Griffiths v Miller Corporation Pty Limited trading as Pizza Hut
[2006] NSWWCCPD 52
•24 March 2006
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Griffiths v Miller Corporation Pty Limited t/as Pizza Hut [2006] NSWWCCPD 52
APPELLANT: Linda Griffiths
RESPONDENT: Miller Corporation Pty Limited t/as Pizza Hut
INSURER:Allianz Workers Compensation (NSW) Limited
FILE NUMBER: WCC13146-04
DATE OF ARBITRATOR’S DECISION: 15 December 2004
DATE OF APPEAL DECISION: 24 March 2006
SUBJECT MATTER OF DECISION: Partial incapacity; application of sections 33 and 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Firths The Compensation Lawyers
Respondent: Goldbergs Solicitors
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 15
December 2004 is revoked, and the following decision made by way of substitution:
(a)Award in favour of Ms Griffiths at the rate of $89.35 per week from 2 April 2003 to 19 September 2004 pursuant to section 40 of the 1987 Act.
(b)Award in favour of Ms Griffiths at the rate of $600.86 from 20 September 2004 to 18 October 2004 pursuant to section 36 of the 1987 Act.
(c)Award in favour of Ms Griffiths at the rate of $89.35 per week from 19 October 2004 to date and continuing pursuant to section 40 of the 1987 Act, such payments to continue in accordance with the provisions of the Act.
(d)Pizza Hut to pay Ms Griffiths’ reasonable hospital, medical and related expenses pursuant to section 60 of the 1987 Act on production of accounts or receipts.
(3)Pizza Hut to pay Ms Griffiths’ costs of the hearing before the Arbitrator on 26 November 2004.
2. Pizza Hut (the Respondent) is to pay the costs of the appeal.
3. The following is not a determination
of the Commission, however, I note the parties have agreed the following:
Pizza Hut to pay to Ms Griffiths the sum of $1250.00 in respect of 1% Whole Person Impairment pursuant to section 66 of the 1987 Act, and the parties are at liberty to file a section 66A Agreement.
BACKGROUND TO THE APPEAL
Linda Griffiths (‘Ms Griffiths’) was employed by Miller Corporation Pty Limited t/as Pizza Hut (‘Pizza Hut’) as a manager at its North Sydney restaurant. She claims that on 8 October 2002 whilst putting stock away, she suffered an injury to her left knee. She appears to have remained at work on and off until 4 November 2002 when she underwent surgery on her left knee.
In about early December 2002, she resumed work with Pizza Hut on restricted hours and duties. She claimed that she was required to perform additional duties which “… was making it extremely difficult for my knee to recover” and that “I considered it in my best interests if I looked for more suitable employment.”
On 2 April 2003, she commenced work as a receptionist (in which she had past experience) at James Fletcher Hospital (‘the hospital’) at Newcastle on a 12 month contract. She had voluntarily resigned her employment with Pizza Hut effective 2 April 2003.
Her employment at the hospital came to an end early, on 11 March 2004.
On 27 August 2004 Ms Griffiths lodged an ‘Application to Resolve a Dispute’ seeking weekly benefits compensation, and medical, hospital and related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 15 September 2004 Pizza Hut filed a ‘Reply’, essentially disputing that Ms Griffiths had any incapacity for work and maintaining that “… the Applicant’s section 60 expenses that are reasonably necessary and appropriate within the meaning of the Act continue to be met by the Insurer.”
On 20 September 2004, Ms Griffiths underwent further surgery on her left knee at the hands of Dr Bruce Caldwell.
Although not the subject of any statement or transcribed oral evidence, the Arbitrator noted that “… at the hearing [Ms Griffiths] indicated that she had moved to a place just outside Brisbane around three months ago …” and that “… she has secured a job as a nanny earning $280.00 gross per week. It appears she is working around 30 hours per week…”
The parties attended a telephone conference on 8 November 2004 and a conciliation/arbitration hearing on 26 November 2004. On 15 December 2004, the Arbitrator issued a Certificate of Determination with an accompanying ‘Statement of Reasons’. The determination of the Arbitrator was as follows:
“1. The application is dismissed.
2. No order is made in relation to costs.”
On 12 January 2005, Ms Griffiths lodged an ‘Appeal Against Decision of Arbitrator’. Ms Griffiths cites six grounds of appeal as follows:
“1. That the Arbitrator erred in failing to award the Applicant $1250.00 for 1% whole person impairment in respect of injury on 8 October 2002 (in accordance with AMS).
2. That the Arbitrator erred in failing to enter an award of total incapacity from 20 September 2004 to 18 October 2004 as a result of the injury on 8 October 2002.
3. That the Arbitrator erred in failing to find that the Applicant suffered partial
economic incapacity from 2 April 2003 to 11 March 2004 … in particular, the Arbitrator erred in failing to make any mathematical calculation in respect of the Applicant’s pre-injury capacity to earn and his findings as to post injury earnings for this period.
4. That the Arbitrator erred in failing to find that the Applicant suffered partial economic incapacity from 12 March 2004 to 19 September 2004 and 19
October 2004 to date and continuing … in particular, the Arbitrator erred in failing to make any mathematical calculation in respect of the Applicant’s pre-injury capacity to earn and his findings as to post injury capacity to earn for this period.
5. That the Arbitrator erred in that he cannot make an award in respect of the Applicant’s claim for section 60 expenses.
6. That the Arbitrator erred in failing to award costs in respect of the Applicant’s claim generally.”
On 3 February 2005, Pizza Hut filed a ‘Notice of Opposition to Appeal’. In essence, it submits that the Arbitrator’s determination was open on the evidence and that “… there are no grounds for the Appellant’s Appeal to succeed other than the obvious errors identified in Appeal Grounds 1 and 2.” It goes onto submit that “… the Presidential Member ought to confirm the Arbitrator’s determination in relation to Appeal Grounds 3 and 4 and … make a determination in accordance with Appeal Grounds 1, 2 and 5.”
LEAVE TO APPEAL
The amount at issue on the appeal satisfies the criteria set out in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The appeal was filed within the time limit prescribed by section 352(4), and leave to appeal is granted.
FRESH EVIDENCE
Pizza Hut in its Notice of Opposition to the Appeal seeks leave to admit fresh evidence in reply to allegations contained in ground 3 of the appeal. That evidence is a ‘list of payments’ from the insurer which disputes Ms Griffiths’ claim that the insurer paid for physiotherapy between January and March 2004. The document is dated 31 January 2005, post dating the arbitration hearing. In the circumstances, leave to admit this evidence is granted.
ON THE PAPERS
Both parties submit that the appeal is capable of being determined ‘on the papers’. There is no transcript of the proceedings where both parties apparently “… made detailed oral submissions.” There is a reference by the Arbitrator to some evidence Ms Griffiths gave “at the hearing” but it is not clear whether this was simply through her legal representative.
Having carefully read the Arbitrator’s Reasons, and all the evidence before him, together with both parties detailed submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354 of the 1998 Act and in accordance with Practice Direction 1 to proceed ‘on the papers’, and that this is the appropriate course in the circumstances.
SUBMISSIONS, EVIDENCE AND FINDINGS
The ‘Whole Person Impairment’ Error
Ms Griffiths submits that at the teleconference on 8 November 2004 “… the parties agree that the Applicant be paid $1250.00 in respect of 1% WPI”. That agreement was apparently confirmed at the Arbitration hearing on 26 November 2004 and that the Arbitrator would “… reflect this agreement in his determination.” This was simply an agreement between the parties and not the subject of an Approved Medical Specialist Certificate.
Pizza Hut agrees that Ms Griffiths is entitled to this compensation, but says that “… this matter could have been addressed in accordance with the slip rule of Rule [sic] 350(3) of the [1998 Act]”.
Section 350(3) provides that “the Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.” Given that Ms Griffiths wished to pursue additional grounds of appeal, review on appeal by a Presidential Member was an appropriate means of proceeding.
There has been a clear error by the Arbitrator, as both parties agree, and this error impacts on Ms Griffiths’ entitlements, certainly with respect to the question of costs, to which I will refer later.
The ‘Total Incapacity’ Error
Ms Griffiths submits that:
“At the conciliation phase of the arbitration, and during the arbitration, the Respondent conceded that the Applicant was entitled to total incapacity payments from 20 September 2004 (date of surgery) for a period of 4 weeks. As there was no dispute between the parties regarding the Applicant’s entitlement to total incapacity payments [for that period] … it is submitted that it was incumbent upon the Arbitrator to make such award.”
Pizza Hut also accepts this submission but again submits that this matter could have been addressed in accordance with section 350(3) of the 1998 Act referred to above. Pizza Hut says that “… the Applicant is entitled to compensation pursuant to section 36 of [the 1987 Act] in the sum of $600.86 per week being the Applicant’s pre-injury wage.”
This agreement was apparently only reached at the Arbitration hearing on 26 November 2004. The Arbitrator should have reflected this in his determination, and his failure to do so constitutes an error of law.
The ‘Partial Incapacity’ from 2 April 2003 to 11 March 2004, and failure to make a mathematical calculation error
Ms Griffiths submits that the Arbitrator erred in failing to award weekly compensation to her from 2 April 2003 (the date she ceased with Pizza Hut and commenced employment with the hospital) and 11 March 2004 (the date she ceased employment with the hospital).
Both parties agree that Ms Griffiths’ pre-injury earnings with Pizza Hut were $600.86 per week. At paragraph 29 of the ‘Statement of Reasons’ under the heading ‘Findings’, the Arbitrator said:
“In April 2003, the Applicant resigned from the Respondent and started employment on 2 April 2003 as a receptionist at James Fletcher Hospital, Newcastle where she worked 40 hours per week earning around $500.00 gross per week until January 2004 and then reduced to 32 hours per week to permit physiotherapy treatment. The contract with James Fletcher Hospital ran out on 2 April 2004 but due to lack of work (per Applicant’s Comment at Arbitration Hearing) she finished up early on 11 March 2004.”
Ms Griffiths submits that “accepting the Arbitrator’s finding that the Applicant earned $500.00 gross per week working 40 hours per week and at the very least accepting the Respondent’s Wages Schedule that the Applicant was earning $600.86 per week at the time of injury, it is submitted that the Arbitrator erred by failing to make the appropriate mathematical calculation and award, at the very least, $100.86 per week from the period 2 April 2003 to January 2004.
Pizza Hut submits that:
“… the Applicant voluntarily resigned from her employment with the Respondent having already obtained alternative employment elsewhere. The alternative employment was of such a nature that the Applicant sustained no loss of income at all, was able to undertake 40 hours per week and was suitable employment within the meaning of section 43 of the Act.”
The main thrust of Pizza Hut’s submissions seems to be that “… the Applicant has not satisfied the Commission that she sustained an incapacity for employment at all in accordance with section 33 [of the 1987 Act]”. Section 33 of the 1987 Act provides that “If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.”
Pizza Hut cites the decision of Neilson J in Bruce v Grocon Limited [1995] 1 NSW CCR 247 at 253 as follows:
“To succeed in his claim for weekly payments, the Applicant must prove that … he has been incapacitated for work. The only incapacity which has been suggested in this case is partial incapacity, to be compensated under the Workers Compensation Act 1987, section 40. The incapacity is not incapacity for the Applicant’s pre-injury employment but incapacity for work on the open labour market reasonably accessible to him, prior to the injury.”
Pizza Hut submits that:
“… the Applicant’s ability to obtain employment in the open labour market as a receptionist for 40 hours per week illustrates in accordance with section 33 that the worker does not have an incapacity for employment. There is insufficient evidence to support the submissions of the Applicant that this employment was not suitable.”
A similar submission was put to the Arbitrator. He notes at paragraph 18 “the Respondent’s Reply raises 12 distinct issues. However, the central issue for determination is a threshold one, namely: “that any incapacity for work suffered by the Applicant does not result from any injury arising from or during the course of her employment with the Respondent. In other words, whether the threshold requirement of section 33 of the 1987 Act has been met …”
The Arbitrator then states (paragraph 19) “accordingly, I will dispose of this issue first as it may not be necessary to proceed to deal with the other issues involving s40 and various calculations.”
In the following paragraphs, he recites the evidence before him. Under the heading “Findings” he states (paragraphs 30 and 31)
“The Respondent contends that the Applicant has the onus to satisfy the requirements set out in section 33. In essence, the Respondent submits that the onus has not been discharged; the correct test is incapacity on the open local market and not incapacity for pre-employment duties.”
Ultimately, he concluded at paragraph 37:
“There is no evidence before me to satisfactorily prove that the Applicant is unable to undertake work as a receptionist (her former occupation before joining Pizza Hut as a Manager) or undertake an appropriate office job for 40 hours per week. The evidence satisfies me that the Applicant is not partially incapacitated for receptionist or office type work.”
Pizza Hut’s submissions however, accepted by the Arbitrator, are misconceived. Division 2 of the 1987 Act relating to the payment of weekly compensation commences with section 33. Its purpose is to establish the primary obligation of an employer to pay weekly compensation where injury gives rise to incapacity; it is the ‘source’, as it were, of liability.
Subsequent sections define the nature and duration of any ‘weekly payments’. Section 40(1) of the 1987 Act refers to a worker’s entitlement to weekly payment during partial incapacity as follows:
“The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
As to the question of incapacity, in the present case, Ms Griffiths suffered a tear of the medial meniscus of her left knee requiring surgery by way of arthroscopic partial medial meniscectomy and medial femoral chrondoplasty in November 2002. Further surgery was required in September 2004 for debridement of an osteophyte that had formed on her medial femoral condyle.
Dr Bruce Caldwell, who performed the latter surgery, opined in a report dated 15 November 2004:
“There is no real reason she could not attempt to return to her pre-injury duties as a manager of a Pizza outlet however if she has a recurrence of symptoms then return to this work would be self limiting. It would not be a surprise to me if she has problems with prolonged standing due to the damage on the medial femoral condyle … She would be much better suited to a job which had regular sitting and standing and change of position … She would have difficulty squatting, lifting, carrying, climbing ladders and stairs. She is suited to office based activities. She is actually able to function as a Nanny despite the fact that this often requires lifting and squatting.”
However, he went onto conclude “this girl undoubtedly suffers a permanent impairment and probably permanent incapacity to undertake her pre-injury duties…”
Dr Caldwell first saw Ms Griffiths in April 2004 because of “ongoing problems with her left knee.”
Dr Wallace saw Ms Griffiths at the request of her solicitors on 16 November 2003. In a report dated 11 November 2003, he anticipated further surgery and concluded that “at present, I do not believe she is fit to return to her full pre-injury duties at work as a Manager.” He assessed her as suffering from a 1% whole person impairment.
Dr Meachin saw Ms Griffiths at the request of Pizza Hut on 15 January 2004. In a report of the same date, he opined “I feel that she is fit to return to work as a receptionist. I feel that she would have difficulty being on her feet a lot. She would also have problems with repetitive squatting and kneeling.” He also assessed a 1% whole person impairment.
A document annexed to Pizza Hut’s Reply sets out Ms Griffiths’ “normal duties”. It is noted that “she was ‘on her feet’ probably 80% - 90% of the time before her accident.”
There is no doubt that the totality of the evidence supports a finding that, as a result of the injury on 8 October 2002, Ms Griffiths suffers an incapacity for work. Having established that incapacity, she has a prima facie although rebuttable entitlement to “… a weekly payment during the incapacity” as set out in section 33 of the 1987 Act. Her entitlement to such a weekly payment is calculated in accordance with the provisions of section 40 of the same Act.
The Arbitrator’s finding in paragraph 38 that “… the Applicant did not have a partial incapacity for work as a receptionist or other office type work and able to work 40 hours per week resulting from her injury on 8.10.02” resulted from his incorrect interpretation of the 1987 Act and was wrong in law. It follows then that the Arbitrator also erred in failing to make any mathematical calculation as is required by section 40 as to Ms Griffiths’ pre and post injury earnings.
The totality of the evidence also suggested that Ms Griffiths was fit for work as a receptionist albeit with some restriction. In her statement, Ms Griffiths said that, in relation to her job at the hospital, “I was able to perform this work, although I did experience some difficulty with squatting down to get to the filing cabinet.” As to receptionist work generally, she said “I would not be able to perform more than a standard 40 hour week. Otherwise my knee fatigues …” The wage records produced by Pizza Hut confirm Ms Griffiths’ statement that she was employed fulltime with it and that “sometimes I could work as long as 12 hours in a shift. On other occasions, I would work 6 to 8 hours”.
Dr Caldwell in a report dated 19 April 2004 noted, in relation to a receptionist job, “her job however required lots of squatting to do filing and this eventually led to increasing knee pain and again she had to leave work.”
Whilst the evidence suggested that Ms Griffiths ceased with the hospital because the contract expired, it is consistent that she saw her general practitioner with complaints of continuing knee problems in around March or April 2004 for which she was referred to Dr Caldwell.
This material again confirms that Ms Griffiths does indeed suffer an incapacity on the open labour market, including some restrictions on the nature and extent of receptionist work she is able to perform.
The parties accepted the Wage Schedule of Pizza Hut as to Ms Griffiths’ pre-injury earnings of $600.86 per week. That same Schedule also discloses average weekly earnings in the employ of the hospital at $511.51 per week. For ease of reference, I will deal with Ms Griffiths’ entitlements and mathematical calculations at the conclusion of my decision.
It is appropriate at this point to deal with two other matters raised by Ms Griffiths on this ground of appeal. Firstly, Ms Griffiths submits that:
“The Arbitrator’s findings were that in January 2004 – March 2004 the Applicant reduced her hours to 32 hours per week to permit physiotherapy treatment. As this physiotherapy treatment was paid for by the Respondent, it is submitted that this reduction in hours was reasonable and therefore the Applicant is entitled to be awarded compensation for the eight hours per week lost from January 2004 …”
The payment of this physiotherapy is disputed by Pizza Hut and it seems from the list of payments it provided from its insurer that Pizza Hut did not in fact pay for such physiotherapy. In any event, as Pizza Hut appropriately points out in its submissions, … “the reduction in hours does not necessarily reflect a reduction in physical capacity to work.” There was no suggestion in Ms Griffiths’ statement that she was unable to work 40 hours, only that “… I reduced my work to 32 hours per week so that I could attend physiotherapy with Thomas Aune on Fridays.” I also note that there is no medical evidence in support of the suggestion that Ms Griffiths was, at that time, unable to work 40 hours per week, and this submission should not impact on her section 40 entitlement.
Secondly, Ms Griffiths submits that the Arbitrator failed to index Ms Griffiths’ earnings at the rate of 5% per annum, apparently because Pizza Hut ceased trading on 31 July 2003. Pizza Hut says that “the Respondent advised the Applicant that they believe all staff were employed by the new company and … in any event, irrelevant as she had already voluntarily left the Respondent.” This is an issue which ought properly to have been raised at the arbitration hearing, but in any event, there is simply insufficient evidence in support of this submission other than Ms Griffiths’ assertion that “… it was fair that the Arbitrator indexed the Applicant’s actual earnings at the rate of 5% per annum.”
The ‘Ongoing Incapacity’ Error
Much of the evidence in the Arbitrator’s findings relevant to this ground of appeal have been dealt with in the preceding paragraphs.
Ms Griffiths submits that:
“At the arbitration, the Applicant submitted that the contract of employment with James Fielding Hospital was for a one year period only … receptionist work similar to that at [the hospital] was unsuitable on [sic] ongoing basis to determine ongoing incapacity …”
Ms Griffiths relied on Dr Caldwell’s statement that the job at the hospital “… required a lot of squatting to do filing and this eventually led to increasing knee pain, and again she had to leave the work.”
Ms Griffiths then submits that the Arbitrator erred by failing to give adequate weight to Dr Caldwell’s comments and thus erred in finding:
“… that the Applicant had a capacity to work as a receptionist for 40 hours per week from 12 March 2004 to date and continuing … especially in light of the fact that the period 12 March 2004 to 19 September 2004 was a period immediately pre-dating … surgery. It is submitted that a more appropriate figure is $420.00 per week in accordance with the Applicant’s submissions.”
Ms Griffiths cited Dr Caldwell’s comment in his report dated 15 November 2004 as to her “… probable permanent incapacity to undertake her pre-injury duties.” In the same report, Dr Caldwell also noted that:
“… with appropriate further management of the lesion of the medial femoral condyle she may return in fact to most of her normal duties. This would leave her with an impairment of medial miniscectomy and this is not usually a major disability.
Unfortunately, the repair of her bearing surface will take about 4 or 5 months away from work as she would have to be non-weight bearing on crutches for this period.”
Ms Griffiths submits that, as at 15 November 2004, Dr Caldwell was of the view that she was likely to be totally incapacitated for work for four or five months post surgery. She then says that, at the arbitration hearing, she conceded that “… contrary to the opinion of Dr Caldwell, she has a capacity to work 30 hours per week from four weeks post surgery to date and continuing. At the rate of $14.00 per hour, this equated to an earning capacity of $420.00 per week”.
As I have said, there is no transcript, and whatever “concession” Ms Griffiths made at the hearing is unclear. It is also unclear as to whether Dr Caldwell is referring to some future ‘further management’ or to the surgery he performed in September 2004.
Ms Griffiths submits that she made “… a significant admission against interest which was contrary to the report of Dr Caldwell” and that the Arbitrator erred “… by failing to appraise the complete opinion of Dr Caldwell as to incapacity”.
As I said earlier, much of the medical evidence confirmed that Ms Griffiths was fit for receptionist work such that on balance, there was sufficient evidence before the Arbitrator to support his finding that Ms Griffiths was fit “… for work as a receptionist or other office type work”.
Pizza Hut maintains its submission that Ms Griffiths has no incapacity for employment and that she sustained no loss of income with the hospital. It submits that she voluntarily left suitable employment with it and has at all times since been able to earn the same or greater amount. Ms Griffiths in her statement said that after her surgery in September 2002, she moved to her parent’s home at Dora Creek on the Central Coast so that she could obtain assistance from her parents “… as I was experiencing a lot of difficulty with my knee”. She goes on to say that when she returned to work on suitable duties she “… had to commute by car one and a half hours each way to attend work. My duties were limited to book work, sitting at a desk, three days per week, five hours per day. Unfortunately, I was required to perform well in excess of these hours. I was working on average 30 hours per week doing paper work. I was also having to do customer service. This was making it extremely difficult for my knee to recover … the need to perform these duties was increasing my knee pain.” There does not appear to be any challenge by Pizza Hut to this assertion.
Pizza Hut then says “in the event the Presidential Member does not accept this submission, we will now address the issue of how the Arbitrator ought to have made a section 40 Assessment argued by the Appellant”. Pizza Hut then refers to the ‘five step process’ enunciated in Mitchell v Central West Health Service (1998) 14 NSW CCR 527 (‘Mitchell’s case’). Pizza Hut submits that the five step process does not entitle Ms Griffiths to any award since she was able to earn at the hospital $622.40 per week. Pizza Hut says that it’s Wage Schedule “accepted at the arbitration hearing by the Applicant indicated a seven week period in which the Applicant earned in excess of $622.40 per week…”
This however is not the test. Ms Griffiths was on a 12 month contract which in fact concluded after approximately 11 months. Section 43 of the 1987 Act relates to the computation of average weekly earnings and provides that “… regard may be had to the average weekly amount which, during the 12 months previous to the injury was being earned.” Section 43(1A) of the 1987 Act provides that “Any relevant rules provided by this section are also to be observed in determining the average weekly amount that a worker would be able to earn in suitable employment for the purposes of section 40…”
Pizza Hut’s Wage Schedule calculated Ms Griffiths’ average weekly earnings in the employ of the hospital at $511.51. The parties agreed her pre-injury earnings were $600.86. That leaves a mathematical difference of $89.35.
The Arbitrator determined that Ms Griffiths had not established ‘incapacity’ within the meaning of section 33 of the 1987 Act and therefore he was not required to embark on “… other issues involving s40 and various calculations.” As I have said, that finding was against the weight of evidence and wrong in law. Having determined that Ms Griffiths is partially incapacitated, she is entitled to an award pursuant to section 40 for those periods of partial incapacity.
The ‘Section 60’ Error
The Arbitrator found (paragraphs 39 and 40 of the Statement of Reasons):
“In my opinion, the Applicant has not discharged the onus of proof in relation to satisfying me on the balance of probabilities of a sufficient causal nexus between her injury on 8 October 2002 … and her alleged partial incapacity for work for the purposes of s33, 1987 Act.
Accordingly, the Applicant’s claim for weekly compensation benefits under section 40 and section 60 expenses cannot proceed”.
Pizza Hut simply submits that Ms Griffiths failed to particularise any section 60 expenses but conceded that “the Presidential Member make a determination in accordance with the appeal grounds … in relation to grounds 1, 2 and 5.”
Ground 5 relates to section 60 expenses. The entitlement to section 60 expenses is unrelated to any issue as to ‘capacity’ for employment. Section 60 requires an employer to pay for treatment reasonably necessary “… as a result of an injury received by a worker …” There is no dispute that Ms Griffiths suffered an injury on 8 October 2002, and, it appears, no dispute as to the need for treatment. Pizza Hut conceded that Ms Griffiths was entitled to payment in respect of total incapacity over the period of her hospitalisation in September 2004.
The Arbitrator’s determination on this issue is misconceived and wrong in law and on the evidence, Ms Griffiths clearly has an entitlement to section 60 expenses.
The ‘Costs’ Error
Ms Griffiths submits that “given the Arbitrator’s errors on all grounds of Appeal, it is submitted that costs should have been awarded at first instance…”
Pizza Hut makes no submissions on this point.
There is no doubt that Ms Griffiths’ claim was successful at least in part, certainly at the conciliation phase of the arbitration hearing, and costs ought to have been awarded. The Arbitrator has therefore erred in not awarding costs to Ms Griffiths.
CONCLUSION
The Arbitrator has made errors of law in addition to what Pizza Hut describes as “merely an omission and oversight by the Arbitrator” in relation to his failure to enter consent awards for the whole person impairment, section 36 total incapacity period and section 60 expenses. His finding that Ms Griffiths was not partially incapacitated was against the weight of evidence and wrong in law given his reliance on section 33 of the 1987 Act.
Having determined that Ms Griffiths is partially incapacitated, I make the following determination in relation to her claim for section 40 benefits in accordance with the principles enunciated in Mitchell’s case referred to above and in accordance with my reasoning in paragraphs 53 to 66:
1.The amount that Ms Griffiths would probably have earned in the employ of Pizza Hut but for injury is $600.86 per week.
2.The average weekly amount that Ms Griffiths was able to earn in suitable employment is $511.51 per week.
3.Ms Griffiths' entitlement pursuant to section 40(2) is $89.35 per week.
4.In the exercise of my discretion, the sum of $89.35 is a proper reflection of the reduction in Ms Griffiths’ ability to earn given some limitations on her ability to perform receptionist work, her current residence near Brisbane, and the current medical restrictions imposed on her.
5.Ms Griffiths is entitled to weekly compensation pursuant to section 40 of the 1987 Act at the rate of $89.35 per week.
DECISION
The decision of the Arbitrator dated 15 December 2004 is revoked and the following decision made in its place:
(a)Award in favour of Ms Griffiths at the rate of $89.35 per week from 2 April 2003 to 19 September 2004 pursuant to section 40 of the 1987 Act.
(b)Award in favour of Ms Griffiths at the rate of $600.86 from 20 September 2004 to 18 October 2004 pursuant to section 36 of the 1987 Act.
(c) Award in favour of Ms Griffiths at the rate of $89.35 per week from 19 October 2004 to date and continuing pursuant to section 40 of the 1987 Act, such payments to continue in accordance with the provisions of the Act.
(d)Pizza Hut to pay Ms Griffith’s reasonable hospital, medical and related expenses pursuant to section 60 of the 1987 Act on production of accounts or receipts.
(e)Pizza Hut to pay Ms Griffiths’ costs of the proceedings before the Arbitrator on 26 November 2004.
The following is not a determination of the Commission, however I note that the parties have agreed the following:
Pizza Hut to pay to Ms Griffiths the sum of $1250.00 in respect of 1% Whole Person Impairment pursuant to section 66 of the 1987 Act, and the parties are at liberty to file a section 66A Agreement.
COSTS
Pizza Hut (the Respondent) is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
24 March 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
0