employed at CSR’s PGH Brickworks at Horsley Park as a burner operator/kiln operator.

1. In about May 2004 Mr Jong suffered an injury to his right shoulder at work. Following treatment, he resumed employment with CSR on ‘selected duties’ whereby use of his right arm and shoulder was restricted.

1. Mr Jong claimed that in about September 2006 he was required to resume ‘normal duties’. These duties included pushing and pulling of carts in and out of kilns. The carts weighed approximately 70 kilograms.

1. Mr Jong claimed that, in order to protect his right shoulder, he would push the carts mainly using his left leg. Mr Jong claimed that on 16 December 2006 whilst at work he felt severe pain in his left hip, back and left foot.

1. He consulted his general practitioner, Dr So, remained at work until 19 December 2006 and then took holidays.

1. Mr Jong resumed work with CSR on 28 January 2007. He had further medical consultations and was ultimately diagnosed with what he described as “a low back injury and a stress fracture to my left foot”. He reported this injury to his employer in April 2007.

1. Mr Jong remained at work apparently on selected duties until liability for his claim was denied by CSR (in its guise as self insurer) by letter dated 24 May 2005 [sic – 2007].

1. Mr Jong then ceased work and has not resumed since.

1. On 14 September 2007, Mr Jong filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits of compensation from 28 May 2007 to date and continuing together with medical and related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. The parties attended a conciliation/arbitration hearing on 13 December 2007 and again on 14 February 2008. Mr Jong gave brief oral evidence on the latter occasion which is recorded in a transcript of that date. No oral evidence was given at the hearing on 13 December 2007, and the parties’ submissions are recorded in both transcripts.

1. Briefly, the Arbitrator found in favour of Mr Jong awarding him weekly benefits pursuant to section 38 of the 1987 Act.

1. It is from this decision that CSR seeks leave to appeal.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 5 March 2008 records the Arbitrator’s orders as follows:

“1.The Respondent is to pay to the Applicant weekly benefits compensation as follows:

(i)From 28 May 2007 at the rate of $568.50 per week for a period of 26 weeks to 27 November 2007; and

(ii)From 28 November 2007 to date and continuing at the rate of $619.50.

2.The Respondent to pay the Applicant’s section 60 expenses.

3.The Respondent to pay the Applicant’s costs as agreed or as assessed”.

1. A ‘Statement of Reasons’ accompanied the Arbitrator’s determination.

LEAVE TO APPEAL

1. 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 Act (‘the 1998 Act’).

1. The amount at issue on appeal satisfies the threshold requirements in section 352(2) of the 1998 Act, and the appeal was filed in time in compliance with section 352(4) of that Act.

1. Leave to appeal is granted

ON THE PAPERS REVIEW

1. 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.”

1. Whilst initially stating that the appeal could be dealt with ‘on the papers’, CSR, in its submissions annexed to the Appeal Application states as follows:

“The Appellant is of the view that this is a matter which should not be determined on the papers but rather should be given an oral hearing before a Presidential member as the Appeal involves complex issues which would benefit from such an oral hearing. Further transcript of the proceedings is not available at the time that the Appeal is filed and such Transcript is, in the view of the Appellant, best addressed at an oral hearing. Finally an oral hearing is, in the submission of the Appellant, also the appropriate way to address the fresh evidence on which the Appellant seeks to rely”.

1. I will deal with the issue of “fresh evidence” more fully below.

1. Mr Jong submits that the matter is suitable for a determination ‘on the papers’.

1. I note that a copy of the transcript of proceedings on both 13 December 2007 and 14 February 2008 was forwarded to the parties under cover of a letter from the Commission dated 15 April 2008. No further submissions have been made by CSR as to why an oral hearing “should be” held.

1. As CSR would be aware, this issue was considered by the Court of Appeal in Fletcher International Exports Pty Limited v Barrow & Anor [2007] NSWCA 244 (‘Barrow’). As Mason P noted, “… the power is enlivened if the Commission ‘is satisfied that sufficient information has been supplied’”.

1. In the present case, it seems that CSR considers an oral hearing as necessary because the appeal “… involves complex issues …” I am not persuaded that the issues involved are any more complex than in many other cases before the Commission. My task is to consider whether I have “sufficient information” within the meaning of section 354(6) of the 1998 Act and in accordance with Practice Directions numbers 1 and 6 to determine the matter ‘on the papers’. I am satisfied that I do, and that to proceed ‘on the papers’ is the appropriate course in the circumstances.

FRESH EVIDENCE

1. CSR seeks to admit into evidence, as a late document, a medical report from Dr Kai Lee dated 28 February 2008.

1. Whilst Mr Jong does not expressly object to the admission of that report, conceding that it did not exist as at the date of the arbitration hearing, he submits that the report does not “… constitute evidence which would be likely to alter the decision had it been admitted at the arbitration”.

1. I will refer to his other submissions more fully below.

1. The principles guiding the exercise of the discretion to admit fresh evidence or further evidence on appeal was dealt with extensively by Deputy President Byron in MasterBuilders Association of NSW v Allen & Anor [2008] NSWWCCPD 54 where he stated as follows:

“45.     “Section 352(6) of the 1998 Act, provides as follows:

“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

46.       Practice Direction No.6 sets out the process for, and other matters in relation to, seeking leave of the Commission to introduce fresh evidence or additional evidence on appeal. It provides as follows:

“Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).

In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to and the parties should make submissions on, whether:

·            it can be demonstrated that the evidence could not with reasonable diligence

have been obtained by the party and tendered in proceedings before the Arbitrator;

·            the evidence is credible;

·            there is a high degree of probability that there would have been a different

decision if the evidence had been admitted at the arbitration hearing, and/or

·            it is just to admit the evidence in all the circumstances of the individual

case.

Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.

If fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:

·            a schedule of the fresh or additional evidence;

·            a copy of the fresh or additional evidence;

·            a brief outline of the fresh or additional evidence and the reasons why it was

not given in proceedings before the Arbitrator, and

·            submissions on why the fresh or additional evidence should be admitted, or           rejected as the case may be.

Where a party seeks to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.”

1. The function carried out remains “a review of the decision appealed against”, whether or not fresh, additional or substituted evidence is admitted by leave (section 352(5) of the 1998 Act). Clearly, the Commission can receive further evidence in an appeal, in a proper case, by leave (section 352(6) of the 1998 Act).  

