DST International Pty Limited v MacIntosh
[2005] NSWWCCPD 91
•22 August 2005
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:DST International Pty Ltd v Mackintosh [2005] NSW WCC PD 91
APPELLANT: DST International Pty Ltd
RESPONDENT: Belinda Mackintosh
INSURER:GIO Workers Compensation
FILE NUMBER: WCC19371-2003
DATE OF ARBITRATOR’S DECISION: 17 June 2004
DATE OF APPEAL DECISION: 22 August 2005
SUBJECT MATTER OF DECISION: Section 10(1B) of the 1987 Act; ‘Serious and wilful misconduct’; consumption of alcohol; evidence of ‘total incapacity’; award under section 40 of the 1987 Act.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Rankin Nathan Lawyers
Respondent: Peter Erman, Solicitor
ORDERS MADE ON APPEAL:
Order 1 of the decision of the Arbitrator, dated 17 June 2004, is revoked and the following decision is made in its place:
1.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 30 October 2002 to 15 January 2003 at her ‘current weekly wage’ rate, calculated in accordance with section 36 of the Workers Compensation Act 1987.
2.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act Workers Compensation Act 1987.
3.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 15 September 2003 to 16 November 2003, at the rate calculated in accordance with section 36 of the Workers Compensation Act 1987.
4.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 17 November 2003 to 17 June 2004 at the rate calculated in accordance with section 37 of the Workers Compensation Act 1987.
5.The Respondent is to be given credit for any payments of weekly compensation made to date.
6.The parties are to notify the Registrar whether they have been able to reach agreement as to exact amount of weekly compensation be paid to Ms Mackintosh pursuant to these reasons, within 14 days of the date of this decision. Failing agreement the matter is to be remitted to the Arbitrator.
Orders 2 and 3 of the decision of the Arbitrator dated 17 June 2004 are confirmed
The Respondent is to pay the costs of the appeal.
The Appeal
Belinda Mackintosh was employed part-time by DST International Pty Ltd (‘DST’) as a Receptionist from February 2002 until 29 October 2002. She was at the same time working part-time for another company Tech Pacific. Ms Mackintosh claims to have suffered a psychological injury on 29 October 2002 as a result of being sexually assaulted by a taxi driver on her way home from a work-related function, for DST, at the Sydney Opera House. She lodged a claim with DST for workers compensation benefits by way of weekly payments and reasonable medical expenses.
DST denied liability for the claim and Ms Mackintosh filed an application to resolve the dispute in the Commission. DST holds a workers compensation insurance policy with GIO Workers Compensation (‘the Insurer’). The Insurer appeared for and on behalf of DST in the Commission Proceedings.
On 17 June 2004 a Commission Arbitrator made a determination in Ms Mackintosh’s favour. He ordered that her Employer pay her weekly compensation, (from various dates taking into account her earnings and the applicable statutory rate) and $2,321.35 in medical expenses. The Arbitrator also ordered the payment of Ms Mackintosh’s costs of the proceedings. The Insurer, on behalf of the Employer, has sought leave to bring an ‘Appeal Against Decision of Arbitrator’.
Leave to appeal was granted on 20 September 2004.
The Insurer has submitted that the matter should not be determined ‘on the papers’ because it involves “complex legal argument on the meanings of Section 10(1B) of the Workers Compensation Act” 1987. I am not satisfied that this is the case and indeed the Insurer’s brief submissions on this issue reinforce this view. I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
Issues in Dispute
The issues in dispute in the appeal may be summarised as follows:
·Did the Arbitrator err in finding that the personal injury received by Ms Mackintosh was not attributable to her serious and wilful misconduct?
·Did the Arbitrator err in finding that Ms Mackintosh was totally incapacitated?
·Did the Arbitrator err in awarding an amount of $432.00 in weekly compensation from 15 September 2003 and continuing, pursuant to section 40 of the 1987 Act?
Did the Arbitrator err in finding that the personal injury received by Ms Mackintosh was not attributable to her serious and wilful misconduct?
Many of the facts relevant to the claim were not in dispute. Ms Mackintosh attended a work social function on the evening of 29 October 2002. Alcohol was provided and was served to her. Ms Mackintosh stated that she consumed a number of glasses of alcohol and was affected by it. She left the venue in the company of other staff around 9.30 pm. Shortly after she took a taxi with, Mr Williams, a company executive from the United Kingdom. Mr Williams left the taxi at his hotel in Rushcutters Bay and he gave the driver $15.00 to continue on and take Ms Mackintosh home. Ms Mackintosh reported to police that the taxi driver then took her to a place she did not recognise and urged her to leave the cab. She did not, and the driver then proceeded to her home in Bankstown. During this journey the taxi driver phoned her mother using her mobile phone. Ms Mackintosh remembered being dragged along by her wrists. She thought that the driver had left. Instead, he had entered her unit and he then sexually assaulted her. The next morning she reported the assault to her mother and to the police. She did not return to her employment with DST after this, however she tried for a short time to continue other part-time employment with Tech Pacific. She has claimed that she suffered a psychological injury as a result of the assault.
There was no dispute before the Arbitrator or on appeal as to whether Ms Mackintosh was a ‘worker’, who had suffered an ‘injury’ as those terms are defined in the 1987 Act. It was also not disputed, on appeal, that the assault on Ms Mackintosh that occurred while she was on a ‘journey’ pursuant to section 10 of the 1987 Act, i.e. in the taxi on the way to her home from the work function.
Section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’) provides that:
“(1) A personal injury received by a worker on any journey to which this section applies is, for the purposes of this Act, an injury arising out of or in the course of employment, and compensation is payable accordingly.
(1A) Subsection (1) does not apply if the personal injury is attributable to the serious and wilful misconduct of the worker.
(1B) A personal injury received by a worker is to be taken to be attributable to the serious and wilful misconduct of the worker if the worker was at the time under the influence of alcohol or other drug (within the meaning of the Road Transport (Safety and Traffic Management Act 1999), unless the alcohol or other drug did not contribute in any way to the injury or was not consumed or taken voluntarily.”
The Arbitrator found that, although Ms Mackintosh had consumed alcohol at the function on 29 October 2002, this did not contribute to her injury. He found that a taxi driver had sexually assaulted her on her way home from a ‘journey’ from her workplace.
The Insurer submits that:
·The Arbitrator found that Ms Mackintosh was affected by alcohol at the time of the assault and therefore the onus shifts to her to prove that the alcohol consumption did not contribute to the injury.
·The Arbitrator misdirected himself as to the law, by referring to ‘serious and wilful misconduct’ as defined in section 14 of the 1987 Act, rather than applying section 10(1B).
·Ms Mackintosh did not submit any evidence “to prove that the alcohol did not contribute in any way to the injury”.
Ms Mackintosh submits that the relevant question is “did the fact that the worker consumed alcohol in the course of her employment at the work function contribute to her injury”. To this end the Arbitrator did not err in considering authorities where alcohol was alleged to be a factor in causing the injury, even though those cases were not ‘journey’ cases (section 10) and fell to be decided under a different section of the 1987 Act (section 14).
The Arbitrator’s finding that Ms Mackintosh’s alcohol consumption did not contribute to her injury is a finding of fact, to be made by the Arbitrator on the evidence before him. He will not have made an error unless there is no reasonably probative evidence to support his finding. In my view it cannot be argued that there was no evidence to support the Arbitrator’s finding. The Arbitrator accepted the evidence of Ms Mackintosh, her mother Gail Mackintosh, Ms Thompson, the records of police and counsellors to whom she reported her injury and the medical evidence as to her psychological distress following the assault.
The Arbitrator correctly identified that the onus had shifted to Ms Mackintosh to prove, on the balance of probabilities that the alcohol she had consumed did not contribute in any way to her injury. He referred to the relevant authorities of WorkCover Authority (NSW) v Billpat Holdings Pty Limited (1995) 11 NSWCCR 565; Paul Perry Horse Training Pty Limited v Harker (1996) 12 NSWCCR 689; Alcatel Australia Limited v Griffiths (1997) 15 NSWCCR 390; Cunningham v Tobin & Others t/as Stingray Cafe (2001) 21 NSWCCR 524.
The Arbitrator also, relevantly, referred to the decision of Judge Armitage in Powell v Intercapital Brokers (1998) 16 NSWCCR 259 where a worker was encouraged to consume alcohol and subsequently was injured in a fall. The Arbitrator found a parallel with this case and he accepted Ms Mackintosh’s evidence that she was encouraged to consume alcohol at the function by her fellow staff and managers and was “expected to socialise”. Mr Williams did not provide a statement and Ms Thompson, a fellow employee, conveyed his evidence ‘second–hand’. It is not disputed that he left the function in the taxi with Ms Mackintosh or that he allowed her to continue on, alone, after he alighted at his hotel. The Arbitrator found that Ms Mackintosh had no reason to assume that it was not safe to continue her journey in the taxi. The Arbitrator found that the taxi driver “formed an intention to sexually assault [Ms Mackintosh] during the course of the journey”.
I agree with Ms Mackintosh’s submission on appeal that:
“…the Arbitrator has clearly found that the fact that the worker had consumed alcohol could not in any way be a matter which contributed to a decision and actions of a person, charged with the task of conveying her as a passenger in a taxi cab safely from a work function to her home on a journey within the meaning of the workers compensation legislation, to criminally assault her in a vicious, sexual attack.
. . .
To suggest that a citizen passively sitting in a seat in a taxi, in breach of no law, has contributed to the act of a criminal merely because she had consumed alcohol before getting into the taxi is a suggestion which denies logical thought. True it is that the section requires the question to be asked and to be answered by the worker. The worker answered that question and the Arbitrator has found that he onus has been discharged.”
In my view section 10(1B) of the 1987 Act was never intended to operate to deny a worker an entitlement to compensation in circumstances such as those faced by Ms Mackintosh. In 1989 section 10 of the 1987 Act was amended by the Workers Compensation (Amendment) Act 1989. Relevantly subsection (1A), (1B) and (1C) were inserted. Section 10(1C) was later repealed. In Alcatel Australia Limited v Griffiths (1997) 15 NSWCCR 390, Mason P, referred to the ‘Explanatory Note’ to the Bill which stated that the objects of the Bill were:
“ ‘to exclude a claim for workers compensation for injuries received by a worker on a journey between the worker's home and place of employment (and certain other journeys) if the injury was caused wholly or partly by the fault of the worker.’
The Minister for Industrial Relations said, in his Second Reading Speech:
‘The bill provides that workers compensation will not be claimable if a periodic journey injury was caused, wholly or partly, by the fault of the worker. Fault is defined to include failure by the worker to take reasonable care for his or her own safety, and other circumstances involving negligence. Specific provision is made regarding alcohol and drug consumption. If the worker was under the influence of alcohol or another drug at the time, the journey injury is taken to have been caused by the worker's fault, unless the alcohol or drug did not contribute to the injury. The onus will be on the claimant to prove that the injury was not due to his or her fault because of such factors.’ (Parliamentary Debates (Hansard), Legislative Assembly, 21 November 1989 pp12927-12928).”
Arguably Ms Mackintosh was taking ‘reasonable care for her own safety’ by taking a taxi home from the function, rather than attempting to drive herself or catching public transport.
Ms Mackintosh’s evidence was that she suspected that the alcoholic drinks she consumed at the work party may have been “spiked” and to this extent she did not consume any drug that may have put into her drink voluntarily. This would bring her within the exception in section 10(1B). The Arbitrator did not made a finding on this issue, as it was unnecessary, having found that even if Ms Mackintosh did consume the alcohol voluntarily, it did not contribute to her injury.
The Arbitrator did not err in finding that the personal injury received by Ms Mackintosh was not attributable to her serious and wilful misconduct.
Did the Arbitrator err in finding that Ms Mackintosh was totally incapacitated?
The Arbitrator found that Ms Mackintosh was totally incapacitated for work as a result of her injury from 30 October 2002 to 14 January 2003 and from 15 September 2003 “to date”, being the date of decision, 17 June 2004.
The Insurer submits that there was no evidence that Ms Mackintosh was totally incapacitated and that the medical evidence did not support this finding. This was the extent of the submission made on this issue and the Insurer has not pointed to what medical evidence is said to contradict the Arbitrator’s finding.
Ms Mackintosh argues that the Arbitrator accepted the evidence and made no error.
The Arbitrator has not given any reasons for the finding that Ms Mackintosh suffered a total incapacity at certain times since her injury and at the date of the decision. The Arbitrator summarises Ms Mackintosh’s medical evidence as follows:
“As a consequence of the sexual assault, the Applicant developed anxiety and distress. Dr McPhee concluded that she has significant psychological symptoms in the nature of an anxiety reaction. She also developed back pain as a result of the violence she endured.
Ms Rummery, a psychotherapist, found ongoing depression and somatic complaints as part of a post-traumatic reaction.
Dr Rochford noted increased micturation and bilateral loin pain as part of a stress problem” (at paragraph 22 of the reasons).The Arbitrator summarises the Insurer’s medical evidence as follows:
“Dr Strum, Psychiatrist, accepted that the Applicant was affected by what happened to her. He found that she was suffering from post-traumatic stress disorder with adjustment disorder, anxiety and depressed mood” (at paragraph 23 of the reasons).
At paragraph 42 of the reasons the Arbitrator sets out as an ‘agreed fact’ that:
“Ms Mackintosh suffered a strong psychological reaction to the sexual assault and also had back pain. She did not return to the Respondent’s employ. She did return for a short time to work at her second place of her employment but then found that too much. She found work at the Hydro Majestic Hotel in the Blue Mountains where she worked for a period of time, but then found that too much and that the travelling was difficult and she tendered [sic] to arrive late. She has not worked since September 2003 as she feels that at present she cannot cope.”
The medical evidence is not referred to again. The Arbitrator simply sets out his finding on incapacity in his summary of “the resolution of the issues in dispute”. The Arbitrator has not provided adequate reasons for why he found that Ms Mackintosh suffered a total incapacity for work at certain times. He has not set out the evidence that he found persuasive and his findings on material questions of fact and law relative to this issue. However, having reviewed the evidence I am not satisfied that he has erred in his ultimate findings.
The Arbitrator accepted Ms Mackintosh’s evidence as to her symptoms following the assault and her incapacity to work. There was no evidence to contradict her account and the Arbitrator was entitled to accept this evidence. I note that the Arbitrator had the opportunity to hear Ms Mackintosh’s evidence at the arbitration and to form an impression of her credibility and truthfulness.
Dr McPhee of the Bankstown Women’s Health Centre Incorporated reviewed Ms Mackintosh on 12 February 2003 and considered that she continued to have “significant psychological symptoms”. She cautioned against a return to DST but opined that Ms Mackintosh should be able to return to full time receptionist duties elsewhere when her back pain resolved.
Dr Kimbell, Ms Mackintosh’s General Practitioner certified that she was unfit for work from 15 September 2003 until 19 June 2004 - the date of the last Workcover Medical Certificate in evidence. She was of the view that Ms Mackintosh continued to suffer from depression, post-traumatic stress disorder, low back pain and bladder spasm due to the sexual assault of October 2002.
Dr Rummery, Psychotherapist, first saw Ms Mackintosh on 28 November 2003, and last on 5 February 2004. She reported that Ms Mackintosh was suffering ongoing depression and somatic complaints as part of a “spectrum of post-trauma reactions”.
The report of Dr Strum, submitted by the Insurer, states that the doctor saw Ms Mackintosh on 28 January 2004. He reported that she continued to have symptoms of sleep disturbance and nightmares, had panic attacks, difficulties relating to men, and personality changes which she attributed to the assault. Dr Strum stated that he did not believe Ms Mackintosh gave him a truthful account of the history of the assault. I do not find Dr Strum’s report to be persuasive. He finds, contrary to the weight of the other evidence, that “I believe that the injuries and disability are the cause of the rape”. I do not understand this conclusion. He opines that she suffers from “Post Traumatic Stress Disorder and Adjustment Disorder with Anxiety and Depressed Mood and that this affects her life”. However he also is of the view that Ms Mackintosh is fit for her pre-accident employment. I note that Dr Strum only saw Ms Mackintosh once, at the Insurer’s request, and I consider his opinion on Ms Mackintosh’s capacity to return to her former employment as not persuasive, particularly when weighed against the evidence of Dr McPhee.
