Kirk v Management & Training Corporation Pty Ltd
[2025] NSWPIC 23
•28 January 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Kirk v Management & Training Corporation Pty Ltd [2025] NSWPIC 23 |
| APPLICANT: | Brian Kirk |
| RESPONDENT: | Management & Training Corporation Pty Ltd |
| MEMBER: | Josephine Bamber |
| DATE OF DECISION: | 28 January 2025 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; dispute as to entitlement to weekly compensation pursuant to section 37; whether the applicant has incapacity for employment as a result of the agreed workplace injury in circumstances where he has returned to alternate full-time work; pursuant to section 37(2)(a) the respondent is to pay the applicant weekly compensation as follows: from 14 September 2023 to 30 September 2023 at the rate of $390.13 per week, from 1 October 2023 to 31 March 2024 at the rate of $430.32 per week, from 1 April 2024 to 13 July 2024 at the rate of $461.38 per week, and from 29 July 2024 to 15 September 2024 at the rate of $461.38 per week; the parties have liberty to apply in relation to the calculation of the average actual weekly earnings figure; Held – the respondent agrees to pay pursuant to section 60 the applicant’s claim for incurred treatment expenses up to the sum of $428.70 on production of accounts, receipts and/or Medicare Notice of Charge. |
| DETERMINATIONS MADE: | The Commission determines: 1. Pursuant to s 37(2)(a) of the Workers Compensation Act 1987 the respondent is to pay the applicant weekly compensation as follows: (a) from 14 September 2023 to 30 September 2023 at the rate of $390.13 per week; (b) from 1 October 2023 to 31 March 2024 at the rate of $430.32 per week; (c) from 1 April 2024 to 13 July 2024 at the rate of $461.38 per week, and (d) from 29 July 2024 to 15 September 2024 at the rate of $461.38 per week. 2. The parties have liberty to apply in relation to the calculation of the average actual weekly earnings figure. 3. The respondent agrees to pay pursuant to s 60 of the Workers Compensation Act 1987 the applicant’s claim for incurred treatment expenses up to the sum of $428.70 on production of accounts, receipts and/or Medicare Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Brian Kirk, the applicant, was employed by the respondent, Management & Training Corporation Pty Ltd, as a correctional officer at the Parklea Prison. On 29 April 2023 Mr Kirk sustained an injury to his back when working with an X-ray machine. The respondent’s workers compensation insurer, EML, has admitted liability for this injury but they dispute Mr Kirk’s entitlement to weekly compensation. Mr Kirk undertook subsequent employment with the respondent, Department of Communities and Justices and with Busways R1 Pty Ltd (Busways).
The Application to Resolve a Dispute (ARD) was amended with the weekly compensation claim starting on 14 September 2023 and ending on 15 September 2024 under s 37 of the Workers Compensation Act 1987 (the 1987 Act).
The claim for compensation under s 60 of the 1987 Act was agreed in the sum up to $428.70 on production of accounts, receipts and Medicare Notice of Charge.
The applicant did not press the claim for the future s60 expenses set out in the ARD.
The respondent agreed that the remaining issue in dispute was in relation to incapacity. The Pre-Injury Average Weekly Earnings (PIAWE) was agreed in accordance with the indexed amounts as appearing on page 2 of Mr Stanton’s wages schedule as follows:
29/04/23 to 30/09/23 $1,784.76;
01/10/23 to 31/03/24 $1,827.06;
01/04/24 to 30/09/24 $1,859.76, and
01/10/24 to date $1,896.59.
The respondent agreed that Mr Kirk received actual earnings in accordance with the calculations set out in Mr Stanton’s wages schedule excepting pay periods from 14 July 2024 to 28 July 2024 with Busways on the basis that there are no payslips for this period in the documents. I have now re-checked the filed documents. There are payslips from Busways in the attachments to the ARD and attached to Mr Stanton’s wages schedule; however, there none are included for the period 14 July 2024 to 28 July 2024. However, as discussed below Mr Stanton has not included any amounts from Busways for this two week period.
BEFORE THE PERSONAL INJURY COMMISSION
After extensive conciliation the matter could not be settled on terms agreeable to both parties and proceeded in Arbitration Hearing before me in person on 10 December 2024. Mr Ross Stanton, counsel, instructed by Ms Jennifer Norus, solicitor, appeared for the applicant, who was present. Ms Kavita Balendra, counsel, instructed by Ms Harman Kaur, solicitor and Paul Leonard from the insurer represented the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant dated 18 October 2024 attaching applicant’s wages schedule by Mr Stanton dated 18 October 2024 and payslips from Busways R1 Pty Ltd;
(d) applicant’s Wages Schedule Form;
(e) Application to Admit Late Documents filed by the respondent dated 2 October 2024 attaching report from Dr Anthony Smith dated 1 October 2024, and
(f) Application to Lodge Additional Documents filed by the respondent dated 3 December 2024 attaching documents from Northwest Health Medical Centre.
Oral evidence
There was no oral evidence. Both parties made oral submissions which have been sound recorded and a copy is available to the parties.
FINDINGS AND REASONS
Evidence summary
Mr Kirk is aged 64. He completed school at year 10 and then was an apprentice fitter machinist for four years. In 1983 he commenced work with the Department of Corrective Services as a correctional officer and has worked in various prisons for the Department and then for the private management companies of GEO Group and the present respondent.
After his injury on 29 April 2023 he was treated by his general practitioner, Dr Murugabalaji Kandasamy Mohan and undertook physiotherapy. In August 2023 he returned to work one day per week, then increasing to two days a week and returning to full time work on 25 September 2023. However, Mr Kirk states that he could no longer perform his pre-injury duties as a correctional officer and so he was assigned office duties. He says he was not able to stand for longer than 10 minutes or lift heavy objects. He says he stopped working for the respondent at the end of January 2024.
He describes his subsequent employment in his statement. He says he worked for the Department of Communities and Justice on a casual basis, working six days a fortnight initially teaching knitting to people doing community services. As his working days with the Department decreased he commenced other employment, such as with Busways as a driver in early June 2024. Mr Kirk says he wears a waist support belt prescribed by his physiotherapist. He says he can mow lawns but needs to take breaks more often and his wife assists with domestic chores. He says he avoids walking his dog as the pull on the leash aggravates his back. He says he stopped taking Endone in December 2023 and takes Panadol for his back pain.
I note the applicant’s general practitioner is referred to sometimes by the name Dr Balaji[1] which seems to be a contraction of his first name and sometimes by the surname Dr Mohan. The doctor’s full name is Dr Murugabalaji Kandasamy Mohan from the Northwest Health Medical Centre.[2] I will refer to him as Dr Mohan.
[1] See physiotherapist’s report dated 22 May 2023 ARD p 66.
[2] See ARD p 65.
Dr Mohan provided State Insurance Regulatory Authority (SIRA) Certificates of capacity which found Mr Kirk to have no current capacity for any work up to 24 July 2023. Then the certification changed to capacity for some type of work for five hours per day three days per week to 23 August 2023 with various restrictions such as lifting/carrying capacity of 5kg, standing tolerance 30-60 minutes with 15 minutes rest, sitting tolerance 30-60 minutes and change of posture, driving ability 30 minutes, and restricted bending/twisting/squatting, pulling and pushing abilities. On 24 August 2023 the same level of restrictions were certified with an increase to capacity for six hours of work a day for three days per week.[3] On 7 August 2023 Dr Mohan wrote that Mr Kirk was working towards his normal duties but in the interim considering his lower back injury and mental health status it is recommended that he takes non-custodial duties.[4]
[3] ARD p 45.
[4] ARD p 76.
In Dr Mohan’s clinical notes there are entries from him and Ms Bindu Gunturu, physiotherapist, about Mr Kirk’s treatment. In the period in issue from 14 September 2023 and ending on 15 September 2024 there are not many entries regarding his back. On 25 September 2023 the doctor notes that Mr Kirk would like to get back to full time work and his back pain is better. On 11 April 2024 there is reference to Mr Kirk’s desire to obtain a commercial driving licence as he was planning to drive a bus.
Ms Gunturu reported to the insurer on 22 May 2023 that on her examination of Mr Kirk there was limited spinal forward flexion limited by pain, tightness in his low back along with restriction in his spinal rotation. She says on palpation there was spasm, tenderness and inflammation in his low back which was central and right sided. In her report dated 23 June 2023 she advised that Mr Kirk’s pain intensity was affecting his day-to-day chores and functional capacity and she provided him with a back brace to enable him to stand upright, walk better with good stability. She also recommended a foam roller.
An Injury Management Consultant, Dr Barbara Schiff, reviewed Mr Kirk’s file and reported to the insurer on 25 May 2023. This report is of no assistance to me as Dr Schiff required details of Mr Kirk’s preinjury duties and recommended a functional capacity assessment and she thought an independent medical examination would be useful to determine liability of the claim.
Dr Andrew Leaver, a consultant musculoskeletal physiotherapist, provided a report for the insurer dated 3 July 2023. He recommended approving eight further physiotherapy sessions and work towards a return to work. The report is of little assistance to determine Mr Kirk’s capacity in the period claim as he has not examined him and the discussion he held with the treating physiotherapist, Ms Gunturu, is before the period claimed and he does not identify what would be suitable work for Mr Kirk.
Dr Anthony Smith, orthopaedic surgeon, provided a medico-legal report for the insurer dated 23 August 2023. Dr Smith states that lumbar degenerative disease can be aggravated in a severe fashion, sometimes with very little in the way of activity or no activity at all. He says that Mr Kirk overall has a consistent presentation. But then he goes on to opine that Mr Kirk “recovered from the exacerbation on 29 April 2023 with the first pain free period, which would have occurred after a number of hours, or a day or so, consequent to 29 April 2023”. However, in answer to question 7 Dr Smith states that Mr Kirk would be fit to work in his usual occupation if he does not have to engage in bending and lifting on repetitive or continuous basis, heavy lifting and sustained stooping. He concludes by asserting that there are no symptoms present now consequent to the work exacerbation on 29 April 2023.
Dr Yuk Kai Lee, orthopaedic surgeon, provided a medico-legal report dated 7 December 2023 for the applicant. He found that Mr Kirk’s injury had aggravated the facet degeneration in his back, referring to the CT scan showing facet joint degeneration at L4/5 and L5/ S1. He finds that Mr Kirk cannot return to his pre-injury duties as he may risk injuring himself and others because he cannot handle emergencies and he cannot lift heavy objects. He found the office work Mr Kirk was doing was appropriate. He does not comment on work as a bus driver because Mr Kirk did not commence doing this until 2024.
Dr Smith provided a second report dated 1 October 2024 after re-examining Mr Kirk on 11 September 2024. He has the history that Mr Kirk had left the corrective services job in September 2023 and was now working as a bus driver on a full time basis. He records that Mr Kirk said he has ongoing right low back pain and in the right leg with occasional pins and needles. Dr Smith opined that Mr Kirk has “symptomatic lumbar degenerative disease. The incidence of that pathology in all men and women of his age group, aged 60 and over is 100%”. He repeats his earlier finding that the work related aggravation would have resolved on its own after a number of days or weeks or at the most three months post injury.
This finding causes me to doubt Dr Smith’s opinion because he does not really give a reason why the aggravation would have ceased in that short time frame. In his earlier report he had stated at one point that severe aggravation of lumbar disease can occur with activity or no activity. Yet he allows that there was aggravation in Mr Kirk’s case with the activity he described using the X-ray machine but as I have found gives no reasons why the aggravation would have ceased. The treating physiotherapist’s report dated 22 May 2023 lends support to the conclusion that Mr Kirk’s lumbar injury had not resolved as quickly as found by Dr Smith.
Dr Smith acknowledges that Mr Kirk had no history of back problems prior to April 2023. Dr Smith finds that Mr Kirk is fit to do full time bus driving.
Submissions
Mr Stanton submitted that Mr Kirk’s evidence is he was not able to return to work as a prison officer because he was not able to physically restrain offenders. He submits that Mr Kirk has given evidence in his statement that he was given office work, but it was not as remunerative so he sought alternate work. Mr Stanton submitted that the payslips he has summarised in his wages schedule confirms the lesser pay doing the office work. Mr Stanton submitted that Mr Kirk then commenced work with Department of Communities and Justice but when he discovered it was more casual than he wanted he sought further alternate work.
It was submitted that to commence work as a bus driver, a new career, at his age was a commendable thing for Mr Kirk to do. The reason the claim is a closed period is because Mr Kirk injured his leg in the Busways employment.
Mr Stanton submits that the actual earnings when averaged is $1,227 per week. Mr Stanton submits that Mr Kirk is entitled to weekly compensation at the 95% of PIAWE rate less the actual earnings because he was working more than 15 hours per week.
He submits the question is, is there an entitlement to weeklies over the claimed closed period? Mr Stanton submits that the Commission should find there is continued incapacity in this period because the only contrary evidence is from Dr Smith. He argues that the Commission should accept that Mr Kirk is a truthful witness, that there has been a persistence of symptoms which prevents him from being a prison officer and that this is powerful evidence, and Dr Smith’s evidence should be rejected.
It was submitted that the medical certificates end when the respondent declined the claim for weekly benefits. However, as at September 2023 Dr Mohan had included physical restrictions on the medical certificate he issued. Mr Stanton acknowledged that Mr Kirk, as a bus driver, has been able to do better than Dr Mohan has certified. Mr Stanton submitted it should be found that Mr Kirk has exercised the full extent of his residual earning capacity.
He relies on Wollongong Nursing Home Pty Ltd v Dewar[5] and submitted that Roche DP found that one had to look at a “real job” to ascertain what a worker’s capacity for employment is. Mr Stanton referred to the factors in s 32A of the 1987 Act in the definition of “suitable employment”. He submitted the employment of a bus driver is available because the worker has this employment and clearly his age and background cannot be found to be contrary to Mr Kirk performing this work. He said the evidence supports that he cannot do work as prison officer. Mr Stanton submitted that the Commission should find Mr Kirk’s ability to earn in suitable employment is by virtue of what he has been able to do. He is hard working and diligent and so the difference in earnings in the wages schedule is his loss and therefore his entitlement to weekly compensation.
[5] [2014] NSWWCCPD 55, Dewar.
The respondent submitted that the first thing to find is whether the applicant has an incapacity for work. It was argued that Dr Lee’s report is dated 7 December 2023 and so it does not cover all of the period claimed. It was submitted that Dr Lee just found that the only incapacity of which Mr Kirk suffers is the inability to handle emergencies in a prison. It was further submitted that the closest evidence about capacity is from Dr Smith in his report of 1 October 2024 and that Dr Smith states that Mr Kirk is fit for full time bus driving. Ms Balendra submitted that the only reason why Mr Kirk has changed jobs is because of the money and not due to incapacity from the accepted injury. She argues that the fact is that he found the alternate duties with the Department was more casual than he wanted. She submits that there is no other medical evidence providing a basis for a finding of incapacity for the period claimed apart from Dr Smith.
She submitted that Mr Kirk’s treating general practitioner’s records show that he did seek treatment for a time following the injury, but then there is a long gap when he did not see the doctor. In April 2024 he returned to the doctor to obtain a commercial driver’s licence medical examination and after that there are no attendances about his back injury.
It was submitted that the Commission cannot be satisfied that Mr Kirk suffers an ongoing incapacity as a result of the accepted injury or that any incapacity founds an entitlement to weekly payments under the 1987 Act. The respondent submits that it is the applicant’s claim and it is up to him to provide the evidence about his wages and there are missing the payslips for his earnings from Busways in the period noted at the outset, 14 to 28 July 2024.
In reply, Mr Stanton submitted that Dr Smith does accept that Mr Kirk has some restrictions in the work he can do. He does not say that Mr Kirk is fit to return to work as a prison officer. He finds he is fit to be a full time bus driver. Mr Stanton submits that a worker can have an incapacity without seeing a doctor as an injury can stabilise to a level and there can be no immediate purpose for seeing a doctor.
I asked Mr Stanton, if in fact there are no payslips for the two week period before the Commission, as submitted by Ms Balendra, should I decline to make an order for weekly compensation in that period. He submitted that would be the best approach. Ms Balendra submitted that I should make the order for the periods of time that there is evidence for incapacity.
Determination
Legislative provisions
Section 37(2)(a) of the 1987 Act provides that for a worker who has current work capacity and has returned to work for not less than 15 hours per week he is entitled to 95% of his PIAWE, less the workers current weekly earnings.
“Current work capacity” is defined in Schedule 3, cl 9 of the 1987 Act as follows:
“…if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
“Current weekly earnings” is defined in Schedule 3, cl 8 of the 1987 Act as follows:
“‘Current weekly earnings’, of an injured worker in relation to a week, means whichever of the following is the greater amount--
(a) the worker's actual gross earnings in respect of that week,
(b) the weekly amount that the worker is able to earn in suitable employment.”
Section 32A of the 1987 provides that:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
The parties agree that Mr Kirk falls within s 37(2)(a) because he has worked for more than 15 hours per week in the period claimed from 14 September 2023 to 15 September 2024.
The respondent has objected to me making an award in Mr Kirk’s favour in the period 14 July 2024 to 28 July 2024 because there are no payslips before the Commission for the work performed at Busways. I have checked the documents filed and these payslips are missing.
However, Mr Stanton did not in fact include in his schedule an amount of earnings for these weeks from Busways. His schedule has the relevant entry from Busways “14/07/24 944.36” The payslip at page 133 of the ARD is for $944.36 for the period “08/07/24 to 14/07/24”. The next line in Mr Stanton’s schedule is “04/08/24 1699.50” and the corresponding payslip from Busways is at page 135 for the pay period “29/07/24 to 04/08/24”.
Although, Mr Kirk was paid from the Department of Communities and Justice for the period 15 July 2024 to 28 July 2024 $171.29 which is in Mr Stanton’s schedule and the corresponding payslip is at page 134 of the ARD.
However, when checking Mr Stanton’s schedule it appears there is an error with his figures for earnings with the respondent. He has “10/10/23 1695.53” the dates he uses appear to be the pay dates and the corresponding payslip is at page 99 of the ARD and the figure for normal hourly pay is $2,210.46 not $1,695.53 (this was the amount on the earlier payslip at page 98 when workers compensation in that sum was paid.) The other error is in the next line when Mr Stanton has “24/10/23 2,210.46” and the corresponding payslip is at page 100 of the ARD with the correct figure being $3,157.80. (I note the early payslips were issued in fortnightly intervals and the later ones in monthly intervals.)
The balance of the figures in Mr Stanton’s list for actual earnings with the respondent appear to correspond to the payslips. However, because of these two errors the total for the earnings with the respondent should be $1,462.28 more adding to the total of $27,905.59 not $26,443.31. This means that his total actual earnings for all three employers is $67,880.23 not $66,417.95. Divided by 52 weeks the average actual weekly earnings figure is $1,305.39 not $1,277.26, a difference of $28.13 per week.
The respondent did not object to the applicant using averaging for the actual earnings over the period in question and they agreed to the figure of $1,227.26. However, given the error I found I propose to use the correct figure of $1,305.39 but give the parties liberty to apply since they have not had the opportunity to make submissions on my calculation.
Adjusting Mr Stanton’s final table the claim should be:
Period
PIAWE
95% PIAWE
Average actual earnings
Difference/ claim per week
14/09/23-30/09/23
$1,784.76
$1,695.52
$1,305.39
$390.13
01/10/23-31/03/24
$1,827.06
$1,735.71
$1,305.39
$430.32
01/04/24-15/09/24
$1,859.76
$1,766.77
$1,305.39
$461.38
I find the evidence is overwhelming that Mr Kirk cannot perform his pre-injury duties as a corrections officer. I accept Dr Lee’s evidence that Mr Kirk cannot do this work because he cannot respond in an emergency and if called upon could not physically restrain a prisoner. I do not accept Dr Smith’s view that Mr Kirk has recovered from any exacerbation of underlying degenerative changes in his low back for the reasons I have given above.
I accept the submission that Mr Kirk is a credible witness and he has proved to be diligent in attempting to obtain work since his injury. Dr Smith found him to be a consistent witness. I accept the evidence in his statement at [37] that work as a corrections officer is not suitable employment for him physically due to his injury.
It would have assisted me had his statement dealt in more detail with how he finds the work as a bus driver. I note he needs to wear a waist belt to assist his posture. Dr Lee opined the work in the office was within his capability and the only doctor to comment on the work as a bus driver is Dr Smith who advised he could do this full time. Mr Kirk has demonstrated his capacity to perform this work, given his earnings from Busways.
There has been no contest in the parties’ submissions that work as a bus driver is suitable employment in accordance with s 32A of the 1987 Act and I so find because Mr Kirk has demonstrated this capacity notwithstanding his age of 64 and the lack of prior work experience in this type of work.
Section 37(2)(a) of the 1987 Act requires me to deduct his current weekly earnings from 95% of the PIAWE figure. As set out above the currently weekly earnings is the greater of his actual gross earnings and the amount he is able to earn in suitable employment.
On the evidence before the Commission I find I can only conclude that Mr Kirk can only earn in suitable employment his actual earnings. There is no evidence that he could earn greater sums as a bus driver or in other suitable employment. The applicant does have the onus of proof and he relies upon his earnings as demonstrating his capacity. The respondent submits that Mr Kirk left his other jobs because due to financial concerns not because of his injury. I find this is evidence that Mr Kirk has endeavoured to increase his earning capacity.
He also cites the case of Dewar. I do not find Dewar to be particularly helpful in the current matter. Clearly Mr Kirk has found a “real job” he can perform and it is suitable employment. The medical evidence in this period is quite sparse. There is no vocational or rehabilitation assessment suggesting that Mr Kirk is not performing to his full capacity. Dr Smith took a history from Mr Kirk that he was working full time as a bus driver and that he has ongoing right low back pain and pain in the right leg with occasional pins and needles. Dr Smith found in this recent report that Mr Kirk had symptomatic lumbar degenerative disease. I have not accepted Dr Smith’s views about recovery within days, weeks or three months of the injury but it is relevant that Dr Smith found he was symptomatic. Even though I do not accept his view as to the cause of Mr Kirk’s ongoing symptoms, Dr Smith concluded that Mr Kirk was fit for his current employment and it was suitable for him.
I find the amount Mr Kirk can earn in suitable employment, particularly because he still has symptoms and noting his age, is equivalent to the amount of his actual earnings.
I find that applying s 37(2)(a) of the 1987 Act Mr Kirk is entitled to weekly compensation as follows:
(a) from 14 September 2023 to 30 September 2023 at the rate of $390.13 per week;
(b) from 1 October 2023 to 31 March 2024 at the rate of $430.32 per week;
(c) from 1 April 2024 to 13 July 2024 at the rate of $461.38 per week, and
(d) from 29 July 2024 to 15 September 2024 at the rate of $461.38 per week.
I will not make an award for the period 14 July 2024 to 28 July 2024 because I cannot calculate Mr Kirk’s actual earnings for that period from Busways. Even if I were to infer the figure for this two weeks would probably be in the range of the average actual earnings, then that would mean I would have to in turn add this figure into the calculation of the average actual earnings because as I have endeavoured to explain Mr Stanton did not in fact include such figures in his calculations. Because of the difficulty it presents in the calculations I do not propose to make such an inference. No party suggested such an approach. In any event, the effect on the outcome for these two weeks is de minimus.
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