1. Deputy President Byron then went on to consider a number of authorities dealing with this issue, finally concluding as follows:

“74. In Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237 (‘Naidu’) Deputy President Roche said, referring to Haider and Nowlan:

‘26. In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (sections 354 (3) of the 1998 Act).

33.Parties should be aware that the Commission’s practice and procedure require that all relevant evidence be exchanged before proceedings are commenced (section 290 of the 1998 Act and Part 10 of the Workers Compensation Commission Rules 2006 (‘the Rules’)). Arbitrators are not ‘a preliminary round’ (per Basten JA in Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSWCA 319 at [108]) and it is only in exceptional circumstances, in order to do justice between the parties, that fresh evidence or additional evidence will be allowed on appeal.’

75.        Ultimately, the application must be determined according to the principles

of substantial justice to the parties.

76.        The issue of admission of fresh, late, additional or substituted evidence has

been the subject of a considerable body of Presidential decisions in the Commission. See for example, Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7; Christopher Michael McMahon v Anthony Lagana and Joseph Lavelle (t/as the vessel “Nimble ll” [2003] NSWWCCPD 22 (‘McMahon’); M S Shipman Pty Ltd v Larry John Matters [2003] NSWWCCPD 19; K-Mart Australia Ltd v Duggan [2006] NSWWCCPD 137; Kahloo v Glenidle Pty Ltd [2006] NSWWCCPD 137; Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135; Gerene Nominees Pty Ltd v Pritchard [2007] NSWWCCPD 189; Naidu; Coles Myer Ltd v Gibson [2008] NSWWCCPD 18.”

1. The late document in this matter is “fresh” evidence, since it did not exist and was not available at the arbitration hearing. On that basis alone, I would regard the report as admissible however, I am not persuaded that there is “… a high degree of probability that there would have been a different decision if the evidence had been admitted …”

1. Mr Jong had earlier been diagnosed with a stress fracture of his left foot. Dr Kai Lee reviewed Mr Jong on 22 February 2008 following an MRI Scan. Dr Kai Lee reported as follows:

“The MRI Scan showed that in fact he has sinovitis of the extensor tendon at the back of his foot. The bone underneath is clear. Going back to his previous x-rays and bone scans, I note that he was diagnosed to have a stress fracture from his previous two bone scans but there is a possibility [my emphasis] that in fact the increase uptake we saw in those bone scans was due to sinovitas … meanwhile I have ordered some blood tests … if the blood test is negative, I will propose to debride the extensor tendon and send the tissue for histology.”

1. Whilst the recent report of Dr Kai Lee raises a question as to the proper diagnosis of Mr Jong’s left foot injury, as Mr Jong rightly points out in his submissions “the report does not detract from any reported injury … the section 74 notice issued by the Appellant employer raises section 9 and 9A of the 1997 Act, but not injury as defined by section 4”.

1. CSR submits:

“The report is significant because it calls into question the diagnosis of the stress fracture to the foot on which the Arbitrator’s award was based and also calls into question the aetiology of the foot condition”.

1. Whilst this may be true, a change in diagnosis does not diminish or discount the primary finding of injury to the left foot and in these circumstances, I am of the view that there exists little if any degree of probability that a different decision would have been made if Dr Kai Lee’s report had been available and admitted into proceedings before the Arbitrator.

1. Accordingly, CSR’s application to admit “fresh evidence” on appeal is refused.

THE ISSUES IN DISPUTE

1. CSR has identified eight grounds of appeal as follows:

“A.     The Arbitrator erred in considering and weighing the competing medical
           evidence and in rejecting the opinion of Dr Millons.

B.        The Arbitrator erred in failing to properly consider the Application of

sections 4 and 9A of the Workers Compensation Act 1987 … and failed to give adequate reasons for determining that the requirements of the said Sections had been satisfied.

C.         The Arbitrator erred in allowing the Applicant to amend the Application to

rely on injury as a result of the nature and conditions of employment in circumstances where no claim had been made in respect of such an allegation.

D.The Arbitrator erred in refusing to admit into evidence the report of Dr

Millons of 14 January 2008.

E.          The Arbitrator erred in taking into account any alleged injury prior to

December 2006 in circumstances where a claim for compensation benefits was only made on 1 May 2007 and therefore not made within six (6) months of any injury prior to that date.

F.          The Arbitrator erred in failing to have proper regard to the significance of

the video evidence so far as it reflected on the credit of the Respondent worker and in weighing the competing medical evidence.

G.The Arbitrator erred in finding that the Respondent worker had satisfied the requirements of sections 38 and 38A of the WCA in the absence of any, or in the alternative any adequate, evidence.

H.         The Arbitrator erred in ordering that payments of weekly compensation in

the period after 28 November 2007 should be at a higher rate than compensation payable in the period prior to that date.”

THE SUBMISSIONS, EVIDENCE AND FINDINGS

1. The grounds of appeal and submissions by CSR may be conveniently summarised into five categories as follows:

·The medical evidence and the opinion of Dr Millons.

·Sections 4 and 9A of the 1987 Act.

·The ‘nature and conditions’ amendment and the impact of section 261(1) of the 1998 Act.

·The video evidence and the report of Dr Millons of 14 January 2008 commenting on the contents of that video.

·The section 38 award.

1. I will deal with each of these issues in turn.

The Medical Evidence

1. Mr Jong relied on opinions from his general practitioner Dr So and his treating orthopedic specialist Dr Kai Lee. His Application also included a number of radiological investigations.

1. CSR relied on the report of Dr David Millons dated 17 May 2007, the principal basis upon which liability was declined on 24 May 2005.

1. CSR has made lengthy submissions on this point stating that “… this error involved the Arbitrator wrongly accepting and relying on the opinions of Dr So and Kai Lee in preference to the opinion of Dr Millons …”

1. The medical evidence was considered by the Arbitrator at various stages in her ‘Statement of Reasons’ before she concluded as follows:

“(23)The medical evidence of Dr So and Dr Kai Lee supports the causal

connection between the swelling observed in December 2006 following work and the stress fracture in the left foot and his back pain and Mr Jong’s work duties between 1 October 2006 and 16 December 2006. By 1 October 2006 Mr Jong had resumed his pre-injury duties, which included pushing and pulling carts, which were very heavy. Mr Jong claims the weight of the carts is about 70 kilograms. This assessment was not disputed by the Respondent. Additionally, the fact that Mr Jong’s duties including pushing and pulling carts is confirmed by Recovre’s reports dated 15 October 2006 and 10 May 2007. The pushing and pulling was assessed by Recovre as ‘heavy’ …. This is consistent with Mr Jong’s claims. I note also that Dr So stated in his report dated 8 May 2007 that Mr Jong mentioned to him ‘that his work is still heavy about 70kg weight of pushing’.

