Gerene Nominees Pty Ltd v Pritchard - [2007] NSWWCCPD 189

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Gerene Nominees Pty Ltd v Pritchard [2007] NSWWCCPD 189
APPELLANT:  Gerene Nominees Pty Ltd
RESPONDENT:  Joyce Elizabeth Pritchard
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC1046-07
DATE OF ARBITRATOR’S DECISION:          10 April 2007
DATE OF APPEAL DECISION:  3 September 2007
SUBJECT MATTER OF DECISION:                Fresh evidence; incapacity; rate of weekly compensation payable; suspension of weekly payments by reason of worker’s failure to comply with a workplace injury management plan
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION:  Appellant:      McCulloch & Buggy, Solicitors
Respondent:   Peninsula Law, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 April 2007, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

Joyce Elizabeth Pritchard (‘the worker’) suffered an injury to her left knee while at work on 10 March 2006. On that day she had commenced employment as an Assistant in Nursing with Gerene Nominees Pty Ltd (‘the employer’) which conducted Netherby Aged Care Facility, a nursing home, at Wahroonga. It is the shortness of that particular employment which has, in part, given rise to the dispute in this matter. Additionally, QBE Workers Compensation (NSW) Limited (‘QBE’), the employer’s insurer, discontinued payments of weekly compensation for a period by reason of the worker’s alleged failure to comply with a workplace injury management plan.
The worker registered an Application to Resolve a Dispute with the Workers Compensation Commission (‘the Commission’) on 20 February 2007 claiming weekly payments of compensation from 24 May 2006 in the sum of $490.20 per week.
A Reply was lodged by the employer on 13 March 2007. The matters in dispute were said to be:
·Whether the worker suffered injury in the course of employment.
·Whether the worker’s employment was a substantial contributing factor to her injury.
·Whether the worker had recovered from the effects of any work-related injury.
·Whether the worker was incapacitated as claimed or at all.
·Whether the worker was only partially incapacitated and was by the provisions of section 52A of the Workers Compensation Act 1987 (‘the 1987 Act’) not entitled to weekly compensation.
·The level of the worker’s earnings while employed by the employer.
·The rate at which weekly payments of compensation should be paid.
Not all of those matters were ultimately pressed.
The proceedings were referred to a Commission Arbitrator who on 27 March 2007 held a teleconference. The matter was set down for conciliation/arbitration on 5 April 2007 at the conclusion of which the Arbitrator found in favour of the worker although he considered that payments of compensation had properly been suspended for a period of three weeks only. A Certificate of Determination was issued dated 10 April 2007. It is against that decision of the Arbitrator that the employer now seeks leave to appeal and the worker seeks leave to cross-appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 10 April 2007 records the Arbitrator’s orders as follows:
“1.That the Respondent make weekly payments of compensation to the Applicant as follows:
a.at the rate of $531.00 a week under section 36 of the Workers Compensation Act 1987 for the period 10 March 2006 to 8 August 2006 and for the period 29 August 2006 to 8 September 2006, with credit to be given to the Respondent for payments already made;
b.at the rate prescribed under section 37(1)(a)(i) (that is for a worker with no dependants) for the period from 9 September to date with those payments to continue in accordance with the Act and with credit to be given to the Respondent for payments already made.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
For the purposes of order 2 above, I certify that this matter was complex, for the reasons set out in the sound recording and that the costs at item F of Table 1 of schedule 6 of the Workers Compensation Regulation are increased by 30%”
The substantive issues which the Arbitrator was required to determine were:
·Whether the worker was totally or partially incapacitated at relevant times.
·The rates of compensation to which the worker was entitled.
·Whether the employer was entitled to suspend payments of compensation and if so for what periods.
The Arbitrator determined that the worker had been totally incapacitated for work at all relevant times. He found that the worker had, prior to her injury, been employed by the Salvation Army at “Woodport”, Erina, doing similar nursing duties for approximately 30 hours a week as a casual worker. The worker’s evidence was that she had ceased that work a month prior to commencing with the employer. The Arbitrator found that she was a casual employee and her average weekly earnings pursuant to section 43(1)(e) of the 1987 Act were $531.00 a week (that is, 30 hours per week at $17.70 per hour). This was less, he said, than the current weekly wage rate and pursuant to section 42(4) of the 1987 Act that was the rate which applied in respect of the award under section 36 of the same Act for the first 26 week period of incapacity. Thereafter the worker’s entitlement to compensation was at the statutory rate for a worker with no dependants. He was satisfied that the evidence established that the worker had unreasonably failed to comply with a workplace injury management plan of 13 June 2006 on 9 August 2006. This he said continued up until 28 August 2006. There was no award of compensation for this period. He found, however, that the employer had not discharged the onus of proving that there was a continuing failure of the worker to comply with the plan. The Arbitrator has recorded that payments of weekly compensation were suspended by the employer until 18 December 2006.

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
·Whether the employer should be entitled to rely on new evidence of which it was not in possession at the time of the conciliation/arbitration.
·Whether the Arbitrator erred in finding that the worker was totally incapacitated for work.
·Whether the Arbitrator erred in awarding weekly payments of compensation from 10 March 2006.
·Whether the Arbitrator erred in allowing the worker to amend the amount of compensation claimed.
·Whether the Arbitrator erred in his assessment of the worker’s current weekly wage rate and/or average weekly earnings.
·Whether the Arbitrator erred in allowing into evidence the worker’s supplementary statement of 29 March 2007.
·Whether the Arbitrator erred in finding that the employer had not satisfied the evidentiary onus in relation to demonstrating that the worker failed to comply with an injury management plan.
·Whether the Arbitrator erred in finding that the worker had presented sufficient evidence for him to judge the level of her earnings had she not suffered injury.
·Whether the Arbitrator erred in finding that the worker had failed to comply with a workplace injury management plan and in ordering the suspension of payments for the period 9 August 2006 to 28 August 2006 inclusive. (This was sought to be raised by the worker by way of cross appeal).

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The employer stated that the appeal might be decided on the basis of the written application and written notice of opposition lodged. However the worker sought that the matter not be determined on the papers. In support of this the worker said the following:
“There is a cross appeal. There are many issues. Oral submissions would be a benefit in this case.”
The parties have made extensive written submissions in relation to the appeal and cross-appeal. The issues are, in my view, relatively simple and straightforward, although the evidence from both parties is somewhat deficient. However, I consider that this appeal can properly be determined on the papers without holding a formal hearing.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The application to appeal was lodged on 3 May 2007 which is within twenty-eight (28) days of the date of the Arbitrator’s decision. Accordingly, section 352(4) is satisfied.
Section 352(5) prescribes a monetary threshold for appeals. That subsection is as follows:
“2.The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000.00 (or such other amounts as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The employer baldly asserts that the amount of compensation in issue is more than $5,000.00 and at least 20% of the amount awarded is appealed against. No submission in support of this assertion is made.
The weekly compensation awarded by the Arbitrator up to the date of the Certificate of Determination is, on my calculations, approximately $23,000.00. However, the employer had credit for payments made. The Arbitrator noted in his order of 28 March 2007, refusing leave to issue a direction for production for medical records, that payments had been made at $119.09 per week from 10 March 2006 to 23 May 2006 and from December 2006 onwards at $107.18 per week. The worker raises no objection as to the compliance by the employer with section 352(2). However, that does not relieve me of the obligation to satisfy myself that the threshold conditions therein set forth are satisfied. I am prepared to infer that the amount of compensation at issue on the appeal is at least $5,000.00. The question still remains whether the sum at issue on the appeal represents “at least 20%” of the total amount ordered. Once again I am prepared to infer that, on the basis of the submissions by the employer, if it were accepted that the worker were only partially incapacitated, the reduction in her entitlement to compensation would probably reduce the total amount of compensation awarded by at least 20%. It is difficult to know what greater precision can be given to the calculation in this regard.
Accordingly, leave to appeal is granted.
So far as the cross-appeal is concerned, there is no legislative provision for a cross-appeal nor is it dealt with in the Workers Compensation Commission Rules 2006 (‘the WCC Rules’). The question arises whether the cross-appeal must satisfy the threshold provisions of section 352 of the 1998 Act. There are no submissions directed to this, however, it is my view that a purported cross-appeal can only be dealt with as an appeal by the party concerned and accordingly it is necessary for that party to satisfy the monetary and other thresholds specified in section 352. The amount at issue on the cross-appeal does not satisfy the monetary threshold, being an appeal in respect of a period of three weeks at $531.00 per week. Accordingly, it is my view that I cannot grant leave for the cross-appeal to proceed. However were the appeal to succeed and were I to embark on the determination of the matter myself, it would be appropriate to have regard to the submissions made on behalf of the worker in relation to the three week period to which I have referred and the justification or otherwise of the employer suspending payments for that period or any other period.

FRESH EVIDENCE

‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“New Evidence
Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.
In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”
It also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:
“ -a schedule of the new evidence;
-a copy of the new evidence;
-a brief outline of the new evidence and the reasons why it was not given in the
proceedings before the Arbitrator, and
-submissions why the new evidence should be admitted.”
The Court of Appeal considered the Practice Direction in Haider v J P Morgan Holdings Aust Ltd trading as J P Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’). Basten JA, with whom Giles and McColl JJA agreed, said the following:
“41.This language [of the Practice Direction] appears to reflect the conditions which must generally be met before ‘fresh evidence’ is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of ‘new’ evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to ‘fresh’ evidence by express reference to ‘evidence in addition to or in substitution for’ the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words ‘in general’, is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term ‘further’ evidence in s75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]-[108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s354(1)-(3) (see [15] above).”
His Honour continued:
“45.The second reason the Deputy President gave [for rejecting new evidence] was that he was not satisfied that ‘with reasonable diligence the evidence could not have been obtained before the arbitration hearing.’ However, that, with respect, appears to be a direct application of the guidance given by the Practice Direction, with the result that there was a failure to consider the possibility that the evidence might be treated as additional evidence which did not need to satisfy the common understanding of ‘fresh’ evidence. A more flexible test was available, but not applied.
46.A third and separate reason given by the Deputy President was a lack of satisfaction that ‘the failure to allow the fresh evidence will cause a substantial injustice in all the circumstances of the case’. Again, that appears to be a direct reflection of the practice direction, the context for the failure to form the relevant satisfaction again being limited to a consideration of ‘fresh’ evidence.
47.The proceedings by way of ‘appeal’ to a Presidential member were said to be by way of ‘review’ of the decision of the arbitrator: s352(5). The broad power to admit, with leave, further evidence and the power of the Presidential member to confirm or revoke the decision and to make a new decision in its place indicate that the appeal is subject to no greater constraints than a rehearing; see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]. The constraints are not greater because effect must be given to the procedural consequences of s354(1)-(3), which apply equally to hearings before an arbitrator and before a Presidential member. Accordingly, the Deputy President misdirected himself as to the test to be applied in considering whether additional evidence should be admitted.”
The paragraph to which his Honour refers in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 appears in the joint judgment of Gleeson CJ, Gaudron and Hayne JJ and is as follows:
“If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case for hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.”
The employer now seeks to rely on evidence being documents obtained from the Salvation Army, Woodport Retirement Village (‘Woodport’) relating to the worker’s employment there. They show, in summary, that the worker was employed as a casual Assistant in Nursing commencing on 13 March 2001 and became a permanent part-time employee working 70 hours per fortnight on 28 May 2001. On 30 June 2001 she injured her right elbow at work and was away from her pre-injury duties until 18 September 2001. She then suffered a workers compensation injury to her right foot on 29 April 2002 when she slipped on stairs and she returned to pre-injury duties on 21 November 2002. She suffered an aggravation of her right foot injury on 23 February 2003 and returned to her pre-injury duties on 15 August 2003. She was dismissed on 30 March 2004 it was said, because of excessive leave and her abandonment of duties.
In support of the application to admit fresh evidence the employer submits that it sought leave at the teleconference of 27 March 2007 to issue Directions for Production to the worker’s treating doctors and former employers which was not granted. The evidence sought to be relied on did not come into the possession of the employer’s solicitors, it is said, until 24 and 30 April 2007 and 1 May 2007. It is submitted that the employer would suffer substantial injustice if the material were not admitted.
In response the worker submits that the new evidence was not relevant to the worker’s entitlement to weekly payments but rather only to their calculation. It is said that there is no evidence as to why this information was not available at the hearing.
It is convenient at this point to restate the chronology relating to the proceedings. On 20 February 2007 the ‘Application to Resolve a Dispute’ was registered. The employer’s reply was lodged on 13 March 2007. There was a teleconference on 27 March 2007 and a conciliation/arbitration on 5 April 2007. It will readily be seen that the time involved from the registration of the ‘Application to Resolve a Dispute’ to its determination was very short. This is consistent with one of the principles governing the Commission, namely the timely resolution of disputes. It is necessary however to have regard to the state of the evidence when the ‘Application to Resolve a Dispute’ was registered and the degree to which the particular dispute or disputes which were required to be resolved had been identified.

Section 289(1) of the 1998 Act sets out when a dispute concerning weekly payments may be referred for determination by the Commission. That is as follows:
“289(1) A dispute about a claim for weekly payments cannot be referred to a determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.
NOTE: The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.”
In this case the ‘Application to Resolve a Dispute’ lodged on behalf of the worker indicates that it has been brought as a consequence of the insurer’s failure to determine the claim. No reference is made to any notice being issued by the insurer under section 54 of the 1987 Act or sections 74 or 287A of the 1998 Act. These sections provide, in general, for the giving of notice to the worker when liability for a claim is disputed or payments of compensation are reduced or discontinued. It is clear, in this case, that the employer had given relevant notices by way of letters to the worker relating to the suspension of payments of compensation and those could and ought to have been attached to the ‘Application to Resolve a Dispute’. They were not. There is no indication in that application that there was a dispute as to the quantum of weekly payments of compensation, as they are claimed only from 24 May 2006 whereas the worker’s entitlement began on the date of injury, 10 March 2006. It is not clear that there was any dispute as to the quantum of weekly payments of compensation being made or, if there were, no correspondence has been put into evidence dealing with such dispute. Rather the dispute related to the suspension of weekly payments of compensation by reason of the worker’s alleged failure to comply with a workplace injury management plan.
Rule 10.3 of the WCC Rules deals with the material to be lodged with an application or reply, as follows:
“10.3(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve with:
(a)       the application to resolve the dispute if the party is the applicant …
(b)       …
(c)       …
all information and documents on which the party proposes to rely that are in the possession or control of the party, and have not been lodged by a party in the current proceedings.
(2) Subject to sub-rules (3)-(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Guideline made under that Act.
(3) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2).
(4) Where a party wishes to rely on a document produced as required by a direction issued under rule 13.4 or a notice for production served under rule 12.2, or inspected in response to a notice of objection served under rule 12.4(1)(b)(i), and claims that the party was:
(a)       unaware of the relevant information in the document, or
(b)unable to obtain possession of the document,
at the time the party lodged the application to resolve the dispute or reply by the party in the proceedings, the party must, as soon as practicable after becoming aware of the information, lodge and serve on all other parties to the proceedings:
(c)       a copy of the document, or
(d)if the document was inspected in response to a notice of objection served under rule 12.4(1)(b)(i), a description of the document.
(5) Without limiting subrule (3), where a party complies with subrule (4) in respect of any information, the Commission may allow the party to introduce evidence of that information.”
At the time the ‘Application to Resolve a Dispute’ was registered no comprehensive reports had been obtained from the worker’s treating general practitioner and orthopaedic surgeon who were, respectively, Drs Cooray and Hutabarat. In respect of those two doctors, although there were some serial treatment reports and certificates attached, the notation was made in the Application “to be provided”. In relation to a medico-legal report from Dr James Ellis there was the same note. Although there was a statement of the worker dated 16 February 2007 attached to the Application, that statement dealt with the worker’s prior employment, the events of 10 March 2006 when the worker suffered injury and her subsequent treatment. It also dealt with the issue of physiotherapy and her abandoning this because of the pain which it occasioned and its lack, she said, of benefit. There is no mention in that statement of there being a dispute as to the quantum of weekly payments of compensation or of what was said by anyone representing the employer as to the likely hours of employment or the basis of such employment.
It was not until 29 March 2007 that the worker’s solicitors sought leave to rely on late documents, including a statement of the worker of the same date. That dealt with the worker’s seeing a position vacant advertised in a local paper and making application for it. There was conversation on 10 March 2006 with an unidentified female person in the course of which the worker was told that she would be advised about her shifts before leaving work that day. Because of her injury this did not happen. She was asked what shift she had preference for and she said “anything, I’ll take mornings, afternoons, night shifts. I’ve done them all, I’m not fussy.” She further said “the more shifts you can give me the better because that is more money for me.” The lady concerned replied to the worker “don’t worry there’s plenty of work, there will be plenty of shifts going.” The worker then set out in this statement her working at Woodport– 30 hours a week as a casual from early 2002 to early 2006 earning about $25,000.00 to $30,000.00 per annum. She attached to her statement a tax return for the financial year ended 30 June 2003 and said that she did not have copies of her returns for the years ended 2004, 2005 an 2006 as she had completed those herself on the internet and did not have copies.
It is reasonably clear that the ‘Application to Resolve a Dispute’ in this matter was lodged prematurely. It did not have attached all of the material which was required to be attached and its lodgement ought to have been delayed until that information was available and the disputes with which the application was meant to deal had been properly raised.
The significance of the new evidence sought to be relied on by the employer will be readily appreciated. Rather than the worker being employed at Woodport up to one month before she commenced work with the employer in March 2006, she last worked there on a date which was prior to 30 March 2004. The Arbitrator accepted the worker’s evidence as to her employment at Woodport and took that into account in making the calculation which he did in relation to her earnings in the year preceding her injury.
The employer states that it sought leave to issue a direction for production to prior employers as well as to doctors for medical records, however, the Arbitrator’s statement of reasons in relation to refusing the request for the issue of Directions for Production refers only to those to medical practitioners. The worker however, in submissions on the appeal, does not raise this point and it is reasonable in my view to assume that the employer’s account of events in relation to the Direction for Production is correct.
I consider that the employer has satisfactorily explained why the evidence sought to be relied on was not available earlier. In my opinion, the interests of justice require that the evidence should be admitted, particularly given its relevance and probative value. It is in accordance with what was said in Haider to do so in this case. It is likely that with the admission of this evidence a different result will be reached as to the amount of weekly compensation to which the worker is entitled. I have considered the possible prejudice to the worker, however, if the ascertainment of the true position relating to the worker’s pre injury employment causes her prejudice this may be met by evidence and submissions at the further arbitration which I propose to order and is not in my opinion a relevant prejudice. So far as the public interest in the finality of litigation is concerned, this is I think overborne by other considerations.
Accordingly, I grant leave to the employer to rely on the additional evidence attached to the ‘Application to Appeal against the Decision of an Arbitrator’ lodged on 3 May 2007.

EVIDENCE, SUBMISSIONS, DISCUSSION AND FINDINGS

In this case it is not necessary I think to deal with all of the issues raised on appeal since I have come to the conclusion that a fresh hearing ought be ordered. For the purpose of the appeal it will suffice in my view to deal only with the questions whether the Arbitrator erred in his assessment of the worker’s current weekly wage rate and/or average weekly earnings, whether he erred in finding the worker totally incapacitated, and whether the employer was entitled to suspend payments and if so for what period.

Current Weekly Wage Rate and Average Weekly Earnings

I have already referred to the worker’s own evidence in relation to what was said by and to her in relation to her employment. The employer’s Report of Injury which was in evidence, dated 13 March 2006, states that she was employed as a casual and normal working hours were “varied”. There were two shifts nominated which the worker may have been asked to work, namely 6.30 a.m. to 3 p.m. and 2.30 p.m. to 9 p.m.
The employer sought leave at the arbitration to rely on the late statement of one Judy Kalman who is described as the Director of Care at Netherby Aged Care Facility. This statement is unsigned and undated. In relation the worker’s employment Ms Kalman says the following:
“Netherby employs a pool of casual staff who work varying hours from week to week. Accordingly there are no comparable earnings available. All casual Assistants in Nursing are paid the same rate pursuant to the Nursing Homes &c Nurses’ (State) NAPSA, Schedule effective 01.12.06”
Later in the statement she says the following:
“No shifts had been organised for Mrs Pritchard and indeed no indication was given to her at any stage as to the number of shifts which may be available. In this regard it would be impossible to anticipate the amount of work that would have been offered to Mrs Pritchard. As Mrs Pritchard was only working with us for one morning it is impossible to make any evaluation of her performance and accordingly the number of hours she may have been required to work.”
For the worker it is submitted that, prima facie, she was employed on a full-time basis. Thus, being totally incapacitated she was entitled to be compensated for the first 26 weeks at the current weekly wage rate as specified in section 42 of the 1987 Act which is the award rate for one week. The worker also submits that the onus of proof in relation to the worker being a part-time worker within the meaning of section 42(4) of the 1987 Act is on the employer. That subsection is as follows:
“(4) Subject to subsections (6) and (7), if the amount of a part-time worker’s current weekly wage rate, as determined under subsection (1), exceeds the worker’s average weekly earnings, a reference in this Division to that worker’s current weekly wage rate is a reference to those average weekly earnings.”
Thus a part-time worker is not entitled to the award rate but to a lesser sum in respect of the first 26 weeks of total incapacity.
I have set out at [33] what the worker’s evidence was concerning her employment with the employer. There is no mention in that statement of the worker’s employment being on a full-time basis or indeed of the number of hours which she would have worked. The evidence of Ms Kalman, to which I have referred in [41], makes it clear in my view that there was no certainty as to how much work the worker would be performing.
Accordingly, I do not think that the Arbitrator erred in finding that the worker had not satisfied him that she was employed on a full-time basis. I reject the submission on behalf of the worker that the onus lay on the employer to prove that she was a part-time or casual employee. I note that no cross-appeal was sought to be brought by the worker in respect of the Arbitrator’s finding in that regard but have regarded the submissions as being by way of supporting the decision of the Arbitrator although on different grounds to those relied on by him.
The evidence relied on by the employer, which I have decided to admit on this appeal, shows that the worker’s evidence in relation to her pre-injury employment was inaccurate. Whether this was deliberately so or not I cannot say, however, there is a substantial variation between the worker’s evidence as to this and the information conveyed by Woodport which is more likely be correct. The Arbitrator’s award of weekly compensation thus rests on an unsatisfactory evidentiary basis and must be set aside. The worker should, in my view, have an opportunity to explain this discrepancy.

Total or Partial Incapacity

The employer relies on the opinion of Dr Hutabarat in his report of 7 March 2007 in which he indicated that the worker would be “more suited for sedentary work that can avoid stairs, squatting and bending”.
The worker relies on the decision of the Court of Appeal in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206. Although it is not specifically referred to, I assume that the passage relied on is in the judgment of Mahoney P at 213. It is as follows:
“The incapacity for work upon which the right to compensation depends is a physical incapacity for doing work in the labour market in which the employee was working or might reasonably be expected to work: see Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 177. That principle has been applied frequently by this court: see e.g. Holden v Toll Chadwick Transport Ltd (1987) 8 NSWLR 222 at 226-229. As the Arnotts case illustrates, partial incapacity involves the physical incapacity for doing some but not all of such work.
Normally, a court in determining whether a worker is totally or partially incapacitated will, in a practical sense, ordinarily consider two questions: what is the relevant labour market, i.e. what work was the worker doing or could he reasonably be expected to do; and of that kind of work, what is he physically able to do.
In considering the second of these, it is necessary to bear in mind that what is in question is capacity or incapacity ‘for work’. The legislation is not concerned merely in the abstract with work or work capacities as such. It is concerned with the capacity to do work of a particular kind or kinds and in a context which will produce income. I do not wish by what I say to narrow the scope of the inquiry to be undertaken in the assessment of capacity or of compensation. But in assessing whether a worker is wholly or partially incapacitated and to what extent, the Court will ordinarily not be concerned, for example, to determine in an artificial or theoretical situation what he could do if the work available to him would allow him to stand for a time, sit for a time, cease when the pain he suffers became unacceptable, and generally work as, in his condition, he would fairly wish to work. The Court does not, as it were, spell out according to the periods of time which could be spent at work in such a way and what he could do during those periods, the extent of his capacity for work. The exercise is, in my opinion, a more practical exercise. It involves the assessment of a capacity ‘for work’ having regard to the realities of the labour market in which he is to be engaged. The Compensation Court, within the scope accorded to it in this regard, must assess whether, in a case such as the present, the pain and disabilities from which the worker suffers by reason of his compensable injuries are such that he would be able to do those things which will permit him to do work in the relevant labour market. The provisions of, for example, s70 of the Act contemplate in my opinion that, in an appropriate situation, the Court will make assessments of this kind.”
Apart from the opinion of Dr Hutabarat there was a report from Dr John Morton, an orthopaedic surgeon, to whom the worker had been referred by the worker’s general practitioner, Dr Cooray. His opinion as at 18 December 2006 was that:
“Examination of the knee itself showed diffuse non-anatomical pain. She had a 0-100^o stable range of movement. She could weight bear unaided.
Her pain complaints appeared out of proportion to her examination.”
That doctor did not consider that she would benefit from any surgical intervention. Dr Hutabarat however did propose on 7 March 2007 to do a left knee arthroscopy to ensure that the meniscal tear reported on an MRI scan was not a symptomatic issue. He was unsure whether the worker would gain any benefit from this procedure and in fact he thought it might make her worse.
Dr Hutabarat on 25 August 2006 noted that the worker was “fairly keen to go back to work” and he then considered that a workplace assessment and return to work plan would be prudent. He noted that she had a range of movement in her left knee of 90^o and tightness anteriorally which he considered was due to immobilisation. He was confident this would improve with time. In a certificate of the same date the doctor certified her unfit for work from 25 August to 17 September 2006 but fit for suitable duties from 17 September 2006 to 17 November 2006.
In the worker’s four-page Curriculum Vitae which is attached to the ‘Application to Resolve a Dispute’ the worker makes the following statement under the heading “Home Based Care & Other Commitments”:
“Apart from Nursing Skills in Hospitals and Nursing Homes, have provided Personal Care for members of my family, which again have kept me out of the Nursing Homes and Hospitals, but working from my own home providing the same nursing care, for my mother.”
It is worthy of note that in the documents sought to be relied on by the worker are statements of the Greater Building Society Ltd for the period 16 November 2006 to 28 February 2007. These statements show regular monthly payments made by Centrelink for which the legend is “CTRLINK CARERS”. I infer that the worker was claiming and being paid a carer’s allowance for the care of same other person, whether her mother or not, and she would not have done so unless she were, in fact, carrying out such care. It does not necessarily follow that such care rendered by her equates to a capacity to work in the relevant labour market.
In her statement of 16 February 2007 the worker says this in relation to the care of her mother:
“… I left this employment to take care of my mum to help her recover from a car accident. I was off work looking after my mum for about 2 years before my daughter took up these duties and I was in a position to return to the workforce. I then commenced employment with the Woodport Salvation Army Nursing Home at Erina for 2 to 3 years before I resigned to take a break from nursing. Following this break of about a month I took up a position with Gerene Nominees Pty Ltd near Hornsby as an assistant in nursing.”
Since the worker had her leg in a plaster cast until 26 May 2006, there is no doubt that for a period the worker was totally incapacitated however, for some later period, I think the evidence would permit a finding to be made that her incapacity was only partial. However, this is a matter which will have to be determined by the Arbitrator at the fresh hearing on all of the evidence then available.

Suspension of Weekly Payments of Compensation

Section 47 of the 1998 Act is in the following terms:
“47(1) An injured worker must participate and co-operate in the establishment of an injury management plan required to be established for the worker.
(2) The worker must comply with obligations imposed on the worker by or under an injury management plan for the worker.
(3) The worker must, when requested to do so by the insurer, nominate as the worker’s treating doctor for the purposes of an injury management plan for the worker a medical practitioner who is prepared to participate in the development of, and in the arrangements under, the plan.
(4) A medical practice can be nominated as treating doctor for the purposes of subsection (3). Such a nomination operates as a nomination of the members of the practice who treat the worker from time to time and a reference in this chapter to the nominated treating doctor is a reference to those members of the practice.
(5) The worker must authorise the worker’s nominated treating doctor to provide relevant information to the insurer or the employer for the purposes of an injury management plan for the worker.
(6) An injury management plan must provide for the procedure for changing the worker’s nominated treating doctor.”
Section 57 of the same Act deals with the failure of a worker to comply with the requirements of Chapter 3 of the 1998 Act (Workplace Injury Management). It provides as follows:
“57(1) If a worker fails unreasonably to comply with a requirement of this Chapter after being requested to do so by the insurer, the worker has no entitlement to weekly payments of compensation during any period that the failure continues, subject to subsection (2).
(2) A worker’s entitlement to weekly payments does not cease under this section until the insurer has given the worker written notice to that effect, together with a statement of the reasons for the entitlement ceasing and the action that the insurer considers the worker must take to be entitled to the resumption of weekly payments.
(3) The resumption of weekly payments does not entitle the worker to weekly payments for the period in respect of which the worker had no entitlement to weekly payments.”
On 23 June 2006 Ms Analea Hill of QBE wrote to the worker advising that it believed that she had failed to comply with the requirements of her injury management plan (‘the plan’) in that she had not been attending physiotherapy treatments and had not maintained regular contact with QBE. The worker was requested to comply with the plan by attending medical reviews with treating doctor if she was unable to attend physiotherapy treatments, attending all physiotherapy treatment sessions and maintaining regular contact with QBE. She was advised that under section 45(4) of the 1998 Act her entitlements to weekly compensation payments may be suspended by reason of her unreasonable failure to comply with the requirements of her plan.
On 3 July 2006 Ms Hill again wrote to the worker pointing out that it believed that she had failed to comply with the requirements of her plan in that she had not been attending physiotherapy treatments, had not been maintaining regular contact with QBE, been unable to attend those appointments and had not attended medical reviews with treating doctors when unable to attend physiotherapy treatments. She was advised that as a result her weekly payments of compensation had been suspended. It was said that she was failing to comply with a plan dated 13 June 2006. She was advised that in order to have her weekly benefits reinstated she must contact her physiotherapist and QBE to confirm that she had an appointment and would attend it and all future appointments with that physiotherapist.
On 5 July 2006 Ms Hill again wrote to the worker and referred to a meeting with the worker’s nominated treating doctor, Dr Cooray, on 8 June 2006 when, it is said, that it was agreed that she would commence intensive physiotherapy. However, it is said during that period she failed to attend any of the appointments and did not advise the physiotherapist or QBE. The QBE case manager had liaised with her on 5 June 2006 when she advised that she had attended a physiotherapy session on 4 June 2006 however, the physiotherapist advised that she had failed to attend on that day. She was advised that the notice [of suspension of weekly payments] would be withdrawn and weekly benefits reinstated once the worker started to comply with her plan.
On 18 August 2006 she again wrote to the worker advising that it believed she had failed to comply with the requirements of her Injury Management Plan in that she had failed to attend physiotherapy treatments on 9 and 11 August 2006. On 1 September 2006 she again wrote advising that compensation payments would remain suspended and that she had failed to attend the scheduled physiotherapy sessions with Ms Laycock on 9, 11 and 28 August 2006. It was said that she would not be paid weekly benefits for the period of the suspension starting from 18 August 2006 even if benefits were re-instated.
There was an Injury Management Plan in evidence dated 14 December 2006. This plan had, it appears, been developed by Ms Hill who is described as “case manager’. There is considerable background information contained in that Injury Management Plan and the relevant parts of it appear to be as follows:
“QBE attended a medical review with Joyce, David (Physiotherapist), and Dr Coorey on 8/06/2006. David advised that Joyce will have to go through two weeks of intensive physio, which will ensure that Joyce regains significant movement back into her left knee. David advised if Joyce’s range of movement increases, he encourages Joyce to return to work on light duties, mostly involving sitting tasks. All parties agreed to this plan.
QBE attended another CC on 14/07/2006 with all parties as Miss Pritchard had failed to commence physio or report to QBE if she was unable to attend. During the case conference Ms Pritchard yelled at David and advised him that she did not want him as he called her a lier, however when we discussed her physio she just yelled and said she was visiting her sister in Wellington. CM re-enforced the importance of Ms Pritchard to comply with her obligations and advise QBE if she is unable to attend scheduled treatments. However Ms Pritchard did not appear to understand and continued to perform in front of employer and stormed out of the meeting. The Case conference was completed and the CM discussed other options which Ms Pritchard would be able to take, if she does not want to continue with workers comp. However when CM liaised with Dr Cooray a week post meeting, had advised that Ms Pritchard wanted to continue with her claim.
In September 2006, CM was advised that Ms Pritchard was being treated by alternate doctor to Dr Coorey, therefore CM attempted to arrange an appointment with Dr Bernette, however Dr Bennette was unsure of claim, therefore he wanted to review Mr Pritchard and her file prior to agreeing to a case conference. CM received a report from Ms Pritchard’s Solicitors advising that Ms Pritchard would continue to be treated by Dr Coorey. Therefore QBE arranged to attend a case conference with Ms Pritchard, Employer and QBE, as Ms Pritchard has remained unfit and has not been actively participating in her rehabilitation.”
There are obvious errors of spelling in this passage which I have not attempted to correct.
In relation to this the worker, in her statement of 16 February 2007, says the following:
“Dr Hutabarat did initially refer me for physiotherapy following the plaster being removed in about September 2006 i.e. this physiotherapist, being Janette Laycock at Woy Woy Clocktower. Initially I attended this physiotherapy twice every couple of weeks and then once a fortnight. I found these physiotherapy sessions extremely painful. When I attempted to communicate this to the physiotherapist, she told me to ignore the pain and didn’t take any notice of what I said. I kept persevering, however, when I could not complete the exercises despite communicating to her the pain which she did not respond to, I stopped going as it was not achieving anything and it was causing me an extreme amount of pain. I informed QBE of the difficulties I was having and they advised me that they required me to do it and they would not be paying me benefits if I did not participate in this physiotherapy. I indicated to them that physically I could not cope with the regime and also it was not assisting me in recovery or alleviating my symptoms.”
The Arbitrator, relying on the letters from Ms Hill to the worker, found that she had failed to attend physiotherapy between 9 and 28 August 2006 and suspended payments for that period. Beyond 28 August 2006 the Arbitrator found that the employer had not satisfied the onus of proof in relation to the worker’s failure to attend physiotherapy. The Arbitrator came to the conclusion as to suspension of payments, notwithstanding the fact that the workplace injury management plan was not in evidence. The Arbitrator relied in part on the report of Dr Hutabarat of 25 August 2006 in coming to his conclusion. In that report to Dr Cooray he said that:
“She is continuing with physiotherapy and she is definitely making improvement with regards to her ROM and her stability.”
In the statement of the worker of 16 February 2007, however, there is no suggestion that she had resumed physiotherapy.
Both parties are dissatisfied with the decision of the Arbitrator regarding the suspension of payments of compensation. The worker says that there should have been no suspension at all while the employer says that the suspension should have been for a longer period. It must be said that the evidence dealing with the worker’s failure to attend physiotherapy is quite unsatisfactory. There is a lack of precision as to the period for which payments were suspended and neither party in my opinion has dealt with this issue in a proper manner. I have earlier indicated that it is my intention to revoke the award of the Arbitrator and order a determination afresh by another Arbitrator. Before such further arbitration takes place it is to be expected that the parties will tender sufficient evidence so that this issue might be dealt with properly by the Arbitrator rather than on the basis of incomplete and imprecise evidence.

DECISION

For the above reasons the decision of the Arbitrator dated 10 April 2007 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. At such further arbitration the parties should have leave to rely on further evidence which should be lodged within twenty-eight (28) days of the date of determination of this appeal.

COSTS

Although the employer has succeeded in this appeal, it has in my view contributed to the necessity of ordering a re-determination by reason of the failure to adduce sufficient evidence to enable the Arbitrator to determine the matter properly, at least so far as the suspension of payments is concerned. I do not consider that I should make any order as to the costs of the appeal and, accordingly, I do not do so.

Anthony Candy

Acting Deputy President
3 September 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE