Guettaf v Spotless Services Australia Pty Limited - [2020] NSWWCCPD 13

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Guettaf v Spotless Services Australia Pty Limited [2020] NSWWCCPD 13
APPELLANT:	Ali Guettaf
RESPONDENT:	Spotless Services Australia Pty Limited
INSURER:	AAI limited t/as GIO
FILE NUMBER:	A1-1659/19
SENIOR ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	2 August 2019
DATE OF APPEAL DECISION:	9 March 2020
SUBJECT MATTER OF DECISION:	Fact finding and drawing inferences from the available evidence – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 considered and applied; determination of incapacity – error where incapacity not disputed – Department of Corrective Services v Bowditch [2007] NSWWCCPD 244; 6 DDCR 174, University of New South Wales v Kurup [2014] NSWWCCPD 19, Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32 considered
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	Oral
DATE OF APPEAL HEARING:	19 February 2020
REPRESENTATION:	Appellant:
Mr A J Parker, counsel
Frisina Lawyers

Respondent:
Mr P Stockley, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s determinations in Paragraphs [4] to [6] of the amended Certificate of Determination dated 2 August 2019 are revoked. 2. Paragraph 7 of the amended Certificate of Determination dated 2 August 2019 is amended by deleting the date 30 January 2015 and inserting instead the date 4 March 2015. 3. Orders 10(a) to 10(g) of the amended Certificate of Determination dated 2 August 2019 are revoked. 4. Order 10(h) of the amended Certificate of Determination dated 2 August 2019 is amended by deleting the date “30 January 2015” and inserting instead the date “4 March 2015”. 5. Order 12 of the amended Certificate of Determination dated 2 August 2019 is revoked. 6. Otherwise the Senior Arbitrator’s amended Certificate of Determination dated 2 August 2019 is confirmed. 7. The matter is remitted to a different arbitrator for determination of appellant’s entitlement to weekly payments from 7 May 2014 to 4 March 2015.

INTRODUCTION AND PROCEDURAL BACKGROUND

Ali Guettaf (the appellant) was employed by Spotless Services Australia Pty Ltd (the respondent) as a head chef. He alleged that on 3 May 2014, he injured his right hip and suffered an inguinal hernia when he was lifting a bucket of chicken weighing 45 kilograms. He did not work from 7 May 2014.
The respondent initially accepted the claim and paid weekly compensation from 7 May 2014 to 3 March 2015, together with associated treatment expenses. In a notice issued on 13 February 2015 pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent disputed that:
(a) the appellant suffered injury within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b) ongoing treatment was reasonably necessary, and
(c) the appellant’s employment was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.[1]
[1] Application to Resolve a Dispute (ARD), pp 19–22.
In its reasons for disputing liability, the respondent indicated that the evidence disclosed that the appellant’s injury had resolved, that the appellant no longer suffered any incapacity and he no longer required any treatment. The respondent issued a second notice disputing liability on 22 December 2015 which was in similar terms to the first notice.[2] After the appellant made a claim for lump sum compensation pursuant to s 66 of the 1987 Act, the respondent issued a third dispute notice on 5 February 2019, again in similar terms to the first notice.[3]
[2] ARD, pp 23–27.
[3] ARD, pp 35–37.
The appellant brought proceedings in the Commission for weekly payments from 4 March 2015 and ongoing treatment expenses.
The matter was listed for a telephone conference on 2 May 2019. The Senior Arbitrator issued a direction dated 3 May 2019, amongst other things, directing the parties to file a wages schedule that included details of the appellant’s Pre-Injury Average Weekly Earnings (PIAWE) as at the date of injury.
In an “Amended PIAWE Calculation Schedule” annexed to the appellant’s wages schedule filed on 9 May 2019, the appellant indicated that in addition to the claim already before the Commission, the appellant disputed that his pre-injury weekly earnings were as calculated by the respondent for the period from 7 May 2014 to 3 March 2015.
Relying on the absence of a pay advice for any period prior to the week ending 25 February 2014 and excluding the days of employment after the injury, the appellant believed that his PIAWE ought to have been:
(a)    $1,788.18 for the period from 7 May 2014 to 30 September 2014;
(b)    $1,805.16 from 1 October 2014 to 31 March 2015 (indexed in accordance with the formula set out in s 82A of the 1987 Act), and
(c)    $1,818.70 from 1 April 2015 to 6 May 2015 (as indexed).
The appellant claimed the difference between what he was paid by the respondent during those periods and the amount he alleged ought to have been paid.
The respondent filed its schedule on 14 May 2019. The schedule included its calculation of the PIAWE from 14 May 2014 to 13 May 2015 and indicated that the appellant had a capacity to earn from 1 October 2014. The respondent did not quantify the amount the appellant could earn prior to 14 May 2015.
The matter was listed for arbitration hearing on 22 May 2019. The arbitration was adjourned to 5 June 2019, but it is unclear why that was so. On 23 May 2019, the Arbitrator issued a further direction, indicating that no further evidence would be admitted in the proceedings and directing the parties to “liaise and reach agreement” in relation to the appellant’s PIAWE.
At the further arbitration on 5 June 2019, there were lengthy discussions about procedural matters and the admission of documents, including the appellant’s employment contract, which was referred to by the appellant but not in evidence. The parties made submissions in relation to the calculation of the appellant’s PIAWE.[4]
[4] Transcript of Proceedings (T1), Guettaf v Spotless Services Australia Ltd [2019] NSWWCC 239, Senior Arbitrator Capel, 5 June 2019.
The Senior Arbitrator issued a further direction, dated 7 June 2019, directing the parties to file further written submissions. The direction was expressed in the following terms:
“1.     The following matters have been confirmed at the conciliation conference and arbitration hearing on 5 June 2019:
(a)Nature of the claim:
(i)applicant claims weekly compensation from 4 March 2015 to 15 April 2016 pursuant to s 37 of the 1987 Act, and
(ii)medical expenses pursuant to s 60 of the 1987 Act.
(b)The following matters are in dispute:
(i)Injury to the applicant’s right hip and groin/hernia - ss 4 and 9A of the 1987 Act;
(ii)Whether the insurer made a work capacity decision on 22 July 2014 - s 43 of the 1987 Act;
(iii)Jurisdiction of the Commission to make orders with respect to the alleged work capacity decision on 22 July 2014 - Cl 6 of Part 19L of Sch 6 of the 1987 Act;
(iv)Extent of the applicant’s capacity and quantification of the applicant’s entitlement to weekly compensation, including the date of commencement of such payments - ss 33, 36 and 37 of the 1987 Act;
(v)Medical expenses - s 60 of the 1987 Act;
(c)The following documents are admitted into evidence:
(i)Application to Resolve a Dispute with attached documents;
(ii)Amended Reply with attached documents;
(iii)Applicant’s wage schedule received 13 May 2019;
(iv)Respondent’s wage schedule received 16 May 2019;
(v)Letter from QBE Workers Compensation (NSW) Ltd to the applicant dated 22 July 2014 (exhibit A), and
(vi)Payslip dated 20 May 2014 (exhibit B).
2.      The parties are to file and serve a copy of the applicant’s contract of employment, if available, by 19 June 2019.
3.      The applicant is to file and serve written submissions by 25 June 2019.
4.      The respondent is to file and serve written submissions by 2 July 2019.
5.      Any submissions in reply are to be filed and served by 9 July 2019.
6.      At the conclusion of the time allowed for submissions, the dispute will be determined on the papers.”
The submissions filed by the appellant dated 11 June 2019 included submissions about the appellant’s capacity. The appellant referred to the WorkCover certificates of capacity issued by the appellant’s general practitioners between 7 May 2014 and 30 January 2015.[5] The appellant also referred to medical reports provided by the appellant’s treating orthopaedic surgeon, Associate Professor Munjed Al Muderis covering the period 20 May 2014 to 10 March 2015.[6] The appellant attached a wages schedule on the same date setting out the appellant’s claim.
[5] ARD, pp 380–427.
[6] ARD, pp 65–75.
The respondent filed its submissions on 28 June 2019. The respondent referred to the Workcover certificates of capacity issued by Dr Kamal Ahmed, general practitioner dated 28 October 2014[7] and 29 December 2014,[8] in which the appellant was certified fit for some work. The respondent made no further specific reference to the period prior to the declinature of liability and in its conclusion submitted that “the applicant has not made out a case of incapacity beyond 20 February 2015.” The appellant made submissions about the quantification of the PIAWE and proposed the amount of $1,572.91, calculated over the period of the appellant’s employment from 12 February 2014 to 6 May 2014 (said to be 11.857 weeks).
[7] ARD, pp 409–411.
[8] ARD, pp 418–20.
On 8 July 2019, the Commission emailed both parties, indicating that it had come to the Senior Arbitrator’s attention that there was no record of the appellant having ever formally sought leave to amend the claim to include the period before declinature. The Commission indicated that the Senior Arbitrator required the respondent to advise whether it consented to the amendment and whether the appellant consented to the respondent being granted leave to dispute the appellant’s entitlement to weekly compensation from 7 May 2014 to 3 March 2015. The appellant responded by email of the same date, indicating that the respondent had advised the appellant that it consented to the amendment and that the appellant consented to the respondent being granted leave to dispute the appellant’s entitlement to claim weekly compensation from 7 May 2014 to 3 March 2015. The amendment to the pleadings was allowed by the Senior Arbitrator on that basis.
The Senior Arbitrator issued a Certificate of Determination (COD) on 10 July 2019, which was amended at the request of the parties under the “slip rule” because of agreed minor miscalculations. The Amended COD was issued on 2 August 2019. Those determinations which are relevant to this appeal were:
(a)    the appellant’s PIAWE as at 7 May 2014 was $1,548.23;
(b)    the appellant had no capacity to work from 7 May 2014 to 17 June 2014 and from 4 July 2014 to 8 October 2014, but otherwise had some capacity for work from 18 June 2014 to 3 July 2014 and from 9 October 2014, and
(c)    the respondent was to have credit for payments made during that period.
The appellant appealed those determinations.

ON THE PAPERS

Section 354(6) of 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.”
Both parties submitted that the appeal could be determined ‘on the papers’.
I formed the view that the submissions did not adequately address the issues on appeal or sufficiently identify the nature of the issues which were required to be determined by the Senior Arbitrator. I therefore set the matter down for an oral hearing at which time both parties had the opportunity to submit in relation to the matters which were of concern.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE RELEVANT EVIDENCE

Preliminary matters

Correspondence between the parties

In his Application to Appeal Against Decision of Arbitrator (the appeal application), the appellant refers to (but does not identify) “correspondence from the parties” which is not “new evidence” but is material that “demonstrates the procedural history.”[9] Presumably, the appellant’s reference to the (unidentified) correspondence was a reference to the succession of emails attached to the appeal application that passed between the appellant and respondent. The subject matter included the calculation of the appellant’s PIAWE and weekly entitlement after deduction of payments made, and the Senior Arbitrator’s order that the respondent should have credit for payments made. Largely, the emails post-date the date the amended COD was issued.
[9] Appeal application 2.5, [1].
The respondent indicates that the correspondence has not been identified, so that it is not in a position to respond to the application to the relevance of this correspondence in the appeal.
In the absence of any concise submission about the relevance of those documents and in the light of my determinations below in relation to the weekly award and the order for credit to the respondent for payments made, I am not persuaded that the correspondence attached to the appeal application advances either party’s position in this appeal. The documents are not admitted.

The contract of employment

It came to my attention that following a Direction issued by the Senior Arbitrator dated 7 June 2019, the appellant’s contract of employment dated 11 February 2014 was provided to the Commission. The appellant had filed his written submissions on 13 June 2019. The respondent filed its submissions on 1 July 2019 and the appellant filed submissions in reply on 2 July 2019. Neither party referred to the contract of employment in their submissions and the Senior Arbitrator made no mention of the document.
At the oral hearing of the appeal, I drew the parties’ attention to the document and provided them with the opportunity to make submissions about the evidentiary value of the document and whether it should be admitted on the appeal.
Subsequent to the appeal hearing, it came to my attention that on 1 July 2019, the Commission emailed the parties in the following terms:
“Dear Legal Representatives
Please find attached worker’s contract of employment.
The arbitrator has requested me to ask you whether either of you seek to admit the contract into evidence.
At this stage, he does not intend to admit the document unless both parties consent to its admission.
If either party wishes to rely on the contract, or object to same, you are to file further submissions relating to admission and submissions relating to the contents of the contract by 9 July 2019.
Please advise.”
In the light of the above, it is not necessary to consider the submissions made in the appeal in relation to the contract of employment. The parties were invited by the Senior Arbitrator to tender the document and make submissions about it, which they did not do. The Senior Arbitrator did not admit the document into evidence and did not give consideration to it in his statement of reasons. It follows that the contract of employment is not admitted as evidence on this appeal.

The appellant’s email dated 8 July 2019

In the written submissions provided by both parties on the appeal, neither party referred to the appellant’s email dated 8 July 2019. The content of the email was as follows:
“Dear Arbitrator,
The respondent’s solicitor has today notified the applicant’s solicitor via telephone that the respondent consents to the amendment to claim weekly compensation from 7 May 2014 to 3 March 2015.
The applicant consents to the respondent seeking leave to dispute the applicant’s entitlement to claim weekly compensation from 7 May 2014 to 3 March 2015.
Furthermore, the applicant withdraws the submissions that appear at paragraphs 48 to 52 of the submissions.
Kind regards,”
I formed the view that the email may be relevant in terms of what issues were identified as matters requiring determination.
At the oral hearing of the appeal, I invited the parties to make submissions about the content and relevance of the email in respect of the issues to be determined.
The appellant submitted that the email did not take matters further and did not operate to expand the dispute before the Arbitrator.[10] The appellant indicated that the Senior Arbitrator referred to the email in his reasons at [14], which the Senior Arbitrator said clarified the nature of the claim brought by the appellant and whether the respondent disputed the amendment.
[10] Transcript of Appeal Proceedings of 19 February 2020 (T2), T2 22.32–23.17.
The respondent submitted that the correspondence did not articulate any additional issues that might arise, and simply expressed the “blanket proposition” that the Commission was thereafter entitled to consider the relevant period. The respondent contended that in hindsight, there should have been a more precise recording of what had actually been agreed between the parties.[11]
[11] T2 24.1–14.
As the Senior Arbitrator formed the view that this email clarified the claim and the dispute before him, and both parties have had the opportunity to make submissions about the document, I am of the view that the document is relevant to the issues on appeal.
The document is therefore admitted for the purpose of this appeal.

The appellant’s statements

In a statement dated 18 June 2015,[12] the appellant said that he commenced work with the respondent in February 2014. He described the nature of his duties and the circumstances surrounding his injury on 3 May 2014. The appellant explained that after reporting the injury to his manager, he continued to work at the request of the manager despite significant pain, because they were short staffed and busy. The appellant stated that he also attended work the following day but was in extreme pain and after three hours, ceased work and went home.
[12] ARD, p 1–4.
The appellant reported that at the time of the injury, he was being paid $1,140 per week, plus penalty rates, and that his average weekly earnings including the penalty rates was $1,357.32. He indicated that the respondent had promised that the weekly amount would increase in the following weeks.
In a supplementary statement dated 27 June 2016,[13] the appellant stated that initially, he was employed to work five days per week, but that after a time an extra day was added, requiring him to work six days per week. He said he worked from 8.00 or 9.00 am until approximately 7.00 pm, although his contracted hours were from 11.00 am to 7.00 pm. The appellant said it was necessary to start work earlier in order to get the preparation done, although he did not get paid for working between 8.00 am and 11.00 am. He said that the kitchen was open seven days per week, including public holidays.
[13] ARD, pp 5–14.
The appellant stated that the injury occurred on 3 May 2014, which was a Saturday. He said he did not work on the Sunday or Monday and returned to work on Tuesday, despite limping badly, and arranged to see his general practitioner Dr Ahmed, who he consulted the following day.
The appellant reported that he met with the general manager and the regional manager on either 7 or 8 May 2014 and that at that meeting his employment was terminated. The appellant described the medical treatment he received and his attempts at a return to work.
The appellant provided a third statement dated 18 October 2018 the content of which is not relevant to this appeal.

Pay advice documents and payment summaries

The appellant relied on a number of pay advice documents dating from 25 February 2014 up to 6 May 2014.[14] Those documents disclose that the appellant’s base rate of pay was $1,140.00 for 38 hours’ work, and that the appellant worked the following hours and earned the following gross amounts in each pay period:
[14] ARD, pp 428–438.
(a)    25 February 2014 – $1,357.32 for 38 hours inclusive of 15.3 hours at penalty rates;
(b)    4 March 2014 – $2,714.64 for 76 hours inclusive of 30.6 hours at penalty rates;
(c)    11 March 2014 to 15 April 2014 – $1,357.32 per week for 38 hours per week inclusive of 15.3 hours at penalty rates;
(d)    22 April 2014 – $1,824.24 for:
(i)15.2 ordinary hours;
(ii)7.6 hours of a public holiday not worked;
(iii)15.2 hours of public holidays worked;
(iv)15.2 hours of public holiday penalties, and
(v)a further 0.1 of one hour in penalties.
(e)    29 April 2014 – $2,154.84 for:
(i)45.6 ordinary hours;
(ii)7.6 hours for a public holiday worked;
(iii)15.3 hours at penalties, and
(iv)7.6 hours of public holiday penalties.
(f)    6 May 2014 – $2,383.80 for 72.2 hours inclusive of 15.7 hours at penalty rates.
The appellant also relied on a number of payment summaries provided by Centrelink.[15] A review of those documents reveals that the appellant’s Centrelink payments ceased on 12 February 2014 and the appellant was paid by the respondent in the period 12 February 2014 to 8 May 2015.[16]
[15] ARD, pp 439–446.
[16] ARD, p 440.

The history taken by the medical experts

Many of the histories recorded in the medical reports in evidence did not touch upon the issue of the appellant’s working hours. It is relevant that Dr Stephen Potter, rheumatologist qualified to provide an opinion by the respondent, recorded in his report dated 3 December 2014 that the appellant had worked “50 plus hours per week” for the respondent.[17]
[17] Report of Dr Potter, Respondent’s Amended Reply to Application to Resolve a Dispute (Reply), pp 7–11 at p 8 of the Reply.
Professor Paul Myers, vascular and general surgeon, who was also qualified by the respondent to assess the appellant, recorded the history that at the time of the injury, the respondent was short-staffed so that the appellant was working more hours than his normal hours.[18]
[18] Report of Prof Myers dated 9 February 2015, Reply, pp 12–18 at p 13 of the Reply.

Respondent’s documents

The Position Description for a chef was attached to the Reply.[19] In relation to the hours of work, the document described the hours of work as being dictated by operational conditions and client demands and that the work hours would be discussed at interview.[20]
[19] Reply, pp 43–45.
[20] Reply, p 45.
The respondent’s Job Task Analysis recorded that the appellant’s working hours were eight hours per day, five days per week.[21]
[21] Reply, p 46.
The respondent’s Incident Report dated 8 May 2014 referred to the injury as occurring on 3 May 2014, but not reported by the appellant until 7 May 2014. The document recorded that the appellant:
(a)    continued to work following the injury until 10 pm;
(b)    reported the injury as being painful during his 12 hour shift on Sunday 4 May 2014;
(c)    was not rostered to work on Monday and Tuesday [5th and 6th May];
(d)    notified his site manager on Tuesday that he respondent was experiencing pain and pins and needles in the right thigh, and
(e)    reported for his shift on Wednesday 7 May 2014 but left early to attend his doctor.[22]
[22] Reply, p 62.
A list of weekly compensation payments indicates that the appellant was paid weekly compensation from 7 May 2014 during the first 13 weeks of incapacity at the rate of $1,357.62.[23]
[23] ARD, p 479.
The respondent relied on a letter dated 22 July 2014,[24] alleging that the calculation of the appellant’s PIAWE as $1,429.07 in that letter was a work capacity decision, and the Commission therefore did not have jurisdiction to deal with the issue as to the appellant’s PIAWE.
[24] Exhibit “A”.

THE SENIOR ARBITRATOR’S REASONS

The Senior Arbitrator observed that the rates paid to the appellant from 7 May 2014 were consistent with a PIAWE amount of $1,429.07.
The Senior Arbitrator reviewed the disputes raised in the various dispute notices issued by the respondent. He then identified the claim as:
“By an Application to Resolve a Dispute (the Application) registered in the Commission on 4 April 2019, and amended by consent after written submission were filed by the parties, the applicant claims weekly compensation from 4 May 2014 to 15 June 2016 pursuant to ss 36 and 37 of the 1987 Act and medical expenses pursuant to s 60 of the 1987 Act due to an injury sustained to his hip and an inguinal hernia on 3 May 2014.”[25]
[25] Guettaf v Spotless Services Australia Ltd [2019] NSWWCC 239 (reasons), [10].
The Senior Arbitrator identified the issues for determination as:
“(a) whether the applicant injured his right hip and groin/hernia – s 4 of the 1987 Act;
(b) whether the applicant’s employment was a substantial and/or the main contributing factor to his condition – ss 4(b)(ii) and 9A of the 1987 Act;
(c) whether the insurer made a Work Capacity Decision (WCD) on 22 July 2014 – s 43 of the 1987 Act;
(d) jurisdiction of the Commission to make orders with respect to the alleged work capacity decision on 22 July 2014 - Cl 6 of Part 19L of Sch 6 of the 1987 Act;
(e) extent and quantification of the applicant’s entitlement to weekly compensation, – ss 35, 36 and 37 of the 1987 Act, and
(f) the respondent’s liability in respect of medical expenses – s 60 of the 1987 Act”.[26]
[26] Reasons, [15].
The Senior Arbitrator provided a detailed summary of the evidence admitted in the proceedings and the submissions made by both parties.
The Senior Arbitrator proceeded to make findings as to whether the appellant suffered the alleged injury, and whether the appellant’s employment was a substantial contributing factor to the injury and/or the main contributing factor (ss 9A and 4(b)(ii) of the1987 Act respectively).
The Senior Arbitrator then considered the appellant’s capacity for work. He reproduced the definitions of “current work capacity”, “no current work capacity” and “suitable employment”, as those terms are defined in s 32A of the 1987 Act. The Senior Arbitrator observed that he was required to consider the “evidence that primarily relates to the period of the claim from 4 May 2014 to 15 April 2016.”[27]
[27] Reasons, [197].
The Senior Arbitrator came to the conclusion that he was satisfied that at all times the appellant was not fit for his pre-injury duties and proceeded to consider the appellant’s capacity for suitable employment. He remarked on the inadequate state of the medical evidence. He gave consideration to the available medical evidence, the appellant’s age, education, skills and work experience, as well as the appellant’s attempt to return to work with the assistance of medication. The Senior Arbitrator referred, in particular, to the work capacity certifications contained in the WorkCover Certificates of capacity issued between 7 May 2014 and 20 February 2015 and the absence of an opinion from A/Prof Al Muderis until December 2014, at which time A/Prof Al Muderis opined that the appellant was fit for some work.
Following a review of all of the evidence, the Senior Arbitrator concluded that the appellant had no capacity for work for the periods 7 May 2014 to 17 June 2014 and from 4 July 2014 to 8 October 2014, but otherwise had some capacity for work at various degrees of capacity.
The Senior Arbitrator noted that before he could calculate the appellant’s entitlements to weekly payments, he was required to determine whether the letter dated 22 July 2014 constituted a work capacity decision and if not, he needed to determine the appellant’s PIAWE.
The Senior Arbitrator concluded that the letter did not constitute a work capacity decision and proceeded to determine the appellant’s PIAWE.
The Senior Arbitrator observed that the parties could not reach agreement regarding the appellant’s PIAWE and his first date of employment. He noted that the appellant’s statement evidence did not address the first date that the appellant worked.
The Senior Arbitrator referred to the pay advices, noting that the first pay advice dated 25 February 2014 (a Tuesday) was for one week’s pay, and that according to the second pay advice dated 4 March 2014 (also a Tuesday) the appellant received the equivalent of two weeks’ pay. The Senior Arbitrator remarked that there was no suggestion in the evidence that the appellant worked for 76 hours in one week. He also noted that the pay advice included two sets of penalty rates which could only be consistent with wages for working on two weekends.
The Senior Arbitrator said that it was logical to infer that the additional payment received on 4 March 2014 was in respect of work undertaken in the week prior to 18 February 2014 (a Tuesday), that this suggested that the date of employment was Wednesday 12 February 2014, and that was the date of the appellant’s first day at work.
The Senior Arbitrator further noted that the appellant worked on 3 and 4 May 2014, but was rostered off on 5 and 6 May 2014, so would not have been paid for those days in any event. On that basis, the Senior Arbitrator concluded that the appellant’s gross earnings were received over a period of 12 weeks, and his first day of incapacity was 7 May 2014. The Senior Arbitrator observed that the appellant received a further payment on 20 May 2014, but as that was after the injury, it was not relevant to the calculation. Further, he noted that the appellant did not receive any pecuniary benefits that would affect the calculations.
The Senior Arbitrator divided the appellant’s gross weekly earnings of $18,578.23 by the twelve weeks of employment to arrive at a figure of $1,548.23 per week. He concluded, therefore, that in accordance with ss 44C and 44D of the 1987 Act, the appellant’s PIAWE was $1,548.23. Noting that the PIAWE figure was to be indexed in accordance with s 82A of the 1987 Act, the Senior Arbitrator then applied the adjustments to the PIAWE, which relevantly increased to $1,562.94 from 1 October 2014 and $1,574.66 from 1 April 2015.
The Senior Arbitrator then proceeded to determine the appellant’s entitlements to weekly compensation pursuant to ss 36 and 37 of the 1987 Act and on the basis of his earlier findings about the appellant’s capacity for work.
The Amended Certificate of Determination issued on 2 August 2019 records:
“The Commission determines:
1.     The applicant sustained injury to right hip arising out of or in the course of his employment with the respondent on 3 May 2014.
2.     The applicant’s employment was a substantial and the main contributing factor to his injury.
3.     The applicant did not sustain an injury to his groin/ inguinal hernia arising out of or in the course of his employment with the respondent on 3 May 2014.
4.     The applicant had no current work capacity from 7 May 2014 to 17 June 2014 and from 4 July 2014 to 8 October 2014.
5.     The applicant had the capacity to undertake some work for 8 hours per week earning $285.76 per week from from 18 June 2014 to 3 July 2014 and from 9 October 2014 to 3 December 2014.
6.     The applicant had the capacity to undertake some work for 25 hours per week earning $893 per week from from 4 December 2014 to 30 January 2015.
7.     The applicant had the capacity to undertake some work for 30 hours per week earning $1,071.60 per week from 31 January 2015 to 15 June 2016.
8.     The applicant requires medical treatment as a consequence of his injury and the respondent is liable to pay reasonably necessary medical expenses in respect of his hip injury.
The Commission orders:
9.     Award for the respondent in respect of the allegation of an injury to his groin/ inguinal hernia.
10.   The respondent to pay the applicant weekly compensation in accordance with the Workers Compensation Act 1987 as follows:
a.$1,470.82 per week from 7 May 2014 to 17 June 2014 pursuant to section 36(1)(a);
b.$1,185.06 per week from 18 June 2014 to 3 July 2014 pursuant to section 36(2)(a);
c.$1,470.82 per week from 4 July 2014 to 5 August 2014 pursuant to section 36(1)(a);
d.$1,238.58 per week from 6 August 2014 to 30 September 2014 pursuant to section 37(1)(a);
e.$1,250.35 per week from 1 October 2014 to 8 October 2014 pursuant to section 37(1)(a);
f.$964.59 per week from 9 October 2014 to 3 December 2014 pursuant to section 37(3)(a);
g.$591.79 per week from 4 December 2014 to 30 January 2015 pursuant to section 37(3)(a);
h.$413.19 per week from 31 January 2015 to 31 March 2015 pursuant to section 37(2)(a);
i.$424.33 per week from 1 April 2015 to 5 May 2015 pursuant to section 37(2)(a);
j.$29.89 per week from 6 May 2015 to 30 September 2015 pursuant to section 37(2)(a);
k.$45.31 per week from 1 October 2015 to 31 March 2016 pursuant to section 37(2)(a), and
l.$51.45 per week from 1 April 2016 to 15 June 2016 pursuant to section 37(2)(a).
11.   Liberty to the parties to apply with respect to these calculations within 14 days of this determination.
12.   The respondent is to have credit for payments made during this period.
13. The respondent is to pay the applicant’s reasonably necessary medical expenses in respect of the applicant’s right hip injury pursuant to sections 59A and 60 of the Workers Compensation Act 1987.
14.   No order as to costs.”

GROUNDS OF APPEAL

The appellant brings the following grounds of appeal:
(a)    Ground One: The Senior Arbitrator erred in law in:
(i)assessing the appellant’s capacity during the period from 7 May 2014 to 3 March 2015;
(ii)denying the appellant procedural fairness and disregarding the way the case was run in relation to the period from 7 May 2014 to 3 March 2015, and
(iii)failing to correctly apply the law (s 32A of the 1987 Act) to the facts of the case;
(b)    Ground Two: The Senior Arbitrator erred in fact and law in drawing inferences from the economic loss evidence when assessing the pre-injury average weekly earnings, and
(c)    Ground Three: The Senior Arbitrator erred in law by ordering the respondent to have credit for payments made during the period from 7 May 2014 to 3 March 2015.

SUBMISSIONS

The respondent makes extensive submissions about the manner in which the appeal is presented and says that each ground of appeal should be dismissed on the basis that they do not identify any appellable error such as failing to apply a correct legal principle. Further, it says that the appellant’s submissions do not address the grounds of appeal but merely disagree with the Senior Arbitrator’s findings and submit a preferable alternate outcome. The respondent says that in order for it to answer the appeal, it was required to examine the appellant’s submissions in order to attempt to identify the substance of the appellant’s submissions.
The appellant takes issue with the assertions made by the respondent in relation to the presentation of the appeal, and “for the avoidance of any doubt”[28] sets out which paragraphs relate to each ground of appeal.

As to Ground One: (a) assessing the appellant’s capacity during the period from 7 May 2014 to 3 March 2015

[28] Appellant’s submissions in reply, [12].

The appellant’s submissions

The appellant submits that the Senior Arbitrator misconstrued his role when he assessed the appellant’s incapacity in respect of the period 7 May 2014 to 3 March 2015 (the relevant period). The appellant submits that the Senior Arbitrator was not entitled to do so.
The appellant refers to his written submissions provided to the Senior Arbitrator, in which the appellant set out his claim as a “top-up” of weekly compensation during the relevant period due to an underpayment made by the respondent. The appellant says that he then made submissions about the appellant’s PIAWE calculations in both his primary submissions and in his submissions in reply to the respondent’s submissions. The appellant submits he also made it clear in his wages schedule attached to the submissions dated 11 June 2019 that the claim was not a reassessment, as the schedule indicated that the appellant had been paid during the relevant period.
The appellant submits that the respondent’s wage schedule dated 14 May 2019 was not explained and the respondent did not refer to that schedule at all in its submissions.
The appellant contends that it was necessary to look to the submissions to ascertain what the real dispute was and that the dispute about incapacity was limited to the period after 20 February 2015, when payments ceased.
The appellant maintains that the only issue in dispute during the relevant period was the calculation of the appellant’s PIAWE. The appellant says that this was abundantly clear, particularly in the light of the submission made by the respondent that “[i]t is the calculation of the length of the period of employment that is controversial.”[29] The appellant contends that the issue raised by the respondent that the letter dated 22 July 2014 constituted a work capacity decision and that the Commission had no jurisdiction to alter the PIAWE is evidence that the PIAWE was the sole controversy between the parties. The appellant says that it was also evident from reading the submissions as a whole. The appellant adds that the respondent accepted that the appellant had no capacity during the relevant period when it paid the appellant and did not contend that the Senior Arbitrator was required to determine the appellant’s capacity during that period.
[29] Respondent’s submissions to the Senior Arbitrator dated 28 June 2019, [46].
The appellant asserts that the respondent had never raised a dispute about the appellant’s degree of incapacity during the relevant period.
The appellant submits that the Senior Arbitrator made no reference to the respondent’s wages schedule, in which:
(a)    the respondent accepted that the appellant was entitled to full weekly payments;
(b)    it was accepted that the appellant has no capacity for work at least up until 29 October 2014, and
(c)    while the respondent asserted the appellant had some capacity for suitable duties, the respondent did not identify any such employment or attribute a value to any such employment until the period from 4 March 2015.
The appellant also refers to the respondent’s submissions made to the Senior Arbitrator that:
(a) its primary position was that the appellant was at all times fit for full time work from February 2015, and
(b) the appellant had not made out a case of incapacity beyond 20 February 2015.
The appellant maintains that a fair reading of the pleadings and a consideration of the history of the matter indicates that the issue in respect of the relevant period between the parties was limited to the calculation of the appellant’s PIAWE. The appellant concludes that the Senior Arbitrator exceeded his jurisdiction by determining incapacity during the relevant period when the appellant had been in receipt of weekly payments.
In his submissions made in the appeal hearing, the appellant submits that there is no evidence that a dispute was ever raised about the appellant’s incapacity in respect of the relevant period. Further there is no reference to the appellant’s capacity during the relevant period in the respondent’s submissions to the Senior Arbitrator or in its written submissions filed in the appeal. The appellant acknowledges that the respondent refers to the medical certifications that the appellant had some capacity for work from October 2014 but says that the respondent did not speak of the effect of that evidence other than in the context of the appellant’s incapacity beyond February 2015.

The respondent’s submissions

The respondent refers to the complaint that the Senior Arbitrator exceeded jurisdiction by determining capacity before 20 February 2015 as the “first suggestion of error.”[30] The respondent accepts that acting without jurisdiction constitutes an error of law but submits that the appellant’s submission does not disclose why the Senior Arbitrator’s approach exceeded jurisdiction. The respondent says that the appellant has not referred to any legislation or caselaw. The appellant submits that the appellant’s submission does not “descend to a degree of detail or particularity” so as to warrant or enable a response.[31]
[30] Respondent’s submissions, [11].
[31] Respondent’s submissions, [11].
The respondent submits that the Senior Arbitrator noted that the issues before him were whether the respondent was liable for injury and the degree of the appellant’s incapacity. The respondent contends that once the liability issue was determined in the appellant’s favour, the Senior Arbitrator was required to undertake an examination of the appellant’s capacity. The respondent asserts that the appellant sought the consideration of his capacity to be backdated to the commencement of the claim and it was the “usual process” for an arbitrator to consider the appellant’s capacity when assessing the quantum of entitlement. The respondent gave as an example where a defence was raised pursuant to s 11A of the 1987 Act (that is, the injury was not compensable because it resulted from reasonable action by the respondent in relation to matters such as discipline). The respondent asserted that in those circumstances, if the respondent’s defence fails, that does not mean that there is no consideration then given to issues of capacity or quantum. The respondent submits that those considerations are regularly litigated and considered by arbitrators without the necessity of a particular dispute notice.
The respondent submits that the Senior Arbitrator considered the appellant’s capacity because the appellant asked him to do so. The respondent says that the Senior Arbitrator’s methodology was the same during the relevant period as it was for the balance of the claim. That is, the Senior Arbitrator looked to the available medical evidence, the appellant’s statement evidence and what the appellant was doing, ultimately accepting that the appellant had no capacity during two periods within the relevant period. The respondent says that the steps taken by the Senior Arbitrator were uncontroversial, and could not constitute an error of law or want of jurisdiction.
The respondent indicates that it could not point to any document in which it had disputed the appellant’s capacity during the relevant period. The respondent says that the appellant “opened up” the relevant period for the Senior Arbitrator’s consideration.

As to Ground One: (b) denying the appellant procedural fairness, disregarding the way the case was run in relation to the relevant period and failing to apply s 32A of the 1987 Act

The appellant’s submissions

The appellant submits that if the Senior Arbitrator considered that he needed to determine the appellant’s capacity, he ought to have given the appellant the opportunity to address the evidence and make submissions about the degree of incapacity and quantum of the entitlement. The appellant contends that failing to offer that opportunity was an error.
The appellant submits that during the relevant period, the appellant was certified by his treating doctor as having varying degrees of incapacity. The appellant points out that he has limited education and training and was reliant upon treatment, rehabilitation and vocational training provided by the respondent. He observes that the respondent accepted that he had no capacity and continued to pay the appellant on the basis that he had no capacity to work.
The appellant submits that it cannot be accepted that he was able to find suitable work in circumstances where the respondent had not been able to find any for him and the Senior Arbitrator’s analysis did not provide a proper assessment in accordance with s 32A, which requires more than simply an analysis of the medical evidence. The appellant contends that if s 32A is applied, the only possible finding was that the appellant had no capacity for work.
The appellant complains that had he been made aware that the Senior Arbitrator was going to assess his capacity during the relevant period, he would have adduced evidence to show that he had no capacity at that time.

The respondent’s submissions

The respondent submits that the arbitration was adjourned to a second arbitration in order to permit the appellant to do justice to his case and the parties were also given the opportunity to file written submissions. The respondent says that it is difficult therefore to accept that there is a basis for the appellant’s complaint, which appears to relate to the allegation of procedural unfairness.
The respondent complains that the appellant’s suggestion that the Senior Arbitrator did not provide a proper assessment under s 32A of the 1987 Act is not supported by any reference to the Arbitrator’s determination or identification of any legal principle which the Arbitrator failed to apply. The respondent says that the appellant’s submission could be construed as relating to a failure to give reasons, the application of an incorrect legal test or the misapplication of a legal test, but it is not clear what error the appellant relies upon.

As to Ground Two: The Senior Arbitrator erred in fact and law in drawing inferences from the economic loss evidence when assessing the pre-injury average weekly earnings

The appellant’s submissions

The appellant observes that the Senior Arbitrator rejected the calculation of the PIAWE made by both the appellant and the respondent and drew inferences to arrive at his calculation that the PIAWE was $1,548.23. The appellant says that the Senior Arbitrator erred in so doing. The appellant submits that the Senior Arbitrator’s conclusion that the appellant did not address the commencement date of his employment was factually erroneous. The appellant contends that he clearly addressed when he had commenced employment and relied on the documentary evidence to support the submission about that issue.
The appellant submits that the respondent failed to adduce evidence to show that the documents relied on were wrong and that both the respondent and the Senior Arbitrator sought to draw inferences from the documents that were not available. The appellant further submits that given the respondent did not produce any evidence to contradict that documentary evidence, the Senior Arbitrator ought to have accepted it as accurate.
The appellant says that in those circumstances, the Senior Arbitrator ought to have accepted his submissions and found that the appellant’s PIAWE was at least $1,788.18, which should increase over time in line with indexation.
In oral submissions, the appellant identified the inferences drawn by the Senior Arbitrator as those recorded in the Senior Arbitrator’s reasons from [244]–[266].

The respondent’s submissions

The respondent submits that the allegation that the Senior Arbitrator erred in his findings in respect of the appellant’s PIAWE is not supported by identifying any finding or explanation as to how it was in error. The respondent asserts that the appellant has not indicated what the correct determination should have been.
The respondent refers to the appellant’s criticism of the inference drawn by the Senior Arbitrator and submits that the appellant has not pointed to any inference or any particular error the Senior Arbitrator was supposed to have made. The respondent submits that in those circumstances, the Presidential member will have no way of deciding whether the Senior Arbitrator’s conclusion was merely a matter where minds might differ, or whether there had been an appellable error within the meaning of s 352(5) of the 1998 Act. The respondent contends that on the same basis, it is not in a position to respond to the complaint in any meaningful way.
The respondent submits that the inferences drawn by the Senior Arbitrator in his reasons at [244]–[266] were logical and open to him and do not disclose appellable error. The respondent further submits that it was open to the Senior Arbitrator to determine a figure for the PIAWE that was not the figure put to him by either party. The respondent gave the example of a District Court Judge awarding damages in excess of the amount put by the plaintiff in the plaintiff’s case.

As to Ground Three: The Senior Arbitrator erred in law by ordering the respondent to have credit for payments made during the period from 7 May 2014 to 3 March 2015

The appellant’s submissions

The appellant submits that neither party made submissions about the order that the respondent was to have credit for payments made, without first making findings of fact and without disclosing where the power lay to make the order or the way it would operate.
The appellant contends that he was therefore denied procedural fairness, and the Senior Arbitrator exceeded his jurisdiction.
The appellant asserts that if the parties do not understand the nature of the order that was made, the minimum standard of reasoning has not been met. The appellant says that the Senior Arbitrator had no power to order an overpayment, and there should be no offset of the weekly amount which should be ordered.

The respondent’s submissions

The respondent describes the proposition that it was to have “credit for payments made” as a straightforward proposition. The respondent refers to s 235D of the 1998 Act, which provides the Authority with the power to issue an order for repayment in circumstances of an overpayment of compensation where there has been a false or fraudulent claim, which can be reviewed by the Commission. The respondent submits that there has been no such order made, so the Senior Arbitrator’s order has no work to do in this matter.
The respondent contends that s 235D(4) of the 1998 Act, which provides that such an order of the Authority is enforceable as a civil debt in any court of competent jurisdiction, appears to protect the appellant in relation to the Senior Arbitrator’s award of weekly compensation in respect of the relevant period. In the oral hearing of the appeal, the respondent corrected the submission in respect of s 235D(4) and submitted that he intended to refer to s 235D(3) of the 1998 Act, which provides that any overpayment may be deducted from future payments, but not if the payment is the subject of an order of the Commission. In any event, the respondent submits there was no order of the Authority.
The respondent submits that the Senior Arbitrator’s order “does no more than confirm the unremarkable proposition that to the extent that the respondent has already paid the appellant, the Commission’s determination does not require [the respondent] to pay that amount again.”[32]
[32] Respondent’s written submissions, [17].

Relief sought

The appellant seeks to have the amended COD revoked and a new COD issued in its place, in which the appellant’s calculation of the PIAWE is adopted and an award of weekly compensation is made with the amount already received deducted from that award. The appellant asserts that where there is an overpayment, the amount ordered should be “nil.”
Alternatively, the appellant asks for the matter to be referred to a different arbitrator for the PIAWE to be re-calculated and for a determination of the amount to be paid in weekly compensation for the relevant period.
The respondent submits that the appeal should be dismissed.

DISCUSSION

There is some force to the respondent’s response to the appellant’s failure to comply with Practice Direction No 6. In his written submissions, the appellant largely provides no reference to the legislation or the authorities that may support his propositions and in his written submissions did not identify the inferences which he says were not available to the Senior Arbitrator.
To ensure that the issues on appeal were clearly identified and that the parties had the opportunity to make satisfactory submissions, the matter was listed for an oral hearing. I am now satisfied that I am in a position to properly consider the issues on appeal.

Ground Two

It is convenient to address the appellant’s allegation that the Senior Arbitrator erred in his determination of the appellant’s PIAWE before turning to the remaining grounds.
The appellant takes issue with the Senior Arbitrator’s observation that, in the appellant’s words, the appellant did not address the commencement date of his employment. The appellant says that he addressed the commencement date in submissions and referred to the evidence. I do not consider the Senior Arbitrator’s observation as being reflective of a failure to make submissions on the point. It is apparent that the appellant submitted at length on how the pay advice dated 20 February 2014 should be interpreted, but it is equally apparent that there was an issue between the parties as to when the appellant actually first presented to work. The appellant indicated in his statement dated 18 June 2015 that he commenced work in February 2014. There was no testimony from the appellant as to what day he actually presented for work and the appellant did not give any evidence in statement form or orally to explain the unusual (second) pay advice dated 4 March 2014. The Senior Arbitrator’s observation was that the appellant’s evidence did not address his start date with the respondent. Looking at the statement evidence, that observation is correct. The only evidence relied on by the appellant was the pay advices issued by the respondent.
The thrust of the appellant’s submissions in relation to the Senior’s Arbitrator’s finding about the PIAWE is that:
(a)    the Senior Arbitrator was obliged to accept the calculation made by one or the other party, and could not arrive at his own conclusion;
(b)    the pay advices were uncontradicted evidence of the weeks in which the appellant was paid, and
(c)    the inferences drawn by the Senior Arbitrator in his reasons were not available.
The appellant identifies the passage of the Senior Arbitrator’s reasons in which the appellant says the Senior Arbitrator drew impermissible inferences from the evidence. The only inference drawn in relation to the calculation of the PIAWE was that the payment recorded in the second pay advice was for two weeks, which included the week ending 18 February 2014. This was an inference that the respondent asked the Senior Arbitrator to draw.
The finding by the Senior Arbitrator is a finding of fact. In order for the appellant to succeed on this point, it is necessary to establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong.[33] These principles are relevant to appellate review in the Commission where the appeal is not a review and there is a requirement to show error (s 352(5) of the 1998 Act).
[33] Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].
The appellant points to no other material than the pay advices. The appellant’s case was that the pay advices were to be construed as evidence that the appellant commenced work on 18 February 2014, rather than 12 February 2014.
The Senior Arbitrator was required to analyse that evidence, given the conflicting submissions made by the parties. The Senior Arbitrator observed that:
(a)    in the first pay advice dated 25 February 2014 the appellant was paid for one week’s work;
(b)    in the second pay advice dated 4 March 2014, the appellant was paid the equivalent of two weeks’ pay;
(c)    there was no suggestion in the evidence that the appellant ever worked 76 hours in one week, and
(d)    the two sets of penalties included in the second pay advice could only be consistent with the appellant having worked two weekends.
On the basis of those observations, the Senior Arbitrator inferred that the second pay advice included one week’s pay for the earlier week ending 18 February 2014, which was consistent with the appellant having commenced his employment on 12 February 2014. The appellant says that the inference drawn was not available to the Senior Arbitrator and that the only inference to be drawn from the pay advices was that the appellant commenced work for the respondent on 20 February 2014, which was five days before the first pay advice.
The appellant points to no material that the Senior Arbitrator failed to take into account, or upon which the Senior Arbitrator placed too little weight, so that essentially, the appellant argues that the available opposite inference drawn from the pay advices was so preponderant that the Senior Arbitrator was wrong.
The appellant does not point to any other evidence that explains why the appellant was paid exactly the value of two weeks’ work in one pay period. Nor does he explain how it came about that the appellant was paid for four days in that pay period at penalty rates consistent with the two days of weekend shift rates that the appellant normally received in a 38 hour working week.
The likelihood that the appellant was paid an amount equal to exactly two weeks, which included two days at 25% penalty rates and two days at 75% penalty rates for one week’s work in which there were no public holidays is remote.
The inference drawn by the Senior Arbitrator was also supported by the payment summary which recorded that the appellant’s Centrelink payments ceased on 12 February 2014 and the appellant was paid by the respondent $21,212.00 for the period from 12 February 2014 to 8 May 2014.[34]
[34] ARD, p 440.
Further, the appellant discussed his working hours in his further statement dated 27 June 2016.[35] He indicated that he was initially contracted to work for five days per week but after a period of time an extra day was added to his contract. He advised that his normal hours were between 8.00 or 9.00 am and 7.00 pm and his official start time was 11.00 am. He said he was not paid for the work he did before 11.00 am but that he needed that time to prepare for the day. Apart from the pay advice dated 4 March 2014, the pay advices show that the appellant worked 38 hours per week over five days earning $1,357.32 per week from 18 February 2014 until 15 April 2014, following which his hours and weekly pay increased. That construction of the evidence is consistent with the appellant’s statement. The evidence supports an available inference that the increase in the appellant’s contracted days of work occurred from about 15 April 2014. The evidence also tends to support the inference drawn by the Senior Arbitrator that the payment in the pay period ending 4 March 2014 was in respect of two weeks’ work.
[35] ARD, p 6, [23]–[26]; p 7, [43].
The appellant did not give any testimony that shed light on the payment recorded in the pay advice dated 4 March 2014, despite providing a supplementary statement about his hours of work. The absence of such direct evidence is unexplained and unhelpful.
I also do not accept the submission made by the appellant that the pay advices were uncontradicted evidence that the appellant did not work in the week commencing 12 February 2014. The appellant’s assertion is inconsistent with the matters identified by the Senior Arbitrator when drawing the inference about the pay advice dated 4 March 2014 and is inconsistent with the evidence of the payment summaries and the appellant’s own statement about the hours that he worked.
The appellant alleged further error in the calculation of the PIAWE. He argues that the PIAWE figure the Senior Arbitrator arrived at was outside the scope of the figures put by the parties.
I do not accept that the inference drawn by the Senior Arbitrator was not available to him. On the contrary, the finding was consistent with the evidence and was not only logical but compelling. The Arbitrator was not bound to accept one submission over another. His only obligation was to give reasons why he departed from the parties’ submissions, which he did.[36]
[36] Wrigley v Holland [2002] NSWCA 109; 23 NSWCCR 463.

The respondent’s wages schedule filed on 14 May 2010 asserted that the appellant’s PIAWE was $1,434.67 as at the date of incapacity and provided a calculation sheet to explain that figure. In its written submissions, the respondent submitted on the difficulty of arriving at a precise figure because of the inability to calculate the exact amount of payments made to the date of injury and observed that the appellant was paid weekly compensation from 7 May 2014.[37] The respondent then proposed that a “practical and fair method of calculation [would be to] consider the entirety of payments and pay periods to 6 May 2014.”[38]
[37] Respondent’s submissions to the Senior Arbitrator, [55]–[56].
[38] Respondent’s submissions to the Senior Arbitrator, [57].
The figure put forward by the respondent in its submissions was expressed as a proposal of what would be fair in the circumstances, which suggests that the respondent was providing some sort of “middle ground” that it would find acceptable. The appellant submits that proposing a practical and fair resolution is not a proper way to calculate the PIAWE. In those circumstances, I do not consider that the respondent abandoned its formal position as set out in its earlier wages schedule.
The Senior Arbitrator identified the period of the appellant’s employment as 12 February 2014 to 6 May 2014 on the basis of his finding that the appellant commenced work on 12 February 2014, a finding which I consider was open to him. This is the same period proposed by the respondent. The appellant relied on an end date of 3 May 2014, being the date of injury. Given the appellant suffered no economic loss resulting from the injury prior to 7 May 2014, it is reasonable to use the gross total figure of $18,650.76, which was the total of payments made up to 6 May 2014. That figure was adopted by both parties and the Senior Arbitrator. The live issue between the parties was the calculation of the period of weeks during which the appellant worked.
The appellant makes no criticism in this appeal of the end date of the employment period found by the Senior Arbitrator. The challenge is limited to the Senior Arbitrator’s drawing of the inference that the pay advice dated 4 March 2014 was in respect of two weeks work. There is no challenge to the Senior Arbitrator’s calculation that the period from 12 February 2014 (a Wednesday) to 6 May 2014 (a Tuesday) constituted 12 weeks, which was correct in any event.
Having made the necessary factual findings, the Senior Arbitrator was required to apply the mathematical formula provided, in accordance with ss 44C and 44D of the 1987 Act, in order to calculate the appellant’s PIAWE. There was no error disclosed in that process, and in any event the figure arrived at by the Senior Arbitrator was within the ambit of the submissions made by the parties.
It follows that the appellant has failed to establish error on the part of the Senior Arbitrator in respect of his determination that the appellant’s PIAWE from 7 May 2014 was $1,548.23 and indexed thereafter. Having failed to establish the error complained of, Ground Two of the appeal fails.

Ground One

The first limb of Ground One of this appeal raises the question of whether the Senior Arbitrator erred by assessing the appellant’s incapacity when it was not a matter that was identified as an issue in dispute.
The initial dispute was identified by the respondent as a dispute about:
(a) whether the appellant suffered an injury pursuant to s 4 of the 1987 Act;
(b) whether employment was the main, or a substantial contributing factor to the injury (ss 4(b) and 9A of the 1998 Act), and
(c) the appellant’s entitlement to weekly payments from 14 May 2015.
These issues were identified in the three dispute notices issued by the respondent on 13 February 2015, 22 December 2015 and 5 February 2019.
It is apparent from the Direction issued by the Senior Arbitrator dated 3 May 2019, which directed the parties to file submissions pertaining to the appellant’s PIAWE, that at the telephone conference on 2 May 2019, the appellant had raised the issue in relation to the calculation of his PIAWE. It is also apparent from the list of payments made, that while the appellant was in receipt of payments, the respondent had accepted that the appellant had no capacity for work during that period.[39]
[39] Respondent’s list of payments, ARD, p 479.
In its defence to that issue, the respondent raised a dispute that the Commission had no jurisdiction to determine the PIAWE because the respondent had made a work capacity decision. Both parties filed wages schedules addressing the calculation of the PIAWE.
Relevantly, the respondent’s schedule indicated that the “entire claim” for weekly payments was in dispute but was silent as to the appellant’s ability to earn up to 30 September 2014. For the period from 1 October 2014 to 31 March 2015, the respondent asserted that the appellant had a capacity to earn without quantifying that ability to earn or identifying the suitable employment. The appellant’s latest wages schedule dated 11 June 2019 provided details of the amount claimed, which for the period from 4 May 2014 to 3 March 2015 was the mathematical difference between the asserted PIAWE and the amount the respondent had paid during the period. The schedule of earnings recorded nil earnings per week except for the period 16 June 2015 to 30 September 2015, during which period the appellant indicated an ability to earn in the order of $900.00 per week.
The appellant maintains that there was no dispute raised by the respondent in respect of the extent of the appellant’s incapacity and, therefore, the Senior Arbitrator had no jurisdiction to determine the appellant’s capacity during the relevant period. The respondent properly conceded that it could point to no evidence that it had disputed the appellant’s incapacity during that period, but argued that the Senior Arbitrator was entitled to determine the degree of the appellant’s capacity for work when he was asked to make a finding in respect of the appellant’s entitlement to weekly payments.

The relevant legislation

Section 105(1) of the 1998 Act provides:
“105 Jurisdiction of Commission and Compensation Court
(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.”
Part 4 of the 1998 Act deals with the determination of compensation disputes. Sections 287, 288 and 289, which are within Division 1 of Part 4 of the 1998 Act, are relevant to the jurisdictional issue raised by the appellant.
Section 287(1) provides:
“287 Disputes to which Part applies
(1) This Part applies to a dispute in connection with a claim for compensation between:
(a) the person who makes the claim and a person on whom the claim is made, or
(b) the employer on whom the claim is made and the insurer on whom the claim is made.”
Sections 288, 289 and 289A of the 1998 Act make provision for when a claim can or cannot be referred to the Commission. The sections relevantly provide:
“288 Referral of disputes to Commission
(1)     Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.
…
(2)     The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.
289 Restrictions as to when dispute can be referred to Commission
…
(2)     A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made—
(a) wholly disputes liability for the claim, or
(b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or
(c) fails to determine the claim as and when required by this Act.
…
(5)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.
289A Further restrictions as to when a dispute can be referred to Commission
(1)     A dispute cannot be referred for determination by the Commission unless it concerns only matters previously notified as disputed.
(2)     A matter is taken to have been previously notified as disputed if—
(a)it was notified in a notice of dispute under this Act or the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters, raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3)     The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4)     Despite subsection (3), a dispute relating to previously unnotified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

Consideration

The Commission does not possess an inherent jurisdiction, but only those powers which are incidental and necessary to the exercise of its statutory jurisdiction.[40] Section 105 provides that the Commission has exclusive jurisdiction to determine all matters arising under the 1987 and 1998 Acts, but the jurisdiction is subject to the provisions of the 1998 Act. That is, the “exclusive jurisdiction” is qualified by express prohibitions and restrictions within the Act. The jurisdiction is contingent upon there being a dispute in existence and the nature of the dispute must be clearly identified.
[40] Raniere Nominees Pty Limited trading as Horizon Motor Lodge v Daley [2006] NSWCA 235; 67 NSWLR 417; 5 DDCR 61, per Santow JA, [66].
Section 289A of the 1998 Act allows for a dispute to be raised, which was previously unnotified, if it is in the interests of justice to do so.
The dispute notices issued by the respondent preceded the dispute arising about the calculation of the appellant’s PIAWE and, as a consequence, they make no reference to that dispute. Prior to the issue about the appellant’s PIAWE arising, the dispute about the weekly payment was limited to the appellant’s entitlement from 14 May 2015.
After the issue of the appellant’s PIAWE arose, the respondent’s primary defence was that the Commission had no jurisdiction to entertain the issue because there had been a work capacity decision made by the respondent. The respondent did, however, submit a figure for the PIAWE as an alternative proposition. The case presented by the respondent to the Senior Arbitrator did not address the appellant’s capacity other than the reference in the wages schedule to the appellant having some unquantified capacity for some unidentified suitable employment from 1 October 2014. In fact, the respondent referred in his written submissions to the Workcover certificates issued by the appellant’s general practitioner prior to 20 February 2015 as “un-contemporaneous”[41] and that it was “difficult to project [those certificates] … beyond the dates they were issued.”[42] The respondent’s concluding submission was that the appellant had not made out a case of incapacity beyond 20 February 2015.[43]
[41] Respondent’s written submissions to the Senior Arbitrator, [28].
[42] Respondent’s written submissions to the Senior Arbitrator, [29].
[43] Respondent’s written submissions to the Senior Arbitrator, [30].
The appellant also made no submissions about his capacity for work during the relevant period, other than the difficulties the appellant had in seeking suitable employment, which were relevant to his ability to find such work from 14 May 2015.
The appellant’s email to the Commission dated 8 July 2019 reproduced at [29] above, is the only written confirmation of what was agreed to be raised by the parties. In the appellant’s words, the appellant consented to “the respondent seeking leave to dispute the applicant’s entitlement to claim weekly compensation from 7 May 2014 to 3 March 2015.” It is not apparent from that email that the respondent raised a dispute about the appellant’s incapacity during the relevant period.
The Senior Arbitrator referred briefly to the agreement between the parties as being that the appellant could amend his claim and that the respondent could “dispute the amendment.”
The respondent did not assert that there was a dispute raised by it in relation to the appellant’s incapacity but said that by raising the issue that he had not been paid correctly, the appellant had put the question of his capacity before the Arbitrator. The respondent conceded that it could not point to any authority for that proposition.
There are contrary authorities. In Department of Corrective Services v Bowditch,[44] the issues raised by the appellant were in respect of whether the injury was a diagnosable psychiatric condition, whether employment was a substantial contributing factor and whether the respondent’s psychological condition was not compensable because it resulted from reasonable action by the employer. The parties made submissions about, and the Arbitrator determined, the respondent’s incapacity. Deputy President Roche said:
“The insurer gave no notice that it wished to dispute incapacity and did not seek leave (under section 289A(4) of the 1998 Act) to dispute that issue at the arbitration. The Arbitrator was in error in allowing the matter to be argued in the absence of an application for leave under section 289A(4).”[45]
[44] [2007] NSWWCCPD 244; 6 DDCR 174 (Bowditch).
[45] Bowditch, [143].
Keating P expressed a similar view in University of New South Wales v Kurup[46] as follows:
“The appellant’s essential argument is that, in accordance with the terms of s 289A(3) of the 1998 Act, because there was already a dispute in existence, that is, the initial dispute in relation to ‘maximum medical improvement’, that gave the Commission jurisdiction to deal not only with that dispute but also matters ‘subsequently arising out of such a dispute’ whenever they are raised without the need to seek leave to do so.
The submission is fundamentally wrong and I reject it. It completely ignores s 289A(4) which clearly states that any dispute relating to previously unnotified matters may only be heard and dealt with by the Commission if it is of the opinion that it is in the interests of justice to do so. The issues of whether Ms Kuruphad received an injury and if so whether her employment was a substantial contributing factor to that injury were previously unnotified matters. To raise them UNSW required leave under s 289A(4).”[47]
[46] [2014] NSWWCCPD 19 (Kurup).
[47] Kurup, [75]–[76].
More relevant to this case, in Whaley v Upper Hunter Shire Council,[48] the issues for determination were identified by the respondent and included the appellant’s incapacity. During the arbitration, the respondent argued that s 44D(2) of the 1987 Act affected the calculation of the appellant’s PIAWE and thus the rate of the appellant’s weekly payments. The appellant objected to the submissions on the basis that s 44D(2) had never been identified as an issue pursuant to s 289A(2) of the 1998 Act. Deputy President Snell, applying Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services,[49] determined that:
“The Commission’s power to ‘hear or otherwise deal’ with the dispute about s 44D(2) of the 1987 Act was, in the circumstances, dependent on the existence of leave pursuant to s 289A(4). There was no such grant of leave. It flows from the above that the possible application of s 44D(2) to the appellant’s weekly entitlement was not a matter properly before the Commission at the arbitration hearing. It constituted error that the matter was heard, and the weekly entitlement decided, applying s 44D(2) of the 1987 Act.”[50]
[48] [2016] NSWWCCPD 32 (Whaley).
[49] [2007] NSWWCCPD 227; 6 DDCR 488.
[50] Whaley, [52].
Importantly, in this case there is no evidence that the respondent can point to that indicates that the respondent had resiled from its earlier acceptance that during the relevant period, when it paid the appellant weekly compensation, it did so on the basis that the appellant had no capacity.
Having regard to the above authorities, the presentation of the evidence and the manner in which the case was run, I am not satisfied that there was a dispute between the parties which was properly before the Commission as to the extent of the appellant’s incapacity between 7 May 2014 and 4 March 2015.
It follows that the Senior Arbitrator erred in determining the appellant’s incapacity during the period 7 May 2014 to 4 March 2015 and Ground One of this appeal succeeds on that basis. Consequently, it is not necessary for me to determine the complaints the appellant raises in respect of a failure to be afforded procedural fairness or that the Arbitrator failed to apply the correct law. Additionally, as the award of weekly payments during the relevant period is to be revoked, then it follows that the order for credit to be given to the respondent for payments made will also be revoked. Thus, it is not necessary for me to determine Ground Three of the appeal.
The quantification of appellant’s entitlement to weekly payments during the relevant period will require submissions by both parties, given that the PIAWE determined by the Senior Arbitrator is confirmed on the appeal but is different from the PIAWE which was the subject of both parties’ wages schedules. In those circumstances, it is not appropriate to re-determine the matter on appeal, and I remit the matter to an arbitrator for determination of the amount of weekly compensation payable to the appellant during the period from 7 May 2014 to 14 March 2015.

DECISION

The Senior Arbitrator’s determinations in Paragraphs [4] to [6] of the amended Certificate of Determination dated 2 August 2019 are revoked.
Paragraph 7 of the amended Certificate of Determination dated 2 August 2019 is amended by deleting the date “30 January 2015” and inserting instead the date “4 March 2015”.
Orders 10(a) to 10(g) of the amended Certificate of Determination dated 2 August 2019 are revoked.
Order 10(h) of the amended Certificate of Determination dated 2 August 2019 is amended by deleting the date “30 January 2015” and inserting instead the date “4 March 2015”.
Order 12 of the amended Certificate of Determination dated 2 August 2019 is revoked.
Otherwise the Senior Arbitrator’s amended Certificate of Determination dated 2 August 2019 is confirmed.
The matter is remitted to a different arbitrator for determination of appellant’s entitlement to weekly payments from 7 May 2014 to 4 March 2015.

Elizabeth Wood

DEPUTY PRESIDENT

9 March 2020