Johnson v Mayberry & Anor t/as Byron Palms Nursery
[2007] NSWWCCPD 132
•5 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Johnson v Mayberry & Anor t/as Byron Palms Nursery [2007] NSWWCCPD 132
APPELLANT: Ian Johnson
RESPONDENT: Paul Mayberry and Gail Mayberry t/as Byron Palms Nursery
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBERS: WCC7588-06
DATE OF ARBITRATOR’S DECISION: 21 August 2006
DATE OF APPEAL DECISION: 5 June 2007
SUBJECT MATTER OF DECISION: Weight of evidence; sections 40 and 43A of the Workers Compensation Act 1987; Mitchell v Central West Health Service (1997) 14 NSWCCR 527, and Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705.
PRESIDENTIAL MEMBER: Acting Deputy President Rod Weaver
HEARING:On the papers
REPRESENTATIONS: Appellant: Bourke Love McCartney Young
Respondent: Goldbergs
ORDERS MADE ON APPEAL: The decision of the arbitrator dated 21 August 2006 is revoked and the following orders made in its place:
1.The respondent employer is to pay the appellant worker weekly compensation from 7 May 2005 under section 40 of the Workers Compensation Act 1987 at the rate of $275.00 per week to date and continuing in accordance with the provisions of the Act.
2.The respondent employer be given credit for payments already made.
3.The respondent employer is to pay the appellant worker’s costs of the arbitration proceedings as agreed or assessed.
The respondent employer is to pay the appellant worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 18 September 2006 Ian Johnson (‘the appellant worker/Mr Johnson’) sought leave to bring an ‘Appeal against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 August 2006.
The respondents to the appeal are Paul Mayberry and Gail Mayberry t/as Byron Palms Nursery (‘the respondent employer/Mayberrys’).
Mr Johnson alleges that in December 2002 whilst moving heavy pots and spray equipment in the course of his employment with Mayberrys he suffered spinal pain and spasms which caused him to immediately sit down and rest. When the pain did not subside, he went home. A few days later he consulted his then general practitioner, Dr Crocker who ordered x-rays and placed Mr Johnson on light duties. Mr Johnson says that he found it difficult to complete the light duties and decided to take holidays but returned to work in early 2003. However, on his return to work he says there were no suitable light duties for him and he then left his employment with Mayberrys.
Mr Johnson says that his back pain did not diminish and he subsequently brought a claim (numbered 6886-04) which resulted in a consent lump sum payment pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) of $8,750.00 in respect of 7% whole person impairment.
Mr Johnson continued to receive weekly compensation pursuant to section 40 of the 1987 Act of $540.00 per week. On 16 February 2005, Allianz Australia Workers’ Compensation (NSW) Limited (‘Allianz’) for the Mayberrys, served notice of its decision to reduce the weekly payments by $304.40 following an assessment under section 40A of the 1987 Act. By letter dated 23 March 2005, Allianz served a second notice, following an assessment by Dr Oates, advising of its decision to reduce the weekly entitlement further to $19.00 per week.
On 16 May 2006, Mr Johnson lodged an Application to Resolve a Dispute in the Commission, citing the insurer’s reduction of weekly compensation payments as and from 23 March 2005 and claiming an amount in dispute of $540.00 per week.
The parties were unable to resolve their dispute and on 21 August 2006, the arbitrator issued a Certificate of Determination as follows:
“The determination of the Commission in this matter is as follows:
1.That leave be granted to amend the Application to Resolve a Dispute filed 17 May 2006 to claim weekly compensation from 7 May 2005.
2.That the Respondent pay the Applicant weekly compensation from 7 May 2005 under section 40 of the Workers Compensation Act 1987 at the rate of $40 per week to date and continuing in accordance with the provisions of the Act.
3.That the Respondent have credit for payments already made.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
On 15 September 2006, the appellant worker lodged in the Commission an Application to Appeal Against Decision of Arbitrator.
Mr Johnson submits that the arbitrator erred:
(a) in law in concluding that there was evidence that he could work in excess of twenty hours per week;
(b) in law in concluding that there was evidence that he was able to work as a computer technician, in that there was no evidence that he had any skills, training, education or experience which would support a conclusion that he was able to work as a computer technician;
(c) in fact, in concluding that he was able to work in excess of twenty hours per week, such a finding being against the evidence and against the weight of the evidence, and
(d) in fact, in concluding that he was certified by his GP to do full-time duties for a period exceeding 31 July, 2006, such a finding being against the evidence and the weight of the evidence (namely the certificate of Dr Ackerley, admitted into evidence as a late document).
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.
Neither party has sought leave to adduce fresh evidence. Both the appellant worker and the respondent employer submit that the appeal can be decided solely on the basis of the written material. Having regard to Practice Directions 1 and 6, the documents that are before me and the respective submissions of the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount of compensation at issue on appeal in this matter exceeds $5,000.00 and is at least 20% of the amount awarded in the decision appealed against. Section 352(2) of the 1998 Act is satisfied.
Section 352(4) of the 1998 Act provides that an appeal can only be made within 28 days of the decision appealed against. The Certificate of Determination was issued on 21 August 2006 and an appeal lodged by fax to the Commission on 15 September 2006. Therefore the appeal was lodged in compliance with the relevant section.
Leave to appeal is granted.
SUBMISSIONS AND EVIDENCE
The Appellant Worker
The grounds of appeal are set out in paragraph 9 above. The appellant worker makes no further submissions on appeal and relies upon the submissions made to the arbitrator at hearing.
At arbitration the appellant worker sought to rely upon a document filed under an Application to Admit Late Document being a letter from the appellant worker’s general practitioner, Dr Ackerley dated 31 July 2006. It is that report, upon which the appellant worker predominantly relies, in which Dr Ackerley makes clear his view that Mr Johnson is only fit to work four hours a day, five days a week in suitable light duties. That assessment is set out both in the Medical Certificate dated 31 July 2006 and in the doctor’s letter of the same date.
In his letter, Dr Ackerley states as follows:
“Thank you for your inquiry of 26 July about the hours of work for which (Mr Johnson) may be fit. I note the functional capacity reports which you have enclosed and am happy to report that I would agree with them. This means I must review the Workcover certification for that period.
I now consider that a 4 hour day, 5 days a week would be the maximum of (sic) which Mr Ian Johnson would be capable.
I have issued a new Workcover Certificate with the 4 hour day limit for the period from 20 January to 30 July.
I would not expect any future change in capacity at least in the short to medium term.”
It is not clear from the transcript nor from the list of evidence what “functional capacity reports” were enclosed by the appellant worker’s solicitors. However, it may be inferred that those reports were that of the physiotherapist Mr Sprogis and the vocational assessment provided by the assessment organisation, Recovre. Each of those reports is specific in assessing Mr Johnson’s fitness for work in suitable employment for four hours a day, five days a week and is relied upon by the appellant worker.
The appellant worker also relies upon the report of consultant neurologist Dr Boyce dated 9 February 2006, tendered at arbitration.
In his report, Dr Boyce notes the lack of assistance provided by CT scans performed in 2003 and an MRI scan, dated 19 April 2004, in explaining the appellant worker’s back problems. He does, however, state his opinion that the injury “only qualifies as a DRE2 lesion which has a 5-8% whole person impairment WHWPWI and I would agree with the previous 7% whole person impairment.” Dr Boyce notes that the appellant worker is “retraining as a computer technician and in my opinion would be able to carry this out as full-time duties.” There was no evidence before the arbitrator that the appellant worker had completed or would, in fact, complete, studies as a computer technician. Indeed, earlier in his report, Dr Boyce states that “ [Mr Johnson] is now studying computer science hoping (emphasis added) to obtain other employment”. Nor was there any evidence comparing the duties of a computer technician to other light duties which the Arbitrator ultimately found the appellant worker capable of undertaking full-time. In his report Dr Boyce effectively abdicates any occupational assessment function by stating “…the man claims not to be able to carry out his normal pre-injury occupation. This could perhaps be assessed by an occupational therapist.”
Mr Johnson gave evidence of a long and apparently consistent history of attempting to find work in a variety of occupations involving both light and heavy duties. The arbitrator was asked by counsel for the respondent employer to infer that the attempts to find such a broad range of work indicated a capacity to work full-time, notwithstanding that the appellant worker was not cross examined on this issue or at all. The arbitrator’s reasons do not indicate any weight being given to that submission.
The appellant worker pointed to the history of his consultations with Dr Crocker, his former GP, and his complaints of ongoing sciatica.
Reliance was also placed on the report of Dr Fuller dated 14 November 2003 in which that doctor noted that he believed there was:
“...a direct relationship between Mr Johnson’s present back and lower limb complaints and disabilities and the work injuries referred to above. I believe it most probable that there was some degenerative change affecting the spine prior to the work injury of mid-2002 and December 2002, which has predisposed to the injuries which have occurred.”
In summary, the appellant worker relied on the reports of Recovre, Dr Boyce, Dr Fuller, Mr Sprogis and, predominantly, on the revised assessment of Dr Ackerley in his report of 31 July 2006.
The Respondent Employer
In its submissions the respondent employer referred to the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSW CCR 527 (‘Mitchell’) and the five steps to be taken into account by an arbitrator in reaching a decision in relation to an award under section 40 of the 1987 Act. The respondent employer submitted that the arbitrator did not use her discretion in determining a weekly award under section 40 because the factual evidence was clear and the arbitrator clearly preferred the opinion of Doctors Ackerley, Boyce and Oates over “those not as qualified”.
The respondent employer also denied that the arbitrator erred in law in concluding that there was evidence that the appellant worker was able to work as a computer technician, because there was evidence that he was undertaking training and education which would provide him with the skills to support the conclusion that he was therefore able to work as a computer technician. The respondent employer does not, in its submissions, explain how an initial undertaking of training and a desire to obtain certain skills can lead to a conclusion that a worker is necessarily capable of attaining and working with those skills.
The respondent employer placed reliance on the statement of Dr Boyce that Mr Johnson would be able to carry out full-time work as a computer technician but did not refer to Dr Boyce’s failure to indicate a knowledge of the working conditions of a computer technician or that doctor’s failure to address, at any time, issues such as constant sitting and key work and the effect of that work.
The respondent employer noted the definition of “suitable employment” under section 43A of the 1987 Act and the necessity for an arbitrator to make findings of fact in relation thereto. The respondent employer pointed to the need to have regard to a worker's incapacity, pre-injury employment, work experience, education, skills and length of time unemployed.
At arbitration, the respondent employer made much of the apparent certification by Dr Ackerley from January 2005 to June 2006 that Mr Johnson was fit for restricted duties eight hours per day. This aspect is further relied upon in the appeal. However, those certifications were never clarified in terms of the number of days per week nor was it explained by Dr Ackerley in those certifications as to how the eight hours per day was affected by the reference to sitting up to 30 minutes and keying up to 30 minutes in the eight hours a day assessment.
At paragraph 3.2 of its submissions, the respondent employer submitted that it was within the discretion of the arbitrator to find that Dr Ackerley believed the appellant worker was able to work five days a week in suitable duties for the period in which the eight hour a day certifications were made.
The respondent employer also submitted that the onus is on the appellant worker to prove with evidence that he was unable to work more than 20 hours per week and that he had not done so.
DISCUSSION AND FINDINGS
A Presidential member on appeal has a specific and limited role in the review of a decision of an arbitrator. The review is not a rehearing. A Presidential member does not deal with a matter de novo and does not arrive at a fresh decision based on all the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential member to revoke the decision pursuant to section 352 (7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the arbitrator is affected by some legal, or factual discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential member may remit the matter to the arbitrator concerned, or to another arbitrator, for determination in accordance with any decision made.
At arbitration, it was noted that there was no dispute that Mr Johnson suffered injury as alleged, was partially incapacitated, that his probable earnings but for injury were $540.00 per week, and that the period for which compensation was claimed was from 7 May 2005 and continuing. The arbitrator referred in her decision to the “5-step exercise which one must perform under s.40”, clearly an appropriate reference to the observations of the Court of Appeal in Mitchell in which the Court of Appeal observed that the Court [or Commission] when considering an application under section 40 must:
(i) determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a));
(ii) determine “the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury” (section 40(2)(b));
(iii) subtract the figure derived from (ii) from the figure derived from (i) (section 40(2));
(iv) decide whether and to what extent the reduction calculated as above bears “such relation to the amount of that reduction as may appear proper in the circumstances of the case” (section 40(1)), and
(v) make an award in the amount arrived at in step (iv).
The arbitrator noted that the probable earnings but for the injury were agreed at $540.00 per week. The arbitrator then noted that she should take Mr Johnson’s actual earnings (agreed to be nil) “or his capacity to earn in some suitable employment” and then deduct that figure from the first figure as required by the third step. The arbitrator then noted that she was to exercise her discretion such as to decide whether or not the award that results “is a proper award to the applicant”, being the fourth step.
The arbitrator’s application of the steps observed in Mitchell on the surface appear sound. However, the Court observed in Mitchell that in considering step (ii) observant of the factors set out in section 40(3) must be considered. Those factors are:
(a) the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker, and
(b) the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.
For reasons set out below, it is apparent that the arbitrator failed to consider or properly consider the worker’s ability to earn in the general labour market reasonably accessible to him and had insufficient regard to suitable employment for the worker.
The arbitrator referred to Dr Boyce's report, noting the Doctor’s reference to lower back pain, but the lack of “concordant imaging study” and the fact that the exact cause of Mr Johnson’s current symptoms and ongoing incapacity was not known. Dr Boyce did not suggest Mr Johnson was not continuing to suffer back pain. Dr Boyce stated he believed that Mr Johnson would be able to obtain qualifications and employment as a computer technician. However, he did not set out the basis on which he believed Mr Johnson was able to carry out that occupation full-time or address what type of duties that occupation may entail. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA as he then was observed at [85]:
“… If evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of ‘specialised knowledge’; … and so far as the opinion is based on ‘assumed’ or ‘accepted’ facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matter are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.”
It is predominantly Dr Boyce’s report upon which the arbitrator placed the greatest weight notwithstanding the lack of foundation in Dr Boyce’s observations in regard to the appellant worker’s employment as a computer technician.
Dr Boyce does not suggest that Mr Johnson never genuinely suffered from the symptoms complained of. Indeed, Dr Boyce agrees with the previous section 66 assessment of 7%. The arbitrator, however, accepted Dr Boyce’s report as evidence, not only that Mr Johnson could undertake such work, but that Mr Johnson was capable of undertaking any light work full-time. Dr Boyce does not make that statement and, there is no definition by the arbitrator of what any “other lighter occupation” might be. There is no basis for this finding on the part of the arbitrator which is contrary to the principle that a Court should not act on unsubstantiated expert opinion.
Whilst Dr Fuller did not have access to the MRI in 2003, he did view the CT scan and noted that there was no abnormality from T8 to T12 nor L1 to L4/5. However, he did note “a slight posterior bulge of the disc, which did cause mild indentation of the thecal sac”. Dr Fuller at least provides a basis for the appellant worker’s symptoms. Dr Boyce failed to provide any explanation as to why the problems which were identified by Dr Fuller in 2003, had, in 2006, ameliorated sufficiently to allow for Mr Johnson to be capable of returning to work as a computer technician on a full-time basis.
Much was made in the respondent employer’s submissions and the arbitrator’s reasons of the fact that Dr Ackerley had from January 2005 until June 2006 provided certificates indicating that Mr Johnson was fit for suitable duties for eight hours a day. However, each of the medical certificates so relied upon were set out within the narrow parameters of the standard WorkCover NSW Certificate, in effect, in the following form:
“3.FITNESS FOR WORK: THE WORKER:
Is fit for suitable duties from -/-/05 to -/-/05.
The worker has the following capabilities for 8 hrs/day, days/week
Lifting up to 10Kg Walking up to
Sitting up to 30 mins Standing up to
Travelling up to 40 mins Keying up to 30 mins
Other”
As can be seen from the form, the appellant worker’s capacity in terms of hours per day was specified, but the days were not.
As is usual, Dr Ackerley did not give evidence and so was not tested as to the basis of his earlier assessments of the appellant worker’s capacity. Given that Dr Ackerley never specified the number of days per week that Mr Johnson was capable of working in suitable duties, it is unsafe to infer that those certificates can be read down to mean eight hours per day, five days per week. On one interpretation, the certificate could be read as assessing a capability on the part of the worker to work in a keying task for thirty minutes out of each hour of an eight hour day or, in effect, the worker could only undertake a keying task for four hours a day. This is also consistent with the stated capability in relation to sitting and the slightly higher assessment of capability in relation to travel.
It is in light of this uncertainty that the solicitor for the appellant worker, shortly before the hearing, quite properly sought clarification from Dr Ackerley and that clarification was provided. It might be suggested that the wording of the doctor’s letter of 31 July 2006 where he says that he must “review the Workcover certificate” implies that his original certificate was for eight hours a day, five days per week. However, without proper explanation from the doctor, this cannot be certain. In all the circumstances, the arbitrator’s finding that there was a “consistent certification after repeated review from the applicant’s general practitioner (that Mr Johnson was capable of suitable duties for eight hours a day, five days a week)” is inherently unsafe.
The arbitrator dismissed Dr Ackerley's reassessment of 31 July 2006 which clarifies his ambiguous, ongoing assessment of the preceding 18 months of eight hours a day without apparent consideration or explanation. The arbitrator placed weight on Dr Ackerley's previous assessments, yet dismissed the revised assessment. Further, the arbitrator failed to explain why, because Dr Ackerley did not previously, specifically prescribe the number of days per week the appellant worker could work, that it was then to be automatically inferred that the doctor meant eight hours a day, five days a week. This is a significant omission, given that that inference is soundly rebutted by the subsequent report of Dr Ackerley of 31 July 2006.
The arbitrator placed little reliance on the respondent employer’s case. The arbitrator found that:
“… the applicant’s own general practitioner was prepared to certify the applicant fit to do full-time duties, not in his pre-injury capacity but full-time light duties. This is consistent with the applicant’s own specialist medical evidence of Dr Boyce and also consistent with Dr Oates’ report, who was the occupational physician for the respondent. But, leaving aside the respondent’s case, it is consistent with the applicant’s own medical evidence.”
Dr Oates’ opinion is not consistent with that of Dr Boyce nor the other evidence relied upon by the appellant worker, particularly that of Dr Fuller. Dr Oates’ opinion is compromised by his assertion that Mr Johnson could return to his former, heavy duties full-time, a position not propounded at arbitration or, subsequently in submissions, by the respondent employer.
The arbitrator has ignored the fact that Dr Boyce does not dispute that Mr Johnson suffers ongoing problems. Nor has she properly addressed the unsupported assessment of Dr Oates which is not consistent with that of Dr Boyce. In reaching her conclusion, the arbitrator fails to give any weight to the reports of Recovre and Mr Sprogis and dismisses out of hand the 31 July 2006 assessment of Dr Ackerley.
The arbitrator states that:
“… in all of these circumstances and weighing all of the evidence, I am satisfied that the applicant has the capacity to work full-time in some lighter employment... Performing the exercise under section 40, an assessment of probable earnings of $540 less $500 leads to an award of $40 per week, and there is nothing that would lead me to exercise my discretion to have anything but that award of $40 per week.”
The arbitrator has determined that Mr Johnson is capable of working 38 hours per week at the hourly rate suggested by his solicitor, Mr Bourke, of $13.22.
However, in determining that Mr Johnson could work 38 hours per week, the arbitrator has not placed proper weight on the evidence before her in that she has dismissed the report of Dr Ackerley dated 31 July 2006 and the reports of Recovre and Mr Sprogis. In turn, she has placed unwarranted reliance on the report of Dr Boyce, notwithstanding the failure of Dr Boyce to lay a proper foundation for his opinions that the appellant worker is capable of working full-time as a computer technician.
In Mitchell the Court of Appeal observed that determination of a worker’s capacity to earn is to be made “having regard to suitable employment for the worker within the meaning of s.43A”. Section 43A(1) is as follows:
“43A Suitable employment
(1) For the purposes of sections 38, 38A and 40:
‘suitable employment’, in relation to a worker, means employment in work for which the worker is suited, having regard to the following:
(a)the nature of the worker’s incapacity and pre-injury employment,
(b)the worker’s age, education, skills and work experience,
(c)the worker’s place of residence,
(d)the details given in the medical certificates supplied by the worker,
(e)the provisions of any injury management plan for the worker,
(f)any suitable employment for which the worker has received rehabilitation training,
(g)the length of time the worker has been seeking suitable employment,
(h)any other relevant circumstances.”
In determining suitable employment, the arbitrator has placed too great a weight on the reference by Dr Boyce to Mr Johnson’s desire to work as a computer technician and has failed to define what she has referred to as “some lighter employment”. In so doing she has failed to pay proper regard to the provisions of section 43A and in particular sections 43A(a) and 43A(d).
Accordingly, the arbitrator has made findings of fact as to the appellant worker’s capacity which are unsupported by the evidence and therefore constitute errors of law (Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139). Further, the arbitrator’s reasoning does not sufficiently disclose the essential steps in the decision making process which again constitutes an error of law (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378).
At arbitration, Mr Bourke, the solicitor for the appellant worker, conceded that Mr Johnson had the capacity work four hours a day, five days per week as certified by Dr Ackerley. Mr Bourke suggested an hourly rate of $13.22 which comes to $265.00 for a 20 hour week. There was no demur from counsel for the respondent employer to that figure.
CONCLUSION
I find that the arbitrator has made an error of law in concluding that there was evidence that the appellant worker was capable of undertaking work as a computer technician on a full-time basis. I find that the arbitrator made an error of law against the weight of evidence that the appellant worker is capable of working in excess of 20 hours per week. Consequently, for the reasons given, the arbitrator’s decision to award ongoing weekly payments of $40.00 a week is revoked pursuant to section 352(7) of the 1998 Act.
I have before me the medical evidence, the parities submissions and a transcript of the arbitration proceedings in which the appellant worker gave brief evidence of his attempts to find work. As previously noted, the appellant worker was not cross examined. I consider that I have sufficient material before me to re-determine this matter and that is what I intend to do.
As the only issue in dispute between the parties was the degree of partial incapacity and the measure of that partial incapacity for the purpose of section 40, I consider it appropriate that I make a new award in place of the arbitrator’s award. That award should be consistent with the appellant worker’s submitted capacity as borne out in the evidence of Dr Ackerley and supported by the reports of Recovre and Mr Sprogis.
In determining the section 40 award and applying the steps as set out in Mitchell, I find that the sum submitted by the appellant worker’s solicitor of $13.22 is an appropriate hourly rate which the appellant worker would be able to earn in the general labour market accessible to him, four hours per day, five days per week. In dollar terms, that equates to a figure of $264.40. Taking that figure from the agreed probable earnings of $540.00 leaves a rounded amount of $275.00 per week. There is nothing before me that warrants the exercise of my discretion to reduce the award and I find that $275.00 per week to be the appropriate award pursuant to section 40 of the 1987 Act for the period from 7 May 2005 to date and continuing.
DECISION
The decision of the arbitrator of 21 August 2006, is revoked and the following decision made in its place:
(1) The respondent employer is to pay the appellant worker weekly compensation from 7 May 2005 under section 40 of the Worker's Compensation Act 1987 at the rate of $275 per week to date and continuing in accordance with the provisions of the Act.
(2) The respondent employer be given credit for payments already made.
(3) The respondent employer is to pay the appellant worker’s costs of the arbitration proceedings, as agreed or assessed.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Rod Weaver
Acting Deputy President
5 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROD WEAVER, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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