Harris Farm Markets Pty Ltd t/as Ashfield Fruit World v Rahimi
[2006] NSWWCCPD 207
•28 August 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Harris Farm Markets Pty Ltd t/as Ashfield Fruit World v Rahimi [2006] NSWWCCPD 207
APPELLANT: Harris Farm Markets Pty Ltd t/as Ashfield Fruit World
RESPONDENT: Mohammad Nabi Rahimi
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC6926-05
DATE OF ARBITRATOR’S DECISION: 10 April 2006
DATE OF APPEAL DECISION: 28 August 2006
SUBJECT MATTER OF DECISION: Maximum compensation payable to a partially incapacitated worker; current weekly wage rate; sections 36, 37, 40(5) and 42 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Stacks Goudkamp
ORDERS MADE ON APPEAL: Time to appeal is extended until 17 May 2006.
Paragraphs 1 and 2 of the Arbitrator’s decision of 10 April 2006 are revoked and the following order made:
“The matter is remitted to the Arbitrator for the Respondent Worker’s entitlements pursuant to section 40 of the Workers Compensation Act 1987 to be determined in accordance with the reasons in this decision.”
Paragraphs 3 and 4 of the Arbitrator’s decision are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 17 May 2006 Harris Farm Markets Pty Ltd t/as Ashfield Fruit World (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 April 2006.
The Respondent to the Appeal is Mohammad Nabi Rahimi (‘the Respondent Worker/Mr Rahimi’).
On 21 December 2001 Mr Rahimi started work as a shop assistant with the Appellant Employer. On 27 April 2003 he developed low back pain while engaged in lifting heavy packages of fruit throughout the day. After 3 or 4 months off work he returned to work on light duties for nine hours per week, eventually increasing to 25 hours per week. His claim for weekly compensation was accepted and he was paid an amount as ‘make up pay’ for part of his lost earnings.
An Application to Resolve a Dispute (‘the Application’) was filed in the Commission on 12 May 2005 seeking weekly compensation in the sum of $519.12 per week from August 2003 to date and continuing. On 10 January 2006 a Medical Assessment Certificate was issued certifying the Respondent Worker to have a 7% whole person impairment as a result of his work injury. That amount has been accepted by the Appellant Employer and forms part of the Arbitrator’s orders that are not challenged on appeal.
The Application for weekly compensation was heard in an Arbitration hearing on 16 March 2006. At the hearing the Respondent Worker’s actual earnings and comparable earnings but for injury were agreed by the parties and set out in a document marked ‘Annexure A’ (transcript, page nine line 17). It was also agreed that the Respondent Worker had a dependent wife and initially five and then four dependent children. Unfortunately Annexure A is not with the Commission’s papers and the parties have not been able to provide a copy. I do not believe this is fatal to me conducting the appeal as the essential elements of Annexure A were incorporated into the Arbitrator’s decision set out below.
The matter was decided in an ex tempore decision in favour of the Respondent Worker on 16 March 2006. The Appellant Employer seeks leave to appeal that decision on the grounds that the Arbitrator’s calculations did not take into account the Respondent Worker’s award rate of pay.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Respondent Worker was awarded $786.10 per week (as adjusted) from 18 August 2003 to date and continuing. The Appellant Employer contents that the correct amount should be $498.82 per week from 18 August 2003 with adjustments to date up to $555.20 per week continuing. If successful, the arrears of compensation alone will be substantially in excess of $5,000.00. Therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. At least 20% of the amount appealed is “at issue” on appeal and the threshold in section 352(2)(b) is also satisfied.
Time
The appeal was initially filed one day out of time on 9 May 2006 and was rejected by the Registry because it was thought that no submissions had been made seeking an extension of time. The Registry was incorrect and the necessary submissions had been included with the original appeal. The appeal was again filed on 17 May 2006 when it was accepted.
An extension of time in which to appeal can be granted in certain limited circumstances. Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides:
“(8) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
The Appellant Employer submits that the Arbitrator’s decision had initially been forwarded by the Commission to the incorrect solicitors, Messrs Hicksons, who have no involvement in the matter. After a delay the decision was forwarded to the Appellant Employer’s solicitors who initially filed the appeal one day out of time.
The Respondent Worker opposes the time to appeal being extended and submits that the result was communicated to the parties immediately following the conclusion of the Arbitration hearing on 16 March 2006. The result incorporated the figures set out in Annexure A which was tendered to the Arbitrator by consent.
Whilst I appreciate the force of the Respondent Worker’s submission, time to appeal runs from the date of the Certificate of Determination and not from the date of the Arbitrator’s oral decision. The appeal was initially only one day out of time. An explanation has been given for that delay which suggests a mistake on the part of the Registry. The issue sought to be raised by the Appellant Employer on appeal is strongly arguable. In these circumstances it is my opinion that a demonstrable and substantial injustice would occur if the time to appeal was not extended. I therefore extend the time to appeal until 17 May 2006.
I grant leave to appeal.
PRELIMINARY MATTERS
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 10 April 2006 records the Arbitrator’s orders as follows:
“1.The Respondent pay the Applicant weekly compensation pursuant to section 40 of the 1987 Act at the maximum statutory rate for a person with a spouse and 5 dependant children as follows;
(a)at the rate of $786.10 per week for the period 18 August 2003 to 30 September 2003
(b)at the rate of $802.00 per week for the period 1 October 2003 to 19 October 2003
(c)at the rate of $802.00 per week for the period 26 January 2004 to 31 March 2004
(d)at the rate of $816.50 per week for the period 1 April 2004 to 30 September 2004
(e)at the rate of $831.60 per week for the period 1 October 2004 to 31 March 2005
with the Respondent to have credit for any payments already made pursuant to s40 in the above periods.
2.The Respondent pay the Applicant weekly compensation pursuant to section 40 of the 1987 Act at the maximum statutory rated for a person with a spouse and 4 dependant children as follows;
(d) [sic] at the rate of $750.20 per week for the period 1 April 2005 to 30
September 2005
(f)[sic] at the rate of $765.20 per week for the period 1 October 2005 to date and continuing as adjusted in accordance with the provisions of the 1987 Act
with the Respondent to have credit for any payments already made pursuant to s40 in the above periods
3.Respondent pay the Applicant lump sum compensation under s66 of the 1987 Act the sum of $8,750 for a 7% whole person impairment.
4.Respondent to pay the Applicant’s costs as agreed or as assessed.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator erred in his calculations of the Respondent Worker’s entitlements under section 40 of the 1987 Act by failing to have regard to, or failing to correctly apply the provisions of sections 36, 37(2), 40(5), and 42(1)(a) of the 1987 Act, and, as a result, awarded the Respondent Worker compensation in excess of his legal entitlement.
SUBMISSIONS AND FINDINGS
The Appellant Employer submits that Mr Rahimi was employed pursuant to the ‘Shop Assistant State Employees Award’ (‘Shop Assistants Award’) and that at the time of his injury the award rate was $489.82 per week. The correct title of this award is the ‘Shop Employees (State) Award’. The Respondent Worker submits that “it is not admitted that the worker was employed pursuant to” that award and that there was no evidence before the Arbitrator that he was employed pursuant to any award (Respondent Worker’s submissions paragraph four).
The Respondent Worker’s statement of 18 May 2005 and the letter of particulars from the Appellant Employer dated 27 January 2004 establish that he was employed as a shop assistant. In a letter from the Respondent Worker’s solicitor to QBE Workers Compensation (NSW) Limited (‘QBE’) dated 2 November 2004 a claim was made for make up pay “totalling $519.12 representing 90% of his pre-injury award rate” (emphasis added). There are two points to note about this letter. First, the test is not whether the Respondent Worker was ‘employed pursuant’ to an award, but whether he was “remunerated under an award” (section 42(1)(a)). Second, this letter is an admission that the Respondent Worker was remunerated under an award, though the name of the award is not disclosed. It should also be noted that ‘award’ in section 42 means an award under the Industrial Arbitration Act 1940 and, among other things, an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991.
In addition, the Respondent Worker’s pay slips were in evidence before the Arbitrator. The pay slip for the week ending on 7 April 2003 indicated a ‘normal’ rate of pay for a 38 hour week of $12.89 per hour or $489.82 per week which is the award rate for a worker remunerated under the Shop Assistants Award as at April 2003 (see NSW Industrial Relations Commission (Industrial Gazette) 13 September 2002 (‘the Industrial Gazette’)).
Whilst the Industrial Gazette was not in evidence before the Arbitrator, it is a public document that is readily available to both parties. Further, under section 354 of the 1998 Act the Commission is not bound by the rules of evidence but “may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits” (section 354(2)). In informing itself the Commission must apply Rule 70 which provides that evidence based on speculation is unacceptable. This power should be used with care to ensure that neither party is prejudiced. In the present case the issue of the Respondent Worker being remunerated under the Shop Assistants Award has been squarely raised on appeal and he has had every opportunity to respond to it.
Based on the evidence before the Arbitrator, confirmed by reference to the Industrial Gazette, I conclude that the Respondent Worker was “remunerated under an award” and that that award was the Shop Assistants Award. That being so the Arbitrator was in error in not having regard to the Respondent Worker’s award rate of pay when assessing his entitlements under section 40. The responsibility for this error rests largely with the parties who did not include the ‘current weekly wage rate’ in the wage schedules filed with the Commission or in ‘Annexure A’.
At all times covering the present orders the Respondent Worker was only partially incapacitated for work. The maximum rate of compensation payable to an injured worker who is partially incapacitated for work under section 40 is set out in section 40(5) which provides:
“(5) Maximum rate of compensation. The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.”
Different provisions apply to determine the rate of compensation payable to a totally incapacitated worker depending on whether the incapacity for which compensation is claimed is during the first 26 weeks of incapacity or is after that period. In the present case the end result is the same whichever period is considered, however, it is instructive to consider the different periods and the relevant provisions that apply to each.
The maximum compensation payable to an injured worker who is totally incapacitated in the first 26 weeks of incapacity is his or her “current weekly wage rate” (section 36) determined in accordance with section 42. Therefore the rate of compensation payable to a worker who is partially incapacitated during the first 26 weeks of his/her incapacity cannot exceed his/her current weekly wage rate. Mr Rahimi’s current weekly wage rate is his award rate of pay as a shop assistant. The Appellant Employer submits, and the Industrial Gazette establishes, that that amount as at April 2003 was $489.82. The payments ordered by the Arbitrator from 18 August 2003 exceed that amount by a significant margin and cannot stand as they are in breach of sections 36 and 40(5).
In respect of incapacity after the first 26 weeks of incapacity, section 37(1) provides that compensation payable to a worker who is totally incapacitated for work shall be 90% of his or her average weekly earnings or the maximum statutory rate, whichever is the lesser. However, section 37(2) must also be applied. That subsection provides that compensation payable to a worker who is totally incapacitated for work after the first 26 of incapacity “shall not exceed the worker’s current weekly wage rate” as set in section 42.
As a partially incapacitated worker cannot receive more than a totally incapacitated worker (section 40(5)), the Respondent Worker is not entitled to recover weekly compensation in excess of his current weekly wage rate for the period after his first 26 weeks of incapacity. The orders made by the Arbitrator exceeded that amount by a substantial margin and constitute an error as they involve an incorrect application of the terms of the legislation.
The end result is that the orders made in respect of weekly compensation must be set aside and the Respondent Worker’s entitlements recalculated in accordance with the provisions of the 1987 Act having regard to the Respondent Worker’s current weekly wage rate as determined by his award rate of pay under the Shop Assistants Award. That rate has altered several times since 2003 and it is therefore necessary for the matter to be remitted to the Arbitrator for the matter to be determined in accordance with these reasons and in accordance with the appropriate award rates from 2003 to date.
DECISION
Paragraphs 1 and 2 of the Arbitrator’s decision of 10 April 2006 are revoked and the following order made:
“The matter is remitted to the Arbitrator for the Respondent Worker’s entitlements pursuant to section 40 of the Workers Compensation Act 1987 to be determined in accordance with the reasons in this decision.”
Paragraphs 3 and 4 of the Arbitrator’s decision are confirmed.
COSTS
Whilst the Appellant Employer has succeeded in its appeal, it has succeeded on a point that should have been clarified in submissions before the Arbitrator. Had that been done there would have been no need for the appeal. In these circumstances the Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
28 August 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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