The Insurer also submitted two reports from Ms Jill Farrelly, Clinical Psychologist, who saw Ms Mackintosh on 5 February 2003. I give little weight to these reports. Ms Farrelly places significant emphasis on resolving the factual issue of whether Ms Mackintosh was “drugged” at the party, by having her drink “spiked”. This report has a strong moralistic flavour that detracts from it impartiality in relation to an assessment of Ms Mackintosh’s psychological state. Ms Farrelly appears to conceive of her role as investigative rather then to give an independent expert opinion, as a Clinical Psychologist, as to Ms Mackintosh’s current claimed psychological condition, its origin and its prognosis.
The report of WIMS Injury Management Services, filed by the Insurer, is not of much assistance. It does however report that Ms Mackintosh returned to her part time job with Tech Pacific on 16 January 2003, but that she had difficulties working with couriers and taxi drivers because of the assault. On 17 March she started part time work at the Hydro Majestic Hotel.
In my view the weight of the evidence supports Ms Mackintosh’s claim to periods of both partial and total incapacity. Her own evidence is persuasive, as is the medical evidence of Dr McPhee, Dr Kimbell and Dr Rummery. While Dr McPhee expected, when she saw her in February 2003, that Ms Mackintosh would be able to return to her usual employment, it is clear that this did not eventuate. Ms Mackintosh made a concerted effort to do so, and obtained work at the Hydro Majestic Hotel. However I accept the view of Dr Kimbell, who as her General Practitioner, saw her frequently and monitored her situation. She was of the view that her symptoms, caused by the assault, interfered with her ability to sustain her usual employment. Dr Kimbell provided a WorkCover Medical Certificate certifying that Ms Mackintosh was unfit for work until 19 June 2004, after the date of the Arbitrator’s decision.
I accept that Ms Mackintosh was totally incapacitated following the assault, from 30 October 2002 until 14 January 2003. I also accept that, having returned to part-time work at Tech Pacific, she was partially incapacitated from 15 January 2003 until 28 February 2003. Thereafter she worked at the Hydro Majestic Hotel (from 17 March) until 15 September 2003, when she was unable to continue to work because of her psychological injury. From 15 September 2003 until the date of the Arbitrator’s decision the evidence supports a finding of total incapacity. This was expressed to be ‘continuing’, which is the appropriate order. If circumstances change and the Insurer takes the view that a continuing entitlement no longer exists, then the 1987 Act sets out a process to be followed to review Ms Mackintosh’s award, including the provision of notice to cease payments.
Did the Arbitrator err in awarding an amount of $432.00 in weekly compensation from 15 September 2003 and continuing, pursuant to section 40 of the 1987 Act?
The Arbitrator found that during Ms Mackintosh’s period of total incapacity she was entitled to be compensated at the rate of $432.00 per week, being the total of her ‘current weekly wage rate’ of $208 per week from DST and $224.00 from other employment with Tech Pacific.
The Insurer argues that this award “for continuing weekly payments at $432.00 per week for a single worker is in excess of the amount provided for by Section 37 of the Act after the first 26 weeks and therefore constitutes an error of law”. This statement is correct however the Insurer has made no submissions on what it argues is the correct calculation of Ms Mackintosh’s entitlement from 15 September 2003.
Ms Mackintosh submits, “any dispute as to the rate applicable can be dealt with under the slip rule and does not require appellate intervention”. This submission is not tenable. The ‘slip rule’ is intended for minor and non-substantive errors. The rate at which weekly compensation is to be awarded is not a slip rule matter unless the order is not reflective of the reasons and there is simply a typographical slip.
The Arbitrator has stated that he determined Ms Mackintosh’s weekly entitlement from 15 September 2003 to date pursuant to section 40 of the 1987 Act. He gives no reasons to support his calculation or his reliance upon this section, rather than section 37 of the 1987 Act. He is obviously in error as section 40 of the 1987 Act is relevant to an assessment of weekly payments during any period of partial incapacity only. The Arbitrator is also in error as the award ‘overlaps’ for the period between 15 January 2003 and 30 January 2003, in that the Arbitrator has ordered compensation of both $432.00 per week and $208 per week during that period.
I have reviewed Ms Mackintosh’s entitlement to weekly compensation in accordance with the findings made above and determine that her proper entitlement is as follows:
·For total incapacity from 30 October 2002 to 15 January 2003 at her ‘current weekly wage’ rate, calculated in accordance with section 36 of the 1987 Act (a total of eleven weeks).
·For partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act (a total of six weeks).
·For total incapacity from 15 September 2003 to 16 November 2003 at her ‘current weekly wage’ rate, at her ‘current weekly wage’ rate, calculated in accordance with section 36 of the 1987 Act (a total of 9 weeks).
·For total incapacity from 17 November 2003 to 17 June 2004 and continuing, subject to the provisions of the 1987 Act, calculated in accordance with section 37 of the 1987 Act.
Ms Mackintosh submitted an ‘Amended Schedule of Loss of Income’ in the arbitral proceedings. This states that her earnings were an “Av $700.00 p/w” at the Hydro Majestic Hotel. There is however no proof of income from DST, Tech Pacific or the Hydro- Majestic Hotel provided. The Insurer has not filed any wages information. Unfortunately there is insufficient evidence before me to determine the exact amount of Ms Mackintosh’s entitlement pursuant to sections, 36, 37 and section 40 of the 1987 Act. Ms Mackintosh’s ‘average weekly earnings’ (section 37(7) and section 43 of the 1987 Act) may differ between when the injury occurred in October 2002, and when the weekly compensation is due in 17 November 2003.
Ms Mackintosh’s entitlement for periods of ‘total incapacity’, within the first twenty-six weeks of incapacity (defined in section 34 of the 1987 Act), will be her ‘current weekly wage rate’ (pursuant to section 36 of the 1987 Act). This is defined in section 42 of the 1987 Act. Section 42(7) provides for the ‘current weekly wage rate’ of a person who was employed under 2 or more contracts of employment’.
Ms Mackintosh’s entitlement for periods of partial incapacity must be calculated in accordance with section 40 of the 1987 Act. The five steps which must be taken in making an award under section 40 of the 1987 Act are set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 at 529(Mitchell). They are:
“1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)).
2. To determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
3. To subtract the figure derived from 2 from the figure derived from 1 (section 40(2))
4. To decide whether and to what extent the reduction calculated as above, bears such relation to the amount of that reduction as may appear proper in the circumstances of the case (section 40(1)).
5. To make an award in the amount arrived at in Step 4.”
Ms Mackintosh’s entitlement to compensation for total incapacity after the first twenty-six weeks must be calculated in accordance with section 37 of the 1987 Act.
The exact calculation of Ms Mackintosh’s entitlement, in accordance with these reasons, is a matter that is capable of agreement between the parties. In the absence of their agreement within 14 days of this decision, the matter is remitted to the Arbitrator for determination of this issue. The parties may be required to submit further wages information for the purpose of the determination of Ms Mackintosh’s entitlement.
Having found that the Arbitrator did not err as to liability, I am satisfied that the Arbitrator’s decision in relation to section 60 expenses and costs should be confirmed.
Decision
Order 1 of the decision of the Arbitrator, dated 17 June 2004, is revoked and the following decision is made in its place:
1.That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 30 October 2002 to 15 January 2003 at her ‘current weekly wage’ rate, calculated in accordance with section 36 of the Workers Compensation Act 1987.
2. That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for partial incapacity from 15 January 2003 to 28 February 2003 calculated in accordance with section 40 of the 1987 Act Workers Compensation Act 1987.
3. That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 15 September 2003 to 16 November 2003, at the rate calculated in accordance with section 36 of the Workers Compensation Act 1987.
4. That the Respondent (the Appellant in this appeal) pay to the Applicant weekly compensation for total incapacity from 17 November 2003 to 17 June 2004 at the rate calculated in accordance with section 37 of the Workers Compensation Act 1987.
5. The Respondent is to be given credit for any payments of weekly compensation made to date.
6. The parties are to notify the Registrar whether they have been able to reach agreement as to exact amount of weekly compensation be paid to Ms Mackintosh pursuant to these reasons, within 14 days of the date of this decision. Failing agreement the matter is to be remitted to the Arbitrator.
Orders 2 and 3 of the decision of the Arbitrator dated 17 June 2004 are confirmed.
Costs
The Respondent is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
22 August 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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