John Haywood Enterprises Pty Limited t/as Sleep Doctor v Kumar
[2006] NSWWCCPD 161
•26 July 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:John Haywood Enterprises Pty Limited t/as Sleep Doctor v Kumar [2006] NSWWCCPD 161
APPELLANT: John Haywood Enterprises Pty Limited t/as Sleep Doctor
RESPONDENT: Parshila Wati Kumar
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC5819-05
DATE OF ARBITRATOR’S DECISION: 9 August 2005
DATE OF APPEAL DECISION: 26 July 2006
SUBJECT MATTER OF DECISION: Section 60AA Workers Compensation Act 1987; compensation for gratuitous domestic assistance
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael
Respondent: Doherty Partners
ORDERS MADE ON APPEAL: Paragraphs 1, 2 and 3 of the Arbitrator’s decision of 9 August 2005 are revoked and the following order made:
“1. Award for the Applicant pursuant to section 60AA of the Workers Compensation Act 1987 in the sum of $221.00 per week from 1 January 2002 to date and continuing.”
Paragraph 4 of the Arbitrator’s decision of 9 August 2005 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 6 September 2005 John Haywood Enterprises Pty Ltd t/as Sleep Doctor (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2005.
The Respondent to the Appeal is Parshil Wati Kumar (‘Mrs Kumar’).
On 18 April 2005 Mrs Kumar filed an Application to Resolve a Dispute (‘the Application’) with the Commission seeking $270.00 per week from 14 September 2001 to date and continuing pursuant to section 60AA of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of gratuitous care she provides to her son, Rajneel Kumar, (‘the worker/Rajneel’) who sustained catastrophic injuries (including a major brain injury) in a motor vehicle accident whilst travelling to work with the Appellant Employer on 2 September 2000.
Neither the circumstances of the accident nor Rajneel’s entitlement to compensation are in issue. Nor is it in issue that Rajneel’s injuries and disabilities have left him with a whole person impairment of at least 15%.
The issue before the Arbitrator was whether Mrs Kumar met the thresholds in section 60AA and, if so, the quantum of any award of compensation.
The Arbitrator found in favour of Mrs Kumar and the Appellant Employer now seeks leave to appeal that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 9 August 2005 records the Arbitrator’s orders as follows:
“1.That the Respondent pay the Applicant $245 per week from 1 January 2002 to date and continuing as set out in orders 2 and 3 below, as compensation for lost income and foregone employment for gratuitous domestic assistance provided to the injures worker, Rajneel Kumar by the Applicant, under section 60AA of the Workers Compensation Act 1987;
2.That such weekly payments to [sic] continue up to 16 February 2015, subject to the provisions of the Workers Compensation Act 1987 and Regulations and the WorkCover Guidelines for the Provision of Gratuitous Domestic Assistance;
3.That such weekly payments be adjusted on 1 April and 1 October each year (commencing from 1 October 2005 applicable to the current rate of $245 per week) by ongoing reference to the average weekly adult earnings in NSW was [sic] published from time to time;
4.That the Respondent pay the Applicant’s costs as agreed or to be assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)awarding compensation at the rate of $245.00 per week from 1 January 2002 when the Arbitrator’s calculations indicated the appropriate figure was $221.00 per week (‘calculation of lost income’);
(b)allowing a 3% annual increase in the figure of $221.00 per week from 1 January 2002 (‘calculation of lost income’);
(c)finding that Mrs Kumar would have continued to maintain the same level of child minding activity and the same level of earnings until 2015 (‘level of child minding’);
(d)finding that Mrs Kumar had discharged the onus of proving she would have continued minding children beyond 1 January 2005 (‘level of child minding’);
(e)making an award until 2015(‘future award’), and
(f)ordering that the award be adjusted on 1 April and 1 October each year (commencing from 1 October 2005) by ongoing reference to the average weekly adult earnings in NSW as published from time to time (‘indexation of award’).
LEAVE TO APPEAL
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 Appellant Employer submits that the award should be (at the most) $221.00 per week from 1 January 2002 to 31 December 2004 and then $177.00 per week from 1 January 2005 to date and continuing. If the award of compensation is reduced in this way the arrears of compensation “at issue” on appeal will exceed $5,000.00. Therefore, the threshold in section 352(2)(a) is satisfied. As the whole of that amount is disputed, the threshold in section 352(2)(b) is also satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
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.”
The Appellant Employer does not consent to the matter being dealt with ‘on the papers’ and requests an oral hearing. It is submitted that the issues cannot be properly determined without reference to the oral evidence given at the hearing. A transcript of the oral evidence and submissions was forwarded to the parties on 19 September 2005. Neither party has sought to make any further submissions since that date.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, including the detailed written submissions from both sides, 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.
SUBMISSIONS AND FINDINGS
The Legislation
Before considering the submissions it is appropriate to set out the relevant legislation. Section 60AA was introduced by an amendment made to the 1987 Act in 2001 and applies to services provided after 1 January 2002. As at 1 January 2002 it provided:
“60AA Compensation for domestic assistance
(1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if:(a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury, and
(b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury), and
(c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2).
(2) Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements:
(a) it is provided for not more than 6 hours per week,
(b) it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months,
(c) it is provided pursuant to the requirements of the relevant injury management plan.
(3) Compensation is not payable under this section for gratuitous domestic assistance unless the following requirements are also satisfied:
(a) the person who provides the assistance must have lost income or forgone employment as a result of providing the assistance,
(b) the assistance must be provided in accordance with a Care Plan established by the insurer in accordance with the WorkCover Guidelines.
(4) Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned.
(5) The following requirements apply in respect of payments under this section:(a) payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance, as the services are provided,
(b) payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines may make provision for how the performance of those services is to be verified),
(c) payments for gratuitous domestic assistance are to be made to the provider of the assistance.
(6) In this section:
"gratuitous domestic assistance" means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay.”
The section was amended by the Workers Compensation Legislation Amendment Act 2004 which inserted the following after section 60AA(1)(c):
“(d) the assistance is provided in accordance with a Care Plan established by the insurer in accordance with the WorkCover Guidelines.”
It also deleted subsection (3) and inserted:
“(3) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance.”
The 2004 amendments do not apply to domestic assistance provided before 9 July 2004, but do apply to injuries received before that date (Schedule 6 Part 18H Clause 3 of the Workers Compensation Act 1987).
Section 61(2) provides:
“(2) The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment by order published in the Gazette.”
WorkCover Guidelines
In addition to the above sections the WorkCover Authority of NSW has issued ‘Guidelines for the Provision of Domestic Assistance’ (‘the Guidelines’) on 12 January 2004 and again on 15 October 2004. The later Guidelines replace the previous Guidelines. The Guidelines were issued under sections 376(1)(c) of the 1998 Act and section 60AA of the 1987 Act and are designed to “explain the operation of the workers compensation legislation relating to the provision of domestic assistance services to injured workers” and to “set out the procedures to be followed relating to the provision of domestic assistance services and the verification of the provision of those services” (Guidelines 15 October 2004).
The Guidelines further provide under paragraph 1.3 that:
“Care Plan for the Worker is that part of the Injury
Management or Case Management Plan that addresses
Domestic Assistance.”
The Guidelines set out a definition of “Care of the Worker” and “Domestic Assistance” as follows:
“Care of the Worker (also known as “personal care”)
applies to care that includes, but is not limited to:• Assistance with/supervision of transfers and
mobility,
• Assistance with/supervision of showering, bathing,
dressing, grooming, eating, drinking,
• Planning of daily activity – planning/arranging
outings, use of diary/calendar, assisting with
respondence [sic], assisting with telephone calls, and
• Preparing for and attending medical/therapy
appointments.
Domestic Assistance may include, but is not limited to:
• Household Cleaning – internal and external,
• Laundry,
• Meal Preparation,
• Shopping,
• Lawn/Garden care,
• Simple essential home maintenance such as changing
light bulbs or tap washers, and
• Child Care.”
In cases where the injured worker has been certified with at least 15% whole person impairment (it is agreed that the worker meets this threshold in the present case), the Guidelines make it clear that “a thorough on site Functional Assessment (or Functional Capacity Evaluation)” is to be completed by a relevant professional (Part 5.1).
On the question of the level of domestic assistance that can be approved by an insurer, the Guidelines state in Part 6.1:
“In the event the worker has been certified with at least
15% Whole Person Impairment (WPI), the worker is entitled
to all reasonably necessary domestic assistance.In these cases, the hours provided would be determined
based on medical/health professional recommendation
and application of the principles listed above. A thorough
functional assessment by an occupational therapist is required
as well as medical certification. Periodic review of the hours
required is essential and should be conducted according to
medical advice.”
For a worker with at least a 15% whole person impairment there is no limit on the length of time that domestic assistance can be provided (Part 6.2). Where assistance is required on a long term basis, periodic review of the injured worker’s circumstances is to be conducted (Part 6.2).
Part 7 of the Guidelines deals with “Compensation for Gratuitous Domestic Assistance Services”. A person claiming compensation for providing such services to the injured worker must provide evidence that they have lost income or foregone employment as a result of providing the assistance. In addition they must submit a diary of the assistance provided. Mrs Kumar has satisfied both of these requirements.
Part 7.4 of the Guidelines provides:
“7.4 Maximum amount payable
The maximum hourly fee amount for which an employer
is liable under the Act for gratuitous domestic assistance
services is the hourly rate calculated by dividing by 35 the
amount estimated by the Australian Bureau of Statistics as
the average weekly total earnings (full time adult ordinary
time) of all employees in New South Wales from time to
time. Compensation is not payable for more than 35 hours
per week.”
The Evidence
The evidence in the present case established that:
(a)a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that domestic assistance be provided and that the necessity for the assistance arises as a direct result of the injury (report Dr Buckley, consultant physician in rehabilitation medicine, 4 January 2004);
(b)the level of domestic assistance required was assessed by Helen Badge, occupational therapist, from Access Brain Injury Services in her report dated 10 April 2002;
(c)the assistance would not have been provided for the worker but for the injury (Dr Buckley);
(d)the injury has resulted in a degree of permanent impairment of the worker of at least 15% (agreed between the parties), and
(e)Mrs Kumar has lost income as a result of providing domestic assistance to her son (Mrs Kumar’s statement and oral evidence).
On the issue of whether the assistance provided by Mrs Kumar was and is being provided “in accordance with a Care Plan established in accordance with the WorkCover Guidelines” (Part 1.2 of the Guidelines) the Arbitrator stated at paragraph 16 of his Statement of Reasons for Decision (‘Reasons’) that “payment can be made pursuant to an agreed Injury Management Plan which was provided and is not in dispute here” (emphasis added). An Injury Management Plan was prepared on behalf of EMI. In addition EMI retained Helen Badge, occupational therapist, to prepare a comprehensive report on the worker’s care requirements in April 2002. In her report of 10 April 2002 it was noted that the worker required “24 hour supervision and support to live in the community, most of which is provided by his family, primarily his mother” (page four) (emphasis added). The report also noted that the worker was at risk of falls when negotiating the shower and getting to the toilet and that he required assistance to engage in activities at home. Though no issue is taken on this point, I believe that this document complies with the requirement for a Care Plan under the Guidelines.
There was additional evidence of the worker’s need for domestic assistance from Dr Buckley in his report of 4 January 2004. In that report he concluded at page 10 that:
“Mr Rajneel Kumar has a traumatic brain injury in the ‘extremely severe’ range with consequent physical, cognitive and behavioural deficits.
As a result of his severe deficits and heavy dependency upon others, he requires a full time live in carer, who will assist not only with his own supervision and assisting him with activities of daily living, but also carry out all the ordinary domestic chores, including cleaning, shopping, cooking and so forth.”
At page seven of his report Dr Buckley explained:
“The reason that Mr Kumar requires full time supervision is his poor insight and planning skills, which are likely to endanger him in the event of any difficulty arising, his poor capacity to care for himself, requiring another person to assist him with many of the ordinary activities of daily living, and his consequent inability to provide for himself in terms of personal and domestic hygiene, and personal nutrition.”
To prepare for the claim made by Mrs Kumar the insurer engaged a further occupational therapist in September 2004. Surprisingly, this occupational therapist, Ms Wunram, was instructed to “determine details of Mrs Kumar’s childcare work activities prior to her son’s injury, how her son’s injury impacted on her ability to perform childcare work from home and whether she will be able to undertake child care work in the future” (report Ms Wunram page one and transcript at page three line seven and at page 17 line 48).
Arbitrator’s Decision
The case proceeded before the Arbitrator on the basis that it was necessary to determine if Mrs Kumar had ‘lost income’ as a result of providing care to her son (section 60AA(3)) and, if so, what was the quantum of that lost income. The Arbitrator adopted that approach in his decision and noted that that approach was subject to compensation under section 60AA not exceeding the maximum amount payable per week for average adult weekly earning in NSW (Reasons paragraph 16). In fact the maximum compensation payable is set out in Part 7.4 of the Guidelines noted above.
The Appellant Employer does not challenge the award on the basis of an incorrect application of section 60AA or the Guidelines, but alleges that the Arbitrator wrongly calculated Mrs Kumar’s ‘lost income’ from her child minding activities.
Calculation of Lost Income
The evidence established that at the time of her son’s accident Mrs Kumar provided child minding services to her sister-in-law and a friend for five days per week. This involved looking after two children: one from 6.am to 3.00pm and the other from 7.00am to 8.45am and again from 3.00pm to 6.00pm. She was paid $150.00 per week for one child and $100.00 per week for the other (see statements from Kusum Narayan and Emicia Cunha). The Arbitrator accepted that this evidence established that Mrs Kumar was receiving $250.00 per week for her child minding services (Reasons paragraph 30). He then adjusted the figure to allow for holiday periods when no child minding would have been provided to arrive at an average figure of $221.00 per week over a 12 month period. This figure is not challenged on appeal.
The Arbitrator then adjusted the figure of $221.00 per week by 3% per annum for each year since 1 January 2002 to arrive at “a current compensation rate of $245.00 per week (rounded off)” (Reasons paragraph 30). The Arbitrator states that the 3% adjustment was “as discussed with the parties and nominated at the hearing” (Reasons paragraph 30). It is correct that the 3% was raised in submissions at the hearing by Mr Baker, counsel for Mrs Kumar. On appeal it is submitted that the 3% adjustment was agreed to by the parties at the hearing (Respondent Worker’s submissions paragraph two). The transcript records at page 48 line 47 that Mr Baker suggested that childcare rates would have increased by 3% a year from 2000 to 2005. In response to that submission the following exchange occurred:
“Mr Wardell: That would be a much more forceful argument if the Applicant were working under an award…
Mr Baker: Oh, yeah, all that’s true.
Mr Wardell: …or a more formal arrangement.
Arbitrator: That’s right.
Mr Baker: But, equally, there’s a demand for such things, and that has, you know, a certain figure. Anyway, whatever.”
In my view the 3% adjustment was not agreed and was not justified given the informal nature of the child care arrangements Mrs Kumar had in place and the fact that the service was provided to her sister-in-law and a friend. As Mr Wardell rightly pointed out, the payments were not made under an award and would not have been subject to annual adjustments of the kind envisaged by Mr Baker. In determining the ‘lost income’ under section 60AA it is not necessary or appropriate to apply the authorities relevant to a claim under section 40 of the 1987 Act. What is required is evidence of the income the carer has lost. That evidence established that Mrs Kumar lost $221.00 per week at the date of Rajneel’s accident. There was no evidence that the rate she charged was connected to the commercial rates for child care or that she intended to increase her charge at any time in the future. In these circumstances the Arbitrator was in error to adjust the figure of $221.00 per week by 3% per annum. On the evidence presented the correct figure for Mrs Kumar’s ‘lost income’ was $221.00 per week.
Level of Child Minding
The Arbitrator found that Mrs Kumar would have continued child minding at the same level until 2015. This raises two issues: whether that was in fact the case and whether the Commission has power to order compensation up to a fixed date in the future. As to the second issue, see under ‘Future Award’ below. As to the first issue the Appellant Employer argues that the evidence to support this finding was based on “unacceptable speculation and assumption in contravention of Rule 70, is against the evidence and the weight of the evidence and reveals that the Arbitrator has reversed or failed to consider the onus of proof” (Appellant Employer’s submissions paragraph seven).
At the Arbitration there was considerable evidence and debate about Mrs Kumar’s future income from child minding. In my view evidence about future intentions is not strictly relevant. The obligation to pay compensation arises once the pre conditions in section 60AA(1) are satisfied and it is established that the carer has ‘lost income’ or ‘foregone employment’ in order to provide the care. So long as the carer has not resumed receiving an income or has not returned to employment then, provided the other pre conditions in section 60AA are satisfied, the carer is entitled to receive compensation. In a claim like the present it is not for the Commission to speculate about future income or employment. If, at the time the award is sought, the section and the Guidelines are satisfied then compensation is payable. In my opinion the provisions of the section and the Guidelines were satisfied when Mrs Kumar ceased child minding to look after her son and continued to be satisfied as at 9 August 2005, the date of the Arbitration hearing.
If I am wrong in the view I have expressed in paragraph 40 above it is necessary to consider the evidence on this issue. It is argued that from 1 January 2005 Mrs Kumar would have ceased child minding and therefore her ‘lost income’ was nil at that date. In the alternative, it is argued that the level of her child minding activity would have decreased at that time. It is submitted that when cross examined about her future intentions with respect to child minding Mrs Kumar said “I don’t know”. The evidence on this issue is at page 22 line 37 of the transcript and is:
“Mr Wardell: And while you may have continued doing that for a time, how can you be certain that the arrangement would have continued?
A. [inaudible]
Q. Sorry?
Arbitrator: I don’t think – I think she said, ‘I don’t know.’ In other words, ‘I don’t think I can say what the situation was going to be.’
Witness: Yeah.
Arbitrator: It would be rare that I can hear better than anyone.
Mr Wardell: Q. And just to make my point clear, you weren’t running a child minding business; you were looking after two particular children who were the children of people who were close to you?
A. Mmm, mmm.
Q. You weren’t advertising for any other children?
A. No.
Q. And you don’t know whether or not that arrangement would have continued, for example, right up to the present time?
A. Yes.
Q. Sorry, yes, you don’t know or…
A. I don’t know.
Q. Right. And I take it you hadn’t discussed with them either way how long the arrangement would last? Had you talked to these two people about how long they thought the arrangement would last? I mean, for example, was it a fill in while they were looking for a childcare centre place or something like that?
A. [inaudible]
Q. Not really?
A. Mmm.
Q. But you’re really not sure?
A. Mmm”
In re examination Mrs Kumar gave conflicting answers to the question about whether she was going to continue to mind two children. She apparently said ‘no’ at first but the transcript records “inaudible” (transcript page 26 lines 25-35 and at page 27 line five) but at transcript page 27 line 15 the following is recorded:
“Q.Did you manage that okay? You enjoyed having the kids in the house?
A.Yes.
Q.You enjoyed having the money?
A.Yes.
Q. Very good. Maybe frame that in a question. Let’s go on and assume that Rajneel wasn’t in an accident.
A. Mmm.
Q. Had you intended to continue minding those two children?
A. Yes, yes.
Q. Okay. And if one of those children was not going to come to your place any more, did you propose taking on a second child in those circumstances to replace the one that was no longer there?
A. Yes.
Mr Wardell: Well, I object.”
In response to the objection the Arbitrator said at 28 line two “I’m quite conscious of your objection and I’ll weight it up in the way the questions were asked”.
The Arbitrator’s decision on this issue was set out at paragraph 36 of his Reasons where he said:
“Counsel for the Applicant made submissions which I find persuasive. There is a need for day care services in the western suburbs of Sydney near where Mrs Kumar resides. This, taken together with the income to be derived from the work she enjoyed and could be carried out in her home, the ongoing demand for such services and the comments of the parents of those children Mrs Kumar already cared for, all amount to a likelihood, on the balance of probabilities, of Mrs Kumar (but for her son’s injury) continuing with the work for quite some time yet. In light of these circumstances and from the available evidence, I am satisfied and find that it is more probable than not that the Applicant, but for her son’s injuries, would have continued to work for up to a further ten years.”
The above factual finding was open on the evidence presented. It is true that there was no evidence on the need for child minding services in the western suburbs of Sydney. However, that statement was only one part of the basis for the Arbitrator’s finding but was not an essential part. The Appellant Employer’s reliance on Rule 70 of the Workers Compensation Commission Rules 2003 (‘the Rules’) is misplaced. The Arbitrator did not rely on Rule 70 to inform himself about the need for child care in the western suburbs of Sydney. He accepted a submission made by counsel for the Respondent Worker. Though not stated by the Arbitrator, it was open to him to accept that submission under section 144 of the Evidence Act 1995 which provides:
“Matters of Common Knowledge
144(1) Proof is not required about knowledge that is not reasonably open to question and is:(a)common knowledge in the locality in which the proceeding is being held or generally, or
(b)capable of verification by reference to a document the authority of which cannot reasonably be questioned.”
It is also important to note the provisions of section 354 of the 1998 Act in these circumstances. That section provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) 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.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
In all the circumstances of this case and, having regard to section 354, it is my view that the Arbitrator was justified in reaching the conclusion set out at paragraph 36 of his Reasons and I see no error of fact, law or discretion on this issue.
The Appellant Employer’s alternative submission on this issue is that one of children Mrs Kumar was minding at the time of her son’s accident (‘Bryan’) would have started school by early 2005 and, therefore, would have required fewer hours of minding resulting in Mrs Kumar’s income being reduced by $50.00 per week. I reject this submission. The Arbitrator found that it was likely that Mrs Kumar would have continued with other children (Reasons paragraph 33). Having regard to all the evidence, that finding was open to him.
It is further submitted that the Arbitrator should have applied a “significant discount factor to take into account the vicissitudes inherent in the speculative approach adopted” by the Arbitrator (Appellant Employer’s submissions paragraph 16). I do not agree. Say Mrs Kumar had not been earning income from child minding but had been employed at a local business at the time of her son’s accident and that, as a result of his injuries, she ceased work in that business to care for him. If the business later closes down and the entire work force is retrenched, does that mean that Mrs Kumar would cease to be entitled to compensation under section 60AA? In my view the answer is ‘no’. The entitlement to compensation under section 60AA is determined at the time the carer first loses income or has to forego employment in order to provide care. Neither the section nor the Guidelines require the Commission to engage in an exercise to weigh up the competing vicissitudes and arrive at some weighted average.
If I am wrong in this approach then I believe the findings made by the Arbitrator were open to him on the evidence and were a fair and reasonable attempt to ascertain Mrs Kumar’s ‘lost income’ as a result of having to cease child minding as a result of her son’s injuries.
Future Award
The award is said to continue until 16 February 2015. The Commission has no power to make an award in the future. The parties correctly sought an award “to date and continuing” (transcript page 48 line four) and that is the award that should have been made. The award continues indefinitely subject to any further order of the Commission.
The Guidelines expressly state that “there is no limit on the length of time that domestic assistance can be provided” (Part 6.2).
The Arbitrator was in error in purporting to make an award until 16 February 2015.
Indexation of Award
The Arbitrator ordered that the award be adjusted on 1 April and 1 October each year by reference to the average weekly adult earnings in NSW. There is no power to order the award to be adjusted in this manner. The amounts of compensation in sections 25, 35, 37 and 40 are subject to the indexation provisions in Division 6 of the 1987 Act but that Division does not extend to section 60AA. Therefore, the Arbitrator was in error in ordering the adjustment of the award every six months.
DECISION
Paragraphs 1, 2 and 3 of the Arbitrator’s decision of 9 August 2005 are revoked and the following orders made:
“1. Award for the Applicant pursuant to section 60AA of the Workers Compensation Act 1987 in the sum of $221.00 per week from 1 January 2002 to date and continuing.”
Paragraph 4 of the Arbitrator’s decision of 9 August 2005 is confirmed.
COSTS
The Appellant Employer has succeeded on several peripheral issues but failed in its “primary submission” (Appellant Employer’s submissions paragraph 24) that Mrs Kumar was not entitled to compensation beyond 1 January 2005. In these circumstances it is appropriate that the Appellant Employer pays the Respondent Worker’s costs of the appeal.
Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
26 July 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.
ASSOCIATE
0
0