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

1. 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

1. 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).

2. 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…