(24)     I therefore accept that during the period 1 October 2006 to 16 December

2006 Mr Jong was carrying out his pre-injury work which included pushing and pulling heavy carts and prolonged standing, walking and bending. I accept Dr So’s and Dr Kai Lee’s opinions that Mr Jong’s work caused a stress fracture in his left foot …

(25)     Similarly I accepted the nature and conditions of Mr Jong’s work in the

period 1 October 2006 to 16 December 2006 caused an injury to his back. I have relied on the opinions of Dr Kai Lee and Dr So. I prefer their opinions to that of Dr Millons because Dr Millons did not consider fully the nature and conditions of Mr Jong’s duties at the relevant time. Dr Millons refers in his report to a report of Recovre dated July 2006 in which Mr Jong’s pre-injury duties were assessed as being light and medium with no heavy lifting tasks. There is no mention of the difficulties in moving the carts. That report is not in evidence before me and so its contents are not known to me and I do not know whether it contains the concession, which appears in the later report of Recovre dated 10 May 2007. However the report of Recovre dated 10 May 2007, which is before me, does not appear to have been provided to Dr Millons despite it being in existence at the time of Dr Millons examination of Mr Jong on 15 May 2007. This report contains the concession that the movement of the carts was difficult and heavy. Accordingly, Dr Millons did not have the complete picture of Mr Jong’s duties and so, I cannot rely on his opinion as being accurate given this important omission”.

1. The Arbitrator has clearly stated her reasons for preferring the opinions of Doctors So and Kai Lee over that of Dr Millons. The thrust of CSR’s submissions on this point seems to be:

“… That a proper consideration of the medical evidence and the reasoning of Dr Millons ought result in an acceptance of the carefully considered and well reasoned views expressed in his report particularly in circumstances where the Respondent Worker carries the onus of proof”.

1. I do not cavil with CSR’s assertion that Dr Millons’ report was “carefully considered” and “well reasoned” but that is not to say that the opinions of Doctors So and Kai Lee were any less “carefully considered” or “well reasoned”.

1. In a report dated 8 May 2007, Dr So recorded that he had first seen Mr Jong on 20 December 2006 with “swelling in the left foot …”. Dr So also suggested a CT Scan of his left hip. At this consultation Dr So also noted “he did mention his work is still heavy about 70kg weight of pushing”.

1. Dr So’s clinical notes, also before the Arbitrator, noted a consultation on 13 December 2006 with a complaint of “swelling in left foot with pain”.  A similar complaint was made in a consultation on 20 December 2006.

1. Subsequent consultations appear to relate to renal complaints as a consequence of which Dr So referred Mr Jong to Dr Bruce Cleland, Consultant Nephrologist and Physician.

1. Because of continuing complaints of problems with the left foot and what would appear to be left hip and leg pain, Mr Jong was ultimately referred for a CT Scan of his spine and various other radiological investigations.

1. In a report dated 1 April 2007 (admitted as a ‘late document’ before the Arbitrator) Dr Cleland stated as follows:

“This gentleman presents [on 28 March 2007] for assessment of a swollen left foot which has been bothering him since September on a background history of left hip and sciatic-type pain and a prior history of renal calculi over 20 years ago … A recent CT Scan of the abdomen and pelvis revealed a tiny calculis in the lower pole of the right kidney … he had a recent CT Scan of his left hip, which proved unhelpful so perhaps his pain is more reflective of a chronic lower back condition. The swelling of the foot would suggest a localized pathology … he is on his feet all day and I just wonder whether he hasn’t suffered a stress fracture. I therefore suggested to Mr Jong that he undergo an x-ray of his left foot, [and] a CT Scan of his spine ...”

1. Mr Jong had a CT Scan of his left hip on 16 January 2007, a CT Scan of his abdomen and pelvis on 17 January 2007, an x-ray of his left foot on 29 March 2007, a CT  of his lumbo-sacral spine on 3 April 2007, a bone scan of his left foot on 5 April 2007 and an MRI Scan of his lumbar spine on 7 May 2007.

1. In a report of 6 August 2007, Dr Kai Lee noted that he first saw Mr Jong on 19 April 2007. Dr Kai Lee stated:

“The diagnosis is stress fracture of the left foot and minor disc injury in the lumbar spine … Both stress fracture and the disc injury were contracted by gradual process … for his foot fracture, it is the result of prolonged walking/standing and movement. Wearing inappropriate shoe wear also aggravated the problem. For the back, the contributing factor is frequent back bending and lifting … his work did involve a lot of standing and walking, lifting and bending. I therefore would consider his employment being a substantial contributing factor to his injuries”.

1. CSR submits that both Doctors Kai Lee and So’s opinions as to the nature of Mr Jong’s duties were “… far less comprehensive than that recorded by Dr Millons”.

1. In short, CSR submits that Dr Millons “comprehensive and detailed” report was more persuasive than the reports relied upon by Mr Jong and that “… it is neither fair nor appropriate for the Arbitrator to object the opinion of Dr Millons …”

1. Counsel for CSR urged the Arbitrator to accept the opinion of Dr Millons. The fact that she did not (and gave detailed reasons for her decision) CSR may well regard as neither “fair nor appropriate” but that is not a proper basis for appeal.

1. There was ample evidence before the Arbitrator in support of her finding that Mr Jong suffered a work related injury to his back and left foot, and I can see no error in her decision to reject the opinion of Dr Millons.

1. I am not persuaded that CSR’s submission that “… neither Dr So nor Dr Kai Lee have given any, or in the alternative sufficient, reasons for an assertion of any connection between the worker’s back and foot condition and the limited period of work carried out between 1 October 2006 and 16 December 2006” is valid or consistent with the totality of evidence before the Arbitrator.

Sections 4 and 9A of the 1987 Act

1. CSR makes the following submissions:

“… The Arbitrator is in error in failing to properly consider the question of whether the worker has actually sustained an injury as defined in section 4 of the WCA. The Arbitrator’s finding of injury in this regard appears to be limited to what is set out in the final sentence of paragraph 29 of the decision being said to be discreet injuries to the back and left foot caused by heavy work in the limited period from 1 October 2006 to 16 December 2006.

The Appellant submits however that the term ‘nature and conditions of employment’ is somewhat meaningless and has properly been described as a term of art. The Appellant submits that there is no basis for suggesting that employment in that limited period … was somehow specifically causative of the worker’s complaints particularly in circumstances where the first complaint of low back symptoms appears to be that recorded by Dr So on 4 April 2007 only …

The worker himself does not specifically seeks [sic] to ascribe his problems to work carried out between 1 October 2006 and 16 December 2006”.

1. At paragraph 29 of her ‘Statement of Reasons’, the Arbitrator concluded as follows:

“I am satisfied that there is sufficient evidence to support the finding that the nature and conditions of Mr Jong’s work from 1 October 2006 to 16 December 2006 caused injury to his left leg/foot and to his back and that these were independent and discreet injuries caused by the heavy work …”

1. Initially, Mr Jong had pleaded injury occurring on 16 December 2006. The claim was amended at an earlier arbitration to claim “nature and conditions of employment from 1 October 2006 to 16 December 2006”. CSR has taken issue with this amendment and that aspect of the appeal I will consider in due course.

1. In a statement dated 15 August 2007, Mr Jong stated as follows:

“(47)In September 2006 I was required to return to my normal duties which

included pushing and pulling of the carts.

(48)From September onwards when I was required to do my normal duties I would try to push the carts using my left leg.

(49)I was very protective of my right shoulder because I was still suffering pain from my previous injury.

(50)Whilst pushing with my left side I would put a lot of pressure onto my left foot to push the cart.

(51)I started feeling some pain in my left hip down my left leg and my left foot.

(52)On 16 December 2006 I was at work.

(53)I was pushing the cart into the kiln at the time when I felt a lot of pain in my left hip area, lower back area and my left foot as well.

(54)The cart weighed about 60 or 70 kgs and was difficult to maneuvre because I had to try and get it around a corner.

(55)I felt a lot of pain in my lower back and also into my left foot.”

1. There did not seem to be any great dispute between the parties that Mr Jong had been on selected duties following his right shoulder injury in about 2004 until approximately September 2006 when he resumed his normal work.

1. In those circumstances, I am of the view that there is ample evidence to support the proposition that work during the period October to December 2006 was “specifically causative” of Mr Jong’s injuries.

1. It appears that because of prior renal problems and gout, the various medical practitioners had some difficulty accurately diagnosing Mr Jong’s complaints. Mr Jong first had an x-ray of his left hip on 16 January 2007. A CT Scan of his spine was carried out on 3 April 2007. Dr Cleland’s opinion is also helpful in this regard since he noted complaints of swelling in the left foot since September 2006 “… on a background history of left hip and sciatic type pain …”

1. The Arbitrator’s finding of “injury” is not confined simply to paragraph 29 of her ‘Statement of Reasons’. She considered all the evidence in paragraphs 20 – 28 before reaching the conclusion set out in paragraph 29 to which I have referred.

1. In my view, there was ample evidence to support the Arbitrator’s finding of an ‘injury’ within the meaning of section 4 of the 1987 Act, and there is simply no basis to CSR’s complaint in this regard.

1. CSR further submits that “… the Arbitrator has also erred in not going on to consider whether employment was a substantial contributing factor to any injury and has not given any adequate reasons for any findings made in this regard.”

1. In CSR’s submissions, “… There were a number of considerations relevant to a determination of the issue of whether employment was a substantial contributing factor to which the Arbitrator has had no regard”.

1. CSR submits that those “considerations” include the pre-existing right shoulder injury, “renal calculis” and “gout”.

1. There have been innumerable decisions dealing with the meaning of “substantial contributing factor” in section 9A of the 1987 Act. Employment must be a “substantial contributing factor to the injury”, but not the sole contributing factor (see Hallett v Commissioner of Police [2004] 1 DDCR 580). What is “substantial” is a matter of impression. (See Harpur v State Rail Authority of NSW (2000) 19 WCCR 256.

1. In CSR’s submission:

“… A proper consideration of all of the evidence should result in a finding to the effect that the Respondent Worker did not suffer injury at all as a result of work between 1 October 2006 and 16 December 2006 or at least, and in the alternative, that employment for that limited period was not a substantial contributing factor to any injury. The Appellant takes some comfort in respect of these submissions from the fresh evidence on which it seeks to rely”.

1. I have already considered the “fresh evidence”. Nothing in that “evidence” suggests that the pre-existing shoulder injury, renal problems or gout had any impact on the condition of Mr Jong’s left foot. This is supported by the reports of Doctors Kai Lee, So and Cleland.

1. It is true that Mr Jong suggested that, as a consequence of his earlier right shoulder injury, he was “protective” of his shoulder and opted to use his legs to a greater degree in order to push the carts.

1. The issue was considered by the Arbitrator at paragraph 28 of her ‘Statement of Reasons’ where she stated as follows:

“I am satisfied therefore that Mr Jong sustained injury to his back and left foot/leg arising out of and in the course of his employment with the Respondent and that the work he was carrying out for the Respondent from 1 October 2007 [sic] to 16 December 2007 [sic] was a substantial contributing factor to those injuries. I have considered whether his lifestyle was a substantial contributing factor or whether there was any other factor that caused the injuries or whether the injuries would have happened anyway. I am satisfied that there is no evidence of any other substantial or indeed contributing factor to the injuries.”

1. At paragraph 29 the Arbitrator noted CSR’s submission that:

“… The cause of the injuries was postural problems due to the injury to the right shoulder. It was submitted that because the right shoulder was not pleaded in these proceedings that it cannot be assumed that it was work related and so the Applicant must fail in his claim for compensation for any incapacity flowing from the back and/or left foot/leg injuries because they are inexplicably linked to the right shoulder injury. It is correct the Applicant claims he was unable to use his upper limbs because of the injury to his right shoulder and that because of this he had to use his legs and back to move the heavy carts. However this does not mean that an injury to those body parts is due to the postural problems. Although they may have played a role he would not have been injured had the work he was undertaking for the Respondent from 1 October 2006 to 16 December 2006 not been heavy and awkward. I am satisfied there is sufficient evidence to support the finding … that these were independent discreet injuries caused by the heavy work and not by the postural problems”.

1. As to Mr Jong’s other medical problems, the Arbitrator dealt with this at paragraph 22 stating as follows:

“Although it is correct that Mr Jong did not make a workers compensation claim until April 2007, there is evidence that he consulted his general practitioner, Dr So on 16 December 2006 and again on 20 December 2006 complaining of swelling in his left foot and pain in his back. Initially Dr So suspected gout because Mr Jong had a history of gout. However this possible diagnosis was discarded by Dr Cleland, the liver specialist, when he examined the Applicant in late March 2007. Dr Cleland suspected a fracture in the foot and recommended further investigations. Mr Jong was then referred to Dr Kai Lee, orthopedic specialist. This, in my view, reasonably explains the delay in diagnoses of the stress fracture in the left foot and the back injury”.

1. Again, the Arbitrator has properly and thoroughly considered all the evidence relevant for her determination of the impact of section 9A of the 1987 Act on Mr Jong’s claim for compensation. CSR’s obvious disagreement with the Arbitrator’s determination is not supported by the evidence.

1. In my view, the Arbitrator has demonstrated “… a proper consideration of all of the evidence …” CSR simply submits that the Arbitrator ought to have come to a different conclusion, but I can see no error in the Arbitrator’s findings on this issue, although such findings are clearly contrary to the outcome sought by CSR.

The ‘Amendment’ Issue and Section 261 of the 1998 Act

1. CSR submits that:

“… The Arbitrator was in error in allowing the Respondent Worker to amend the Application to a Resolve a Dispute to change the date of injury and to substitute an allegation of injury as a result of the nature and conditions of employment from 1 October 2006 to 16 December 2006.”

1. CSR maintains that the initial claim alleged injury “…said to have occurred specifically on 16 December 2006 only …”

1. CSR further submits that:

“The Appellant employer has investigated only that allegation and has specifically disputed that allegation by its letter dated (incorrectly) 24 May 2005) [sic] relying on investigations specifically directed at that allegation.

The Appellant has had no opportunity at all to respond to the alternative allegation of injury made as a consequence of the amendment …

In addition, the further report obtained from Dr Millons on which it sought to rely was rejected. The Appellant submits that this constitutes a denial of procedural fairness and an error on the part of the Arbitrator.

The Appellant submits further that the parameters of the dispute between the Respondent Worker and the Appellant are those which are defined between the claim for compensation and the notification disputing that claim (as opposed to any other claim). In these circumstances, the Commission is not able to consider and determine any dispute going outside the parameters of these documents having regard to the provisions of Part 4 of the WIM unless the Commission is asked to exercise its discretion under section 289A(4) of the WIM. The Respondent Worker made no application at all to the Arbitrator to expand the parameters of the dispute by reference to that section and in these circumstances, the Appellant submits that the Arbitrator was in error in allowing the amendment and allowing the matter to proceed to determination.”

1. Mr Jong’s application to amend his initial claim to allege injury as a consequence of the ‘nature and conditions’ of his employment between October 2006 and December 2006 is set out in the transcript of proceedings before the Arbitrator on 13 December 2007. Mr Jong’s application was opposed by CSR on the grounds of ‘jurisdiction’ and ‘procedural fairness’. The Arbitrator stated as follows:

(Page 2 line 55 of Transcript)

“In the interim I have carefully looked at all the documentation before me and in particular the Applicant’s statement, the statements of his co-workers, Dr Millons’ report and the Workplace Assessment Report, among others. I am not satisfied that there is any prejudice or denial of procedural fairness to the Respondent if the amendment is allowed.

The Applicant’s story has always been consistent as to how he claims he injured his back and his left leg and foot … Dr Millons’ addresses the nature and conditions question at page 8 of his report, where he says:

‘I find it hard to accept that the left foot problems relate to the nature and conditions of his work pushing the kiln cart … Mr Jong started to develop some pain in his back, left hip and left foot around 16 December 2006. He felt that they may have come about as a result of having to push off on his feet to push the kiln cart because he was protecting his right shoulder’.

He then concludes that it’s a fairly remote connection. It’s my view that he has addressed the issues of nature and conditions.

The Respondent has clearly conducted an investigation in the matter, although it does not seek to rely on any investigator’s report if one exists. The statements from that investigator’s report are attached to the application. I don’t see any prejudice or denial of procedural fairness in allowing the amendment.”

1. The Arbitrator then went on to consider the Court of Appeal decision in Barrow. I do not propose to consider the court’s findings on the issue of “jurisdiction” in any detail. In short, the failure to make a claim as required by the legislation will not necessarily be a bar to the recovery of compensation.

1. As Mason P said:

“(39)… One would think that in most cases, like the present, there would be no

question about a dispute having arisen, although there may well be some confusion as to its parameters. The Commission has ample powers to resolve that confusion.

(40)Nor can I see statutory support for the proposition argued by the employer, namely that there has to be a close correspondence between the claim previously notified and the one being pressed in the Commission. In any event, the ‘nature and conditions’ claim was found to have been made out on the facts (see below).”

1. At line 45 of page 3 of the Transcript the Arbitrator stated as follows:

“The jurisdictional issue, I think, interpreting the Barrow case, what was said in that decision is to look – the requirement is to really look at the whole of the claim and whether or not notice was, in fact, given to the Respondent, and, in my view, if you look at the circumstances of the whole of this case, it is very clear to the Respondent that the Applicant is pleading that the work he was carrying out after he resumed normal duties in October 2006 led to the development of symptomotology on 16 December 2006.

I am allowing the amendment”.

1. I agree with the Arbitrator’s conclusion that CSR was well aware of the parameters of Mr Jong’s claim. The material to which the Arbitrator referred clearly contradicts CSR’s assertion that it “… has investigated only that allegation [injury on 16 December 2006]”.

1. For example, annexed to Mr Jong’s application were several statements from co-workers. In a statement from Deborah Cole dated 1 May 2007 she stated:

“The worker said that he was getting pain in his lower back and down his left leg before Christmas … The worker attributed his injury to the pushing /pulling of the cart in the kiln … the worker was not able to provide a specific date of injury.”

1. Craig Broadbridge, Production Manager, also provided a statement dated 1 May 2007. He stated as follows:

“I have a vague recollection of the worker commenting that his back/leg was sore on or about 16 December 2006 … it is possible that the worker had an onset of injury about this time and it is equally possible that the worker’s duties have aggravated any condition subsequent to this … the worker is not the type of person who complains, nor asks for assistance. He just gets in and does his job and goes home … I believe this is a genuine claim. Joao Jong is not the type of person to put in a false claim.”

1. These statements were obtained by CSR and contained in an investigation report from Key Industries Support Services.

1. As to CSR’s assertion that Mr Jong made no application pursuant to section 289 of the 1998 Act, such an application (although without specific reference to the section) was clearly made as the transcript of proceedings on 13 December 2007 shows.

1. Again, as Mason P said in Barrow:

“(39)One can conceive how s.289 may generate an issue as to the Commission’s authority to determine certain disputes unless certain matters have occurred. But nowhere within s.289 does one find any clear toehold for an argument that appears to have been accepted within the Commission… to the effect that the Commission lacks ‘jurisdiction’ to exercise its statutory powers with respect to a dispute if the disputed claim was not in accordance with the guidelines.”

1. In all the circumstances, I am not persuaded that CSR has demonstrated any error by the Arbitrator in her determination to permit the amendment to the claim sought by Mr Jong.

1. A related issue is that raised by section 261 of the 1998 Act. That section provides as follows:

“261(1)       Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.

…

(6)        If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

1. CSR submits that, since Mr Jong made his claim for compensation on 1 May 2007, the Arbitrator “… was in error in relying on the effects of any work carried out by the Respondent worker in the period prior to 1 December 2006 …”

1. It is not disputed that Mr Jong completed a claim form on 1 May 2007. It is also clear from that form that parts of were completed by another person. For example, under the heading “how did the injury occur” the following is recorded:

“Joao informed me his back and left foot were gradually getting sorer [sic] from the 16/12/06 when pulling kiln carts on the kiln”.

The date of injury was recorded as 16 December 2006.

1. Nevertheless, it is clear from the totality of the evidence to which I have referred previously that there was some dispute as to the proper diagnosis of Mr Jong’s complaints, and it would appear that it was not until March or early April 2007 that a diagnosis of “injury” within the meaning of section 4 of the 1987 Act was made.

1. I note that in a statement Mr Jong gave to CRS’s investigators dated 1 May 2007, he stated that he was unable to obtain an appointment with Dr Cleland until 28 March 2007. He said (para 57): “I did not involve work at this stage because I was unsure of the diagnosis and I did not know what was causing my symptoms”.

1. Clearly, the ‘deemed’ date of injury was 16 December 2006, the Arbitrator having determined that Mr Jong’s injuries to his back and left foot were as a consequence of the “nature and conditions” of Mr Jong’s work in the period 1 October 2006 to 16 December 2006, consistent with the provisions of section 15 of the 1987 Act.

1. In these circumstances, I reject CSR’s assertion that Mr Jong has failed to comply with the requirements of section 261of the 1998 Act.

The Video Evidence and Report of Dr Millons

1. At the hearing before the Arbitrator on 14 February 2008, CSR sought leave to tender video evidence together with a report of Dr Millons dated 14 January 2008 commenting on the contents of the video.

1. Following submissions from both parties, the Arbitrator permitted the tender of the video material but rejected the report of Dr Millons on the grounds that Mr Jong had not had an opportunity to forward the video material to any medical expert for comment. (Page 13 transcript).

1. Leave was granted for Mr Jong to give evidence in relation to that material which is contained at pages 15-17 of the transcript.

1. CSR makes the following submission:

“The Appellant submits that the Arbitrator was in error in failing to consider the significance of the acknowledged inconsistency between the worker’s activities while under surveillance and his claimed level of incapacity and his statement in assessing his credit and then in assessing the significance of an adverse finding in respect of his credit so far as it related to the issues of injury, causation and substantial contributing factor.

In this regard, the Appellant acknowledges that the Arbitrator recognised the inconsistency referred to in paragraphs 26 and 27 of the Statement of Reasons but did not take into account the extent to which that adversely reflected on the worker’s credit when considering and weighing the competing medical evidence on the issues of injury, causation and substantial contributing factor.  The Appellant submits that the Arbitrator ought properly have determined, having regard to the video, that it was appropriate to call into question the accounts given by the worker to his Doctors on which they had relied in forming their opinions regarding the disputed issues particularly in circumstances where the worker’s assertions in this regard were not independently corroborated.”

1. I have some difficulty in identifying any alleged error by the Arbitrator in CSR’s submissions. I cannot see what relevance video material has to issues of “injury, causation and substantial contributing factor”. The video material is certainly relevant as to the issue of incapacity, and this was dealt with by the Arbitrator at paragraphs 26 and 27 of her ‘Statement of Reasons’. In paragraph 26 the Arbitrator summarised the activities carried out by Mr Jong in November 2007 before concluding at paragraph 27 as follows:

“I agree that Mr Jong is carrying out physical activities in the video over a significant period of time and that his appearance in the video is inconsistent with his statement. While I am persuaded that this means that Mr Jong’s incapacity is not as great as claimed, I do not agree that it also means that he was not injured in the way he has claimed. There is other compelling evidence before [sic] that is consistent with his claims such as the clinical notes of Dr So, the reports of Dr Kai Lee and the Recovre report of 10 May 2007.”

1. Clearly, the Arbitrator has acknowledged the “inconsistency” between Mr Jong’s activities and his claimed level of incapacity. Quite what CSR submits the Arbitrator ought have done on this issue is not clear, other than its submission that the Arbitrator ought to have called “… into question the accounts …” given by Mr Jong to his treating doctors.

1. As the Arbitrator rightly pointed out, there was ample evidence to support Mr Jong’s claims of injury arising out of and in the course of his employment. The video material was appropriate evidence on the issue of incapacity which was clearly dealt with by the Arbitrator in her ‘Statement of Reasons’.

1. I am therefore not persuaded that CSR has demonstrated any error by the Arbitrator in her consideration of this issue.

1. Dr Millons prepared a report dated 14 January 2008 in which he commented upon Mr Jong’s activities as demonstrated in the video material.

1. CSR submits that, in rejecting the admission of this report, the Arbitrator erred:

“… in failing to have proper regard to the provisions of Section 354 of the WIM and in failing to properly balance the competing interests of the parties in considering the admission of the evidence … particularly so in circumstances where the activities of the worker were clearly within his knowledge.”

1. In CSR’s submissions:

“… Even if the Respondent Worker required a further opportunity to respond to the report the interests of justice and the balancing of fairness between the parties ought to have enabled this to occur if necessary by an adjournment of the proceedings on terms if required”.

1. Section 354 of the 1998 Act deals with procedure before the Commission. Relevant subsections are as follows:

“354(1)      Proceedings in any matter before the Commission are to be

conducted with as little formality and technicality as the proper consideration of the matter permits.

(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”

1. These principles provide a fairly broad discretion to Arbitrators in the conduct of proceedings before them. Nonetheless, as McColl JA said in South Western Sydney Area Health Service v Edmonds [2007] NSWCA (at 128) (‘Edmonds’):

“Rule 70 [of the 2003 Rules] broadly reflects fundamental principles of the common law concerning admissibility of evidence”.

1. Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘2006 Rules’) is in identical terms to Rule 70 of the Workers Compensation Commission Rules 2003.

1. Whilst the video evidence was clearly relevant, logical and, to a degree, probative, the report of Dr Millons of 14 January 2008, not served on Mr Jong, was not an ‘update’ report as submitted by counsel for CSR but set out the doctors own assessment of his observations of Mr Jong’s activities on the video. As Mr Jong rightly points out in his submissions: “Clause 43AA of the 2006 Rules makes provision for a supplementary report that may be admitted if it has the purpose of clarifying the original report and it does not go outside the parameters of the original report, but merely confirms, modifies or extracts an opinion expressed in the original report. The later report provided by Dr Millons was in response to video surveillance taken of the Respondent worker. It is submitted that this falls outside the realms of clause 43AA.

1. As Deputy President Fleming said in Aluminum Louvres & Ceilings Pty Limited v Zheng [2004] NSWWCCPD 26 (cited with approval by McColl JA in Edmonds):

“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence”.

1. Whilst CSR’s counsel submitted the report of Dr Millons ought be admitted “… in the interests of justice …” (page 12 transcript) it is clear that the Arbitrator had in mind principles of fairness in rejecting the report because of Mr Jong’s inability to deal with the report or have his own medical specialist comment upon it prior to the Arbitration hearing.

1. Moreover, the “adjournment” proposed by CSR was inconsistent with the principles and procedure set out in section 354 of the 1998 Act and the 2006 Rules. Service of the report of Dr Millons on Mr Jong may well have solved CSR’s complaint.

1. In these circumstances, CSR has failed to demonstrate that the Arbitrator did not act fairly in her consideration of this material such that this ground of appeal must fail.

The Section 38 and Weekly Payments Issue

1. The Arbitrator found in favour of Mr Jong awarding him weekly payments pursuant to section 38 of the 1987 Act. CSR submits that the Arbitrator erred in finding that Mr Jong had satisfied the requirements of both sections 38 and 38A and further, that the Arbitrator erred in ordering weekly payments compensation for the period post 28 November 2007 at a higher rate than payable in the previous six months.

1. In CSR’s submission, there was no evidence that Mr Jong had complied with the requirements of section 38A.

1. It is true, as CSR submits, that Mr Jong submitted through his Counsel that he was in effect “unemployable” because of his limited English skills and injuries, but in the alternative, Mr Jong submitted that he was entitled to benefits pursuant to either section 38 or 40 of the 1987 Act.

1. The Arbitrator dealt with this issue at paragraphs 31 to 35 of the ‘Statement of Reasons’ stating as follows:

“(31)    It was submitted on behalf of the Applicant that he is unemployable because

of his inability to speak English and because of his injuries. I cannot agree with this submission. First of all, Mr Jong’s own evidence is that he is able to understand English. Second, he has lived in Australia for 28 years and has been employed for most of this time. Third, he worked for the Respondent for many years and must have been able to take instruction and carry out the work. Fourth, Mr Jong is clearly able to carry out physical activity at a reasonable level as demonstrated on the surveillance video. Accordingly, I am not satisfied that any award in favour of the Applicant should be pursuant to section 37.

(33)Section 38 provides that if a worker is partially incapacitated as a result of an injury and not suitably employed during any period of partial incapacity, the worker is to be compensated as if totally incapacitated providing he is seeking suitable employment during that period. Section 38A provides that a worker is not to be regarded as seeking suitable employment unless he is ready, willing and able to accept an offer of suitable employment …

(34)Liability was declined in this matter from the outset. At the time liability was declined Mr Jong had reported his injury and provided medical certificates, which stated that he was partially incapacitated for work. He was unfit for his pre-injury duties but fit for suitable duties. Suitable employment was provided to Mr Jong in accordance with those certificates. After liability was declined Mr Jong did not return to work and he was required by his employer to use up his sick leave, his holiday leave and long service leave. It is apparent from all the circumstances of the case that Mr Jong was ready, willing and able to carry out suitable duties and if liability had not been declined he would have continued to carry out those suitable duties which have been provided to him. The medical certificates were clearly sufficient as the employer was able to identify some suitable duties for Mr Jong prior to liability being declined.

(35)I am satisfied the requirements of section 38 and 38A have been satisfied and that Mr Jong is entitled to receive compensation pursuant to section 38 for a period of 52 weeks from 28 May 2007 …”

1. It is clear that CSR had acknowledged Mr Jong’s “injuries.” It arranged for him to be assessed by Dr Millons on 15 May 2007. Prior to that date, on 2 May 2007, Mr Jong had been assessed by a rehabilitation provider, Recovre to, inter alia:

“… obtain clear and concise information in regards to current abilities and treatment [and] to assist in the development of a realistic and achievable rehabilitation goal [and] to identify selected duties that would allow Mr Jong to safely return to work while assisting in his recovery from a left foot and lower back injury”.

During this period, Mr Jong remained at work.

1. In these circumstances, it is somewhat disingenuous of CSR to suggest that there was no evidence that Mr Jong was ready, willing and able to carry out suitable employment.

1. The Arbitrator at paragraph 38 of her ‘Statement of Reasons’ summarised the provisions of section 38 and 38A. The evidence was clear that Mr Jong was on “selected” duties up until the time that liability was declined in May 2007. Mr Jong in his statement of 15 August 2007 said:

“I showed my x-ray and my scan to Andrew the Manager at work and he then took me off pushing and pulling of carts. He had asked somebody else to push and pull the carts for me again … before liability was denied my employer would pick me up from home and take me to work and then drive me home from work after my shift was completed”.

1. There is equally no dispute that Mr Jong provided medical certificates from Dr So to his employer certifying him fit for “suitable” duties.

1. In my view, Mr Jong has clearly complied with the provisions of section 38A(2)(a) and (b). Section 38A(2)(c) provides that a worker is not to be regarded as seeking suitable employment unless:

“(c) The worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer; …”

1. In the particular “circumstances” of this case, it is clear that Mr Jong ceased employment because liability was denied. In his statement he claimed that his employer advised him to take various leave entitlements. Whilst Mr Jong does not overtly state that he would have remained in suitable employment if liability had not been denied, I think it is a proper inference to draw that that is the case given his statement to which I have referred previously.

1. Whilst I accept that CSR’s submission there was no evidence that Mr Jong was “taking reasonable steps to obtain suitable employment from some other person” in accordance with section 38A(2)(d), there is equally no evidence whatsoever that CSR complied with the provisions of section 38A(3) in notifying Mr Jong of his obligations pursuant to section 38A(2)(d).

1. I do not consider that the Arbitrator erred in her determination of this issue having regard to the totality of the evidence and in particular, in light of CSR’s failure to comply with section 38A(3).

1. As I see it, CSR’s principal area of complaint is the Arbitrator’s award of compensation at the rate of $619.50 per week from 28 November 2007 “to date and continuing”, significantly higher than the amount awarded for the first 26 weeks from 28 May 2007.

1. CSR claims this is an error, and relies on the decision of His Honour Judge Duck in the former Compensation Court in David Eyeington v New England Leather Pty Limited (unreported) 25 October 1996. That case involved a determination only as to what rate the worker was to be compensated for a certain period of time. At page 5, His Honour said as follows:

“It seems to me that it would be anomalous if in the relatively limited circumstances which section 38 is attempting to deal with a worker was somehow able when partially incapacitated for work to suddenly end up qualifying for more compensation than he would get if he were totally incapacitated. It seems to run contrary to the whole tenor of the Act. It is certainly contrary to the intention of section 37(2) and of section 40(5). It also seems to me … that ultimately it offends commonsense to say that a worker partially incapacitated for work in the special circumstances contemplated by section 38 is entitled to more compensation than he would get if he were totally incapacitated for work.”

1. His Honour determined that the benefits provided for in section 38 should be read down “so that a worker cannot recover an amount greater than his current weekly wage rate.”

1. By contrast, Mr Jong submits that the Arbitrator was entitled to make such an award in line with the decision of His Honour Judge Walker of the former Compensation Court in Aughterlony v Hydrotech Scientific Services Pty Limited (1997) 15 NSWCCR 587. In that case, His Honour held that a worker who was entitled to compensation under section 38 is to be compensated under that section without reference to sections dealing with total incapacity such as sections 36 and 37. If that results in a worker receiving greater compensation that if totally incapacitated, so be it: Section 38 is not to be read down. His Honour spoke of the “punitive” purpose of section 38.

1. Section 38(1) of the 1987 Act provides as follows:

“38(1)  Entitlement. If:

(a)A worker is partially incapacitated for work as a result of an injury; and

(b)The worker is not suitably employed during any period of that partial incapacity for work,

The worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.”

1. The maximum period of entitlement is 52 weeks (section 38(2)). Section 38(3) deals with the rate of compensation and provides as follows:

“38(3)Rate of Compensation when a worker is so compensated, the

compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:

(a)80% of the worker’s current weekly wages rate …

(b)The statutory indexed rate …”

1. Section 37 of the 1987 Act makes provision for weekly payments of compensation during any period of total incapacity after the first 26 weeks. It provides as follows:

“37(1)  The weekly payment of compensation to an injured worker in respect of any

period of total incapacity for work (not being a period during the first 26 weeks of incapacity) shall be –

(c)90 per cent of the worker’s average weekly earnings …”

1. The section then sets out relevant rates.

1. Section 37(2) however provides that:

“ The total weekly payment under subsection (1) shall not exceed the worker’s current weekly wage rate determined from time to time in accordance with section 42.”

1. As I interpret section 38(1), the entitlement to compensation is at a rate as if the worker’s incapacity was “total”. Section 37 effectively defines “total” after the first 26 weeks of incapacity Section 37(2) makes it quite clear that any weekly payment of compensation during any period of “total” incapacity (which Section 38 involves) shall not exceed the current weekly wage rate such that the Arbitrators determination to award Mr Jong compensation at the rate of $619.50 per week was incorrect and not in accordance with Section 37(2).

1. I am of the view that section 38 should be read by reference to section 37, and I decline to follow the decision of Judge Walker in this respect. Division 2 of the 1987Act deals with “Weekly Compensation” and commences at Section 33. Thereafter, various sections define the scope and extent of such payments. The approach adopted by Judge Walker ignores the clear and unambiguous wording of Section 37(2) and indeed similar wording in Section 40(5) dealing with payments during periods of partial incapacity.

1. In my view, the Arbitrator has erred in her calculation of Mr Jong’s entitlements pursuant to section 38(3) of the 1987 Act.

1. At paragraph 35 the Arbitrator stated:

“For the first 26 weeks Mr Jong is to be compensated at his current weekly wage rate being his award rate of pay pursuant to section 42. The award rate was agreed to be $568.50 per week … For the remaining 26 week period from 28 November 2007 Mr Jong is to be compensated pursuant to section 38(3) … 80% of $568.50 is $454.80 and the statutory rate for a worker with a dependant wife and two dependant children is $619.50 per week after 1 October 2007. Accordingly, Mr Jong is entitled to receive $619.50 per week from 28 November 2007.”

1. I accept the Arbitrator’s calculations of $568.50 per week, for the first 26 weeks of incapacity. Thereafter, as I interpret section 38, Mr Jong is not entitled to the statutory indexed rate (although it is of course greater than 80% of his current weekly wage rate) since that amount ($619.50) contravenes the provisions of Section 37(2). In those circumstances he is entitled to his current weekly wage rate determined by the Arbitrator to be $568.50.

CONCLUSION

1. I am not satisfied that CSR has demonstrated any error by the Arbitrator other than by her calculation of the award pursuant to section 38 of the 1987 Act.

DECISION

1. The decision of the Arbitrator dated 5 March 2008 is revoked and the following decision made in its place:

   1.The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the 1987 Act as follows:

(i)From 28 May 2007 at the rate of $568.50 per week for a period of 26 weeks to 27 November 2007; and

(ii)From 28 November 2007 to 27 May 2008 at the rate of $568.50 per week.

2.   The Respondent to pay the Applicant’s section 60 expenses.

3.   The Respondent to pay the Applicant’s costs as agreed or assessed.

4.   The matter is remitted to the Arbitrator at first instance for the determination of the Applicant’s entitlements to weekly compensation (if any).

COSTS

1. In CSR’s submissions the decision of the Arbitrator ought be revoked and either an award in favour of it “… in respect of the proceedings be substituted” or in the alternative, “… that the matter be remitted to a new Arbitrator for a rehearing.”

1. CSR was unsuccessful in respect of seven of its eight grounds of appeal.

1. In all the circumstances, I think it appropriate that CSR pay 80% of Mr Jong’s costs of appeal.

Deborah Moore

Acting Deputy President  

3 July 2008

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE