Drive Recruit Pty Ltd v Back - [2013] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32
APPELLANT:			Drive Recruit Pty Ltd
RESPONDENT:			Wayne Kingston Back
INSURER:			CGU Workers Compensation (NSW) Ltd
FILE NUMBER:			A1-4249/12
ARBITRATOR:	Ms D’Souza
DATE OF ARBITRATOR’S DECISION:			23 November 2012
DATE OF APPEAL HEARING:		27 May 2013
DATE OF APPEAL DECISION:			31 May 2013
SUBJECT MATTER OF DECISION:			Concurrent employment; casual employment; essential features of a contract of employment; calculation of current weekly wage rate, average weekly earnings, and probable earnings; ss 42(7), 43(1)(e) and (f) of the Workers Compensation Act 1987; ability to earn; entitlement to weekly compensation; assessment of evidence; partial incapacity; orders inconsistent with the findings made; non-compliance with Practice Direction No 6; unsatisfactory written submissions by appellant; appeal unnecessarily protracted by appellant’s conduct; costs on appeal
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr P Stockley, instructed by Bartier Perry
Respondent:	Mr M Best, instructed by Slater & Gordon
ORDERS MADE ON APPEAL:			1. Paragraphs 1 and 2 of the Certificate of Determination of 23 November 2012 are revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Paragraph 3 is confirmed. 2. The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. Costs of the second arbitration are to follow the outcome of that arbitration.

INTRODUCTION

This appeal raises four main issues: first, whether, at the time of injury, the worker was employed under two contracts of service; second, the calculation of his average weekly earnings, current weekly wage rate and probable earnings but for the injury; third, the worker’s ability to earn after his injury, and, last, the calculation of the worker’s entitlement to weekly compensation. (All references to the legislation in this decision are to the legislation as it applied prior to the amendments introduced by the Workers Compensation Legislation Amendment Act 2012.)

BACKGROUND

The respondent worker, Wayne Back, suffers an intellectual disability and has below average literacy and numeracy skills. After completing his schooling in 1996, he lived and worked on his family’s farm near Tamworth, during which time he received social security payments. While he attempted some TAFE courses, he failed to complete them. He left the farm in 2008 and moved to Queanbeyan, where he registered with two employment agencies, Select Australia Pty Ltd (Select) and the appellant employer, Drive Recruit Pty Ltd (Drive).
He first worked for Select as a labourer/driver on 2 November 2008 doing furniture removals, work he continued on a casual basis for two or three days per week until sometime in the week ending 12 December 2008. Though it is not known exactly how many hours or days he worked for Select, it is agreed that he earned $2,642 between 2 November 2008 and 12 December 2008. Because he wanted to work five days per week, he started similar work with Drive on 15 December 2008, with the intention of continuing to work for Select.
On 16 December 2008, his second day with Drive, Mr Back injured his non-dominant right shoulder while lifting a washing machine from head-height to the floor of a removal truck. He reported the injury, was certified unfit, and has not returned to work since. It is agreed that he earned $371 for his two days’ work with Drive.
Mr Back’s shoulder symptoms did not resolve and he had surgery on 22 September 2010 in the form of an arthroscopic subacromial decompression with an open excision of the distal end of the clavicle. He was certified fit for suitable duties on 3 March 2009.
Drive’s insurer, CGU Workers Compensation (NSW) Ltd (CGU), accepted liability for the injury and paid voluntary weekly compensation at the rate of $336 per week until 15 July 2011. It stopped payments on the ground that Mr Back had a capacity to earn more than his pre-injury earnings with Drive.
Mr Back alleged that, at the time of his injury, he was engaged in concurrent contracts of employment with Drive and Select, and that his earnings were his combined earnings with both employers (ss 42(7) and 43(1)(b) of the Workers Compensation Act 1987 (the 1987 Act)). This gave a figure of $811 per week, which was arrived at by adding his average weekly wage with Select ($440) (calculated by using an estimate of the hours worked multiplied by an hourly rate of $20) added to his $371 for two days’ work with Drive. It was argued that $811 was Mr Back’s current weekly wage rate, average weekly earnings and his probable earnings but for injury.
In his claim for compensation, as amended at the arbitration, Mr Back sought the following weekly compensation:
(a) $811 for total incapacity from 16 December 2008 to 2 March 2009 under s 36;
(b) the maximum statutory rate, for a single worker, for partial incapacity between 3 March 2009 and 21 September 2010 under s 40;
(c) $811 for total incapacity (while recovering from surgery) from 22 September 2010 to 14 December 2010 under s 36, and
(d) the maximum statutory rate, for a single worker, for partial incapacity from 15 December 2012 to date and continuing under s 40.
The issues in dispute before the Arbitrator were:
(a)     whether Mr Back had been engaged in concurrent contracts of employment with Drive and Select at the time of the injury;
(b) whether Mr Back was entitled to weekly compensation under ss 36 and 40 at the rates claimed;
(c)     Mr Back’s average weekly earnings and probable earnings but for his injury, and
(d)     Mr Back’s ability to earn.
After hearing oral evidence from Mr Back and submissions from the parties, the Arbitrator delivered a reserved decision in which she found that:
(a)     as at 16 December 2008, Mr Back had concurrent employment with Select and Drive;
(b)     but for his injury, Mr Back would have continued to work for Drive and Select whenever he was offered work;
(c)     Mr Back sometimes worked 11.5 hours per day with Select and sometimes 10 hours per day. Taking an average of 10.75 hours at $20 per hour gave average earnings of $215 per day or $430 per week (for a two day week) with Select;
(d)     Mr Back’s “total average weekly earnings” with both employers was therefore $747 per week, which figure was also his probable earnings but for the injury, and
(e)     Mr Back’s ability to earn was nil, and he was entitled to the maximum statutory rate payable to an injured worker with no dependants, which amount was proper in the circumstances, and there was no reason to exercise her discretion.
The Commission issued a Certificate of Determination on 23 November 2012 in the following terms:
“1. Respondent to pay the applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 at the following rates:
(a)$747 per week from 16 December 2008 to 2 March 2009;
(b)$381.40 per week from 3 March 2009 to 31 March 2009;
(c)$389.10 per week from 1 April 2009 to 21 September 2009;
(d)$747 per week from 22 September 2009 to 14 December 2010;

With credit to the respondent for payments made during those periods.

2. Respondent to pay the applicant weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 at the applicable maximum statutory rate for an injured worker with no dependants as amended from 15 December 2010 to date and continuing, with credit to the respondent for payments made during this period.

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

Certification of Complexity
The matter is certified complex pursuant to the Workers Compensation Regulation 2010 such as to warrant an increase of 20 per cent above the maximum costs payable in respect of both parties.”

Drive has challenged the Arbitrator’s decision.

ISSUES IN DISPUTE ON APPEAL

The appeal, as initially filed, was a generalised complaint about the result without any effort to identify properly the grounds of appeal, as required by Practice Direction No 6. That was unsatisfactory and led to the matter being listed for teleconference on 15 March 2013 and a direction being issued for proper grounds to be identified and further submissions to be filed on issues the parties had not addressed. In response to that direction, Drive’s solicitor filed an amended appeal on 2 April 2013 and counsel for Mr Back, Mr Best, filed submissions in response on 17 April 2013.
The amended appeal alleges that the Arbitrator erred in:
(a)     finding that Mr Back was engaged in concurrent employment with Select and Drive at the time of the injury (concurrent employment);
(b)     her calculation of probable earnings but for injury (earnings);
(c)     determining that Mr Back has no ability to earn (ability to earn);
(d)     her assessment of the medical and vocational evidence (ability to earn);
(e)     determining Mr Back to be entitled to compensation of $381.40 per week from 3 March 2009 to 31 March 2009 and 1 April 2009 to 21 September 2009, (calculation of weekly compensation), and
(f)      determining Mr Back to be entitled to compensation of $747 per week from 22 September 2009 to 14 December 2010 (calculation of weekly compensation).

CONCURRENT EMPLOYMENT

The Arbitrator’s findings

The Arbitrator was satisfied that, at the time of injury, Mr Back had concurrent employment with Drive and Select. She said there was no evidence to refute Mr Back’s stated intention of working full-time and accepted his evidence that, had he not been injured, Select had advised him it had work for him for the balance of the week starting 15 December 2008. She found that he worked two to three days per week with Select and that he had a reasonable prospect of steady work with that company.

Submissions

Appellant’s submissions

Drive submitted that the Arbitrator failed to have regard to Mr Back’s evidence in cross-examination that his employment with Select was on an “on call” basis, was “not regular work”, was “not guaranteed work”, and he was allocated work only by way of a text message.
Further, Drive contended that Mr Back’s evidence was unreliable and insufficient to support the finding of concurrent employment. In particular, Mr Back’s evidence was inadequate to discharge the onus of establishing concurrent employment because he failed to provide evidence to support his stated intention to work concurrently for five days per week – three days with Select and two days with Drive. Nor was he able to prove that such work would have been available.
At best, Drive argued, the evidence amounted to Mr Back having occasional work with two different employers from time to time. That was distinct from the definition of concurrent employment because Mr Back failed to identify his working pattern with Select and Drive. Further, the method of job allocation (by text message) did not support a valid or permanent arrangement in terms of concurrent employment.
Drive submitted that Mr Back was a part-time casual worker and it was necessary to determine probable earnings (and, presumably, average weekly earnings) as a casual worker pursuant to s 43(1)(e).

Respondent’s submissions

Mr Best submitted that Mr Back’s oral evidence of his intentions regarding work, after he commenced working with Select, but prior to commencing with Drive, revealed that he wanted to have a five-day-a-week job. He said there was no evidence to dispute Mr Back’s assertions of concurrent employment. He was never cross-examined to the effect that he was not “employed” by Select and Drive. Rather, it was put to him that there was no “regularity” (T8.18) to the days he worked for Select and that he was “on call” (T8.19).
Mr Best argued that the only conclusion open to the Arbitrator was that, as at 16 December 2008, Mr Back had entered two contracts of service, one with Select and one with Drive, and was undertaking concurrent employment at that time. He said that Drive’s submissions at the arbitration, repeated on appeal, did not dispute the existence of two contracts of service, but was that Mr Back had occasional work with two different employers from time to time, which did not support a valid or permanent arrangement in terms of concurrent employment.
Mr Best said that Drive’s approach seeks to import an artificial construction upon the language in ss 42(7) and 43 and the long-established principle of concurrent employment. The submission by Drive with respect to “uncertainty” or “lack of a valid or permanent arrangement” with respect to Mr Back’s employment with Select was made without evidentiary foundation.
Mr Best contended that Drive’s argument on appeal that Mr Back was a part-time casual worker was not raised at the arbitration and it should not be permitted to raise it on appeal (Coulton v Holcombe [1986] HCA 33; 162 CLR 1).

Discussion and findings

There are four essential features of a contract of employment (The Modern Contract of Employment, Ian Neil SC and David Chin, 2012, Lawbook Co, (Neil and Chin)). Those features are discussed in detail at pages 1–3 in Neil and Chin and may be summarised as follows:
(a)     there can be no employment without a contract (Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555 at 587);
(b)     the contract must involve work done by a person in performance of a contractual obligation to a second person (Abdalla v Viewdaze (2003) 122 IR 215 at [23]). That is because the essence of a contract of service is the supply of the work and skill of the worker (Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404–405);
(c)     there must be a wage or other remuneration, otherwise there will be no consideration (Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 at 515), and
(d)     there must be an obligation on one party to provide, and on the other party to undertake, work. The obligation required to constitute a contract of employment is that:
“the putative employer be obliged to pay the putative employee in accordance with the terms of the contract for services reasonably demanded under it, and that the putative employee be obliged to perform such services. That is as much so where the service consists of standing and waiting as where it is active” (Forstaff Pty Ltd v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]; see also Wilton v Coal & Allied Operations Pty Ltd (2007) 161 FCR 300 at [162]).
Applying the above principles to the present case, there is no satisfactory evidence that, as at 16 December 2008, Mr Back had concurrent contracts of employment with Select and Drive and the Arbitrator erred in finding that he did.
Mr Back’s statement, dated 26 April 2012, is of limited assistance because it has wrongly referred to him starting work with Drive and then obtaining work with Select. In fact, Mr Back “register[ed]” (T5.27) with Select and Drive on an undisclosed date in 2008, after having moved to Queanbeyan from the family farm, and his first work was with Select, not Drive.
He first worked for Select on 2 November 2008 as a labourer/truck driver doing removal type work at “various locations” (T5.48) for $20 per hour. Though he worked for Select for three days per week (T8.4), “most of the time” (T8.7), he said he wanted to work for five days a week (T6.33).
Mr Back first worked for Drive on Monday 15 December 2008 performing removal work at houses, whereas the work for Select was at businesses. He was injured on 16 December 2008 and has remained off work ever since. In the week before starting with Drive, Mr Back worked Monday, Tuesday and Wednesday for Select (T7.26). His intention was to work for five days “between the two agencies” (T7.43).
Mr Back said in his oral evidence that:
(a)     Select was his “major agency” (T8.13);
(b)     (work from) Drive was “bugger all”, and Drive only rang him twice (T8.14);
(c)     there was no “regularity” to the days he worked with Select (T8.18);
(d)     he was “on call” (with Select) (T8.18);
(e)     he got work (from Select) by a text message to his phone about a job (T8.34). He would then phone (Select) to get the details (T8.45);
(f)      he was not always working at the same premises (T9.5);
(g)     if he had three days with one company, another day with another company, he knew at the end of the day where he was going to be and he would go to that company (T9.10);
(h)     at the end of each day, if he was required (the next day), he would be told where to go (T9.15);
(i)      if there was no work the next day, he would not go to work (T9.19);
(j)      he did not always have three days one after the other with Select (T9.33);
(k)     he knew on the afternoon of Tuesday 16 December 2008 to call Select “applying for work” (T10.11) for Wednesday, but he injured his shoulder. He took a medical certificate to Drive and told Select he could not “come back to work” (T10.16);
(l)      in answer to the suggestion that there was no guarantee of work (with Select on Wednesday, 17 December 2008), Mr Back said he “could have got [sic] work. They said I could have worked the next day but I had took [sic] two days off. I had to ring them up” (T10.22). He added that Select told him there was more work for him, but he had two days off and told them he was not “coming in” (T10.28). There was no “extra work” (T10.32) at Drive;
(m)   he worked for Drive (presumably on 15 December 2008) from 6.00 am until 5.30 pm (T11.31–34), which were the same sort of hours he worked for Select (T12.9–25; T12.50);
(n)     he worked more hours with Select because on some days (very rarely) he did overtime (T11.11–20), and
(o)     when pressed about how many days he worked for Select in the week before his injury, Mr Back said he did not remember (T14.15) and that he was not “100 per cent sure” how many days per week he worked for Select (T14.21).
Without more, the mere act of “registering” for work with two labour hire companies, as Mr Back did when he moved to Queanbeyan, did not create concurrent contracts of employment with those companies. It merely meant that Mr Back was available to accept such offers of work as those companies may have made. Select regularly offered Mr Back work between 2 November 2008 and (about) 10 December 2008. He accepted those offers by attending at the time and place directed. On each occasion he attended, a contract of employment was created and he was paid for the work done. Drive offered him no work until 15 December 2008.
Critically, however, he was not obliged to work and Select was not obliged to offer him work. Select did not pay him to be available to work and he was not obliged to be available. He could accept or reject Select’s offers of work as he pleased. As is common with labour hire companies, the availability of work depended on demand.
The situation is to be contrasted with employees whose contract of employment requires them to be on stand-by at various times (for example, flight attendants) and whose wages reflect that fact.
It is clear that, as the Arbitrator found, when Mr Back accepted work from Drive for 15 and 16 December 2008, he intended to accept further offers of employment from Select, and that he wanted to work five days per week. However, that does not mean that he was employed under two contracts of service at the time of his injury. A contract of employment is not created by a desire by one party to work for a certain period. It involves, among other things, mutual obligations.

The only conclusion open on the evidence is that, as at 16 December 2008, Mr Back was employed under a contract of service with Drive but had no contract of service with Select. This is confirmed by Mr Back’s evidence that, if Select required him, he would receive a text message to ring in to get the details about the job. When he did that, he could either accept it or reject it. The text message was effectively an offer of work.
It is also consistent with his evidence that he knew to call Select on the afternoon of 16 December 2008 “applying for work” (T10.11). Such an arrangement was inconsistent with Mr Back already having a contract of service with Select on 16 December 2008. It follows that the Arbitrator erred in finding that Mr Back was employed under concurrent contracts of service at the time of his injury.
Mr Back was clearly a casual worker within the terms of s 43(1)(e). That is, he was a worker whose contracts of service were mainly for separate periods, each of which was of not more than five days in the same industry. He had several serial or successive short-term contracts of employment rather than two concurrent contracts. This is relevant to the calculation of his earnings and is discussed further below.
Mr Best’s submission that the casual worker point was not raised at the arbitration is not correct. While Drive’s counsel did not raise it, Mr Best raised it (as a “third course”) at T38.48 and T39.24–32 and said that, in that event, the Arbitrator would be guided by s 43. In the knowledge that it had been raised at the arbitration, but not in the written submissions on appeal, I raised the issue of casual employment at the teleconference on 15 March 2013 and invited submissions on it. Given that the Commission has a statutory obligation to determine cases on their substantial merits (s 354(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and given that the issue had been raised at the arbitration and does not require any additional evidence, or involve any prejudice to Mr Back, it is appropriate that I deal with it.
Finally, the submission that the cross-examination did not suggest that Mr Back was not “employed” by Select and Drive at the time of his injury was not an accurate summary of the effect of the cross-examination. Counsel for the appellant clearly challenged Mr Back’s case on concurrent employment and Mr Best took no objection (at the arbitration) that the cross-examination had not dealt with this issue. It follows that it was open to the appellant to challenge the Arbitrator’s finding of concurrent employment.

EARNINGS

Arbitrator’s findings

The Arbitrator found (at [58]) that Mr Back worked for Select an average of 10.75 hours per day for two days per week. At $20 per hour, this gave $215 per day or $430 per week. She added, at [59]:
“I find for the reasons given above that Mr Back did have concurrent employment with Select at the time of his injury. Whether Mr Back was employed on a casual or part time basis earnings would be the same either way due to the operation of section 43(1)(e).The total of his average weekly earnings would then have been $747. I find that this amount is the applicable current weekly wage rate.”
The Arbitrator also found $747 to be Mr Back’s current weekly wage rate and his probable earnings but for injury (see [61] and [80] respectively of her decision). Exactly how she arrived at $747 was not explained in her reasons and is discussed below.
It should also be noted that the Arbitrator’s conclusion on Mr Back’s earnings was expressed to be the same regardless of her finding on concurrent employment. It is therefore necessary to consider in detail the challenge to her reasons on this issue.

Submissions

Though the submissions under this heading only addressed “probable earnings”, they were in reality directed to the Arbitrator’s whole approach to Mr Back’s earnings, which included his current weekly wage rate, average weekly earnings and probable earnings but for injury.

Appellant’s submissions

Drive initially submitted that:
(a)     the finding that Mr Back worked an average of 10.75 hours was contrary to his statement, where he said he worked eight hours per day with Select and earned $500 per week;
(b)     it is clear that Mr Back never worked a full week with Select. As it was likely that he only worked a total of 10 days with that company, his probable earnings were more likely than not $336 per week, as paid by CGU;
(c)     despite this “clear and best evidence”, the Arbitrator accepted the analysis presented at the arbitration where the evidence was unreliable and unsubstantiated;
(d)     the Arbitrator did not explain her reasons for preferring Mr Back’s oral evidence, in preference to the evidence in his statement, and failed to analyse the make-up of the $747 for probable earnings, and
(e) the calculation of $811 is not available “pursuant to the construction of ‘or shorter period’ set out in” s 43(1)(e).

Respondent’s submissions

Mr Best conceded that the figure of $747 was incorrect and submitted that the correct figure for the current weekly wage rate, average weekly earnings, and probable earnings but for the injury was $811 per week. He said the Arbitrator’s error could be corrected under the slip rule, or under the reconsideration power in s 350(3) of the 1998 Act. In his later submissions, Mr Best said that, if there was no concurrent employment, the same figure applied or, in the alternative, the rate was the “full wage for a full normal working week” (s 42(1)(f)).

Discussion and findings

While the Arbitrator has erred in her calculation of the figure of $747, it is not the error alleged in Drive’s submissions.
The Arbitrator’s finding that the current weekly wage rate, average weekly earnings and probable earnings but for the injury were $747 was not properly explained and was wrong. The only way she could have arrived at that figure was by adding $430 to $317. That result was not supported by the evidence and was not a figure urged by either party. While it may well be that the error resulted from a “slip”, as Mr Best has submitted (adding $317, instead of $371, to $430), it is not open to correct that error on appeal under the slip rule. The matter must be properly considered in light of the submissions made on appeal.
In any event, even if $747 (or $811) is the correct figure for probable earnings but for injury and for average weekly earnings, it is not the correct figure for the current weekly wage rate because it has failed to calculate the “prescribed proportion”, as required by s 42(1)(d) in circumstances where (as in this case) there is no evidence of the award rate. The prescribed proportion is 80 per cent of the average weekly earnings. It follows that Mr Back’s earnings must be re-determined.
In view of the above comments, it is not strictly necessary to deal with the parties’ initial submissions on this issue. However, as several of the submissions involve a fundamental misunderstanding of certain basic principles, I make the following observations.
First, in assessing the evidence, it was open to the Arbitrator to consider the oral evidence about the hours Mr Back worked. However, as the documentary evidence established that Mr Back’s average earnings for the six weeks during which he worked for Select were $440 per week, it was not necessary to calculate his exact hours per week.
Second, the submission that Mr Back “likely worked for a total of only 10 days with Select” and that his probable earnings were “more likely than not $336 per week” was wrong and was inconsistent with the (unchallenged) documentary evidence that he earned $2,642 in his six-week period with Select and therefore averaged $440 per week with that company.
Third, the submission that the calculation of $811 is not available “pursuant to the construction of ‘or shorter period’ set out in s 43(1)(e)” was incorrect and misrepresented the terms of the legislation. The provision applies to earnings for a period of 12 months preceding the injury “or any shorter period during which the worker may have been engaged in the industry”.
Mr Best’s submission that the reconsideration power could be used was incorrect. Once an appeal is filed under s 352 of the 1998 Act, it proceeds under that section and there is no scope for using the reconsideration power (Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7 at [93]–[100]).
At the oral hearing of the appeal, Mr Stockley, who did not appear at the arbitration, submitted that Mr Back was a casual worker under s 43(1)(e) and, as there was no evidence that he was employed under an award, or that an award applied, his current weekly wage rate was the “prescribed proportion” (80 per cent) of his average weekly earnings (s 42(1)(d)).
Relying on s 43(1)(f), Mr Stockley said that Mr Back’s average weekly earnings were the aggregate of his earnings with Drive and Select ($3,013) divided by the total period of employment (approximately six weeks), which gave an average of $502.16 per week. Multiplying that figure by 80 per cent gave a current weekly wage rate of $401.73.
Mr Best submitted that, even if Mr Back was a casual worker, as he intended working five days per week and had work available from Select after he finished work with Drive, his earnings from Drive and Select must be added together to calculate his average weekly earnings and that gives $811 ($371 plus $440).
Mr Best added, presumably in the alternative, again noting that Mr Back intended to work full-time and had more work available with Select, that, applying the words in s 43(1)(f), Mr Back’s “full wage for a full normal working week” was $927.50. He arrived at this figure by multiplying Mr Back’s daily rate with Drive ($185.50) by five.
As the average weekly earnings are to be computed in such manner as is “best calculated to give the rate at which the worker is being remunerated” (s 43(1)), and, as these words import an element of judgmental evaluation into the computation process (Pratt v Claydon (1996) 14 NSWCCR 86), the preferred approach in the present case to the calculation of Mr Back’s average weekly earnings, if no evidence is tendered at the next arbitration of the relevant award rate, is the approach urged by Mr Best at [55] above.
Mr Stockley’s approach fails to have regard to the critical evidence that, but for his injury, Mr Back had more work available with Select after he finished with Drive and that he intended to work five days per week. His approach gives a figure that does not properly reflect the rate at which Mr Back was being remunerated at the time of his accident.
Given Mr Back’s evidence that, after completing his work with Drive, he had work available with Select, and that, but for his injury, he would have accepted further offers of work from Select, and given his accepted evidence that he wanted to work five days per week, it is appropriate to determine his average weekly earnings on the basis of his expected combined income from Drive and Select for the week starting 15 December 2008.
Mr Best’s alternative approach (see [56] above) has extrapolated Mr Back’s earnings with Drive when the evidence is that his earnings with Select, where he intended to work for the balance of the week of 15 December 2008, were much less than $185.50 per day. Therefore, the preferred approach is that set out at [55] above.
The calculation of average weekly earnings does not determine Mr Back’s current weekly wage rate. If no award applies, Mr Back’s current weekly wage rate is the prescribed proportion of his average weekly earnings. That is, 80 per cent of $811, namely, $648.80.
However, as it is extremely unlikely that no award covers Mr Back’s work and, as the award rate is the usual (and preferred) method of determining the current weekly wage rate, it is appropriate that the determination of Mr Back’s current weekly wage rate be re-determined at another arbitration when the relevant award rate is available. The relevant award rate will be the rate for a full-time casual worker in Mr Back’s position.
In determining Mr Back’s probable earnings but for injury, it will be appropriate to consider his evidence that he intended working five days per week and to look at his anticipated earnings from such work (Department of School Education v Boyd (1996) 13 NSWCCR 289 (Boyd)).
In that case, the trial judge found the worker’s probable earnings but for injury to be $50 more than he had been earning with the appellant. In arriving at that figure, the judge had regard to Mr Boyd’s evidence that, while employed by the appellant, he intended to continue to seek casual work similar to that he had engaged in prior to his accident.
That was so notwithstanding that, while working for the appellant prior to his accident, Mr Boyd had not worked part-time or casually for anyone other than the appellant. Some months after the accident, however, he had been engaged in casual work for one day, but found he could not cope because of his injury.
The Court of Appeal held, dismissing the employer’s appeal, that the trial judge was entitled to take into account Mr Boyd’s expressed intention that he intended to continue to seek casual work of the type he had engaged in prior to the injury.
Though the determination of Mr Back’s probable earnings but for injury is a matter for the next Arbitrator, it is difficult to see why the figure would not be $811.

ABILITY TO EARN

Arbitrator’s findings

After reviewing the evidence and submissions, and noting that Mr Back was an honest and truthful person, the Arbitrator concluded (at [79]):
“Mr Back has addressed his difficulties with performing the duties involved in the identified positions in his statement and I accept that there is ample evidence to support his statement. I am satisfied that he could not realistically work in such positions for any length of time, and that he has very little chance of securing employment in the identified areas given his limitations with driving and steering and his lack of customer service, cash handling and anything more than basic computer skills. I find that Mr Back’s chances of securing employment in the general labour market accessible to him given the limitations on the work he can do is at this time virtually nil.”
She added (at [80]) that, applying the steps in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell), “the amount Mr Back was capable of earning in some suitable employment at this time is nil”.

Submissions

Appellant’s submissions

Drive has submitted that the Arbitrator erred in finding that Mr Back had no ability to earn because “such a finding was not open on a balanced and proper consideration of the whole body of evidence admitted”. Drive added that the Arbitrator erred in:
(i)     her assessment of the evidence of Dr Blue, orthopaedic surgeon qualified by Drive, because she believed he had been influenced by the heavy calluses on Mr Back’s hands and such a presentation was not an indication that Mr Back had been involved in activities beyond his restrictions. It was submitted that “[t]his contradicts, however, the evidence of the worker and the clinical records (particularly the records of Dr Perera and Dr Ting) which indicate that he was performing sedentary unpaid work on his father’s farm cleaning car parts and repairing cars”;
(ii)     her assessment of Dr Blue’s evidence, because she believed he had not discussed the tasks the worker would be likely to perform in each of the vocational options identified. This failed to address the fact that Dr Blue was only asked to provide an opinion on whether or not the job options identified were suitable. Dr Blue accounted for Mr Back’s age, his background, his transferrable skills and his medical condition. Therefore there was no proper basis to place less weight on Dr Blue’s opinion;
(iii)   failing to give due weight to the evidence that Mr Back was performing unpaid work on his father’s farm cleaning car parts and repairing cars. The Arbitrator failed to consider that the worker has some capacity to work in suitable employment on the open labour market cleaning car parts and repairing cars;
(iv)   in her assessment of the job options of light courier driver and light truck driver, and accepting the worker’s evidence at “face value” in relation to his inability to do these jobs;
(v)     the weight she placed on the opinion of the nominated treating doctor (Dr Perera) in relation to the vocational options, which was contrary to the bulk of the evidence. The vocational assessor consulted Dr Perera, who had the opportunity to review the job options specified and the tasks associated with each job, and concluded they were all suitable options for Mr Back given his injury and 5 kg lifting restriction. The Arbitrator therefore erred in not adopting the evidence of Dr Perera and Dr Blue;
(vi)   failing to take into account Mr Back’s employment history, in particular his previous work as a retail assistant, in finding the job option of customer service assistant was not suitable;
(vii)     her assessment of the job option of customer service assistant, in that she failed to give due weight to the evidence that showed Mr Back is left-hand dominant and had no problems using a tablet computer device at the vocational assessment. Thus, “Mr Back’s apparent difficulty using a computer due to his right shoulder disability in [sic] circumstances ought not to have been persuasive”;
(viii)   her assessment of Mr Back’s capacity when considering the following evidence, against which little reasoning was provided:
·Dr Roberts reported that Mr Back had achieved an almost full range of movement on clinical examination and, when compared to the testing by Dr Hopcroft, there was an element of contrivance and exaggeration by Mr Back, and
·the medical and vocational evidence showed Mr Back to have the capacity to perform a wide range of jobs, with Dr Perera and Dr Blue having endorsed the job options of light courier driver, light truck driver and customer service officer identified by the vocational assessor as suitable for Mr Back, and Dr Blue also having considered Mr Back capable of working in the open labour market in the jobs of general farm hand, retail assistant, general labourer, truck driver, gardener/lawn mower person, courier driver, toll collector, pizza delivery driver or newspaper delivery and car park attendant.
(ix)   failing to take into account the inconsistencies in Mr Back’s evidence and failing to give due weight to a number of relevant factors, including Mr Back being left-hand dominant, the comments of the treating physiotherapist in respect of abnormal illness behaviour, the absence of evidence in relation to Mr Back job seeking, the concession that Mr Back was carrying out unpaid work cleaning car parts and repairing cars on his father’s property, the clinical records of Mr Back’s current nominated treating doctor in Queensland (Dr Ting), which showed an absence of any complaints of right shoulder pain or right shoulder problems or any medical treatment for the right shoulder injury since Mr Back moved to Queensland in late 2011, Mr Back’s age and his modest seven per cent whole person impairment, and
(x)     finding that Mr Back had no ability to earn when his evidence was unreliable and insufficient to support such a finding. The medical and vocational evidence established that Mr Back has a partial incapacity for work and is capable of earning his probable earnings in suitable employment on the open labour market performing a range of jobs, and maybe many more.
Due to the failure of Mr Back to adduce evidence that the relevant labour market in and around Woodridge Queensland, where he now lives, was contrary to the assessments made (in the evidence tendered by the appellant), it could reasonably be expected that, in his current location, Mr Back would be physically fit to undertake such work. This was supported by the fact that Mr Back was performing sedentary work on his father’s farm cleaning car parts and repairing cars. (This submission, and another matter, raised at the teleconference on 15 March 2013, is dealt with below under “other matters relating to ability to earn”.)

