Di Natale v Ironcrest Pty Ltd
[2008] NSWWCCPD 70
•3 July 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Di Natale v Ironcrest Pty Ltd [2008] NSWWCCPD 70 | |||||
| APPELLANT: | Antonio Di Natale | |||||
| RESPONDENT: | Ironcrest Pty Ltd | |||||
| INSURER: | GIO Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC9065-2007 | |||||
| DATE OF ARBITRATOR’S DECISION: | 29 February 2008 | |||||
| DATE OF APPEAL DECISION: | 3 July 2008 | |||||
| SUBJECT MATTER OF DECISION: | Sections 40 and 43A of the Workers Compensation Act 1987; comparable earnings; calculation of average weekly earnings; probable earnings but for injury; measure of workers remuneration; evidentiary burden. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Gary Byron | |||||
| REPRESENTATION: | Appellant: | Frisina Lawyers | ||||
| Respondent: | Turks Legal | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 29 February 2008 is confirmed. | |||||
| No order is made as to the costs of the appeal. | ||||||
BACKGROUND
On 28 March 2008 Mr Antonio Di Natale (‘the Appellant Worker/Mr Di Natale’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 February 2008.
The Respondent to the Appeal is Ironcrest Pty Ltd (‘the Respondent Employer/Ironcrest’).
Ironcrest’s insurer was GIO Workers Compensation (NSW) Ltd (‘the Insurer/GIO’) at all relevant times.
Mr Di Natale came to Australia from Italy in 1970 and commenced work as a boiler maker/welder. In 1992 Mr Di Natale conducted his trade as a boilermaker/welder under the company name Ironcrest Pty Ltd. He and his wife are both directors of Ironcrest. All work done by Mr Di Natale was charged for by Ironcrest, which in turn paid the expenses associated with its operation, including Mr Di Natale’s wages and his wife’s director fees.
On 28 May 2002 Mr Di Natale suffered an injury to his right knee when he slipped on scaffold steps. He did not return to work as a boilermaker/welder. Mr Di Natale made a claim on Ironcrest’s insurer, GIO, which acknowledged liability and paid him weekly compensation and medical expenses.
Mr Di Natale participated in a work trial in October 2003 with BOC Gases at Milperra. The work involved “boxing up” customer orders. He could sit and stand while completing these tasks. Mr Di Natale says that he found the work enjoyable and initially worked for 12 hours a week as certified by his General Practitioner, Dr Genua. This was further extended to 15 hours a week. The Rehabilitation Provider, Energise, wanted Mr Di Natale to further increase his hours, however Dr Genua refused to certify him as fit for any additional hours. As a result Mr Di Natale was unable to continue in the position and the work trial ended in December 2003.
In February 2004 Mr Di Natale commenced proceedings in the Commission seeking lump sum compensation for permanent impairment. In June 2006 the parties registered an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’), under which Mr Di Natale was paid $5,625 for an agreed 4.5% whole person impairment as a result of the injury to his right knee.
Mr Di Natale took part in an assessment for the purposes of section 40 of the 1987 Act, conducted by Vocation Capacity Centre for GIO, in November 2004. The assessment concluded that Mr Di Natale was fit for full-time work in a job “within the sedentary, semi-sedentary categories and with occasional work from the light work category”, and identified a number of suitable jobs (and their wage levels) that Mr Natale would be fit to undertake. At the time of the section 40 assessment, Dr Genua had certified Mr Di Natale fit for restricted duties for 15 hours a week (five hours each day, three days per week).
On 12 November 2004, following the section 40 assessment, GIO wrote to Mr Di Natale advising that the latest medical evidence had shown that his condition had improved “so that you are no longer totally incapacitated.” GIO also advised that as Mr Di Natale had potential earnings of $275.25 (taking the average earnings of several suitable jobs) for a 15 hour week, and that he was only earning $267.69 a week from his pre-injury employment with Ironcrest, he had no entitlement to ongoing payments of weekly compensation.
Mr Di Natale lodged an ‘Application to Resolve a Dispute’ (WCC3250-2006) in the Commission in March 2006 seeking weekly payments of compensation, as GIO had reduced his weekly compensation payments to nil from 24 December 2004. This application was subsequently discontinued on 12 May 2006.
On 1 August 2007 Mr Di Natale’s solicitors notified GIO that as a result of the injury dated 28 May 2002 Mr Di Natale had developed lower back pain and anterior pain in the left knee, and would be claiming further and additional lump sum compensation based in the report of Dr Drew Dixon, Consultant Orthopaedic Surgeon, dated 3 July 2007 in which he assessed a 16% whole person impairment, stating that Mr Di Natale had reached maximum medical improvement.
Mr Di Natale’s solicitors wrote to GIO on 2 August 2007 requesting a review of the decision to cease his weekly compensation payments.
On 10 October 2007 GIO made a counter offer for payment of a nil amount. On 15 October 2007 GIO issued a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), confirming its earlier decision that Mr Di Natale had no entitlement to ongoing weekly payments of compensation.
Mr Di Natale lodged an ‘Application to Resolve a Dispute’ in the Commission on 27 November 2007, seeking payment of weekly compensation from 24 October 2004 and continuing, and payment of further lump sum compensation, additional to the payments already made.
The matter came before the Arbitrator in due course. The procedure and what was agreed prior to arbitration is recorded in [13] and [14] of the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’):
“13.A teleconference was held on 23 January 2007 at which the issues in dispute were refined. The insurer agreed that there were no liability issues with respect to Mr Di Natale’s claim for lump sum compensation as a result of the alleged deterioration in his condition, although there was a dispute as to the extent of that deterioration, if any. It was agreed that that issue should be remitted to the Registrar for referral to an AMS for assessment.
14.It was also agreed that Mr Di Natale has a partial incapacity for work and that the real issues in dispute were those defined by the s. 74 notice. At the insurer’s request I made an order for production of Dr Genua’s treating notes and fixed the remaining issues for conciliation/arbitration on 14 February 2008.
The dispute proceeded to arbitration on 14 February 2008. The decision of the Arbitrator and orders made by him were published in the ‘Certificate of Determination’ dated 29 February 2008. At [15] of his Reasons, the Arbitrator states:
“15.The parties agree that Mr Di Natale suffers a partial incapacity as a result of his injury. The following issues remain in dispute:
a.the weekly amount which Mr Di Natale would probably have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment (s.40(2)(a));
b.the average weekly amount that the worker is earning, or would be able to earn in some suitable employment, from time to time after the injury (s. 40(2)(b));
c.Mr Di Natale’s entitlement to weekly payments from 24 December 2004 to date and continuing.”
THE DECISION UNDER REVIEW
The Arbitrator recorded a summary of his findings at [75] of his Reasons:
“a.Mr Di Natale’s probable earnings but for injury should be calculated in accordance with his last tax return and wage information from Ironcrest, indexed since then;
b. Mr Di Natale is fit for sedentary duties for 15 hours a week;
c.Mr Di Natale was able to earn in suitable duties in December 2004, the sum of $225.00 and since then would have been able to earn an equivalent indexed amount, and
d. the Respondent should pay Mr Di Natale those amounts.”
The ‘Certificate of Determination’, dated 29 February 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1)The Respondent shall pay the Applicant weekly payments of compensation under s.40 of the Workers Compensation Act 1987 as follows:
a)for the period 25 December 2004 to 31 March 2005 at the rate of $82.31 a week;
b)for the period 1 April 2005 to 30 September 2005 at the rate of $83.61 a week;
c)for the period 1 October 2005 to 31 March 2006 at the rate of $85.32 a week;
d)for the period 1 April 2006 to 30 September 2006 at the rate of $87.08 a week;
e)for the period 1 October 2006 to 31 March 2007 at the rate of $88.70 a week;
f)for the period 1 April 2007 to 30 September 2007 at the rate of $90.41; and,
g)for the period 1 October 2006 [sic] to date and continuing at the rate of $92.03 a week. [An amended Certificate of Determination was issued on 4 April 2008 to delete “2006” and to insert in lieu thereof “2007”].
2)The application is otherwise remitted to the Registrar for referral to an AMS for assessment or permanent impairment with respect to his right lower extremity (deterioration), his left lower extremity, and his lumbar spine: all attributable to the date of injury [sic] to the date of injury 28 May 2002.
3)The Respondent shall pay the Applicant’s costs of the arbitration as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are found in Mr Di Natale’s grounds of appeal, being that the Arbitrator erred:
a)in the exercise of his discretion by calculating earnings by reference to the same employment rather than comparable employment;
b)in law when applying section 43 of the Workers Compensation Act 1987 (‘the 1987 Act’) to determine average weekly earnings;
c)in law in failing to follow established case law in determining Mr Natale’s earnings but for the injury in his circumstances, and
d)in the exercise of his discretion not to use the evidence made available to him by the parties in making a proper determination as to the calculation of Mr Natale’s earnings but for the injury.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation on appeal is both at least $5000 and is at least 20% of the amount awarded in the decision appealed against. Section 352(2)(a) and (b) are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE, SUBMISSIONS, DISCUSSION AND FINDINGS
Mr Di Natale’s written submissions on appeal set out the grounds and issues relating to the appeal and a list of legal authorities upon which he relies, most of which are cited by the Arbitrator. However, with the exception of two of them, no reference is made to the legal authorities in the body of his submissions on appeal, or how and to what extent it is considered that they have been misapplied by the Arbitrator, and how they ought to be properly applied in the determination of the appeal.
He states that the factual background, summarised above in these Reasons, is comprehensively set out at [1] to [14] of the Arbitrator’s Reasons. I have read the Arbitrator’s Reasons.
The Arbitrator indicates at [20] of his Reasons that he is guided as to the five steps to be followed in making a determination under section 40 of the 1987 Act, by the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) and the discussion in Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 57 (‘Askin’).
In Mitchell, the appeal to the Court of Appeal related to the manner in which the trial Judge calculated weekly payments of compensation during partial incapacity. The Court said at pages 529-30:
“An award of weekly payment of compensation is not to exceed the ‘reduction in the worker’s weekly earnings’ (section 40). Section 40, like its predecessor section 11 of the Workers Compensation Act 1926, requires the judge making an award to follow a number of steps, although the precise number is a matter of some debate: cf J C Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580 at 582. The judicial process is discussed in Australian Wheat Board v Pantaleo [1984] 3 NSWLR 530. For present purposes, it is sufficient to observe that the Court is required:
1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a).
(As indicated in the passage quoted, it was common ground at trial that this figure for the appellant was $950 per week.)
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
‘(a)the determination is to the based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.’
(The figure arrived at here was $700, and it is the Judge’s approach to this second stage that is the subject of grounds 1. and 2.)
3. To subtract the figure derived from 2. from the figure derived from 1. (section 40(2)).
4. To decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case’ (section 40(1)).
(This is the discretionary exercise challenged in the third ground of appeal).
5. to make an award in the amount arrived at in step 4.”
Ironcrest submits that the Arbitrator “made a correct decision in considering the relevant legislation, leading and relevant case law and all of the relevant evidence before him in determining the correct Section 40 rate to be applied to the applicant.”
Submissions on appeal
Mr Di Natale submits that the Arbitrator made an error of discretion in the application of Step 1 in the Mitchell test in finding that his actual earnings but for the injury should be determined by reference to what he would have earned in the same employment rather than comparable employment ([4.5] of submissions on appeal (‘SOA’)).
Ironcrest rejects this assertion. It submits that there is no evidence before the Arbitrator to indicate that Mr Di Natale would not continue in his employment with Ironcrest. He had been so employed since 1992 and the most recent financial information of the company indicates that it was in the process of being wound down for the purposes of Mr Di Natale’s retirement. It is further submitted that there was no requirement for the Arbitrator to consider what Mr Di Natale would have been earning in comparable employment, as there was no indication or evidence that he would be turning to an alternative form of comparable employment had he not suffered the injury. Ironcrest says that the evidence suggests that Mr Di Natale would have continued to work for it, but for the injury. Ironcrest says that the Arbitrator correctly considered the relevant case law and that his determination on the point is correct.
Mr Di Natale submits that at the hearing before the Arbitrator, his counsel based his submissions on deciding earnings “but for injury” on two alternatives ([4.1] SOA).
His first submission was that Mr Di Natala’s work was no longer available to him. He was the sole employee of the company, and following his injury he was unable to work in the business. Consequently, the company was no longer able to operate. ([4.2] SOA).
He goes on to say that it was submitted that the best evidence of comparable employment was to be found in the Metal Engineering and Associated Industries (State) Award, and that given his experience, he would have been entitled to be paid at the highest classification under that award, were he fit for such work ([4.3] SOA).
Mr Di Natale submits that notwithstanding that his employment was no longer open to him and that the company was no longer trading, the Arbitrator determined that he could establish earnings but for injury in that same employment rather than in some comparable employment. The Arbitrator states at [34] of his Reasons, “…it is therefore not necessary to turn to what he could earn in some comparable employment. The correct course is to determine what he would have earned in the same employment.” ([4.4] SOA).
In response Ironcrest submits that at the arbitration hearing, it put to the Arbitrator that Mr Di Natale would have continued to work it its employ, but for the injury. There was no evidence put forward to suggest otherwise. Further, the financial information provided by it clearly indicates that Mr Di Natale was in the position of winding down the company, which is evidenced by the marked reduction in sales, wages, other expenses and profit from 1999 to 2002, that year being the year in which Mr Di Natale suffered the injury in the course of his employment. Mr Di Natale’s age at the time of the incident was a further indication of this intention. He was born on 5 June 1945. Ironcrest submits that the Arbitrator was correct in accepting its submissions, over those of Mr Di Natale.
Ironcrest submits that there is no support for the suggestion that Mr Di Natale had ever contemplated a change in employment prior to the injury that would lead to employment under the Metal Engineering and Associated Industries (State) Award.
It submits that the Arbitrator correctly determined that Mr Di Natale would have continued in his employment with Ironcrest but for the injury and therefore, correctly determined that his earnings would have been equal to the sum he would have earned had he continued in that employment.
Ironcrest submits that the Arbitrator correctly considered section 40(2)(a) of the 1987 Act, which required him to determine what Mr Di Natale would probably have been earning as a worker but for the injury, had he continued to be employed in the same or some comparable employment. The Arbitrator considered that, but for the injury, Mr Di Natale would have remained employed with Ironcrest and this would still have been available to him. It was not therefore necessary, for the Arbitrator to give consideration to what Mr Di Natale could earn in some comparable employment.
Ironcrest submits further:
“The Arbitrator correctly considered that the correct course was to determine what the applicant would have earned in the same employment on the principles of Johnston v Commissioner of Railways (1973) 128 CLR 632 per Mason J at 644 (‘Johnston’), Australian Wheat Board v Pantaelo [1984] 3 NSWLR 53 per Kirby P at 540 (‘Pantaelo’), and Smith v Pius X Aboriginal Cooperation [2007] NSWWCCPD 194 at [42] to [46] (‘Smith’).
There was nothing in evidence to suggest that the applicant was going to consider a change in his employment to work for another employer or work in another type of employment.
The applicant had commenced his employment with the respondent in 1992 and had continued working for the company since that time. His evidence was that he normally charged work through Ironcrest at the rate of $40.00 an hour and that he worked more than 40 hours a week. All income was paid through the company and the applicant earned approximately $1000.00 per week through the company. He also gave evidence that his wife is dependent on him and she did not work. The financial information of the company clearly indicates that since the year 1999 his wages [sic] were approximately $1050.00 per week. This certainly was not the case in years 2001 and 2002.”
Mr Di Natale submits that the alternative submission made to the Arbitrator was that the earnings but for injury can be derived from wages paid by the company to him, and any director’s fees and retained profits of the company. He states, “It was further submitted that by doing this, it would provide a measure for reasonably determining the injured worker’s earnings but for injury.” ([4.6] and [4.7] SOA).
He submits that the Arbitrator embarked on an extensive examination of case law essentially on how probable earnings should be calculated where the worker is also a director of the employer company. He states, “The arbitrator accepted the second alternative submission made by the applicant’s representatives as the appropriate method of calculating earnings but for injury in the circumstances.” ([4.8] SOA).
Ironcrest submits that the Arbitrator noted at [3] of his Reasons:
“These figures combined, Mr Curran submitted, was the true measure of Mr Di Natale’s pre-injury earning, and should be taken, with appropriate indexation as his probable earnings. He said that this was the correct approach to take in income splitting situations, that there were a number of cases dealing with the correct approach to be taken in those situations. He was not able to refer me to any relevant authority.”
Ironcrest submits that the Arbitrator considered numerous authorities in correctly determining that Mr Di Natale’s earnings, but for the injury, should be determined taking into account the wages that were paid by the company, but not including the directors fees and retained profits of the company.
It points out that the Arbitrator could not make that determination in the absence of considerably more evidence as to the operations of the company – for example, detailed company tax returns and books. It submits that the Arbitrator clearly set out the evidence “as it stood on the issue” in [47] of his Reasons. Ironcrest goes on to say that at [48] of his Reasons, the Arbitrator states, “because Mr Di Natale bears the burden of proving his earnings but for injury, and has not discharged that burden with respect to earnings greater than his wage, I reject his submission as to the true value of his work.”
In reviewing the evidence, Ironcrest points to various comments made by the Arbitrator. He states that at [47(d)] he says that he cannot reconcile the discrepancies between the Mr Di Natale’s statement and the financial documents that were before him. The Arbitrator states, “assuming he worked a 40 hour week, at the rate of $40.00 per hour, for 48 weeks a year, one would expect sales of labour alone of $76,800.00, a figure which does not match with the sales figures of Ironcrest.” Ironcrest goes on to say, “The Arbitrator continued into paragraph (e) and stated that the ‘statement to the insurer (in his questionnaire and statutory declaration of 5 May 2003) [states] that he was earning $800.00 before tax.’” Then, referring to sub-paragraph (f), the Arbitrator states, “… does not address or explain the considerable reduction in gross sales (and profits) from 1999, or give any basis to reasonably forecast the future of the company but for Mr Di Natale’s injury. Significant trading in the companies [sic] trading position in the years 1999 to 2002 raises equal questions when estimating its future position. It is not, in my view, a case where simply indexing the value of Mr Di Natale’s contribution would be appropriate or justified.”
Ironcrest submits that on the evidence, Mr Di Natale would have at least continued to earn a wage equivalent to the wage earned in 2002. It asserts that Mr Di Natale had the burden of proving that his earnings, but for the injury, and he did not discharge that burden with respect to earnings greater than his wages. It states that the Arbitrator was correct to reject his submissions as to the true value of his work. It further states that the Arbitrator not only indicated that he could not reconcile a number of discrepancies in Mr Di Natale’s statements and the company’s financial information, he also indicated that the financial information was insufficient for him to “make such conclusions”. Ironcrest invites attention to [47] – [50] of the Arbitrator’s Reasons.
After referring to the Arbitrator’s comments at [41] of his Reasons, Mr Di Natale goes on to say that the Arbitrator “attempts a calculation of the average weekly earnings at paragraphs 44, 45 and 46.” He submits that the Arbitrator has before him, both his tax returns and the company’s profit and loss statements for the financial years ending 1999, 2000, 2001 and 2002. He states:
“At paragraph 47 [the Arbitrator] indicates a number of reasons why he does not follow what is required by s. 43 and by the established case law.”
([4.9] – [4.11] SOA)
Specifically, he notes that the Arbitrator says that he is unable to gauge Ironcrest’s after tax profits in 2002. However, he states this information is detailed in the profit and loss accounts, which form part of the evidence in Mr Di Natale’s case. He submits that the operating profit after income tax for the 2002 year is $2,847.86 ([4.12] SOA).
Mr Di Natale submits that the Arbitrator has made an error of fact in his findings as to Ironcrest’s after tax earnings for 2002. It further submits that it was open to the Arbitrator to make findings in respect of those earnings. He states, “A finding as to the company’s after tax earnings would have resulted in a different calculation of the Applicant’s earnings but for injury.” ([4.13] SOA).
Ironcrest submits that the Arbitrator was correct in determining that he did not have enough evidence to make a determination that Mr Di Natale’s earnings were as submitted by him. It points to [39] of the Arbitrator’s Reasons where he considers the majority decision of the High Court in J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 (‘Nelson’) and quotes the Court’s comment, “such matters must depend on the particular evidence in an individual case, and not on general knowledge.” Ironcrest further submits:
“At paragraph 41 the arbitrator has noted that ‘then in determining the rate per week at which a worker is being remunerated one must go beyond the worker’s tax returns and look at the accounts of the business to determine the true remuneration … : Aretica Pty Ltd v Fradelakis [2006] NSWCCPD 102 (This will include the net value to the company of the worker’s exertions whether physical or mental: Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584).”
Ironcrest points out that the Arbitrator then went on to say that the burden of establishing these levels of earnings is on the worker. It states that the Arbitrator rejected the submissions made by Mr Di Natale as to the true value of his work as he had not discharged his burden of proving his earnings but for injury, and did not discharge that burden with respect to earnings greater than his wage.
Ironcrest invites attention to [39] of the Arbitrator’s Reasons, where he cites the High Court in Nelson, stating:
“That it is obvious that the Commission cannot have general knowledge as to the net amount which an individual contractor would probably have earned for his labour had it not been for his injury, or if the net amount he has actually earned since the injury, since so much depends upon the manner in which he conducts his business, his efficiency, the extent to which he employs workmen and uses plant, and the amount of overhead expenses he has to meet. Such matters must depend on the particular evidence in an individual case, and not on general knowledge.”
Ironcrest submits that it is clear that the Arbitrator could not have made a determination in favour of Mr Di Natale on the evidence that was before him. He was unable to gauge the company’s “after tax profits” in 2002, and was restricted to gauging the “ respondent’s operating profit (loss) after income tax for 2002”.
Mr Di Natale submits that the “number of other considerations” at [47] of his Reasons have no bearing on the correct calculation of his average weekly earnings. He asserts that, “these considerations are both irrelevant and present errors of fact, law and discretion.” Specifically, they are the use of sub-contractors, Mr Di Natale’s statement as to his hourly charge-out rate, which he says is clearly the employer’s charge-out rate, and the reduction in gross sales between 1999 and 2002. He adds, “The Arbitrator also did not take into account that there was in fact an 8% increase in gross sales between 2001 and 2002.” ([4.14] SOA)
He further submits that had the Arbitrator correctly followed section 43 of the 1987 Act, the outcome in the calculation of Mr Di Natale’s average weekly earnings for the 2002 financial year would be $615.15 gross per week (after adding wages, directors fees and retained profits) ([4.15] SOA).
Mr Di Natale points out that the Arbitrator, at [48] of his Reasons, states, “It is likely that the true value of Mr Di Natale’s work is something more than he was paid as wages.” However, the Arbitrator then goes on to determine the pre injury earnings at [49] and [50], “by a method which is in total contradiction to s.43 and the Arbitrator’s own findings.” He submits that the amount determined by the Arbitrator is “not computed in such a manner as is best calculated to give the rate per week at which the worker was being remunerated (Workers Compensation Act 1987 s43(1)(a)).” ([4.16] – [4.17] SOA).
He submits that this error of law was compounded with the calculation of his earnings but for injury ([4.18] SOA).
Ironcrest reaffirms its agreement with the Arbitrator’s finding that Mr Di Natale failed to discharge the burden upon him to establish his case; that the Arbitrator’s decision was based correctly on the evidence, and upon the relevant legislation and case law. In the circumstances, it submits that it was not open to the Arbitrator to find in favour of Mr Di Natale.
Referring to Mr Di Natale’s submission at [4.16] of his submissions on appeal, Ironcrest agrees that the Arbitrator did state at [48] of his Reasons that it was likely that the true value of Mr Di Natale’s work is something more than he was paid as wages. However, it points out that the Arbitrator went on to say:
“… but given the state of evidence I am unable to conclude what that value was, or would probably have been if he had not been injured. It seems probable however, that he would at least have continued earning a wage equivalent to that he earned in 2002 terms. Because Mr De Natale bears the burden of proving his earnings but for the injury, and has not discharged that burden with respect to earnings greater than his wage, I reject his submissions as to the true value of his work.”
Ironcrest cites again the statement made in the High Court in Nelson, set out above in [54] of these Reasons. It submits that the Arbitrator correctly considered and assessed Mr Di Natale’s earnings in accordance with section 40 and section 43(1)(a) of the 1987 Act, having regard to the applicable case law and the evidence before him. It submits that the Arbitrator has made no error in his assessment of the amount that Mr Di Natale would have been earning but for the injury.
Mr Di Natale submits in the alternative, that it is a denial of natural justice “to embark upon a method of calculation of earnings that results in an outcome which does not truly reflect the applicant’s earnings and is in fact manifestly unjust to the worker.” ([4.19] SOA).
He submits that on the basis of the evidence before him, the Arbitrator was capable of making a determination as to the true value of the work provided by him, and to make a fair determination “acting according to equity, good conscience and the substantial merits of the case pursuant to s.354(3) of the WIM Act.” ([4.20] SOA).
Mr Di Natale concludes by submitting that alternatively, the Arbitrator should have adopted the first of his submissions and chosen the award rate to determine the earnings, but for injury ([4.21] SOA).
Ironcrest submits that the Arbitrator could not make a finding in the alternative as suggested by Mr Di Natale (see [63] above, of these Reasons), when considering the relevant legislation, case law “and critically the evidence which was to hand.” It submits that Mr Di Natale did not discharge the burden of proof upon him to show that his earnings were greater than his wages. Consequently, there is no denial of natural justice involved.
It further submits that the Arbitrator’s reasoning in [47] – [50] support his findings in rejecting Mr Di Natale’s submissions as to the true value of his work.
Finally, referring to Mr Di Natale’s submission at [4.21] of his submissions on appeal, Ironcrest submits that the Arbitrator was correct in considering that but for the injury Mr Di Natale would have continued with his employment at Ironcrest as this employment was always open to him. It further submits that there is no evidence to suggest that Mr Di Natale would have turned to any other form of employment where he would have been paid under the award rate pursuant to the Metal Engineering & Associated Industries (State) Award.
The appeal and the issues involved may be determined by addressing the four questions hereunder, derived from the “summary of the submissions made on appeal” put forward by Mr Di Natale.
As the Arbitrator states at [27] of his Reasons, “In Mr Natale’s case the dispute between the parties centres on steps 1 and 2 [of the ‘Mitchell test’]”.
Did the Arbitrator err in the exercise of his discretion by calculating earnings by reference to the same employment rather than comparable employment?
The Arbitrator states, in part, at [34] of his Reasons:
“Mr Di Natale submits that, but for injury, he would be able to earn wages at the award rate under [sic] Metal Engineering and Associated Injuries [sic – ‘Industries’] (State) Award. I do not accept this. There is nothing in the evidence which points to Mr Di Natale contemplating a change in his employment prior to injury. I have no doubt that, but for his injury, he would have continued in his employment operating Ironcrest.”
On the evidence before him, the Arbitrator found that the correct course was to determine what Mr Di Natale would have earned, but for injury, in the same employment. I concur in that finding.
I note that the Arbitrator referred to and applied, Johnston, Pantaelo and Smith.
The meaning of the phrase “the same or some comparable employment” was examined by Deputy President Bill Roche in Simpkins v Lismore & District Workers Club Ltd & Anor [2007] NSWWCCPD 187 (‘Simpkins’) and Smith, in close succession.
The consideration of the phrase by the High Court in Johnston was undertaken in the context of section 11 of the Workers Compensation Act 1926, which was couched in substantially the same terms as section 40 of the 1987 Act. At the time of his injury, the worker was a cleaner/acting foreman, but the trial judge found that he would have progressed in due course, to the position of engine driver. He was awarded compensation on the basis that the wage of an engine driver was the same or comparable employment. Stephen J held at 640 that the phrase means:
“that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty: the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.”
His Honour went on to conclude at 642, that the trial judge was required to pay regard to the promotion within his chosen occupation, which Mr Johnston would probably have received had he not been injured.
Mason J (as he then was) held at 644 in the same case:
“The subsection provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury.”
By contrast, in Pantaleo the Court of Appeal set aside the decision of the trial judge, in a case involving a secretary who became a beautician after her injury. The trial judge had calculated her potential earnings as an uninjured beautician ($400 per week) and compared them to her earnings situation, which he found to be $350 per week, and he awarded the difference. The Court of Appeal said that the trial judge had not considered whether the work as a beautician was comparable to that of a secretary. On that issue Glass JA, with whom Samuals JA agreed, said at 545, that the evidence disclosed no point of comparison between the work of a beautician and that of a secretary.
The question as to whether other employment is comparable is raised when what is required under the Act leads to a conclusion that there is a real prospect, as distinct from fanciful speculation, that but for the injury the worker would have moved from the same employment to some other employment (Pantaleo, per Kirby P at 540).
In NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217, Mahoney J held at 220:
“As a matter of principle, a court in estimating the uninjured earnings of an applicant will ordinarily have regard to what the applicant would have earned in the employment in which she was at the time of the injury rather than in some other comparable employment. But that principle, to the extent that it is accepted, does not require that in every case the court must confine its attention to the same employment as that in which the uninjured applicant was engaged. Circumstances may make it appropriate for the court to assess the uninjured earnings by reference to another comparable employment.”
If it is demonstrated to the satisfaction of a court as a matter of fact, that an employee had an intention to engage in other work, that may be sufficient for the purposes of considering “comparable” employment (Department of School Education v Boyd (1996) 13 NSWCCR 289, per Beazley JA at 291 (Priestley and Handley JJA agreeing).
Each of the cases cited turned on its own facts.
In this matter, it is clear that the Arbitrator was not required to consider different or comparable employment unless there was a real prospect, as distinct from “fanciful speculation” (Pantaleo) that but for the injury sustained, Mr Di Natale would have moved, or indeed had planned any move, to different employment. The evidence in this matter does not support the proposition that he ever had any intention to do so, or that there was any likelihood of his doing so, or that there were any prospects of career progression beyond, or indeed within, his existing employment.
While Mr Di Natale submits that “the best evidence of comparable employment was to be found in the Metal Engineering and Associated Industries (State) Award”, other than to refer generally to his “experience”, he did not offer any indication of circumstances that would make it appropriate for the Arbitrator to assess earnings “by reference to another comparable employment” (Forrest), having regard to the facts in the instant case. Ironcrest submits and I agree, that there is evidence of the company being wound down from 1999 to 2002, having regard to an obvious pattern of diminishing gross sales, profits and business activity over that time. It points to Mr Di Natale’s age as an underlying indicator that offers support to this proposition. I note that there was a modest upturn in gross sales from 2001 to 2002, but this is not reflected in the profit figures for 2002, because of increased costs by way of superannuation contributions, purchases, increased directors’ fees and increased wages during that year. For the first time, the company embraced the concept of subcontracting in the financial year ending 30 June 2002, albeit to a modest extent, but which also incurred costs. Moreover, over the same period ‘total equity’ of the company increased significantly from $9,402.29 to $22,561.91, thereby increasing the capital value and perhaps the “marketability” of the company as a “going concern”. All of this information, derived from the company’s profit and loss statements and balance sheets for the period 1999 to 2002, supports Ironcrest’s submission, and does not assist Mr Di Natale’s argument that comparable employment, particularly at the “highest classification” as submitted by him, ought to be considered.
I find that the Arbitrator is not in error, and that his findings on this issue, with which I concur, were available to him on the evidence. Consequently, this ground of appeal is not made out.
Did the Arbitrator err in law when applying section 43 of the 1987 Act to determine average weekly earnings?
At [35] of his Reasons the Arbitrator states that the issue left in dispute is how Mr Di Natale’s probable earnings should be calculated.
For reasons of context and background, I note that the Arbitrator states at [21] and [22] of his Reasons:
“21.The first step [Mitchell] is to determine the amount the worker ‘could have been earning as a worker but for the injury and had the worker continued to be employed in the same or some comparable employment’: s.40(2)(a). This is agreed at $525.00.
22.The second step [Mitchell] is to determine ‘the average weekly amount which the worker is earning or would be able to earn in some suitable employment, from time to time after the injury’: s.40(2)(b). The determination of that amount must be in accord with s.40(3).”
Section 40(3) of the 1987 Act provides:
“(3)Ability to earn in suitable employment. The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:
(a)the determination is to be based on the ability to earn in the general labour market reasonably accessible to the worker;
(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.”
The Arbitrator then goes on at [23] to note the provisions of section 43A as to the factors to be taken into account in determining “suitable employment”.
Section 43(1)(a) of the 1987 Act requires that average weekly earnings be “computed as is best calculated to give the rate per week at which the worker was being remunerated …”.
At [41] of his Reasons, the Arbitrator states:
“The cases clearly establish that where one is concerned with step 2 earnings, and the worker is a director of the employer company, and able to control its accounts, then in determining the rate per week at which a worker is being remunerated one must go beyond the worker’s tax returns and look to the accounts of the business to determine the true remuneration: Aretica Pty Ltd v Fradelakis [2006] NSWWCCPD 102. This will include the net value to the company of the worker’s exertions, whether physical or mental (Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227, per Glass JA) after deduction of operating expenses (J & H Timbers Pty Ltd v Nelson (1972) HCA 12; (1972) 126 CLR 625, per Gibbs J). Where the business essentially involves the provision of a worker’s personal services, whether as a member of a partnership or an employee of a family company, then the net earnings of that business may be the best measure of the worker’s remuneration: Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584. The burden of establishing these levels of earnings is on the worker. I can see no reason in principle why similar considerations should not apply to the determination of a worker’s pre-injury or probable earnings. Indeed, s.43, by its uniform application to the determination of earnings, requires that approach.”
He went on to say at [48]:
“It is likely that the true value of Mr Di Natale’s work is something more than he was paid as wages, but given the state of the evidence I am unable to conclude what that value was, or would probably have been if he had not been injured. It seems probable, however, that he would at least have continued [sic] earn a wage equivalent to that he earned in 2002 terms. Because Mr Di Natale bears this burden of proving his earnings but for injury, and has not discharged that burden with respect to earnings greater than his wage, I reject his submissions as to the true value of his work.”
The Arbitrator also notes at [39] that in Nelson, The High Court held, per Menzies, Owens and Gibbs JJ that the burden is on the worker to establish the financial loss, giving rise to an entitlement to weekly payments for partial incapacity. He went on to note the words of Windeyer and Gibbs JJ at [11], referring to the difficulty of assessing pre-injury earnings, which in part, are restated:
“In determining the difference between the two amounts mentioned in the present section, the one hypothetical and the other factual (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) at p 93), one is in my opinion concerned with the net remuneration of the person deemed to be a worker, and not with his gross takings. It is obvious that the Commission cannot have a general knowledge as to the net amount which an individual contractor would probably have earned for his labour had it not been for his injury, or of the net amount he has actually earned since his injury, since so much depends upon the manner in which he conducts his business, his efficiency, the extent to which he employs workmen and uses plant, and the amount of overhead expenses he has to meet. Such matters must depend on the particular evidence in an individual case, and not on general knowledge.”
Mr Di Natale disputes that the Arbitrator had inadequate evidence upon which he was able to compute the average weekly earnings “in such a manner as is best calculated to give the rate per week at which the worker was being remunerated.” He disputes that the Arbitrator did not have the financial and tax records before him in order to make a proper calculation. Further, he refers to the “number of other things” listed by the Arbitrator at [47] of his Reasons “which have no bearing on the correct calculation on [sic] the Applicant’s average weekly earnings.” He goes on to say:
“In my respectful submission, these considerations are both irrelevant and present errors of fact, law and discretion. They are as follows:
1.The use of sub-contractors;
2. The applicant’s statement as to his hourly charge out rate, which is clearly
the employer’s charge out rate [but see [106] below as to Mr Di Natale’s description of charging “though” his company]; and
3.The reduction in gross sales between 1999 and 2002. The Arbitrator also did not take into account that there was in fact an 8% increase in gross sales between 2001 and 2002.”
In Cage Developments Pty Ltd v Schubert (1983) 151 CLR 584; [1983] HCA 37, the injured worker carried on a business with his wife during his period of partial incapacity. The issue in dispute was the amount that the worker had actually been earning while partially incapacitated, pursuant to section 11 of the Workers Compensation Act 1926. The facts and circumstances are obviously somewhat different to the instant case. However, as noted by the Arbitrator at [36] of his Reasons, the High Court, per Gibbs CJ, Murphy, Brennan, Dean and Dawson JJ, in a unanimous decision said in part:
“As Glass and Mahoney JJA pointed out in the Court of Appeal, there is no single way in which the actual or potential earnings of such a former worker must be determined. The circumstances of the particular case will indicate what way or ways are open and what evidence is relevant for that purpose and it is undesirable to confine the Commission within the strict limits of artificial rules laid down in advance by an appellate court. Thus, there may well be cases in which the actual earnings of a business either represent the actual or potential earnings of a former worker during a period of partial incapacity. Where, for example, a business consists essentially of the provision of personal services by the former worker (e.g. a business of a sole plumber or casual gardener) and no significant investment of capital is involved, the actual net earnings of the business might properly be seen as representing the actual ‘reward for (the) labour’ of the former worker (see J & H Timbers Pty Ltd v Nelson (1972) 126 CLR, at p 652) during a period of partial incapacity. In such a case, if the former worker is carrying on a business solely on his own account, the net earnings of the business might properly be seen as representing the ‘amount he is earning’ in a business: if he is carrying on a business in partnership or as an employee of a family company, the net earnings might properly be seen as representing the ‘amount he … is able to earn’ either in employment or in a business.”
Glass JA outlined at 230, a number of “propositions” as found in the relevant authorities providing guidance to how the assessment of earnings is to be done in these circumstances, and what matters ought to be taken into account. These are set out at [37] of the Arbitrator’s Reasons.
In summary, the Arbitrator correctly found that “where one is concerned with step 2 earnings, and the worker is a director of the employer company, and able to control its accounts, then in determining the rate per week at which a worker is being remunerated one must go beyond the workers tax returns and look to the accounts of the business to determine the true remuneration.” He also found that the burden of establishing “these levels of earnings is on the worker” and that Mr Di Natale has not discharged that burden.
The Arbitrator states at [46]:
“On the basis of this information [set out at [45]] DM [sic] submits that his true remuneration was that aggregate of his wages, the director’s fees and profit before tax (less compensation received) for the 2002 financial year, computed to a weekly rate. Appropriately indexed it is said that this should form the basis of the determination of his probable earnings but for injury.”
However, he states at [47] that in the absence of considerably more evidence as to the operation of the company, such as detailed company tax returns and books, he is not prepared to draw that conclusion. Mr Di Natale says that the Arbitrator is in error in adopting this approach and states that properly calculated for the financial year 2002, his average weekly wage would be $615.15 gross per week.
The Arbitrator therefore, concludes that Mr Di Natale’s evidence is insufficient to be able to assess the value of his contribution to Ironcrest apart from the wages drawn. The Arbitrator finds that he is unable to make an assessment beyond that figure, “given the state of the evidence”. He proceeds to step 2 [of the Mitchell steps] on that premise.
The Arbitrator provides a number of specific reasons of a practical nature, at [47] of his Reasons, for taking this approach.
First, the Arbitrator states that the evidence as it stands does not enable him to draw any conclusions as to what use Ironcrest made of sub contractors during 2002, or what role sub-contractors (who had not previously appeared as a company expense) would have played in the future operations of the company. There is no evidence as to this aspect, and it is not evident that it was canvassed during the brief arbitral hearing. It appears to have been a relatively minor expense of $1200 in the financial year ended 2002 with no indication as to whether subcontractors would be a feature of the company’s activities in the future. For obvious reasons, it is possible that the use of subcontractors could have impacted on the dynamics of the company’s operations at and after the time of Mr Di Natale’s injury in May 2002, and into the future. Notwithstanding Mr Di Natale’s objections on appeal, there was nothing to prevent him from addressing and clarifying this issue in pursuing his case before the Arbitrator.
Second, the Arbitrator states that the evidence as it stands does not enable him to establish, in 2002 or the future, what percentage of the company’s earnings should be attributed to the work of subcontractors or what percentage should be seen as a return on capital. Until he left the workforce altogether in December 2004, Mr Di Natale had limited capacity to carry out some functions of work. However, the Arbitrator notes at [53] of his Reasons that while Mr Di Natale’s work experience has been almost exclusively in his trade, his management of Ironcrest “suggests he has wider business skills.” There is no evidence to indicate whether Mr Di Natale could have made, or contemplated at any time making, greater use of subcontractors. While this would have resulted in a cost to the company, any increase in “mental” input in the management of the company may well have had an added value to its operations. As the evidence stands, the Arbitrator could not ascertain whether there is an added advantage to Mr Di Natale or not, and if so, to what extent.
Third, the Arbitrator states that the evidence as it stands does not enable him to gauge Ironcrest’s after tax profits in 2002, which is necessary to “determine the net value of Mr Di Natale’s contribution.” Ironcrest supports this finding on the basis that the Arbitrator would be able to gauge only the “operating profit after income tax for 2002 and not the after tax profits for the company.” The ‘Profit and Loss Account’ statement of Ironcrest for the financial year ended 30 June 2002 discloses an operating profit for the financial year, before tax, of $4,068.26. It also discloses an operating profit after payment of $1,220.40 in company income tax, of $2, 847.86.
‘Operating profit’ is normally regarded as the measure of a company’s earning power from ongoing operations, equal to earnings before the deduction of interest payments and income tax. After the payment of tax there is obviously an, ‘after-tax operating profit’. Somewhat different is, ‘net profit’ per se after tax, simply being what is left after tax, but it does not necessarily take into account the capital costs of a company. The accounting documents of Ironcrest, disclose both pre and post tax operating profits. (Furthermore, both current and non-current (capital) assets, neither being “profits”, are included in the company’s balance sheet, which discloses total equity of $22,561.90 at the end of the 2001/2002 financial year). The net operating profits for the year ended 30 June 2002 are $2,847.86; retained profits carried forward from the financial year ended 30 June 2001 are $19,712.05, and total retained profits carried forward at the end at 30 June 2002 are $22,559.91. There is no distribution of profits recorded. Having regard to the information in the financial documents, it would appear for the practical purposes of this case, that the “net operating profit” for 2001/2002 and the “after tax profits in 2002” are likely to be the same. This was not made clear to the Arbitrator, although Mr Di Natale now submits on appeal, in effect, that they are the same.
Fourth, the Arbitrator states that the evidence as it stands does not explain the contradiction between Mr Di Natale’s statement [of 4 October 2007] as to his level of work and hourly rates, and the gross sales of his business. (Gross revenue for 2001/2002 was $58,187.59, and Mr Di Natale’s wages were $16,440 for that year as set out in the ‘Trading, profit and loss statement’ and in Mr Di Natale’s income tax return). In his statement Mr Di Natale stated that he would normally charge around $40 per hour through his company and on average, he would earn approximately $1,000 per week. He states, “All income that I earned from my jobs would be paid to my company.”
The Arbitrator suggests:
“Assuming he worked a 40 hour week, at the rate of $40.00 per hour, for 48 weeks a year, one would expect sales for labour alone of $76,800, a figure which does not match with the sales figures of Ironcrest.”
Fifth, the Arbitrator states that the evidence as it stands cannot be reconciled with Mr Di Natale’s statement to the insurer “in his questionnaire and statutory declaration of 5 May 2003” that he was earning $800.00 per week before tax. Clearly, the Arbitrator is correct in observing that the company documents and personal taxation records tendered into evidence by Mr Di Natale do not support this assertion.
Sixth, the Arbitrator states that the evidence as it stands:
“… does not address or explain the considerable reduction in gross sales (and profits) from 1999, or give any basis to reasonably forecast the future of the company but for Mr Di Natale’s injury. The significant change in the company’s trading position in the years 1999 to 2002 raises real question when estimating its future position. It is not, in my view, a case where simply indexing the value of Mr Di Natale’s contribution would be appropriate or justified.”
I note that while there has been a substantial decline in gross sales since 1999, gross sales for 2002 were in excess of $13,000 more than 2001. Nevertheless, as previously stated, operating profit for 2002 was around $1,500 less than the operating profit for 2001, principally because of increases in directors’ fees, wages, purchases, sub contractors and superannuation contributions.
The working records and books of the company and company taxation records were not submitted in evidence in this matter. The annual profit and loss accounts statements, balance sheets and supporting notes prepared in support, for the financial years 1999 to 2002, were in evidence, together with copies of Mr Di Natale’s personal income tax returns, but these documents provide information as to formal financial outcomes, assets and liabilities, rather than information as to how and to what extent the company’s earnings could be seen to be the same as Mr Di Natale’s earnings, and/or to what extent, and how he and/or his wife actually managed the affairs and undertook the work of the company in terms of his/her mental and physical contribution.
As the authorities indicate, the burden of establishing these matters as to the level and extent of his earnings and their value to the company rests upon Mr Di Natale. His submissions on the value of his contribution and earnings but for injury are not supported by relevant documentary evidence, to which in the ordinary course of things, he had unfettered access but for some reasons, did not produce to the Arbitrator. I note further that Mr Di Natale did not give oral evidence at the arbitral hearing, although he was in attendance. I agree with the Arbitrator that Mr Di Natale did not discharge the burden cast upon him, and his failure to do so was counter-productive to the Arbitrator in attempting to undertake a proper assessment in accordance with section 43 of the 1987 Act. The Arbitrator was left with the evidence that was before him and in my view, undertook the calculations to the best effect, based on that evidence.
Mr Di Natale submits that the method of calculation adopted by the Arbitrator amounted to a denial of natural justice. I reject this argument. The Arbitrator made his assessment, based upon the evidence put forward by Mr Di Natale, who was not in any way precluded from advancing his case, and nor was he denied a fair and impartial hearing.
I find no error on the part of the Arbitrator and I concur in his findings. Accordingly, this ground of appeal fails.
Did the Arbitrator err in law in failing to follow established case law (as set out in his Certificate of Determination) in determining the Mr Di Natale’s earnings but for the injury in his circumstances?
Mr Di Natale’s submissions on appeal proceed no further in substance, than have been outlined up to this point. While he contends that the Arbitrator failed to follow established case law he provides no elaboration on the point. He makes no submissions on, and does not discuss, any relevant case law and its application to this matter, in his submissions on appeal. It seems that all issues raised in submissions on appeal have been considered and dealt with.
The error of law claimed is not apparent to me. Accordingly, this ground of appeal fails.
Did the Arbitrator err in his discretion not to use the evidence made available to him by the parties in making a proper determination as to the calculation of the Applicant’s earnings but for the injury?
As previously discussed, the Arbitrator considered the evidence put before him and undertook the calculations required of him, based on that evidence. The fact that he was unable to proceed with the benefit of further and better information follows from Mr Di Natale’s failure to discharge the evidentiary burden carried by him in this matter.
In the circumstances, this ground of appeal fails.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 29 February 2008 is confirmed.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
3 July 2008
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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