Do v Vuong Investment Perpetual Holdings
[2022] NSWPIC 197
•3 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Do v Vuong Investment Perpetual Holdings [2022] NSWPIC 197 |
| APPLICANT: | Kim Do |
| RESPONDENT: | Vuong Investment Perpetual Holdings |
| Member: | John Isaksen |
| DATE OF DECISION: | 3 May 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation for lumbar spine injury in 2005; worker paid weekly payments from 2005 to 2012 but claiming for 2 dependent children, for periods when he was outside the Commonwealth of Australia, the indexing of probable earnings but for the injury, and weekly payments from 2012 onwards; Held– worker has not provided sufficient evidence of having 2 children dependent upon him during period when he is entitled to receive weekly payments of compensation; worker can receive weekly payments of compensation when he was outside the Commonwealth of Australia; worker cannot index probable earnings but for the injury (reference to Whittaker v Abacus Security and Surveillance P/L); award for weekly payments at varying rates under various sections of the Workers Compensation Act 1987 from 12 August 2005 to 30 June 2015. |
| determinations made: | 1. The applicant has not provided sufficient evidence to establish that he had any children who were dependent upon him during the periods when he was entitled to receive weekly payments of compensation as a result of his work injury. 2. The applicant is entitled to receive weekly payments of compensation during periods when he was outside of the Commonwealth of Australia. 3. The applicant is entitled to receive weekly payments of compensation from 12 August 2005 to 30 June 2015 for amounts which are set out in the orders below. 4. The applicant cannot index his probable earnings but for the injury he has sustained, in the absence of an agreement between the parties. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $538.46 per week from 12 August 2005 to 11 February 2006 pursuant to section 36 of the Workers Compensation Act 1987 (the 1987 Act) (preserved); (b) $340.90 per week from 12 February 2006 to 31 March 2006 pursuant to section 37 of the 1987 Act (preserved); (c) $347.90 per week from 1 April 2006 to 30 September 2006 pursuant to section 37 of the 1987 Act (preserved); (d) $354.40 per week from 1 October 2006 to 31 March 2007 pursuant to section 37 of the 1987 Act (preserved); (e) $361.30 per week from 1 April 2007 to 30 September 2007 pursuant to section 37 of the 1987 Act (preserved); (f) $367.70 per week from 1 October 2007 to 31 March 2008 pursuant to section 37 of the 1987 Act (preserved); (g) $374.90 per week from 1 April 2008 to 30 September 2008 pursuant to section 37 of the 1987 Act (preserved); (h) $381.40 per week from 1 October 2008 to 8 February 2009 pursuant to section 37 of the 1987 Act (preserved); (i) $430.80 per week from 9 February 2009 to 8 February 2010 pursuant to section 38 of the 1987 Act (preserved); (j) $313.46 per week from 9 February 2010 to 19 July 2011 pursuant to section 40 of the 1987 Act (preserved); (k) $228.45 per week from 20 July 2011 to 31 December 2012 pursuant to section 40 of the 1987 Act (preserved); (l) $353 per week from 1 January 2013 to 31 March 2013 pursuant to section 36 of the 1987 Act; (m) $249.30 per week from 1 April 2013 to 30 September 2013 pursuant to section 37 of the 1987 Act; (n) $255.50 per week from 1 October 2013 to 31 March 2014 pursuant to section 37 of the 1987 Act; (o) $253 per week from 1 April 2014 to 30 September 2014 pursuant to section 37 of the 1987 Act; (p) $260.50 per week from 1 October 2014 to 31 March 2015 pursuant to section 37 of the 1987 Act; and (q) $268.30 per week from 1 April 2015 to 30 June 2015 pursuant to section 37 of the 1987 Act. 2. The respondent to have credit for weekly payments of compensation already made to the applicant. |
STATEMENT OF REASONS
BACKGROUND
Kim Do, the applicant in these proceedings, sustained an injury to his lower back on 5 August 2005 while employed as a storeman and forklift driver with the respondent, Vuong Investment Perpetual Holdings.
The respondent admitted liability for this injury. The respondent paid weekly benefits of compensation to Mr Do until 13 August 2012, except for six discrete periods ranging from two weeks to five months when Mr Do was outside the Commonwealth of Australia.
Mr Do makes the following claims in this application:
(a) that the weekly payments made to him should include a payment his two children who were dependent upon him, as provided for by section 37 (1)(c) of the 1987 Act (preserved);
(b) that the weekly payments made to him should include those periods when he was outside the Commonwealth of Australia, as provided for by section 53 of the 1987 Act;
(c) weekly payments of compensation from 14 August 2012 to 31 December 2017 inclusive; and
(d) that his probable earnings but for his injury should be indexed for the purposes of calculating the weekly payments of compensation to be paid to him prior to amendments to the Workers Compensation Act 1987 in 2012 (the 2012 amendments).
Mr Do makes a claim for weekly payments of compensation for amounts which are set out in a wages schedule filed with the Commission on 31 March 2022.
The respondent disputes those claims made by Mr Do. The respondent also disputes that the applicant has had no current work capacity since 28 July 2008.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the weekly payments of compensation to be paid to Mr Do prior to the 2012 amendments can include two dependent children (sections 37 (1)(c) of the Workers Compensation Act 1987 (preserved) (the 1987 Act));
(b) whether weekly payments paid to Mr Do can include those periods when he was outside the Commonwealth of Australia (section 53 of the 1987 Act);
(c) the extent of Mr Do’s total and partial incapacity for work and the period or periods he can be paid weekly payments of compensation (sections 33, 36, 37, 38 and 40 of the 1987 Act (preserved) and sections 32A, 33, 36, 37 and 38 of the 1987 Act); and
(d) whether Mr Do’s probable earnings but for his injury can be indexed for the purposes of calculating weekly payments of compensation paid to him prior to the 2012 amendments.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 7 April 2022. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Goodridge appeared for Mr Do, instructed by Ms Principe. Mr Doak appeared for the respondent, instructed by Ms Tancred.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
10.Directions were issued at the conclusion of the hearing for both parties to file and serve written submissions on the application of any indexation to the applicant’s pre-injury earnings. Written submissions have been received by both parties on this issue.
EVIDENCE
Documentary evidence
11.The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 31 March 2022;
(d) written submissions filed by the applicant on 7 April 2022; and
(e) written submissions filed by the applicant on 21 April 2022.
Oral evidence
12.There was no application to adduce oral evidence or to cross examine Mr Do.
FINDINGS AND REASONS
The claim made by Mr Do for two dependent children to be included in the weekly payments of compensation prior to the 2012 amendments
13.The compensation claim form completed by Mr Do on 10 October 2005 lists two persons as dependent upon him:
(a) Thi Tam Phan, as his spouse; and
(b) Kim Cuong Do, as his son.
14.A form headed “Statutory Declaration of Dependents & Employment Status” completed by
Mr Do on 27 February 2006 includes “None” to the questions of whether Mr Do has a spouse or any children wholly or mainly dependent upon him. The declaration is witnessed by a solicitor, Karl Quy.15.There is a letter from Quy Lawyers dated 28 February 2006 which forwards the statutory declaration to CGU Workers Compensation (NSW) Ltd (CGU).
16.There follows a letter from CGU dated 21 April 2006 to Mr Do, care of Quy Lawyers, wherein Mr Do is informed that the weekly payments of compensation being paid to him will be reduced. Although not stated in the letter, the reduction made by CGU is to the statutory rate for a worker without dependents.
17.Mr Do has provided statements dated 20 October 2018 and 31 March 2022.
18.Mr Do states that his first marriage was from 1985 to 1998 and that he had two children from that marriage. He states that the second child from that marriage, Hayley Do, was born in 1991. He states that she remained in full time education until the age of 21. Mr Do states that although he separated from Hayley’s mother, he “had legal obligations in respect of child support” to Hayley.
19.Mr Do states that in “200” he remarried. He states that he has now separated from this wife and that she resides in Vietnam. He states that there is one child from that marriage, Cuong Do, born in 2003, and that this son is still dependent upon him.
20.Mr Do also sent an email to his current solicitor dated 14 February 2022 wherein he writes in regard to the two children he names from his first marriage: “I told this to my previous lawyer and he said that's no dependent. they did not ask my family in Vietnam”.
21.Mr Do bears the onus of proving that either or both of the children he has named were dependent children for the purposes of section 37 (1)(c) of the 1987 Act (preserved). The onus which Mr Do has to meet his twofold. Firstly, he has to provide sufficient evidence that the two persons he has named are his children. He has not provided a birth certificate for the two children he has named, nor has he provided any other documents which can confirm either person named to be his dependent children.
22.It is not clear from Mr Do’s evidence as to whether the two children he has named reside in Vietnam or in Australia. He states that his wife and child are in Vietnam, and that at least one of his trips to Vietnam was to care for his son who was injured in a bicycle accident. However, he also states: “The reality of the situation is that I have two grown children and one young child in Australia”. It may be that it is more difficult to obtain official documents confirming parentage of children in Vietnam if he has children in that country, but if that is the case, Mr Do has not referred to that in his evidence.
23.Secondly, Mr Do has to provide sufficient evidence to establish that the two children he has named were totally or mainly dependent upon him at the time he was receiving weekly payments of compensation. Again, there is just no evidence to assist in regard to this. There is no evidence by way of bank statements or correspondence which confirms any financial or other means of support being provided by Mr Do during the time that he was receiving weekly payments of compensation. There is no corroborative evidence from Mr Do’s former spouse or current wife in regard to what support Mr Do might have provided to the two children he has named.
24.Mr Do states that he “had legal obligations in respect of child support” to Hayley, but he does not explain what that child support might be. If there was a legal or statutory obligation to provide child support, then no documents have been provided to confirm this. There is no evidence as to what that support might be if it is a cultural obligation.
25.There is also the statutory declaration made by Mr Do on 27 February 2006 wherein he declares he has no spouse or any children wholly or mainly dependent upon him. It is apparent from subsequent correspondence contained in the Reply that Karl Quy was not simply sought out by Mr Do to be a witness to that declaration, but that Mr Quy or his firm represented Mr Do for several years in respect of this workers compensation claim.
26.It does not appear from the evidence that any attempts were made by or on behalf of Mr Do to challenge the reduction in weekly payments of compensation which occurred after the statutory declaration was provided to CGU in February 2006 despite the passage of seven years when Mr Do was receiving weekly payments of compensation.
27.There is no evidence from Mr Do that he did not understand the statutory declaration he was signing. There is no explanation provided by Mr Do as to why he did not name any persons as being dependent upon him until he sends an email sent to his current lawyers some 14 years later, and which appears to place the blame for any misunderstanding he had in completing the form with Mr Quy.
28.Mr Do has not provided sufficient evidence to establish that he had any children who were dependent upon him during the periods when he was entitled to receive weekly payments of compensation as a result of his work injury. He has not provided a satisfactory explanation as to why he did not declare any persons dependent upon him in 2006 and continued to receive weekly payments of compensation for many years at the rate for a worker without dependents, despite having the benefit of legal representation.
29.Any award of weekly payments of compensation made in favour of Mr Do prior to the 2012 amendments will be at the statutory rate for a worker without dependents.
Whether weekly payments paid to Mr Do can include those periods when he was outside the Commonwealth of Australia
30.Section 53 of the 1987 Act relevantly provides:
“(1) If a worker receiving, or entitled to receive, a weekly payment of compensation under an award ceases to reside in Australia, the worker shall thereupon cease to be entitled to receive any weekly payment, unless a medical assessor certifies, or the Commission determines, that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
31.Mr Do lists seven discrete periods when he was outside of the Commonwealth of Australia and was not paid weekly payments of compensation:
(a) 14 December 2005 to 24 December 2005;
(b) 6 December 2006 to 5 December 2006;
(c) 25 September 2010 to 11 January 2011;
(d) 10 October 2011 to 18 December 2011;
(e) 29 December 2011 to 20 May 2012;
(f) 9 August 2012 to 14 December 2012; and
(g) 6 July 2016 to 1 September 2016.
32.Mr Do states that at no stage was it his intention to cease residing in Australia. He states that he is an Australian citizen and has lived here for 35 years and would never leave Australia on a permanent basis.
33.Mr Do states that every couple of years he would spend two or three months in Vietnam visiting his wife.
34.I will refer to the medical evidence in some detail when I address the award of weekly compensation to be made in favour of Mr Do. However, it is apparent from the medical evidence that Mr Do sustained a serious and permanent injury to his lower back in the course of his employment, the effects of which caused him to be at least partially incapacitated for work, especially for any heavy or strenuous work.
35.I am therefore satisfied that Mr Do would have been entitled to receive an award of weekly payments of compensation during the periods when he temporarily left Australia.
36.Mr Doak for the respondent submits that an entitlement to receive weekly payments of compensation extends to a partially incapacitated worker taking active steps to seek suitable employment, which Mr Do could not do while he was overseas. However, no attempt was made by the respondent to challenge Mr Do’s entitlement to weekly payments of compensation upon his return from his trips to Vietnam pursuant to the now repealed section 52A of the 1987 Act.
37.There is no compelling evidence that Mr Do intended at any stage to cease his permanent residency in Australia. Each of the trips taken by Mr Do was back to his place of birth and to see his family. A letter from Quy Lawyers to Employers Mutual dated 24 May 2012 refers to trips overseas taken by Mr Do to see his father who was unwell, and who then subsequently passed away. Mr Do always returned to Australia from those trips.
38.Mr Doak refers to a letter from Quy Lawyers to Employers Mutual dated 15 August 2012 wherein it is stated that Mr Do “does not know when he will return to Australia”, and the response from Employers Mutual dated 20 August 2012, which refers to a finalisation of
Mr Do’s claim “due to him returning to Vietnam indefinitely”. He submits that this supports a finding that at least by August 2012 it was Mr Do’s intention to permanently leave Australia.39.I do not accept that submission. The letter from Quy Lawyers merely advises that Mr Do does not know when he will return to Australia. There is no concession that Mr Do has permanently ceased to reside in Australia. It is Employers Mutual who uses this opportunity to close Mr Do’s file.
40.I am satisfied from a review of the evidence that Mr Do is entitled to receive weekly payments of compensation for at least the first six discrete periods that have been listed in the wages schedule filed on his behalf, when Mr Do was outside of the Commonwealth of Australia.
The claim for weekly payments of compensation
41.The applicant states that he came to Australia from Vietnam in 1983 when he was 24 years of age. He states that he worked as a machine operator for five and a half years. He states that he then set up his own clothing manufacturing business, which he operated from 1991 to about 2001, in which he did everything from sewing to loading and unloading deliveries.
Mr Do states that he then returned to work as a machine operator and then as a storeman and forklift driver for the respondent.42.Mr Do does not provide any evidence of his attempts to obtain work from 2008 onwards when his general practitioner, Dr Dinh, certified him fit for 12 hours of work per week.
43.Dr Dinh issued Workcover Medical Certificates from October 2005 to July 2008 certifying
Mr Do as being unfit for work.44.Dr Dinh certified Mr Do as being fit for 12 hours of work per week, with no lifting above 2 kg and resting every hour, between 25 July 2008 and 1 May 2009. From 2 May 2009 Dr Dinh increased that capacity for work to 15 hours per week.
45.On 12 July 2011 Dr Dinh increased Mr Do’s capacity to work to 20 hours per week, with a lifting limit of 5 kg and resting for five to ten minutes every hour. There are no medical certificates since then which have increased the hours of work that Mr Do might be able to do.
46.Dr Abraszko was Mr Do’s treating neurosurgeon and has provided reports between December 2005 and 2008. In a lengthy report to Quy Lawyers dated 5 May 2006,
Dr Abraszko provides the following opinion in regard to Mr Do’s work capacity:“Mr Do cannot return to his pre-injury abilities. Most likely he may continue to perform work of a light nature, particularly if it was a sedentary nature or occupation or work which does not require bending forward or lifting from floor to waist level or from waist to above the head level. He also cannot perform work which requires him to remain in the same position for prolonged periods of time.”
47.There is a report from Dr Thomson, injury management consultant, dated 10 June 2008, addressed to CGU. Dr Thomson opines that Mr Do has been totally unemployable since the incident at work. He opines that Mr Do could not be expected to undertake any employment with any load of any consequence in the lower back, with the only viable alternative being 12 hours of work per week in an office or clerical environment.
48.Dr Guirgis, orthopaedic surgeon, has provided a report dated 5 February 2009 wherein he considers Mr Do should avoid activities including repetitive bending and twisting of the spine, heavy manual activities, and prolonged standing or walking.
49.Dr Perla, injury management consultant, provided a report to Employers Mutual dated 13 September 2010. Dr Perla opines that Mr Do can be issued with a final certificate for permanently modified duties with no lifting, pulling or pushing more than 5 kg, and to avoid repetitive, prolonged stooping and twisting. He also considers that Mr Do could upgrade his normal hours, although he notes that he spoke to Dr Dinh who considered that 15 hours per week would be the current limit, with the aim of increasing to 20 hours per week.
50.In a further report dated 21 March 2011, Dr Perla confirms that Dr Dinh is happy to upgrade Mr Do’s work capacity to 20 hours per week and anticipates further upgrades could occur.
51.Dr Patrick, orthopaedic surgeon, has provided a report at the request of Mr Do’s solicitors dated 26 April 2018. Dr Patrick diagnoses Mr Do as having multilevel lumbar discopathy with acquired canal stenosis, which was aggravated by Mr Do’s work.
52.Dr Patrick considers that Mr Do is totally incapacitated for his pre-injury duties. He does not consider that Mr Do has realistic prospects of returning to regular employment based on his education, training and experience without suffering flare-ups and aggravations which would make Mr Do unemployable.
53.There is a report from Lauren Tory, rehabilitation consultant, dated 28 August 2008. This report coincides with changes which are made to the medical certificates issued by Dr Dinh which commence to certify Mr Do as being fit for 12 hours of work per week with restrictions. Ms Tory records that Mr Do agrees with that medical certification.
54.Ms Tory also records that Mr Do became anxious when discussing a possible return to suitable employment in the near future, and that he stated that he did not want to work in a position that would re-aggravate his injury.
55.Ms Tory concludes that Mr Do was suitable for the positions of mail sorter, car park attendant and product assembler. However, she also writes that there needs to be a medical case conference to try to upgrade his hours and a physical work performance evaluation to determine Mr Do’s physical capabilities before Mr Do commences a job seeking program.
56.There are reports in late 2008 and early 2009 from Mei Fong, functional program manager from Peak Conditioning, who states that Mr Do underwent 10 supervised exercise interventions over an eight week period in an effort to reach a rehabilitation goal of being fit for 25 hours of work per week in suitable duties.
57.In a report from Mei Fong dated 2 February 2009, it is stated that Mr Do has completed a Peak Upgrading program and that he “demonstrated that he was able to meet the physical requirement of his rehabilitation goal”. The report also refers to Dr Dinh being hesitant to upgrade the hours of work which Mr Do could do, which at that time were 12 hours per week.
58.Mr Goodridge submits that given the extent of Mr Do’s injury, there are no jobs in the ‘real world’ which Mr Do could undertake, and Mr Do should be regarded as being totally incapacitated and having no current work capacity.
59.Mr Doak submits that the weight of medical evidence confirms that Mr Do has a residual earning capacity and that his weekly payments of compensation should be determined on that basis.
60.The medical evidence supports a finding that from the time that Mr Do sustained his injury until 24 July 2008, he was totally unfit for work, and he should be compensated accordingly.
61.Dr Dinh then certifies Mr Do as having a partial incapacity for work from 25 July 2008.
Dr Dinh continues to issue certificates certifying a partial incapacity for another four years, and Mr Do’s capacity to undertake restricted work is increased over time to work 20 hours of work per week with restrictions on heavy or moderately heavy lifting and allowing him short rest periods.62.Although Dr Dinh commences to certify Mr Do as being suitable for some of hours of work each week by July 2008, it is apparent from the reports of Ms Tory and Mei Fong that Mr Do was not at that stage ready and able to return to the workforce. From the evidence which is available in this dispute, I consider that Mr Do remained totally unfit for work until February 2009 when he had completed a training program recommended by Ms Tory and there was consultation with Dr Dinh regarding suitable hours that Mr Do could work each week.
63.From February 2009 onwards, Dr Dinh provides certificates which certify Mr Do fit for suitable duties, but those certificates never reach a stage when Mr Do is certified to work a full week, despite the optimism expressed by Dr Perla.
64.I agree with the submission made by Mr Doak that Dr Dinh is in a good position as Mr Do’s general practitioner to provide appropriate certification as to the extent of Mr Do’s work capacity, especially as he has seen Mr Do on a regular basis.
65.The evidence does not disclose that Dr Dinh was reluctant to certify Mr Do as fit for suitable duties or that he was only prepared to do so on a trial basis. The reports from Mei Fong and Dr Perla record some caution on the part of Dr Dinh of extending the amount of hours that
Mr Do can work each week, but Dr Dinh consistently certifies Mr Do as having some capacity for work between July 2008 and 2012.66.I prefer those contemporaneous medical records from Dr Dinh and also Dr Perla on the issue of Mr Do’s capacity for work over the opinion provided by Dr Patrick. Dr Patrick is looking back some years to form his conclusion that Mr Do has no realistic prospects of returning to regular employment based on his education, training and experience, whereas Dr Dinh and Dr Perla are assessing Mr Do at the very time when decisions need to be made as to whether Mr Do is able to return to the workforce, even in a limited capacity.
67.Dr Thomson in 2008 and Dr Guirgis in 2009 also place restrictions on Mr Do’s work capacity, but neither consider that Mr Do cannot work at all. Although the opinion from Dr Abraszko on Mr Do’s work capacity is provided just over 12 months from the date of his injury,
Dr Abraszko also anticipates that Mr Do will be capable of some light work.68.The weight of contemporaneous medical evidence supports a finding that Mr Do has some capacity for work within restrictions which are to be applied for a worker who has ongoing pain and disability as a result of a significant lower back injury.
69.Although I accept that Mr Do has significant ongoing disability in his lower back and he has limited English skills, there are jobs which have been identified by Dr Perla that Mr Do could do for the hours of work certified by Dr Dinh.
70.There are product assembler jobs which allow for a worker to sit and stand throughout a shift. The job of a car park attendant also allows for changes of position. Neither job should require heavy or moderately heavy lifting.
71.Ms Tory records that Mr Do self rated his English speaking skills as average. Mr Do states that he conducted all aspects of his clothing manufacturing business between 1991 and 2001 and Dr Patrick records that the business was doing “quite well”. That evidence would indicate that Mr Do would have sufficient communication skills required for the work of a product assembler or car park attendant.
72.There is correspondence from Employers Mutual between 2010 and 2012 which is in the Reply which indicates that Mr Do was job seeking so as to ensure that he continued to receive weekly payments of compensation. Dr Perla writes in September 2010 regarding
Mr Do that: “I understand he is job seeking”.73.In Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41 (Figueira), DP Roche recognised at [63] that making applications for work is not determinative of a work capacity.
74.However, as I have already observed, Mr Do does not provide his own evidence of his attempts to obtain work when he is certified fit for suitable duties. He does not provide evidence of the jobs he was applying for and the responses he got from any such applications. That might have assisted in the submission made on his behalf that there are no jobs in the ‘real world’ which Mr Do could obtain and perform.
75.Mr Do claims weekly payments of compensation during a period when the application of ‘suitable employment’ in section 32A of the 1987 Act applies. ‘Suitable employment’ is defined as:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of—
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
76.I have already referred to medical information contained in contemporaneous reports and certificates which confirm that Mr Do has some capacity for work. I have also referred to certain skills and work experience which should allow Mr Do to undertake part time work in jobs such as a product assembler or car park attendant.
77.I therefore do not accept that Mr Do has continued to have no work capacity as was submitted by Mr Goodridge. I accept from the evidence that Mr Do was able to undertake part time work as a product assembler or car park attendant from February 2009 onwards.
78.The submission by Mr Goodridge of there being no real jobs available to Mr Do in the real world is probably a reference to the need to identify ‘real jobs’ which was made by DP Roche in Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55 at [63]. However, the jobs of product assembler and car park attendant are real jobs, and the contemporaneous medical evidence which I have reviewed supports a finding that Mr Do has a capacity to undertake those jobs at least on a part time basis.
79.As is often the case in regard to a list of payments provided by the insurer, it is difficult to determine the basis for some of the weekly payments made to Mr Do. However, Mr Do should be given the benefit of the now repealed section 38 of the 1987 Act for his attempts at seeking suitable employment which is referred to in correspondence from Employers Mutual.
80.Once the period from the now repealed section 38 is exhausted, Mr Do’s entitlements to weekly payments are governed by the now repealed section 40 of the 1987 Act until the application of the 2012 amendments to the 1987 Act.
81.The respondent did not take issue with the claim made by Mr Do that he was not an existing recipient of weekly payments of compensation as at 1 October 2012. Therefore, Mr Do obtains the benefits of sections 36 and 37 of the 1987 Act for 130 weeks from 1 January 2013.
82.Mr Do does not obtain the benefit of section 38 of the 1987 Act because I have found that he does have some work capacity, but that he has not returned to at least 15 hours of work per week.
The indexation of probable earnings but for the injury, for the purposes of calculating the weekly payments of compensation
83.It was not uncommon practice in the Compensation Court for there to be an agreement reached between the parties to a dispute that a worker’s probable earnings but for the injury could be indexed by the Consumer Price Index (CPI) or 3% per annum (as an approximate average of CPI) in the absence of details of the earnings of comparable employees. However, as Mr Doak points out in his written submissions, there is no legal basis for this.
84.Mr Doak refers to a number of Presidential decisions wherein it was held that it is an error to increase the figure for probable earnings under the now repealed section 40 (2)(a) of the 1987 Act – Whittaker v Abacus Security and Surveillance Pty Limited [2006] NSWWCCPD 86 (Whittaker), Miller v A & R Pearson Pty Limited [2007] NSWWCCPD 111 (Miller), and Ledingham v The Glen Cotton Company Pty Limited [2009] NSWWCCPD 15 (Ledingham).
85.Mr Goodridge in his written submissions concedes that Whittaker is authority for the proposition that absent evidence or agreement, it is an error to increase the probable earnings of the worker by indexation.
86.Based upon those authorities and absent any agreement between the parties in this dispute, there can be no indexation of Mr Do’s probable earnings but for his injury.
The calculation of weekly payments of compensation
87.The ARD claims weekly payments of compensation from 1 October 2005, despite Mr Do sustaining injury on 5 August 2005. The list of payments records weekly payments commencing on 12 August 2005 (ARD 170).
88.Given that I am required to apply different sections of Part 3 Division 2 of the 1987 Act, I will commence the award of weekly payments of compensation from 12 August 2005. That is consistent with a medical certificate dated 18 August 2005, even though that certificate is for Centrelink.
89.Mr Do claims a current weekly wage rate in his wages schedule of $549.49. However, there is no evidence to support this figure. It might be that it is indexed from the amount of $538.46 per week which is listed as the ‘Rate’ in the list of payments from the insurer, and also by
Ms Tory as Mr Do’s pre-injury earnings “as reported by Insurer” in her report, but I have already determined that there can be no indexation of probable earnings but for the injury.90.The current weekly wage rate for the purposes of calculating weekly payments of compensation will therefore be $538.49.
91.Mr Do should be paid weekly payments of compensation for 12 months at 80% of $538.46 (being $430.80 per week) pursuant to section 38 of the 1987 Act (preserved) on the grounds that he was seeking suitable employment once he was ready, willing and able to do that. That 12 month period will run from 9 February 2009 (being the date of the report from Mei Fong which confirms Mr Do’s completion of a physical upgrading program) to 8 February 2010.
92.Thereafter, the weekly payments of compensation are calculated in accordance with section 40 (2) of the 1987 Act (preserved), being the difference between what Mr Do would be earning but for the injury and what is able to earn in suitable employment, until the 2012 amendments to the 1987 Act come into force.
93.I have been unable to find award rates of pay for a product assembler or car park attendant going back to 2010, but it is reasonable to conclude that Mr Do would only be likely to be able to attract the minimum wage for his labour.
94.The minimum wage in 2010 was $15 per hour pursuant to the National Minimum Wage Order 2010. Mr Do was certified by Dr Dinh to be fit for 15 hours per week until 19 July 2011. The difference between $538.46 per week and $225 per week is $313.45 per week.
95.Mr Do was certified by Dr Dinh to be fit for 20 hours per week from 20 July 2011. The minimum wage in 2011 was $15.50 per hour pursuant to the National Minimum Wage Order 2011. The difference between $538.46 per week and $310 per week is $228.45 per week.
96.In written submissions attached to the Reply it was stated that,
“the respondent admits the indexed probable earnings specified in the applicant’s wage schedule should apply to the determination of his PIAWE after the 2012 amendments apply to the calculation of his weekly compensation entitlements.”
97.The indexed probable earnings in the applicant’s wages schedule attached to the ARD (and in the Application to Admit Late Documents) as at 1 January 2013 is $708.33. The minimum wage in 2012 was $15.95 per hour pursuant to the National Minimum Wage Order 2012 (which is rounded out to $16 per hour). The difference between $708.33 per week and $320 per week (being 20 hours per week at $16 per hour) is $388.30 per week.
98.Mr Do receives 95% of $708.33 (being $673) for 13 weeks from 1 January 2013 to 31 March 2013 pursuant to section 36 of the 1987 Act as it now applies. The difference between $673 per week and $320 per week (being 20 hours per week at $16 per hour) is $353 per week.
99.The weekly payments of compensation pursuant to section 37 of the 1987 Act as it now applies, are awarded to Mr Do up to 30 June 2015, based upon the difference between 80% of the indexed amounts set out in the applicant’s wages schedule and the National Minimum Wage Orders for 2013 and 2014. The minimum wage for those two years, which commences on 1 July of each year are:
(a) 1 July 2013 $16.40 per hour; and
(b) 1 July 2014 $16.90 per hour.
The award of weekly payments of compensation to be made to Mr Do will be as follows:
(a) $538.46 per week from 12 August 2005 to 11 February 2006 pursuant to section 36 of the 1987 Act (preserved);
(b) $340.90 per week from 12 February 2006 to 31 March 2006 pursuant to section 37 of the 1987 Act (preserved);
(c) $347.90 per week from 1 April 2006 to 30 September 2006 pursuant to section 37 of the 1987 Act (preserved);
(d) $354.40 per week from 1 October 2006 to 31 March 2007 pursuant to section 37 of the 1987 Act (preserved);
(e) $361.30 per week from 1 April 2007 to 30 September 2007 pursuant to section 37 of the 1987 Act (preserved);
(f) $367.70 per week from 1 October 2007 to 31 March 2008 pursuant to section 37 of the 1987 Act (preserved);
(g) $374.90 per week from 1 April 2008 to 30 September 2008 pursuant to section 37 of the 1987 Act (preserved);
(h) $381.40 per week from 1 October 2008 to 8 February 2009 pursuant to section 37 of the 1987 Act (preserved);
(i) $430.80 per week from 9 February 2009 to 8 February 2010 pursuant to section 38 of the 1987 Act (preserved);
(j) $313.46 per week from 9 February 2010 to 19 July 2011 pursuant to section 40 of the 1987 Act (preserved);
(k) $228.45 per week from 20 July 2011 to 31 December 2012 pursuant to section 40 of the 1987 Act (preserved);
(l) $353 per week from 1 January 2013 to 31 March 2013 pursuant to section 36 of the 1987 Act;
(m) $249.30 per week from 1 April 2013 to 30 September 2013 pursuant to section 37 of the 1987 Act;
(n) $255.50 per week from 1 October 2013 to 31 March 2014 pursuant to section 37 of the 1987 Act;
(o) $253 per week from 1 April 2014 to 30 September 2014 pursuant to section 37 of the 1987 Act;
(p) $260.50 per week from 1 October 2014 to 31 March 2015 pursuant to section 37 of the 1987 Act; and
(q) $268.30 per week from 1 April 2015 to 30 June 2015 pursuant to section 37 of the 1987 Act.
The respondent should have credit for payments already made.
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