Mr Back has an ability to earn at least $336 per week.
Mr Stockley essentially submitted at the oral hearing of the appeal that Mr Back’s physical limits left him with something to sell on the labour market available to him and, given the way the case was presented, the evidence was not capable of persuading the Arbitrator that he had no capacity to earn. He also referred to the matters listed in s 43A.

Respondent’s submissions

Mr Best submitted that the Arbitrator accurately summarised the relevant medical evidence relied on by the parties and that her reasons set out her assessment of Mr Back’s claim for weekly compensation. Those reasons clearly display why she preferred particular medical evidence to other evidence. She properly discharged her duty to provide a clear explanation for her decision, in the face of competing evidence, and the basis on which Drive’s evidence was rejected is clear. He emphasised that the Arbitrator said (at [79]) that Mr Back’s chances of securing employment in the general labour market accessible to him were “virtually nil”.

Discussion and findings

Before dealing with the specific arguments presented, there is an important preliminary point to note. The appellant’s submissions have ignored a critical and fundamental fact: after having heard and seen Mr Back give evidence and be cross-examined, the Arbitrator formed the view that he was a “most truthful and forthcoming witness” and that he “strove to inform the hearing of all relevant issues” ([19]). She accepted his evidence that he had difficulty dealing with people he did not know and was “totally satisfied that his evidence was honest and truthful” ([19]) and that there were no issues with his credit. The appellant has not challenged this favourable credit finding.
Dealing with the submissions summarised at [70] above, in the order listed, I make the following observations.

Point (i)

The submission about Dr Blue’s evidence is rejected. Dr Blue’s evidence was that Mr Back was not significantly incapacitated for work. He based his opinion on his assessment that Mr Back presented with contrivance, particularly in view of his hands being calloused. He thought Mr Back was fit to work as a general farm-hand, avoiding excessive lifting, as a retail assistant without restriction, and as a general labourer and a truck driver. He was unable to work as a heavy furniture removalist.
The Arbitrator gave Dr Blue’s evidence less weight than the evidence from Dr Roberts, the treating orthopaedic surgeon, and Dr Hopcroft, the worker’s qualified orthopaedic surgeon, who both said that Mr Back was unfit for his pre-injury work, because she did not think the state of Mr Back’s hands was an indication that he had been involved in activities outside his restrictions, noting that he had been doing sedentary unpaid work on his father’s farm such as degreasing car parts. The Arbitrator correctly noted that there was no evidence that Mr Back was doing more than he had disclosed.
These findings were open on the evidence and disclosed no error. There is no suggestion that the activities in which Mr Back engaged on his father’s farm, such as degreasing car parts, was outside the restrictions placed on him by his doctors. The submission on appeal was baseless.

Point (ii)

The Arbitrator was perfectly entitled to take into account the fact that Dr Blue had not discussed with the worker the tasks required in the alternative jobs identified as being suitable. Whether the job options identified were suitable required consideration of the physical and intellectual requirements for those jobs. Dr Blue’s failure to discuss those matters with Mr Back was directly relevant to the weight to be given to his report. This submission is rejected.

Point (iii)

The Arbitrator was well aware that Mr Back had been performing unpaid work on his father’s farm and referred to that fact at [70] of her decision. However, counsel made no submission at the arbitration along the lines argued on appeal and it is not an error to fail to deal with an issue never put (Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell) at [22] and [30]). The only submission that came close to the argument sought to be run on appeal was counsel’s reference to Dr Blue’s evidence that Mr Back’s hands were “discoloured, stained” (T35.35) and that Mr Back was “doing a lot more than he would have you believe” (T35.36).
In any event, the submissions on appeal have not referred to any evidence that work of the kind Mr Back did for his father (cleaning car parts and repairing cars) is available to him on the open labour market and, bearing in mind that Mr Back has no formal qualifications as a mechanic, that evidence is of limited relevance. Moreover, performing unpaid work with no set hours or duties is very different from work in a formal employment setting. The Arbitrator did not err as alleged.

Point (iv)

The submission that the Arbitrator erred in accepting Mr Back’s evidence at “face value” was baseless and is rejected. As previously noted, the Arbitrator had the opportunity of hearing and seeing Mr Back give oral evidence and she accepted him to be a “truthful”, “honest” and “forthcoming witness”. In light of those findings, it was open to her to accept his evidence.
The appellant has not argued (nor could it have argued) that the Arbitrator’s findings demonstrated that she “failed to use or has palpably misused [her] advantage” in seeing and hearing Mr Back give evidence, or that she acted on evidence which was “inconsistent with facts incontrovertibly established” or “glaringly improbable” (Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479, 480–481; Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]–[27]).

Point (v)

Whether the vocational assessor consulted Dr Perera is not determinative. The fact remained that, as the Arbitrator noted, Dr Perera did not provide a detailed report in which he discussed the physical and intellectual requirements of the various job options suggested, but merely expressed his approval in a summary “tick box” faxed to the insurer that included no examination of the issues. In addition, as the Arbitrator further noted, his opinion pre-dated the opinion from Dr Roberts that Mr Back’s progress was slow and that he should seek alternative careers. These factors entitled the Arbitrator to give his opinion “very little weight” ([77]) and her conclusion disclosed no error.
The Arbitrator was not obliged to “adopt” Dr Perera’s evidence as to the suitability of the light duties recommended. Even if she had, that would not have resolved the case because she was required to determine the availability of that work and Mr Back’s prospects of obtaining and retaining such work (Summerson v Alcan Australia Ltd [1994] NSWCC 24; 10 NSWCCR 571; Akawa Australia Pty Ltd v Cassells (2003) 25 NSWCCR 385; Mangion v Visy Board Pty Ltd [1991] NSWCC 1; 8 NSWCCR 175; Cowra Shire Council v Quinn (1996) 13 NSWCCR 175; Nominal Defendant v Livaja [2011] NSWCA 121 at [65]). She assessed Mr Back’s prospects of obtaining and retaining such work as “virtually nil” ([70]).

Point (vi)

The submission that the Arbitrator erred in failing to take into account Mr Back’s employment history is not sustainable. First, counsel for the appellant made no submission at the arbitration about Mr Back’s employment history in the retail industry and the Arbitrator did not err in not referring to a matter that was not put (Bell).
Second, the submission is completely without merit in any event. The evidence dealing with Mr Back’s retail experience is in the report from Karmen Mulley, rehabilitation consultant with Advanced Personnel Management, dated 20 July 2009, where it was recorded that Mr Back worked for one month as a retail assistant for a butcher. It was also referred to in the report from Ines Pasic, vocational assessor with Compensation Assistance Service, dated 19 May 2011.
Neither report indicated why that work ceased after only one month. Mr Back did not deal with it in his statement and he was not cross-examined about it. In these circumstances, it is difficult to see what useful submission might have been made about Mr Back’s “retail experience”. Mr Back’s other “employment history” was with Select and Drive in jobs that he is now unfit to perform.

Point (vii)

With respect to the position of customer service assistant, which the rehabilitation provider had also assessed as suitable for Mr Back, the Arbitrator accepted (at [76]) Mr Back’s evidence that, as a result of his (intellectual) disability, he would have difficulties using a computer, with customer service, and with handling cash. These reasons provided a valid basis for the Arbitrator’s conclusion.
The submission that the Arbitrator failed to give “due weight” to evidence that Mr Back is left-handed (and his injury is to his right shoulder), and had no trouble using a “tablet computer device”, did not advance the appellant’s position because it did not address the Arbitrator’s acceptance of Mr Back’s evidence that he has difficulties using a computer because of his intellectual disability. The Arbitrator did not find that he had difficulty using a computer because of his right shoulder injury and the submission on appeal was misguided, to say the least.

Point (viii)

Dealing with the medical evidence, the Arbitrator preferred the evidence of Dr Roberts and Dr Hopcroft to the medical evidence called by the appellant. The fact that Dr Roberts reported an “almost full range of movement on clinical examination”, compared to the testing by Dr Hopcroft, was of limited relevance and did not support a conclusion that there was an “element of contrivance”. That is especially so in circumstances where, having referred to the evidence from Drs Roberts, Hopcroft and Blue, and having accepted Mr Back to be an honest and truthful person, the Arbitrator clearly (though implicitly) rejected any suggestion of contrivance.
With regard to the evidence that Mr Back had a capacity to work as a light courier driver, light truck driver and customer service officer, the Arbitrator found that the light courier work and truck-driving positions were in fact not “sustainable” (at [76]) because they required Mr Back to use an overhead handle, something he could not tolerate, and because he had difficulty with steering and driving over uneven surfaces. Those findings were open and disclosed no error.
The Arbitrator was satisfied that Mr Back could not realistically work in the positions identified by the vocational assessors for any length of time and that he had very little chance of securing employment in those areas given his limitations with driving and steering, and his lack of customer service experience. That finding was also open and disclosed no error.

Point (ix)

The alleged inconsistencies in Mr Back’s evidence were not identified in Drive’s submissions, and the submission that the Arbitrator erred by failing to take them into account was therefore unpersuasive and unhelpful.
The submission that the Arbitrator failed to take into account the other matters listed under this point is incorrect on some issues and unpersuasive on others. The fact that Mr Back is left-hand dominant is of limited relevance to his capacity to earn and, though counsel did refer to it at the arbitration (T31.45), as he made no particular submission about it, the Arbitrator did not err in not dealing with it.
I have been unable to find any comment by a physiotherapist “in respect of abnormal illness behaviour” by Mr Back and the submissions have not referred to any particular part of the hundreds of pages of evidence. At the arbitration, counsel referred (at T32.1–25) to the report by Ms Young, physiotherapist, dated 26 October 2010, in which she said that Mr Back complained of significant pain, but his passive range of movement did not match his reported levels of pain and he was “in danger of developing secondary gain”. Because of that fact, she said there was a need to press forward with his rehabilitation.
The Arbitrator referred to this evidence at [39], [40] and [51(c)] of her decision and it is clear that, contrary to the appellant’s submission, she considered it. As the Arbitrator accepted Mr Back as a truthful witness, it was not necessary for her to say more about that evidence. As there is no evidence of “abnormal illness behaviour”, Drive’s submission was misleading and false.
The submission that the Arbitrator failed to take into account “the absence of evidence in relation to [Mr Back] job seeking” was based on a false assumption that there was no evidence on that point. The evidence is at [94] of Mr Back’s statement, where he said he was “currently seeking suitable employment”. However, he found “it very hard to find a job given [his] intellectual disabilities”, his limited “skill base”, and his injury. The appellant’s submission was incorrect and misleading.
The fact that Mr Back did unpaid work on his father’s farm was not a matter on which counsel made submissions at the arbitration and is not a matter that can be the subject of complaint on appeal (Bell). In any event, the Arbitrator referred to that evidence at [70]. Without any submissions on the point, or evidence of the potential value of that work on the open labour market, it was not a matter that required detailed attention. The appellant’s submission was, again, surprising and without substance.
The absence of a record in Dr Ting’s clinical notes that Mr Back complained about his right shoulder since he moved to Queensland in November 2011 was not the subject of submissions at the arbitration and cannot be the subject of complaint on appeal (Bell). In any event, an absence of such a complaint by a man who has an agreed whole person impairment, as a result of his injury, of seven per cent is of limited, if any, relevance.

Point (x)

The submission that Mr Back’s evidence was “unreliable and insufficient” to support a finding that he had no ability to earn ignored the fact that the Arbitrator accepted Mr Back’s evidence as to the restrictions caused by his injury, which made him unfit for his pre-injury employment, and accepted the difficulties he experienced in obtaining employment because of his intellectual disability, difficulties that had not prevented him from obtaining employment with Select and Drive.

Other matters relating to ability to earn

The submission that Mr Back failed to adduce evidence that the state of the labour market was contrary to the assessments made (by the appellant’s rehabilitation providers) was not a submission that counsel made at the arbitration and it is not open to argue on appeal that the Arbitrator erred in not referring to Mr Back’s failure (Bell).
The further submissions filed by the parties have failed to deal with the critical matter I drew to their attention at the teleconference on 15 March 2013. That is that, though the Arbitrator found Mr Back to have no ability to earn, she made an award under s 40 for partial incapacity. Her finding should have led to an award of total incapacity. Thus, the Arbitrator erred in making an award inconsistent with her finding. Moreover, the Arbitrator erred in finding that Mr Back had no capacity to earn, something that neither party had submitted at the arbitration. Mr Best submitted that Mr Back’s partial incapacity was “significant” (T21.9), not that Mr Back had no capacity.
At the oral hearing of the appeal, Mr Stockley said that the factors in s 43A did not lead to a finding of total incapacity and that there was no evidence of Mr Back job-seeking in Queensland. He submitted that it was for Mr Back to place before the Commission evidence of his job seeking so it could be assessed.
While the Arbitrator erred in making an award of partial incapacity in circumstances where she found Mr Back had no capacity to earn, it is not open on appeal to substitute a finding of total incapacity because such a finding in the present case, where Mr Back does have a theoretical capacity to perform some activities, depends on an assessment of his ability to earn in the labour market reasonably accessible to him and an application of the principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206. It is not possible to conduct that assessment on appeal because there is very limited evidence of Mr Back’s attempts to obtain employment in Queensland.
Mr Back’s failure to adduce more detailed evidence of his job-seeking in Queensland occurred because the Arbitrator rejected Mr Best’s application to lead evidence on that topic (T3.36). Given that the appellant tendered evidence on that issue in an Application to Admit Late Documents dated 26 June 2012, it is difficult to see why Mr Back was not permitted to lead evidence of his attempts to find employment and on the state of the labour market available to him. As it has not been the basis of a ground of appeal, I express no concluded view about whether the Arbitrator erred in refusing that application.
It follows that, though the appellant’s arguments attacking the Arbitrator’s decision on Mr Back’s ability to earn were without merit, that question (and the earnings issue) must be re-determined. In view of the limited evidence of Mr Back’s attempts to obtain employment in Queensland, it is regrettably necessary that the matter be re-determined before a different Arbitrator, when each side will be at liberty to adduce such further evidence (in compliance with the Workers Compensation Commission Rules 2011) as it or he considers necessary.

CALCULATION OF WEEKLY COMPENSATION

As the matter must be re-determined, it is not necessary to deal with the submissions on this point in any detail. I note in passing, however, that the Arbitrator erred in making an award under s 36, between 22 September 2009 and 14 December 2010, because it exceeded 26 weeks. As Mr Back had been awarded compensation under s 36 for the 11 weeks from 16 December 2008 to 2 March 2009, he was only entitled to compensation under that section for a further 15 weeks.
Mr Best submitted that the second period under s 36 should be for 12 weeks, from 22 September 2010 to 14 December 2010. The appellant submitted that the second period should be for “15 weeks from 22 September 2009 [sic] to 5 January 2010 [sic]” (I assume that the author intended to say 22 September 2010 to 5 January 2011).
This matter can be addressed at the re-determination.

CONCLUSION

The general conduct of this appeal, and the submissions in support of it, were unsatisfactory. At the teleconference on 15 March 2013, I informed the parties of the shortcomings in the submissions (in particular, the failure to comply with Practice Direction No 6) and raised other issues on which submissions were required. The amended submissions filed on 2 April 2013 at least identified the grounds of appeal, but did not address the other issues raised at the teleconference and made only minor changes to the original submissions.
The legal profession is reminded, yet again, that arbitrations are not a trial run where the parties can await the outcome and then attempt to present a different case on appeal. This is not a criticism of the way the present case was presented at arbitration. Experienced counsel argued the case for Drive in a perfectly proper and competent fashion with relevant submissions on the key issues in dispute, which were supported by appropriate references to the evidence.
The appellant’s solicitor prepared the written submissions (initially) filed on behalf of the appellant. The amended submissions made only minor changes to that document. They were unsatisfactory in several respects: they raised several issues that had not been argued at the arbitration, presented several arguments that were clearly untenable, failed to refer to relevant parts of the evidence (or page references to the evidence), and, in at least one instance, were misleading and false. That was unacceptable.

DECISION

Paragraphs 1 and 2 of the Certificate of Determination of 23 November 2012 are revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Paragraph 3 is confirmed.

COSTS

Though the appeal has partially succeeded, the resolution of the appeal has been protracted because of the failure by the appellant’s solicitor to comply with Practice Direction No 6 in the initial notice of appeal. This led to a teleconference and a direction for additional submissions and an amended notice of appeal.
The amended appeal failed to deal with the issues identified at the teleconference on 15 March 2013, thus leading to the matter being listed for oral hearing. Thus, the disposition of the appeal was unnecessarily protracted because of the appellant’s conduct. In these circumstances, notwithstanding that the appellant succeeded on the concurrent employment issue, it is appropriate to depart from the usual costs order and order the appellant pay the respondent worker’s costs of the appeal (Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72).
The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,530 plus GST. Costs of the second arbitration are to follow the outcome of that arbitration.

Bill Roche

Deputy President
31 May 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE