International Aviation Service Assistance Pty Limited v Arumugham
[2008] NSWWCCPD 85
•11 August 2008
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| STATUS: Reported Decision: International Aviation Service Assistance Pty Ltd v Arumugham (2008) 7 DDCR 172 | |||
| CITATION: | International Aviation Service Assistance Pty Limited v Arumugham [2008] NSWWCCPD 85 | ||
| APPELLANT: | International Aviation Service Assistance Pty Limited | ||
| RESPONDENT: | Gansean Arumugham | ||
| INSURER: | Cambridge Integrated Service Australia Pty Limited | ||
| FILE NUMBER: | WCC41-08 | ||
| DATE OF ARBITRATOR’S DECISION: | 4 March 2008 | ||
| DATE OF APPEAL DECISION: | 11 August 2008 | ||
| SUBJECT MATTER OF DECISION: | Current weekly wage rate (section 42 of the Workers Compensation Act 1987); section 38 of the 1987 Act; section 60 of the 1987 Act – reasonably necessary medical treatment, and associated travelling expenses. | ||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: Hicksons Respondent: Turner Freeman | ||
| ORDERS MADE ON APPEAL: | 1. As regards the arbitrator’s decision dated 4 March 2008: (a) Paragraph 1 is confirmed. (b) Paragraph 2 is amended by adding the words “to 8 January 2008” after the words “from 2 December 2007”. (c) Paragraph 3 is revoked, and in substitution insert: “Award for the Respondent on the claim under section 60 of the 1987 Act for the cost of travel between Singapore and Sydney to attend medical consultations on 1 August 2007 and 5 September 2007.” (d) Paragraph 4 is confirmed. 2. The matter is remitted to the arbitrator concerned for determination of the Respondent Worker’s weekly entitlement from 9 January 2008, in accordance with these reasons. 3. No order as to costs of this appeal. | ||
BACKGROUND TO THE APPEAL
On 20 March 2008 International Aviation Service Assistance Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 March 2008.
The Respondent to the Appeal is Gansean Arumugham (‘the Respondent Worker’).
The Respondent Worker is now forty-seven years of age, and claims a dependant wife and three dependant children. He is right handed. The facts are largely uncontroversial. He is a licensed aircraft maintenance engineer, ordinarily resident in Singapore. The Appellant Employer operated at various international locations. Its Australian base was in Perth. The Respondent Worker commenced working with the Appellant Employer on 1 July 2004. His statement indicates he worked and lived in Bombay from July 2004 to June 2006, whilst his family remained in Singapore. He was then transferred to Sydney, where he worked subsequent to 25 July 2006, subject to a short return to Bombay from 6 September 2006 to about 29 October 2006. Again, his family remained in Singapore.
He suffered an injury, which is not in dispute, on 23 March 2007, when working at Sydney International Airport. A heavy avionics computer box fell on his left hand and wrist. He worked on for a period. The Appellant Employer wrote to him on 23 May 2007 advising that, as his “health condition is deteriorating”, his “temporary assignment to Sydney” would terminate effective 31 May 2007. He was to be on holiday from 1 June 2007 to 28 June 2007 (apparently a pre-arranged period), and to report to duty at Singapore on 29 June 2007. Dr Myers, a hand and wrist surgeon in Sydney, carried out a fusion and resection of the left scaphoid on 5 June 2007. The claim in respect of weekly compensation commences from 1 June 2007, which the Respondent Worker’s solicitor stated was when he was first incapacitated (T1.40).
The left wrist had previously been injured in a work related motorcycle accident in Singapore on 3 September 2003, when he worked for “Fedex”. In that incident he fractured his left scaphoid, which was internally fixed with a screw. Dr Myers (who treated him after his injury of 23 March 2007) said there was some doubt regarding whether the fracture went on to union, after the 2003 injury. Dr Myers was told that, following the 2003 injury, the Respondent Worker became pain free, and was able to undertake heavy lifting, although there was some restriction of movement in the wrist.
There is no dispute the incapacity and need for medical treatment the subject of the current proceedings results, in the relevant sense, from the injury of 23 March 2007. The Appellant Employer accepted liability to pay compensation on a voluntary basis. However there is dispute regarding the appropriate rate and basis of weekly payments, and also regarding expenses associated with travelling to medical appointments in Sydney, following the Respondent Worker’s transfer back to Singapore.
The matter proceeded to an arbitration hearing on 28 February 2008. Both parties were legally represented. No oral evidence was adduced. Both parties addressed, and the arbitrator delivered an ex tempore decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 March 2008 records the Arbitrator’s orders as follows:
(a)That the Respondent pay the Applicant weekly compensation at the rate of $1,370.52 from 1 June 2007 to 1 December 2007 under section 36 of the Workers Compensation Act 1987, with credit to the Respondent for weekly compensation payments already paid to the Applicant.
(b)That the respondent pay the Applicant weekly compensation at the rate of $1,096.42 from 2 December 2007 under section 38 of the Workers Compensation Act 1987 with credit to the Respondent for weekly compensation payments already paid to the Applicant.
(c)That the respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 up to the sum of $1,852.00 for travel from Singapore to Sydney for review by his treating (sic) on production of accounts or receipts.
(d)That the Respondent pay the Applicant’s costs as agreed or assessed. This matter involved complex issues of fact and law and as such is certified complex warranting an uplift of 20% above the maximum payable for both parties.
The arbitrator’s reasons are at recorded at T23.1 to T26.55 of the transcript of the arbitration hearing.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(a)Whether the arbitrator correctly applied the provisions of section 42 of the Workers Compensation Act 1987 (‘the 1987 Act’) in computing the current weekly wage rate, payable during the first twenty-six weeks of incapacity?
(b)Whether the arbitrator erred in making an award pursuant to section 38 of the 1987 Act, from 2 December 2007, in the absence of evidence of the Respondent Worker seeking suitable employment from “any other employer as required by section 38A(4)”?
(c)Whether the order for the payment of travelling expenses from Singapore to Sydney, for medical review, pursuant to section 60 of the 1987 Act, was “against the evidence and the weight of the evidence”?
The appellant seeks that the decision of the arbitrator be revoked, and the matter either re-determined on the papers, or remitted to the arbitrator.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit the appeal can be determined ‘on the papers’. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the parties’ submissions 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Respondent Worker properly agrees the threshold requirements of section 352 are satisfied. I grant leave to appeal.
EVIDENCE AND SUBMISSIONS
It was common ground the Respondent Worker was employed pursuant to a ‘workplace agreement’ executed on 7 July 2004 (on the Appellant Employer’s behalf), and on 15 July 2004 (by the Respondent Worker). Clause 1.3 provided the agreement represented the “entire agreement” between the Company and the Employee, and operated “to the exclusion of any and all other agreements and/or awards.” Pursuant to clause 6, the Respondent Worker’s remuneration was as set out in Schedule 1 to the contract. That schedule provided for “monetary components” as follows:
“Basic Salary (Cash) $3,522.92 per month (USD)
Per Diem - $65.00 US $1,977.08 (USD)TOTAL PER MONTH $5,500.00 (USD)”
The schedule then goes on to describe “Additional Benefits”. These include a “Daily allowance (Per Diem) – payable when away from home station”, a transport allowance, annual leave, use of telephones, medical insurance and “expatriate level of accommodation”.
Dr Myers, in a report of 5 September 2007, described the Respondent Worker as capable of undertaking “single handed duties immediately”. The Respondent Worker’s solicitors wrote to “CCI Legal”, a legal firm in East Perth, on 3 October 2007. I infer, from the contents of the letter, that CCI Legal acted on behalf of the Appellant Employer. This letter, inter alia, served the report of Dr Myers dated 5 September 2007, and requested the provision of “suitable duties” consistent with the report. The evidence does not suggest any suitable duties were ever made available to the Respondent Worker. Notwithstanding the views of Dr Myers on incapacity as at 5 September 2007, the award entered by the arbitrator was pursuant to section 36 of the 1987 Act, on the basis of total incapacity, up to 1 December 2007. The existence of some theoretical ability to work is not, of course, inconsistent with the existence of total incapacity (see Lawarra Nominees Pty Limited v Wilson (1996) 25 NSWCCR 206; Moran Health Care Services v Woods (1997) 14 NSWCCR 499). The grounds of appeal do not assert any error by the arbitrator in making the award pursuant to section 36 over the first twenty-six weeks of incapacity.
The Appellant Employer voluntarily accepted liability for weekly payments and the payment of medical expenses. The rate at which it made weekly payments was a figure, in Australian dollars, equivalent to the figure of $US3, 522.92 per month contained in Schedule 1 to the contract. That is, the figure of $US1, 977.08 per month, described as “per diem”, was not brought into the calculation as part of the current weekly wage rate. The Respondent Worker argued that it should be. The rate of conversion was not controversial at the arbitration hearing, and is not raised as an issue on the appeal. The issues raised by the Appellant Employer in its Reply were “quantum”, whether the claimed section 60 expenses were necessary as a result of injury, and the reasonableness of the travelling expenses.
The statement of the Respondent Worker dated 6 December 2007 states, at [9], that when initially employed in Bombay prior to July 1996, he “was paid a base rate of $5,500.00 (US) per month plus allowances for living away from home, including accommodation and an additional daily rate”. He says, at [10], that when transferred to Sydney in July 1996 he “was paid on the same basis as when I worked in Bombay”. He goes on to state:
“16. My contract of employment prescribes a monthly pay rate of $5,500.00 (US). That pay rate incorporates a basic salary of $3,522.92 (US) per month plus an additional ‘per diem’ amount of $1,977.08 (US).
17. I understand that a per diem rate usually relates to a daily allowance but I note that my monthly salary has always been $5,500.00 (US) regardless of the number of days worked in any month.
18. In fact I have always been paid the monthly rate of $5,500.00 (US) even when utilising annual leave or sick leave.
19. I have always understood my base rate of pay to be $5,500.00 (US).”
None of the material in the Appellant Employer’s Reply contradicted this description of the basis on which the Respondent Worker was remunerated.
Section 36 of the 1987 Act provides:
“36 Weekly payment during total incapacity—first 26 weeks
(1) The weekly payment of compensation to an injured worker in respect of any period of total incapacity for work during the first 26 weeks of incapacity shall be the amount of the worker’s current weekly wage rate.
(2) In this section:
current weekly wage rate, in relation to a worker, means the worker’s current weekly wage rate determined from time to time in accordance with section 42.”
Section 42 of the 1987 Act relevantly provides:
“42 Current weekly wage rate
(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a) was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))—is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(b) was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period—is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(c) belonged to a class of workers prescribed by the regulations for the purposes of this paragraph—is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or
(d) was not a worker or employee to whom paragraph (a), (b) or (c) applies—is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.
(2) If a regulation made for the purposes of subsection (1) (c) or (5) (b) contains a reference to an award or a provision of an award and the award or provision, in so far as it relates to a particular worker, is subsequently varied or replaced, the reference shall, on and from the date of the variation or replacement, be deemed, in relation to that worker, to be a reference to:
(a) the award or provision as so varied, or
(b) the award or provision which replaced that award or provision,
as the case may be.
(3) For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but:
(a) there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service—the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or
(b)although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work—the worker shall be deemed to be remunerated in respect of that work under that last mentioned award.
…
(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:
(a) in respect of shift work, overtime or other penalty rates,
(b) under the terms of the worker’s employment in excess of the ordinary rate fixed by any award for the work performed by the worker, or
(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.
…
(8) In this section:
appropriate period, for the purposes of the calculation of “average weekly earnings” in relation to a worker, means the period of 12 months or, if the worker has been employed with the employer concerned for less than 12 months at the time of the injury, that lesser period.
average weekly earnings, in relation to a worker, means the average weekly earnings of the worker determined in accordance with section 43 during the appropriate period before whichever of the following times produces the higher average weekly earnings:
(a) the time of the injury concerned,
(b) the time at which the relevant weekly payment of compensation is due,
with the determination under paragraph (b) made on the assumption that the worker had been earning the wage or salary which the worker would probably have been earning if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
award means:
(a) an award in force under the Industrial Arbitration Act 1940 or an award or industrial agreement, within the meaning of the Conciliation and Arbitration Act 1904 of the Commonwealth, that is in force,
(b) an industrial agreement or enterprise agreement in force under the Industrial Arbitration Act 1940 or the Industrial Relations Act 1991,
(c) an agreement made under the Public Service Act 1979 or an agreement with respect to wages or salaries entered into under the provisions of any other Act by an employer constituted by that other Act with any association or organisation representing any group or class of employees, or
(d) an award made by the Coal Industry Tribunal under the Coal Industry Act 1946,
(e) (without limiting the above) includes a State industrial instrument,
and includes any such award, industrial agreement or other agreement or instrument as from time to time amended.
prescribed proportion means 80 per cent or, if the regulations prescribe some other percentage for the purposes of this section, that other percentage.”
The argument pursued by the Respondent Worker, both at the arbitration hearing and on this appeal, and accepted by the arbitrator, was that an appropriate application of section 42 in this case involved the following:
(a)Sub-sections (a), (b) and (c) of section 42(1) did not apply.
(b)Accordingly it was necessary to apply sub-section 42(1)(d).
(c)The Respondent Worker’s average weekly earnings immediately before becoming incapacitated were the weekly equivalent of $US5, 500.00 per month. The sum of $US1, 977.08 per month included in that sum is not to be disregarded pursuant to section 42(6), it not being caught by any of the sub-sections of section 42(6).
(d)The current weekly wage rate was 80% (that being the ‘prescribed proportion’) of that weekly figure.
(e)Section 42(3) does not apply, as its operation is restricted to workers remunerated under an award pursuant to section 42(1)(a). Alternatively, section 42(3) operates to “correct an underpayment of an award worker”, not the situation in this matter.
(f)Alternatively, even if section 42(3) does apply, there is no evidence of the existence of an appropriate award providing for the fixing of an award rate pursuant to that sub-section, in any event.
The Appellant Employer’s argument on the point, both at the arbitration hearing and on the appeal, was:
(a)Section 42 should be read as a whole. Section 42(3) is a deeming provision, which has the effect of applying section 42(1)(a) to certain workers, who are not remunerated under an award.
(b)There are awards and industry agreements in existence for aircraft maintenance engineers (the Respondent Worker’s occupation). Some of these were attached to the Appellant Employer’s Reply. These are awards under which the worker would be entitled to be remunerated if he performed his work under a contract of service, and section 42(3)(a) applies.
(c)In the alternative, it is fair and reasonable that he be deemed to be remunerated pursuant to such awards, pursuant to section 42(3)(b).
(d)The current weekly wage rate is to be determined by section 42(1)(d), where a worker is not employed pursuant to an award, only if an award rate does not apply pursuant to section 42(3).
(e)Thus the current weekly wage rate should be determined pursuant to one of the awards attached to the Reply, rather than section 42(1)(d).
Neither party has referred to any authority in support of the argument it puts going to the construction of section 42.
The Appellant Employer did not, on the arbitration hearing or in this appeal, pursue a separate argument that it was inappropriate, in calculating the current weekly wage rate, to have regard to the figure of $US1, 977.08 which comprised part of the monthly remuneration figure of $US5, 500.00. Its failure to rely upon such an argument was, in my view, appropriate, and consistent with the decision of the Court of Appeal in Lismore City Council v Garland (1992) 26 NSWLR 542.
There were further issues, discussed later in these reasons, going to the application of section 38 during periods of partial incapacity, and the reasonableness of the claim for the cost of air travel between Singapore and Sydney, to attend medical reviews with Dr Myers.
DISCUSSION AND FINDINGS
The Section 42 Issue
In Woolworths Ltd v Lister [2004] NSWCA 292 (‘Woolworths’) the Court of Appeal dealt with the issue of whether, as a matter of statutory construction, the definition of an “award” in section 42(8) extended to include an agreement certified under the Workplace Relations Act 1996 (Cth). It was held that it did, Handley JA saying:
“23 The purpose of s 42(8) is to identify industrial instruments which can be consulted to determine the current weekly wage rate of an incapacitated worker to fix the compensation to which he or she is entitled. The new Commonwealth Act provided for the making of the same types of industrial instruments which can be consulted for the same purposes. The substitution of a reference to the 1988 Act, and now to the 1996 Act for that to the 1904 Act in s 42(8), if authorised by s 68(3) (of the Interpretation Act 1987), would not affect the practical operation of s 42(8). The policy evident in the original form of s 42(8) and in its form, if s 68(3) applies, is the same.”
And:
“27 In my judgment a construction of s 42(8), with the aid of s 68(3), to include references to the 1988 and now the 1996 Commonwealth Acts would not involve any change in the legislative policy apparent in the section and there is no reason to suppose that the Parliament would have rejected such an amendment. The appeal therefore succeeds on this point.”
The workplace agreement pursuant to which the Respondent Worker was employed was not an agreement of the kind dealt with in Woolworths. It is not apparent that the reasoning in Woolworths would have application to this workplace agreement, and neither party has argued the workplace agreement falls within the definition of an “award” in section 42(8). I raise Woolworths simply to note that, it not having been raised by either party, the question of whether a workplace agreement could constitute an “award” for the purposes of section 42, is in no way decided in this appeal.
Neither party contends the Respondent Worker was remunerated under an award. Thus section 42(1)(d) will set his current weekly wage rate, unless section 42(3) has application. I do not accept the submission made on the Respondent Worker’s behalf that section 42(3) applies only if a worker is employed under an award (see T5). If this were so, sub-section (3) would have no work to do, as a worker would already have had his award rate set by sub-section (1)(a) if he were remunerated under an award.
Does section 42(3) have application? Sub-sections (a) and (b) are alternatives. Sub-section (a) applies where there is an award in respect of the work performed by the worker under which the worker would be entitled to be remunerated in respect of that work. Attached to the Reply is the Regional Express Aircraft Engineers Agreement 2005, certified pursuant to the Workplace Relations Act 1996. It is between Regional Express Holdings Limited and The Australian Licenced Aircraft Engineers Association. Clause 3 provides it is binding on the parties to it, together with employees of that employer who are eligible to be members of that Association. Applying Woolworths, the agreement would, on its face, fall within the definition of an “award” in section 42(8). But it is not an award under which the worker would be entitled to be remunerated. The Respondent Worker is not within the class of people in respect of which the agreement has application.
Attached to the Reply also are extracts from the Aircraft Engineers (General Aviation) Award 1999. These pages appear to have been printed off an Internet site, Wage Net. Apart from Clause 1, which is the title of the award, the material consists of clause 11, which sets out rates of pay, including that for aircraft maintenance engineers. The material does not deal with duties, hours, location of work, conditions, or other of the multifarious topics customarily covered by industrial awards. Clause 11 sets out remuneration rates for “Aircraft maintenance engineers (including tradespersons)”, and for “Licensed aircraft maintenance engineers”. The two are different. There is provision also for additional payments to a “Licensed aircraft maintenance engineer” for “each specific type or group rating” held. It would not be possible to determine which of the classifications and/or additional payments would be applicable, if the award had application, which in my view it does not.
The workplace agreement between the Appellant Employer and the Respondent Worker provided the Respondent Worker had accepted an offer of employment as a “Licensed Aircraft Maintenance Engineer (LAME) or A & P (Airframe and Powerplant)”. There is little evidence of his actual duties. There is a superficial similarity between the classifications named in the award material, and the description of the employment offer accepted by the Respondent Worker in the workplace agreement. However it is not possible, on the available material, to be satisfied the specific work performed by the Respondent Worker was work for which he would have been entitled to be remunerated under any of the awards relied on by the Appellant Employer.
There is a small amount of material attached to the Reply, again apparently downloaded from Wage Net, relating to the Airline Operations (Qantas Airways Limited) Award 1999. The material includes a single minimum rate for “Aircraft Maintenance Painter/ Panel Beater/ Carpenter/ Trimmer/ Structure”. Again, on the available material, it is not possible to be satisfied the work performed by the Respondent Worker was work for which he would have been entitled to be remunerated under this award. The evidence, both of the duties and conditions of work of the Respondent Worker, and of those covered by the award, is insufficient to justify such a conclusion.
For these reasons I am of the view that section 42(3)(a) does not have application.
Section 42(3)(b) applies where there is not an award under which the worker would be entitled to be remunerated, but it is fair and reasonable to apply an award, having regard to the nature of the work performed by the worker. My reasoning for rejecting the application of section 42(3)(a) is relevant also to the application of section 42(3)(b). The limited evidence regarding the specific work carried out by the worker, and the specific duties and conditions relating to work covered by the classifications in the awards relied upon, leaves me unsatisfied it would be fair and reasonable to deem the Respondent Worker to have been remunerated pursuant to any of those awards, pursuant to section 42(3)(b).
The Respondent Worker’s solicitor, at the arbitration hearing, made the additional submission that the awards relied upon by the Appellant Employer were Federal awards, that do not have general application, and the operation of which is restricted to specific employers and those employed at such employers’ sites. It was further submitted that, as Federal awards, they had “a lifespan of no more than four years”, so the 1999 awards relied upon were not current. The Appellant Employer’s counsel said he took “on board some criticism that’s been made of the material”; he did not specifically concede the points made regarding the operation of the awards, nor specifically refute them. The Appellant Employer’s submissions on the appeal remain silent on this issue, the Respondent Worker’s submissions describe the awards relied upon as “out of date and invalid”. I could not, on the material placed before the Commission on this issue, be satisfied these particular awards were available pursuant to section 42(3) in any event. This aspect of the argument does not require detailed consideration, given the view I have reached regarding the applicability of section 42(3) in any event.
As section 42(3) does not apply in the circumstances, the matter does not fall within sub-sections (a), (b) or (c) of section 42(1), and his current weekly wage rate should be determined, as it was, pursuant to section 42(1)(d). There was no ground in this appeal that, if section 42(1)(d) was the appropriate basis on which to calculate the current weekly wage rate, the calculation performed by the arbitrator was other than correct. Accordingly, the ground of appeal relating to the application of section 42 of the 1987 Act fails.
The Section 38 Issue
The Appellant Employer raises an issue regarding the arbitrator’s decision that the Respondent Worker was entitled to receive weekly benefits pursuant to section 38 of the 1987 Act, subsequent to 2 December 2007. The arbitrator’s reasons on this issue were succinctly stated:
“On the best evidence available to me, it seems to me that the applicant has indicated that there are medical certificates in accordance with section 38 certifying the worker fit for suitable duties. The worker has said both in his statement and via his solicitors to the respondent that he is seeking suitable duties from the respondent. There is no evidence that the applicant is seeking any other work in accordance with section 38(4). However, the best evidence that I have is that he is seeking suitable employment – suitable duties from his employer. For that reason I find that he is entitled to payments of weekly compensation pursuant to section 38 from 2 December 2007 at the rate of $1,096.42.”
The Appellant Employer’s argument relies upon section 38(4). It submits it was an error of law for the arbitrator to make an award pursuant to section 38, having found, as a matter of fact, that there was no evidence the Respondent Worker was taking reasonable steps to seek suitable employment.
The Respondent Worker’s response to this argument is to rely upon section 38A(3), which provides that section 38A(2)(d) does not apply unless there has been notification of the requirement of section 38(2)(d) pursuant to section 38A(3). It is submitted by the Respondent Worker that there is no evidence such a notice was given. The submissions of the Respondent Worker do not touch on section 38A(4).
At the arbitration hearing the Appellant Employer also argued the Respondent Worker was not ready, willing and able to accept an offer of suitable employment (section 38A(2)(a)). It was said his original visa to work in Australia would have come to an end when he returned to Singapore after his surgery, and the Appellant Employer was only obliged to offer suitable work in Australia. It was also argued the certificate accompanying the application for suitable duties did not comply with section 38A(2)(b). These arguments were not pursued on this appeal.
Section 38 provides:
38 Partially incapacitated workers not suitably employed—special initial payments while seeking employment
(1) Entitlement
If:(a) a worker is partially incapacitated for work as a result of an injury, and
(b) the worker is not suitably employed during any period of that partial incapacity for work,
the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2) Maximum period of entitlement
The maximum total period for which the worker may be so compensated is 52 weeks.(3) Rate of compensation
When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:(a) 80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),
(b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).
(4) Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).
Section 38A provides:
38A Determination of whether worker seeking suitable employment
(1) Application
This section provides for the determination of whether a worker is seeking suitable employment for the purposes of section 38 and section 52A (Discontinuation of weekly payments after 2 years).(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.
(3) Notice of requirement relating to obtaining suitable employment from other person
The requirement under subsection (2) (d) does not apply unless the worker has been notified of the requirement in accordance with this subsection.Such a notice:
(a) must be given in writing by the insurer or self-insurer concerned, and
(b) must state that the worker is required to take reasonable steps to obtain suitable employment from some other person in order to remain entitled to compensation under section 38, and
(c) may set out particular reasonable steps that can be taken by the worker in order to satisfy that general requirement, and
(d) is subject to, and must comply with, any regulations and (subject to the regulations) any claims procedures notified by the Authority to insurers and self-insurers, and
(e) does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
The requirement under subsection (2) (d) does not apply, and a notice is not to be given under this subsection, while action is being taken by or on behalf of the employer to arrange or explore the possibility of suitable employment with the employer.
(4) Notice not applicable when proceedings pending etc
If proceedings relating to the payment of compensation under section 38 or to the discontinuation of weekly payments under section 52A are before the Commission or the insurer or self-insurer has denied liability to pay any such compensation:(a) a notice is not to be given under subsection (3), and the requirement under subsection (2) (d) applies without any such notice being given, and
(b) particular steps to satisfy that requirement that are set out in a notice previously given do not restrict the determination of the matter by the Commission.
(5) Workers treated as not seeking suitable employment
A worker is not to be regarded as seeking suitable employment if the worker has unreasonably refused an offer from any person of suitable employment or necessary rehabilitation training. A worker is also not to be regarded as seeking suitable employment if the worker:(a) unreasonably refuses to have an assessment made of the worker’s employment prospects, or
(b) unreasonably refuses to co-operate in procedures connected with the provision or arrangement of suitable employment or rehabilitation training under the employer’s return-to-work program.
(6) Court orders
An order of the Commission relating to the weekly payment of compensation:(a) may be subject to conditions relating to the worker taking reasonable steps to obtain suitable employment during any weekly payments under section 38, and
(b) may include directions relating to the adjustment of the amount of weekly payments under section 38 for any future period of payments under section 40 when the worker obtains employment or when the period for payments under section 38 comes to an end.
(7) Definitions
In this section:employer of a worker who is partially incapacitated for work means the employer liable to pay compensation to the worker in respect of the incapacity or, if there are 2 or more such employers, the employer so liable who last employed the worker.
refusal of an offer or to do a thing includes a failure to accept the offer or to do the thing.
rehabilitation training means training of a vocationally useful kind, and includes vocational re-education, work-trials, occupational rehabilitation services or treatment provided by way of rehabilitation.
suitable employment means suitable employment within the meaning of section 43A.
Section 38A(4) relevantly provides that, if proceedings relating to the payment of compensation pursuant to section 38 are before the Commission, a notice pursuant to section 38A(3) is not to be given, and the requirements of section 38A(2)(d) apply without the notice being given. The evidence does not suggest a notice was ever given. Were proceedings relating to the payment of compensation under section 38 before the Commission, such that a notice was not required pursuant to section 38A(3)?
The Respondent Worker’s solicitors supplied the Appellant Employer (through its solicitors) with Dr Myers’ report of 5 September 2007, and an associated request for suitable duties, by letter dated 3 October 2007. Although the report was not in the form of a medical certificate, it is sufficient if it contains information reasonably sufficient in the circumstances to assist in determining what is suitable employment: section 38A(2)(b). No issue was raised in this appeal as regards form in this regard. There were a number of earlier certificates in evidence, but these either predated the surgery carried out by Dr Myers (and associated period of total incapacity), or specified the Respondent Worker to be totally incapacitated. There is one certificate, from Dr Seng dated 3 December 2007, which post-dates Dr Myers’ surgery, and states the Respondent Worker is fit for light duties from 10 December 2007 to 31 January 2008, “no lifting, pushing (?) heavy loads with left hand, arm”. The Respondent Worker’s statement says his “last certificate” was provided to the insurer in the week commencing 3 December 2007, and he was not thereafter advised of any arrangements for ongoing employment in Sydney. He was at that stage residing in Singapore.
The Application to Resolve a Dispute was received in the Commission on 8 January 2008, and registered on 9 January 2008. Clearly proceedings were before the Commission from that time.
The proceedings did, in my view, relate to the payment of compensation under section 38. The form of the Application to Resolve a Dispute does not invite those completing it to specify the sections pursuant to which a weekly claim is brought, and Part 5.1 of the Application in this matter does not do so. It specifies the weekly claim as being the difference between the voluntarily paid sum, and the equivalent in Australian dollars of $US5, 500.00 per month. However the basis of the section 38 claim is apparent from the material attached to the Application, on which the Respondent Worker relied. That material includes the report of Dr Myers dated 5 September 2007 certifying as to partial incapacity, and the certificate of Dr Seng dated 3 December 2007 certifying partial incapacity. There is a statement of the Respondent Worker dated 6 December 2007, which at [26] deals with the failure by the Appellant Employer to provide suitable duties. There is the letter from the Respondent Worker’s solicitors to the solicitors for the Appellant Employer dated 3 October 2007, serving Dr Myers’ report dated 5 September 2007, and requiring the provision of suitable duties. That the parties conducted the matter, on the basis the proceedings related to the payment of compensation under section 38, is apparent from the fact the Respondent Worker’s solicitor addressed on that basis (from T9.45) without objection, the Appellant Employer’s counsel responded to such submissions, and the arbitrator ultimately made an award (in part) pursuant to section 38.
Section 38A does not specify any particular time at which a worker is to take steps to seek suitable employment, nor when a notice under section 38A(3) should be given, nor when relevant proceedings are to be “before the Commission” to obviate the need for a section 38A(3) notice. However, the period during which a worker needs to be seeking suitable employment is “that period” during which he or she seeks that compensation be paid pursuant to section 38: section 38(4). It is consistent with section 38(4) that there could be periods during which a worker was seeking suitable employment, and entitled under section 38, and other periods during which suitable employment was not being sought, and there was no such entitlement.
Section 38A governs whether a worker is seeking suitable employment for the purposes of both section 38 and section 52A (which provides for the discontinuation of weekly payments in certain circumstances). Unlike section 38, section 52A stipulates a “relevant time” at which one is to assess whether a worker’s failure to seek suitable employment may lead to discontinuation of payments. The “relevant time” is that at which a notice pursuant to section 54, of intention to discontinue payments, is given. In Hughston v Hughston & Sons Pty Ltd (1999) 18 NSWCCR 312, Curtis J dealt with the ‘relevant time’ at which a worker needed to be seeking suitable employment to avoid discontinuation of payments pursuant to section 52A:
“It is clear that the act of seeking requires a concurrence of intention and action. “Intention” may be coincident with an instant of time relevant for the purposes of s 52A, but the “action” of seeking cannot rationally be construed as an action which is to be coincident with “an” instant of time. It is in this sense that “time” in s 52A must mean a “period of time” rather than an “instant” or moment. The essential dispute before me is the reasonable breadth of that period when the section is so understood.”
Burke J adopted a similar approach in a case involving section 52A, in Camilleri v Western Sydney Area Health Service (2000) 20 NSWCCR 499:
“So, was the applicant seeking suitable employment as at 12 September? The answer must bear in mind that while that involves a continuing intent as at that time, it does not require that an active “seeking” exist at that precise time. Reasonable efforts to obtain suitable employment in the period leading up to the relevant time with a persisting intent, suffice to discharge the obligation imposed upon the worker.”
The concept of seeking suitable employment (as defined in section 38A) is the same for the purposes of sections 38 and 52A. Logically, seeking work over a period is sufficient for a worker to satisfy section 38A, it does not need to be sought continuously. This is consistent with the above authorities. A notice given by an employer part way through a period could not prevent a worker relying upon section 38A prior to the notice, but could prevent the payment of section 38A benefits thereafter, if the worker did not comply with section 38A(2)(d).
Section 38A(4) must operate to excuse an employer of the need to give a notice when relevant proceedings are before the Commission, even if there was a period prior to the commencement of such proceedings, when the employer could have given a notice, and failed to do so. If a notice were given prior to commencement of such proceedings, the employer would not need to give a further notice subsequent to the commencement. It is only where no such notice was given prior to the commencement, that section 38A(4) has work to do. The words of the sub-section do not suggest its meaning should be limited to circumstances where, for whatever reason, the employer had no opportunity to give a notice under section 38A(3), prior to proceedings for compensation under section 38 being commenced.
In this matter, the arbitrator has made an implicit finding of partial incapacity from 2 December 2007, which is not challenged. From that time until the Application was registered on 9 January 2008, there were not proceedings before the Commission, and the Appellant Employer had not denied liability to pay compensation pursuant to section 38. No notice pursuant to section 38A(3) had been given. The arbitrator’s findings entitle the Respondent Worker to an award pursuant to section 38 over that period. There is no challenge to the manner in which the arbitrator quantified the section 38 entitlement.
However, in respect of the period from 9 January 2008, the finding made by the arbitrator, which was consistent with the evidence, was that the evidence did not indicate the Respondent Worker was seeking “any other work in accordance with section 38(4)”. In respect of this period, the Respondent Worker could not to be regarded, on the evidence available, as seeking suitable employment, applying section 38A(2)(d). Section 38(4) accordingly precluded the payment of compensation in accordance with section 38 over such period. Section 38A(3) does not assist the Respondent Worker during this period, as section 38A(2)(d) applies without the giving of a notice, as proceedings relating to the payment of compensation pursuant to section 38 were before the Commission from 9 January 2008. For reasons that appear below, the preferable course, in my view, is to remit the question of whether any award subsequent to 9 January 2008 should be pursuant to section 38, or section 40.
The finding of partial incapacity, resulting from the relevant employment injury, from 9 January 2008 is not challenged, and was effectively conceded. A finding that a worker was not seeking suitable employment at one point in time does not necessarily prevent him obtaining weekly benefits under section 38 at some other time. McGrath CJ in Klavora v O’Neills (Newcastle) Pty Ltd (1990) 6 NSWCCR at 143G said:
“I do not think that the section would involve the proposition that, for instance, if a person was not taking reasonable steps at one particular time, forever thereafter that would, as it were, totally and completely debar him from ever relying on the section.”
To the extent the award during partial incapacity may require assessment pursuant to section 40 of the 1987 Act, the evidence is virtually silent on matters relevant to such an assessment. The workplace agreement may well provide probable earnings if not for injury. However there is virtually no evidence going to ability to earn, or the precise nature of the physical incapacity suffered by the Respondent Worker on an ongoing basis. A consideration of ability to earn in some suitable employment may well be complicated also by the Respondent Worker’s return to Singapore. Neither party has made submissions going to the quantum of a section 40 award, at the arbitration hearing or on the appeal. Accordingly, I am of the view that, if the award pursuant to section 38 subsequent to 9 January 2008 cannot stand on the existing evidence, the preferable course is to remit the matter to permit assessment of the section 40 component of the entitlement. This would permit the parties an opportunity to seek leave to put on further material on this topic, if desired. It also would permit them to make submissions on the point.
The desirability of remitting the matter is increased by certain procedural considerations. The Respondent Worker’s submissions at the arbitration hearing, going to section 38, did not touch upon section 38(4), nor sub-sections (3) and (4) of section 38A. Counsel for the Appellant Employer addressed the arbitrator on section 38(4) at T17.50 to T18.35. He then apparently moved on to section 38A(4), which could only be relevant in the context of the application of section 38A(2)(d), in the absence of notice under section 38A(3). The relevant passage (at T18.35 to T19.25) reads:
“Counsel for Appellant Employer: …Now, unless there’s something I’ve missed, there doesn’t seem to be any evidence that the applicant is taking any steps to obtain suitable employment from some other person. There’s sub-section (3), which I should – well, just pardon me for a moment, please. I just need to read something –
Arbitrator: Mm-mm.
Counsel for Appellant Employer: -- which I hadn’t previously. Well, there’s paragraph 4. This is in relation to a notice that “you should seek suitable employment”. There’s a provision that in proceedings relating to the payment of compensation and the discontinuance notice is not to be different. The insurer is – well, I would submit in the circumstances of this case the proceeding was pending and the letter of 5 September has been referred to and what appears to have been a subsequent communication, and bearing in mind that these proceedings were instituted and the claim was made late last year –
Arbitrator: Excuse me, Mr Batten. Look, with respect, I don’t think that’s one of the issues, is it?
Counsel for Appellant Employer: No.
Arbitrator: It’s not one of the matters in issue, is it? I just don’t know whether you need to address that.
Counsel for Appellant Employer: The applicant has not been taking reasonable steps to obtain employment or –
Arbitrator: The notice.
Counsel for Appellant Employer: Notice, no.
Arbitrator: Proceeding.
Counsel for Appellant Employer: Well, I don’t think –
Arbitrator: Do we need to look at that at all?
Counsel for Appellant Employer: If it’s not an issue, we certainly –
Arbitrator: I don’t think – is it?
Counsel for Appellant Employer: -- don’t need to go into it.
Arbitrator: No. No, let’s not go down that path then.”
The consequence of the above interchange was that counsel for the Appellant Employer did not continue with his submission on the possible application of section 38A(4). It would be unsafe, in my view, to extract from this passage a concession by the Appellant Employer that section 38A(4) was not relevant. It would similarly be unsafe to extract a consensus, contrary to the interests of the Respondent Worker, that there was no issue regarding the application of section 38A(4). On one view of it, it was unnecessary that counsel deal with that provision, as the Respondent Worker had not, in submissions on his behalf, relied upon section 38A(3). However the Respondent Worker has placed reliance upon section 38A(3) in this appeal. The safer course, in my view, is to remit the matter not only to permit the parties to address quantification of the section 40 entitlement, should it prove relevant, but also to permit an opportunity to seek leave to put on further evidence (if desired) going to sections 38 and 38A, and to make submissions going to section 38(4), section 38A(2)(d), section 38A(3) and section 38A(4).
The Section 60 Issue
The Appellant Employer voluntarily paid treatment expenses pursuant to section 60 of the 1987 Act. The Respondent Worker additionally sought payment of three airfares, described in his solicitors’ letter of 3 October 2007. The first was for travel from Sydney to Singapore on 14 June 2007. Part of this cost had already been paid by the Appellant Employer, probably pursuant to the workplace agreement, rather than workers compensation legislation. The claim for this cost was not pressed on the arbitration hearing. Those items that were pressed were for travel between Sydney and Singapore after the surgery of 5 June 2007, and for follow-up visits (see T1.50 to T2.15). These consultations with Dr Myers occurred on 1 August 2007 and 5 September 2007. The sum allowed was $1,852.00.
The Appellant Employer submits such expenses were not “reasonable and necessary medical treatment in accordance with section 60”.
The Respondent Worker submits that, after the surgery, the Appellant Employer directed the Respondent Worker to return to Singapore, and “Neither the employer not (sic) insurer made any arrangements for the worker to continue his treatment in Singapore”. It is submitted the worker enquired whether his treatment costs, if undertaken in Singapore, would be met under the NSW workers compensation scheme, and he received no response. Therefore he travelled to Sydney to “continue the treatment”. It is submitted the finding of reasonableness was open to the arbitrator on the evidence, and within her discretion.
The latter part of this submission would seem to flow from submissions made by the Respondent Worker as to the nature of review, in which the Presidential decisions of The King Island Company Limited v Deery [2005] NSWWCCPD 1 and Westpac Banking Corporation v Kilby & Bananacoast Credit Union Ltd [2005] NSWWCCPD 24 are cited. There have been a number of passages in judgments of the Court of Appeal, since the Presidential decisions relied upon, suggesting the scope of a review pursuant to section 352 of the 1998 Act is broader than is described in these Presidential decisions. There is a helpful review of the authorities by Roche DP in Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81. It is unnecessary, for current purposes that I deal in detail with the scope of review pursuant to section 352. The approach advocated by the Respondent Worker is, in my view, inconsistent with the judgment of McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 16 at [134]. Applying what was said by Spigelman CJ in State Transit Authority of NSW v Chemler (2007) 5 DDCR 287 at [28], it is necessary that I conduct a review “on the merits”.
The two relevant follow-up consultations clearly were medical or related treatment within the meaning of section 59 of the 1987 Act. There is no issue these consultations were other than a result of the employment injury. The test set out in section 60 of the 1987 Act is that the employer is liable to pay the cost of such treatment, if it is reasonably necessary. Section 60(2) provides where it is necessary that a worker travel to receive such treatment, the employer is liable to pay the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment. Thus it is necessary, if the airfares are to be recoverable, that the treatment be reasonably necessary, and the travelling costs be necessarily and reasonably incurred.
Burke J in Bartolo v Western Sydney Area Health Service (1997) 14 NSWCCR 233 (‘Bartolo’) identified a number of factors that are of relevance in determining whether treatment is reasonably necessary. These factors were the treatment’s appropriateness, available alternatives, relative cost, potential effectiveness, and the usualness of the treatment. On the first of the follow-up consultations, on 1 August 2007, the cast was removed from the left wrist, x-rays were carried out and examined, and Dr Myers suggested the Respondent Worker commence an active exercise program. On 5 September further x-rays were performed, and it was suggested the Respondent Worker commence grip strength exercises. The follow-up consultations appear to have been routine monitoring of the Respondent Worker after his surgery.
During the appointment on 5 September 2007 Dr Myers became aware the Respondent Worker was travelling to Sydney from Singapore for the appointments. The doctor records:
“I noted with some horror that he has lost his job and because of this he has relocated back to Singapore. He came from Singapore for this appointment.
…
It seems absolutely ludicrous that he is travelling all the way back from Singapore for these appointments. Surely there is a surgeon in Singapore that could continue his care.”
The issue relates not so much to the reasonable necessity of the follow-up consultations per se. Rather it relates to whether it was reasonable to undertake such treatment in Sydney, the Respondent Worker having returned to Singapore. On the face of it, these were routine consultations to monitor his progress following surgery. The only expression of medical opinion on the topic is from Dr Myers himself, who regarded travelling from Singapore for the appointments as “absolutely ludicrous”. The factors identified in Bartolo (in a slightly different context) are of assistance. To undertake such treatment in Sydney in the circumstances, in my view, fails the various tests identified by Burke J. It is not usual, the relative cost is great, there is a readily available (and I infer cheaper) alternative, being a surgeon in Singapore. Dr Myers comments would not suggest the potential effectiveness is greater than using a surgeon in Singapore.
In my view it is immaterial that the Appellant Employer and its insurer did not make arrangements for ongoing treatment in Singapore, one of the submissions made by the Respondent Worker. It does not appear the Respondent Worker, until the second of the follow-up consultations, informed Dr Myers of his relocation. At the arbitration hearing it was noted by the Respondent Worker’s solicitor that, after the consultation of 5 September 2007, there were “no further claims”, and “We can only presume that other arrangements were made.” The certificate of Dr Seng dated 3 December 2007 is on the letterhead of “Island Orthopaedic Consultants” (I infer located in Singapore), and describes that doctor as a consultant orthopaedic surgeon.
In all of the circumstances, I do not regard the treatment and associated travelling expenses for the two follow-up consultations in Sydney, after the Respondent Worker had moved back to Singapore, as reasonably necessary.
The Appellant Employer clearly spelled out to the Respondent Worker, in the email of 23 July 2007, that neither the Appellant Employer or its insurer would voluntarily pay for the airfare, accommodation and other costs associated with this travel back to Sydney. Whilst it is not relevant to the view I have reached regarding reasonableness, it does demonstrate the Appellant Employer did not acquiesce in the travel for these appointments, or encourage the Respondent Worker to adopt this particular course.
Accordingly, I am of the view the travelling expenses to attend on Dr Myers on 1 August 2007 and 5 September 2007 were not recoverable pursuant to section 60.
DECISION
As regards the arbitrator’s decision dated 4 March 2008:
(a)Paragraph 1 is confirmed.
(b)Paragraph 2 is amended by adding the words “to 8 January 2008” after the words “from 2 December 2007”.
(c)Paragraph 3 is revoked, and in substitution insert:
“Award for the Respondent on the claim under section 60 of the 1987 Act for the cost of travel between Singapore and Sydney to attend medical consultations on 1 August 2007 and 5 September 2007.”
(d)Paragraph 4 is confirmed.
The matter is remitted to the arbitrator concerned for determination of the Respondent Worker’s weekly entitlement from 9 January 2008, in accordance with these reasons.
COSTS
I make no order as to the costs of this appeal.
Michael Snell
Acting Deputy President
11 August 2008
I, MELANIE CURTN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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