Huang v F G Chen Pty Limited - [2013] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Huang v F G Chen Pty Limited [2013] NSWWCCPD 36
APPELLANT:	Wei Ping Huang
RESPONDENT:	F G Chen Pty Limited
INSURER:	GIO General Limited
FILE NUMBER:	A1-8183/12
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	12 February 2013
DATE OF APPEAL DECISION:	24 June 2013
SUBJECT MATTER OF DECISION:	s 40 Workers Compensation Act 1987; findings of actual weekly earnings; credit for payments made.
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Shine Lawyers
Respondent:	Hicksons Newcastle
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 12 February 2013 is confirmed. 2. Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPLICATION

The appellant, Mr Huang, was employed by the respondent, F G Chen Pty Limited (Chen), as a cook or chef at the Chatswood franchise of the New Shanghai restaurant.
On 9 October 2009, Mr Huang slipped and fell in the kitchen at the restaurant and suffered an injury to his neck and back. It is not in dispute that the worker was injured as alleged and that he suffered a partial incapacity as a result of the injuries sustained.
The parties were in dispute in relation to the quantification of the worker’s entitlement to weekly compensation.
In contravention of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) GIO General Limited (GIO), the employer’s insurer, failed to issue a notice identifying the reasons for the dispute.
On 13 July 2012, Mr Huang lodged an Application to Resolve a Dispute (ARD) in the Commission. He sought weekly compensation from 1 July 2010 to 6 July 2012. He claimed actual earnings during that period of $864.30 per week and probable earnings but for the injury at $1,500 until 30 June 2011 and $1,650 thereafter.
On 14 August 2012, Chen filed a Reply to the Application to Resolve a Dispute. It identified four matters in dispute:
(a)     the worker’s average weekly earnings were not as alleged;
(b)     the worker’s probable weekly earnings were not as alleged;
(c)     the worker’s actual earnings were not as alleged, and
(d)     the worker had received all weekly payments of compensation that had become due.
On 6 February 2013, the matter came before a Commission Arbitrator for an arbitration hearing. Both parties were represented by counsel. At the conclusion of the hearing the Arbitrator reserved his decision.
On 8 February 2013, the Arbitrator gave oral reasons for his decision (reasons) and made extempore orders. I have available a transcript of the reasons.
On 12 February 2013, the Commission issued a Certificate of Determination in the following terms:
“The findings and orders made are as follows:

1. That the applicant suffered injury to his low back on 9 October 2009 arising out of and in the course of his employment.
2. As a result of that injury he was totally or partially incapacitated and paid wages or compensation until 30 June 2010.

3.       From 1 July 2010 to 6 July 2012 the applicant was partially incapacitated for work.
4.       The applicant’s probable weekly earnings but for injury were $1,500 per week from 1 July 2010 to 30 June 2011 and $1,550 from 1 July 2011 to 6 July 2012.
5.       The applicant’s actual earnings between 1 July 2010 and 6 July 2012 were $1,095 per week.

6. At all material times the applicant had a wife and stepdaughter dependent upon him support [sic].

7. Award for the applicant at the rate of $405 per week from 1 July 2010 to 30 June 2011 and $455 per week from 1 July 2011 to 6 July 2012.

8. Respondent to pay the applicant’s costs as agreed assessed.

9. Decline the respondent’s application to grant credit for payments made during the period but grant liberty to apply by way of further telephone conference in respect of the issue.”

Mr Huang appeals the Arbitrator’s decision. In particular, he disputes the Arbitrator’s finding that his actual earnings during the period were as found by the Arbitrator. He also challenges the Arbitrator’s order concerning credit for payments of compensation made during the relevant period.

THRESHOLD MATTERS

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

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 have submitted that the matter can proceed on the papers without a formal hearing.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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 ARBITRATOR’S REASONS AND DECISION

The Arbitrator identified the issues before him for determination included an assessment of Mr Huang’s probable weekly earnings but for the injury, his actual weekly earnings during the period of partial incapacity in dispute and whether or not he was paid compensation for all of the period in issue.
The Arbitrator referred to Mr Huang’s evidence on these issues. Mr Huang said that he was initially employed as a chef or cook at the Ashfield franchise of the New Shanghai restaurant. Shortly before his accident in October 2009, he transferred to the Chatswood franchise of the New Shanghai restaurant. After his accident he was certified unfit for his pre-injury duties for a short period. He then returned from the beginning of November 2009 initially working 20 hours per week. He gradually increased his working hours reaching 30 hours per week by 1 July 2010. After the injury he no longer worked as a cook, rather he did lighter work preparing food for the chefs. In April 2011, he commenced working in a warehouse for the respondent. He categorically said that he worked 30 hours per week until his employment was terminated in July 2012. Since that time he has been in receipt of weekly compensation.
Mr Stockley of counsel, who appeared for Mr Huang, relied on Mr Huang’s statement of evidence of 10 July 2012 in which he asserted that his pre-injury wage was $1,200 per week net. He said that after the injury and, in particular, after he resumed working 30 hours per week he was paid $875 per week. He added that it was not until 2011 that he received a payslip from his employer. It was evident from the payslips which formed part of the material before the Arbitrator that he was paid $1,095 gross per week.
The Arbitrator noted Mr Huang’s evidence was the only direct evidence touching on these issues. Mr John Chen, a manager at the New Shanghai restaurant at Chatswood, prepared a letter dated 17 June 2012 which was admitted in evidence. It essentially confirmed Mr Huang’s evidence that before the injury he was paid $1,200 per week and subsequent to the injury he was paid $800 per week.
Mr Stockley also argued that the worker’s evidence that he generally worked about 60 hours per week pre-accident at a rate of $28 per hour was also roughly consistent with pre-injury earnings in the order of $1,500 per week gross or $800 per week net.
Ms Goodman of counsel, who appeared for the employer, submitted that there was no real evidence to corroborate Mr Huang’s assertion that his pre-injury earnings were $1,500 per week.
The Arbitrator rejected Ms Goodman’s submission that Mr Huang’s evidence was inconsistent with a PAYG payment summary for the financial year ending 30 June 2010. It disclosed an income during the year of $50,999. However, the Arbitrator noted that Mr Huang only worked for a relatively short time pre-injury and the annual figure disclosed in that document is not necessarily inconsistent with him earning $1,500 per week.
The Arbitrator also rejected Ms Goodman submission that pre-injury earnings of $1,500 was inconsistent with the award rate which was about half of that sum. The Arbitrator rejected this submission on the basis that it is the unchallenged evidence of the applicant that he worked considerable overtime and given the effect of penalty rates and the like it is by no means clear that he could not have earned $1,500 per week, even if he was paid in accordance with the award.
The Arbitrator rejected an attempt by the respondent’s counsel to rely on a letter from McArdle Legal dated 5 December 2013. McArdle Legal are the solicitors for the company F G Chen Pty Limited.
The letter from McArdle Legal sought to challenge entries in two claim forms both dated 28 October 2009, concerning the worker’s pre-accident earnings. The first form, if I can call it that, (page 5 of the application to admit documents dated 1 February 2013) stated the worker’s pre-injury earnings were $1,200 per week gross over the three months prior to the accident. The second form, also dated 28 October 2009, (page 7 of the application) stated that Mr Huang’s pre-tax weekly earnings were $1,593 per week.
The McArdle Legal letter sought to qualify the entries referred to in the preceding paragraph, on the basis that when the forms were signed by Mr Chen the director, he was under a misapprehension as to the worker’s earnings and having consulted his PAYG summary for the 2009/2010 tax year asserted that his earnings were $1,095 per week gross. The letter also indicated that the company had been unable to locate any other documentation about Mr Huang’s remuneration in 2009.
The Arbitrator rejected the assertions made in the McArdle Legal letter because of the unsatisfactory nature of the evidence. It was not in statement form and was difficult to test. The Arbitrator preferred the worker’s signed statement on these issues and on the basis that it is likely that there are no business records to offer any satisfactory account of what Mr Huang had in fact been earning before his accident. Noting that the business records are documents that an employer would ordinarily be obliged to keep, their absence raises an inference which the Arbitrator drew that he should more readily accept the worker’s evidence on the issue of his pre-injury earnings.
In terms of the worker’s current earnings the Arbitrator accepted Mr Huang’s evidence at [15] of his statement of 10 July 2012;
“When I got to 30 hours per week I continued to receive from my employer $875 nett per week. In July 2011 I received payslips for the first time. In gross terms I was receiving a total of $1,095 gross per week. The payslips indicated I was being paid $28.81 per hour. Given my 30 hour week my actual earnings is $864.30. But for the injury I would have earned about $1,500 to $1,600 gross per week. As I was receiving $1,095 I was getting some make up pay but not all.”
The Arbitrator found that for the period 1 July 2010 to 30 June 2011, Mr Huang’s comparable or probable earnings were $1,500 per week. For the period 1 July 2011 to 30 June 2012, he found that they were $1,550 per week. Mr Huang’s gross earnings from the respondent at all material times were $1,095 per week. The Arbitrator entered an award in favour of Mr Huang for the difference between those two figures.
The Arbitrator declined an application to give credit for any payments of compensation that have already been made. The evidence was unclear as to whether the worker’s post-injury earnings included a component of weekly compensation. The list of compensation payments in evidence suggested that there had been some component of weekly compensation paid during the relevant period, but it could not be ascertained with any degree of accuracy. In those circumstances, the Arbitrator granted leave for the parties to apply on the question of credit for payments made.

SUBMISSIONS AND FINDINGS

Findings in relation to the worker’s actual earnings

Mr Huang alleged that the Arbitrator erred by concluding that the worker’s actual weekly earnings between 1 July 2010 and 6 July 2012 was $1,095 per week. He seeks to have that finding set aside and a finding substituted that his earnings were $846 per week.
Contrary to the provisions of s 352 of the 1998 Act, Mr Huang failed to identify error by the Arbitrator. In my view the appeal is in substance an application for a review of the evidence and submissions before the Arbitrator.
Yet again, parties are reminded that appeals under s 352 of the 1998 Act are limited to a determination of whether the Arbitrator’s decision was affected by an error of fact, law or discretion. Having said that, although it is tempting to dismiss the appeal for failing to comply with s 352, I will consider the submissions that have been made.
Mr Huang relies on an exchange recorded at T 8.25, which I infer is a reference to the transcript or the Arbitrator’s reasons The following exchange is in the context of a discussion concerning an application by Chen’s counsel for credit for payments of compensation made:
“Mr Stockley: I didn’t have a problem with that [the application for credit] other than that the way I presented the case was not that his actual earnings were $ 1,095.00 because in fact that was acknowledged in the sum proportion of what he was paid…
Arbitrator: I appreciate that. The only trouble is that he says he was paid $1,095 in his statement.”
Mr Huang also relies on what is a an incomplete reference to his evidence at [15] of his statement:
“Given my 30 hour week my actual earnings is $864.30”.
The full extract of what Mr Huang said [15] of his statement, is referred to at [29] of this decision. The selective reference to the evidence is misleading. The reference to the complete passage makes clear that Mr Huang stated that his post-injury earnings were $875 net per week which, when he saw payslips for the first time, equated to $1,095 gross per week.
In supplementary submissions Mr Huang referred to submissions made by his counsel to the Arbitrator at T12.10, T12.43 and T15.26. These passages were relied on to support the submission that based on the payslips tendered, Mr Huang’s post-injury earnings were $864 per week and not $1,095 as the Arbitrator found. The submission relies on the premise that Mr Huang worked 30 hours and earned, according to the payslip, $28.81 per hour.
The submission ignores the fact that the payslips record the worker’s current weekly earnings at $1,095 gross per week, which is consistent with the worker’s own evidence. The Arbitrator preferred the evidence given by the worker in his signed statement. Given that the evidence was not challenged, he saw no reason to reject it.
On the available evidence the Arbitrator was correct to conclude that the Mr Huang’s current weekly earnings were $1,095. Mr Huang has failed to demonstrate any error in the making of that finding. Consequently this ground of appeal fails.

The Arbitrator’s refusal to grant credit for payments made

Mr Huang appeals that part of order 9 of the Arbitrator’s Certificate of Determination declining granting liberty to the parties to apply for a further telephone conference in respect of the credit issue.
Again the appellant has not identified error with respect to the order but merely asserts that “any applicable credit is adversely affected by order 5 as the amount of make-up pay is calculated as the difference between probable earnings and actual earnings.”
Mr Huang submits that the respondent Chen should not be given any credit for payments made between 1 July 2010 and 6 July 2012. In his supplementary submissions, Mr Huang repeats a number of submissions made by his counsel before the Arbitrator at T16.1, T16.45-49, T17.1 and T17.6. In summary, those passages refer to a submission by counsel for Mr Huang to the Arbitrator to find probable earnings of $1,500 and actual earnings of $864.30, based on 30 hours per week multiplied by an hourly rate of $28.81 per hour. It was submitted the difference between those figures would justify an award at the maximum statutory rate. Counsel for Mr Huang conceded that payments of compensation had been made during the relevant period. He submitted if the Arbitrator made the findings sought, it would be appropriate for credit to be given for payments made. However, he accepted that on the state of the evidence it was impossible to discern how much had been paid.
In essence, Mr Huang’s complaint is that the earnings he received from Chen, i.e. $1,095 per week, as found by the Arbitrator, comprised a combination of salary and compensation payments, such that if the order 9 of the Certificate of Determination is confirmed, it would have the effect of diminishing the quantum of the payments due to Mr Huang as a result of order 7.
Mr Huang’s submissions do not establish any proper basis for disturbing the Arbitrator’s orders let alone establishing any error. It is also probable that the order is interlocutory and not subject to appeal without leave under s 352 (3A). I note that no attempt has been made by Mr Huang to avail himself of the order before commencing this appeal. However, as that matter has not been argued I shall say no more about it.
The schedule of compensation payments tendered in evidence established that substantial weekly compensation and medical expensed have been paid by GIO during the relevant period. As counsel for Mr Huang pointed out, the form in which that schedule appears makes it impossible to discern the quantum of the weekly payments. There is no evidence that those payments were paid directly to Mr Huang or identified as part of his post-injury earnings. However, given the discrepancies in the evidence concerning Mr Huang’s actual earnings, it is possible, that to some extent those payments have wrongly been recorded as part of Mr Huang’s actual earnings as found by the Arbitrator.
In those circumstances, before any application for credit for payments could be considered, further evidence would be required relating to the quantum of compensation paid, and to whom it was paid. Should it be the case that Chen has not passed those payments on to Mr Huang then that would be a very serious matter and may require referral to the WorkCover Authority for further investigation.
If the compensation payments have been mixed with the record of Mr Huang actual earnings then the assessment of the worker’s actual earnings would have to be re-considered and, if necessary, the whole of the award adjusted accordingly.
In any event, the Arbitrator was correct to grant the parties liberty to apply. No error has been established in the making of that order.
For the reasons given this ground of appeal fails.

CONCLUSION

The Arbitrator was correct to conclude that Mr Huang’s actual earnings in the period 1 July 2010 to 6 July 2012 were $1,095.
The Arbitrator’s refusal to order credit for payments made, but reserving leave to apply, was the correct order in the circumstances.

ORDERS

The Arbitrator’s determination of 12 February 2013 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Judge Keating
President

24 June 2013

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE