McDonald v North Coast Area Health Service - [2009] NSWWCCPD 50

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		McDonald v North Coast Area Health Service [2009] NSWWCCPD 50
APPELLANT:		Colin McDonald
RESPONDENT:		North Coast Area Health Service
INSURER:		GIO General Ltd – Treasury Managed Fund
FILE NUMBER:		A1-8897/08
DATE OF ARBITRATOR’S DECISION:		9 February 2009
ARBITRATOR:		Mr R Whitelaw
DATE OF APPEAL DECISION:		14 May 2009
SUBJECT MATTER OF DECISION:		Section 40(2A) of the Workers Compensation Act 1987; unreasonable rejection of suitable employment
PRESIDENTIAL MEMBER:		President, His Hon. Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Higgins & Higgins
Respondent:	DLA Phillips Fox
ORDERS MADE ON APPEAL:		1. Paragraph 1 of the Arbitrator’s determination of 9 February 2009 is revoked and the question of the worker’s entitlement to weekly compensation from 18 November 2007 to date and continuing is remitted to a different arbitrator for re-determination in accordance with the reasons in this decision.

2. Paragraphs 2, 3 and 4 of the Arbitrator’s determination of 9 February 2009 are confirmed.

3. Respondent to pay the Appellant’s costs of the Appeal in the sum of $500.00.

BACKGROUND TO THE APPEAL

On 26 February 2009 Colin McDonald (‘the worker/appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 February 2009.
The Respondent to the appeal is North Coast Area Health Service (‘the employer/respondent’).
The appellant is 40 years of age. He is a married. His wife is not dependant but he has a dependant son aged 3 years.
Mr McDonald is a registered nurse and has been nursing since 1990. He studied ‘enrolled nursing’ at Wetherill Park TAFE in 1990 and practised as an enrolled nurse until 1999. During that time he worked at Westmead Hospital. In 1997 he commenced his ‘registered nurse’ training at the University of Western Sydney and completed his degree in 1999. His employment history includes three years at Liverpool Hospital, three years at Nepean Hospital and two years at Wauchope Hospital as a registered nurse in a full-time capacity.
On 27 May 2006, while working at Wauchope Hospital, Mr McDonald sustained an injury to his left shoulder when attempting to assist a large male patient, weighing 150kg, from a chair.
Mr McDonald sought treatment from his general practitioner, Dr Jan Snow. He submitted to physiotherapy over several months, which failed to resolve the pain in the shoulder. He remained at work during this period on light duties but in view of his failure to improve he was referred to an orthopaedic specialist, Dr Yong Liaw, in October 2006.
Dr Liaw initially treated the worker with cortisone injections into his shoulder, which gave some short-term relief. He then organised an MRI scan, which showed a partial tear of the infraspinatus tendon.
Dr Liaw carried out an arthroscopic subacromial decompression, repair of a torn labrum and a mini-open excision of the distal clavical in November 2006, at Port Macquarie Private Hospital. Following his surgery the worker underwent further physiotherapy and the shoulder was immobilised for eight weeks.
Mr McDonald was off work for three months after the surgery, and then returned to work at the end of January 2007 on decreased hours, initially working two days per week, four hours per day, gradually returning to normal hours but still on restricted duties by the time he resigned.
On 9 November 2007, the worker resigned his employment as a full-time registered nurse, expressed to take effect in two weeks time, that is, on 23 November 2007. In his letter of resignation, Mr McDonald stated that he was resigning as a result of the employer’s refusal to accommodate his request to adjust his roster. The request was prompted by a change in his domestic situation, which required him to undertake care of his young son on Mondays and Tuesdays following his wife’s return to full-time employment. There was no mention in the letter of resignation that it was prompted by any concern about his capacity to undertake full-time unrestricted duties.
On 12 November 2007, Mr McDonald wrote a further letter to his employer requesting the opportunity to remain on the casual nursing staff. On 1 July 2008 Mr McDonald took up casual employment as a community nurse with Stanhope Health Care Services Pty Ltd.
By letter dated 3 July 2008 from his solicitors, Mr McDonald made a demand for weekly compensation from 18 November 2007, together with lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of the impairment to the left shoulder.
By letter date 14 July 2008, GIO General Limited Treasury Managed Fund (‘the GIO’) wrote to Mr McDonald’s solicitors (erroneously referring to the worker as “Mr Collins”) accepting that the worker was entitled to compensation under section 66 but disputing the quantum thereof. The claim for weekly benefits was rejected on several grounds:
(a)     the worker was certified fit for his pre-injury duties on 18 December 2007 by Dr Snow;
(b)     the worker resigned his full-time employment to accommodate family care obligations due to his wife returning to fulltime work on 20 November 2007;
(c)     the worker elected to leave fulltime employment and requested that he go onto a casual list so that he could arrange his shifts as needed to fulfil family obligations, and
(d)     based on the certificate from Dr Snow, the worker was fit for fulltime employment and suffered no incapacity.
The Commission registered an Application to Resolve a Dispute (‘the Application’) lodged by Mr McDonald on 7 November 2008. The Application sought weekly payments of compensation of $1,000.00 per week from 18 November 2007 to date and continuing. The claim was based on alleged actual earnings of $500.00 and probable earnings of $1,500.00. The worker also sought lump sum compensation in respect of the impairment to the left shoulder.
In so far as the claim for weekly compensation is concerned, in a letter from the worker’s solicitors, Higgins & Higgins, dated 10 December 2008 the claim was couched in these terms:
“The applicant is partially incapacitated in the open labour market. The Applicant is able to perform full duties with assistance and care but is unable to perform overtime and additional shifts as he is in pain from performing full duties. He estimates this loss at approximately $200.00 per week”
The employer filed a Reply to the Application (‘the Reply’) on 28 November 2008 confirming the matters referred to in its notice of 14 July 2008 and raising certain additional matters.
The matter was listed for conciliation and arbitration on 15 January 2009. Both parties were represented before the Arbitrator. The Arbitrator did not determine the Application but heard full argument on all issues. It was agreed at the arbitration that the worker’s comparable wage but for the injury would be $1,300.00 per week and his current actual wages are $670.00 per week.
In a reserved decision delivered on 9 February 2009 the Arbitrator entered an award for the respondent in respect of the worker’s claim for weekly compensation. The claim under section 66 was remitted to the Registrar for referral to an Approved Medical Specialist. The respondent was ordered to pay the worker’s reasonable and necessary expenses pursuant to section 60 of the 1987 Act upon production of accounts or receipts.

THE DECISION UNDER REVIEW

The Commission issued a Certificate of Determination on 9 February 2009 and in the following terms:
“The Commission determines:
1.        Award for the Respondent in respect of the Applicant's claim for weekly compensation.
2. That the Applicant's claim under s66 of the Workers Compensation Act 1987 be remitted to the Registrar for referral to an Approved Medical Specialist:
Date of Injury:
27 May 2006
Injury:
Left upper extremity
Documents to be sent to AMS:
Documents with Application
Documents with Reply
Documents with Application to Admit Late Documents dated 15 December 2008 and 24 December 2008.
3. That the Respondent pay the Applicant’s reasonable and necessary expenses pursuant to s60 of the Workers Compensation Act 1987 upon production of accounts or receipts.
4.        That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 26 February 2009 Mr McDonald seeks leave to appeal the Arbitrator’s decision.

LEAVE TO APPEAL

Monetary Threshold

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’).
There is no issue that the monetary thresholds in section 352(2) are satisfied.

Time

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.

REVIEW

The concept of ‘review’ under section 352 of the 1998 Act was considered by the Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 (‘Chemler’), where, Spigelman CJ (with whom Basten JA and Bryson AJA agreed) observed at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
The nature of the “review” under section 352 of the 1998 Act has most recently been considered by the NSW Court of Appeal in Sapina v Coles Myer Limited [2009] NSWCA 71. The Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator in the course of which the Deputy President approached his task by examining whether or not error had been displayed in the reasoning of the Arbitrator. It was held (Allsop P and Hoeben J, Beasley JA agreeing) that such was the incorrect test for the task of review of the decision under the 1998 Act.
In the joint judgment of Allsop P and Hoeben J is an extensive and detailed examination of relevant authority concerning the proper construction of the term “review” ([17]-[59]). Following discussion of the authorities it was stated (at [57] and [58]):
“57. Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.
58. Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.”
I propose to apply these principles in the matter before me.

THE EVIDENCE

The Application contains a document that purports to be a statement by Mr McDonald. The statement is unsigned and undated. It was admitted in evidence without objection by the employer. There was no attempt made during the course of the arbitration to have the worker adopt the statement. The statement is silent on a number of critical issues including, the circumstances of the injury and subsequent aggravations, the nature and range of duties and hours of work with the respondent and with the subsequent employer, and the impact the worker’s injury had on his capacity to carry out his duties as a registered nurse.
The Application contains a report from an orthopaedic surgeon, Dr D. O’Keefe, dated 27 June 2008. Dr O’Keefe examined Mr McDonald at the request of his solicitors. Dr O’Keefe noted that Mr McDonald was injured whilst he was helping a large patient (150kg) out of a chair. The patient’s feet started slipping forward so he had to put his arm out behind the patient to break the fall and suffered an injury to his left shoulder. Dr O’Keefe confirmed the diagnosis of a partial tear of his infraspinatus tendon.
Dr O’Keefe went on to note that until his injury Mr McDonald had been a very keen sportsman playing cricket, golf, swimming, motorcycle riding etc, but is now unable to throw a ball, has difficulties sleeping and has suffered considerable depression as a result of the injury. At the time of the examination it was eighteen months post the operation. The worker claimed that he was a lot better than he had been, but still gets a loud “clunk” in his shoulder that can be painful and he still can’t sleep on it. The range of motion had improved since the accident. The doctor noted tests for rotator cuff integrity were quite good but movement in just about any direction caused a loud “clunk” in his shoulder. Dr O’Keefe confirmed the radiological investigations, included an ultrasound on 10 November 2006, which showed a partial thickness rotator cuff tear and an obvious labral detachment evident on the MRI scan dated 21 July 2006. Dr O’Keefe noted that the worker was still restricted from his sporting activities although he had returned to fulltime work as a district nurse, which does not involve much heavy lifting. He said, “He is managing reasonably well”. He assessed that Mr McDonald would be unfit for work overhead or for repetitive lifting using his left arm. He assessed a 4% whole person impairment.
The worker relied on a brief report of Dr Yong Liaw, orthopaedic surgeon, dated 9 November 2006. The report is addressed to Dr Jan Snow and is a report of the operation on the left shoulder. The report identifies the diagnosis as “left shoulder RC tendonitis with labral tear and AC joint OA”. The description of the operation is indeed in these terms “left shoulder arthroscopic subacromial decompression, repair of torn anterior labrum and mini-open excision of distal clavicle”.
Dr Liew sent two follow-up reports were sent to Dr J. Snow, general practitioner, the last dated 12 June 2007. He noted continual improvement and that the worker had returned to “near full duty”. He recorded that the worker had complained of pain with repetitive activities and with lifting and has occasional painful clicking. He was using Brufen and Panadol for relief of pain. Clinically there was a good range of movement with mild tenderness over the distal clavicle. He recommended that Mr McDonald continue with his shoulder exercises within range of motion, stretching, strengthening and suggested a review in three months.
In a further report by Dr Liaw on 1 August 2007, Dr Liaw also referred to the swimming pool incident on 4 July 2007 (see [39] below) and to an incident that occurred on 20 July 2007 when Mr McDonald was stated to have fallen in the shower onto his left hand with increased pain in the left shoulder. The doctor noted that Mr McDonald had returned to pre-injury duties on 16 June 2007. He was coping well until the aggravation occurred on 4 July 2007. This was the final report from Dr Liaw.
Dr Snow, provided a report to the GIO on 12 June 2007. He stated:
“Colin has been on unrestricted duties at work for some weeks now, although maintains strict adherence to the ‘red dot’ code whereby no staff member is allowed to lift more than a certain weight”.
Dr Snow went on to record the details of an episode that occurred on 4 July 2007 whilst at the local swimming pool Mr McDonald sat on the side of the baby pool and was attempting to climb out of the pool and in so doing took the weight of his body on his shoulders. Dr Snow opined that this was a normal daily living task which in a healthy person would not have been a product of injury. He regarded the incident as a reoccurrence of the original injury.
Copies of WorkCover medical certificates spanning the period 31 May 2006 to 18 December 2007 by Dr Snow were attached to the Application. Several of the certificates relate to Mr McDonald’s return to work at various stages of his return to work plan, however, the plan itself was not introduced in evidence.
The final medical certificate was issued by Dr Snow on 18 December 2007. In fact, there were two certificates issued on that day. The first indicated that the worker had reached “maximum medical improvement and is fit for permanently modified duties from 18 December 2007”. The second certificate, bearing the same date, also issued by Dr Snow certified the worker fit for pre-injury duties from 18 December 2007. He noted that this corrected his earlier certification in section 3 of the certificate. He dated and initialled the correction.
Much of the Arbitrator’s decision in this matter turned upon the terms of the worker’s resignation of 9 November 2007. For that reason I extract it in full.
“To Whom It May Concern:
I am writing to inform you of decisions that have been made regarding my employment at Wauchope District Memorial Hospital following a discussion had with Ms Y. Carmichael (Nurse Manager) on 8/11/2007 at approximately 09.50hrs.
I made an appointment with Ms Y. Carmichael for the 8/11/2007 at 10.00hrs to discuss my need for roster adjustments due to a change in my home circumstances. My wife had gained full time employment with the Department of Community Services and begins work on 12/11/2007. We have a 20 mth old son who attends care on Wednesdays, Thursdays and Fridays and therefore will need parental care by myself on Mondays and Tuesdays. I explained to Ms Carmichael my need for a rostering change to facilitate this and discussed my availability to work any shifts required from Tuesday night shift through to Sunday evening shift. I was told that the hospital would not support my request. I then discussed several options with Ms Carmichael including reduced hours or permanent part time hours. I was informed, with regard to each of these that the hospital again would not support my request for fixed days off regardless of circumstances or my willingness to compromise. Ms Carmichael was also made aware that all other external options for my wife and I had been considered and were unsuitable.
I do understand that my request would make rostering slightly more difficult in the short term, but due to the recent staffing issues that this hospital has experienced I do find this decision by Ms Carmichael puzzling. In my experience, management who attempted some form of compromise and flexibility in work hours to keep a full time, experienced Registered Nurse on staff would be more appropriate and beneficial for this, or any hospital. Pushing an experienced Registered Nurse out of the work place due to uncompromising and inflexible senior management, and work place practices would seem rather ridiculous in this day and age, when finding staff to fill full time positions is near impossible.
Therefore, I reluctantly submit my resignation for the position of Full Time Registered Nurse at Wauchope District Memorial Hospital. My 2 (two) weeks notice effective immediately upon receipt of this letter by management of Wauchope District Memorial Hospital. I request all balances, Annual Leave, Long Service Leave and any additional leave and entitlements, to be paid in full to my nominated account.”
Signed; Colin A McDonald
Registered Nurse

In a further letter dated 12 November 2007 Mr McDonald again wrote to the employer in these terms:
“To Whom It May Concern:
In conjunction with my resignation from the position of full time Registered Nurse at Wauchope District Memorial Hospital (WDMH) received November 2007, I would like to request the opportunity to remain on the casual nursing staff. I feel this would be a satisfactory outcome for both parties. I will be able to continue working at WDMH and also fulfil my parental duties on the required days which I requested prior to my resignation.”
Signed; C. McDonald
Registered Nurse
On 9 November 2007 Wilma Sims, Executive Officer/ Director of Nursing wrote to the worker rejecting any suggestion that the employer had not been supportive, pointing out that in the two years of employment he had been granted extra leave prior to his child’s birth, parental leave, long-service leave, a request to take early and extra leave and support throughout the lengthy return to work programme. Ms Sims pointed out that the employer was unable to accommodate Mr McDonald’s request to change his rostering arrangements in the interests of being able to provide fair and equal rostering for all staff as well as being able to adequately staff the hospital 24 hours a day, 7 days a week.

The Respondent’s Evidence

The respondent relied on a report of Dr Richard Powell dated 8 October 2007. Dr Powell obtained a consistent history of injury and treatment. Dr Powell noted that the left shoulder remained symptomatic. Mr McDonald reported a constant ache over the antero-superior aspect of the shoulder with occasional radiation down the lateral aspect of the upper arm towards the deltoid insertion. There are occasional sharp exacerbations of pain. He was having difficulty sleeping on the left side. There was no paraesthesia or ‘pins and needles’ noted. He was aware of some stiffness and restriction in range of motion and Mr McDonald reported his symptoms were aggravated by increased use of the left arm and in particular repetitive overhead activities. He reported a subjective loss of strength in the left upper limb. The doctor noted that the current treatment consisted of home exercises and medication including anti-inflammatory medication, Zoloft and Panadol. In terms of the worker’s present capacity for employment Dr Powell stated:
“The most recent medical certificate dated 3 September 2007 recommends suitable duties with a lifting restriction of 5kg- and instructions to avoid overhead lifting. Prior to the most recent aggravation of the shoulder in a fall Mr McDonald had successfully returned to his full pre injury duties. I believe that a return to his pre injury duties does represent an attainable treatment outcome. His restrictions could be lifted in a graduated fashion over the next six to eight weeks under the supervision of his treating doctor. I would recommend he continue on suitable duties with a lifting restriction of 10kgs and instructions to avoid repetitive overhead work. He should alternate his duties and have the opportunity for regular breaks to perform his exercises.”
Dr Powell opined that Mr McDonald’s overall prognosis remained reasonable. He suffered a significant shoulder injury and in view of the restriction of the AC joint he expected the left shoulder to remain intermittently symptomatic. In Dr Powell’s view the injury of 27 May 2006 resulted in an aggravation of a pre existing pathology in the left acromioclavicular joint. The aggravation is permanent. Dr Powell assessed a 3% whole person impairment.
Mr McDonald participated in a rehabilitation programme through the Commonwealth Rehabilitation Service.
Rehabilitation Progress reports dated 3 October 2007 and 23 November 2007 and a final report dated 20 December 2007 are in evidence. The progress report of 3 October 2007 states, inter alia:
“A note from Wilma Sims on 28 September 2007 indicated that Colin has worked only 13 days in 61 due to ongoing non WorkCover related sick leave and family carers leave. This is impacting on the momentum in his return to work and causing frustration for all parties. Colin indicated on 2 October 2007 prior to his annual leave that his shoulder was coping well with his duties at work and he was keen to return to pre injury duties following his leave. His return to work now has been amended to cover the above changes.”
As at the 23 November 2007, when the second progress report was prepared, Mr McDonald had already resigned and this was noted. In the final rehabilitation report it was noted that his long and protracted sick leave, annual leave and shoulder exacerbations impacted on the progress of his return to work strategies.

THE ARBITRATOR’S DECISION

The Arbitrator made the following findings:
(1)     following his injury on 27 May 2006 the employer had provided suitable duties to the worker (Reasons, at [26]);
(2)     the worker refused suitable duties offered to him by the employer (Reasons, at [27]), and
(3)     the worker’s refusal to continue to undertake the suitable duties offered, was an unreasonable rejection of suitable employment (Reasons, at [28]).
The claims for benefits under section 66 and section 60 were not controversial. By agreement between the parties the section 66 claim was remitted to the Registrar for referral to an Approved Medical Specialist. It was also agreed between the parties that it was appropriate that a general order under section 60 be made in the worker’s favour.
The Arbitrator accepted (Reasons, at [34]) that at the time of his resignation the worker had an ongoing incapacity, that is, a lifting restriction of not more than 10kg and had instructions to avoid repetitive overhead work based on Dr Powell’s report.
However, the Arbitrator found that the worker was provided with suitable employment by his employer, which he resigned voluntarily. He found (Reasons, at [28]) that by reason of the resignation, Mr McDonald unreasonably refused the suitable employment made available to him by his employer. Therefore by reason of the provisions of section 43A(2)(a) and (4)(b) the worker deprived himself of the entitlement to weekly compensation.
The Arbitrator found that the current weekly wage rate for some suitable employment for the worker from time to time after the injury was the amount that he was earning at the time of his resignation - $1,300.00. He then deducted the amount of his agreed pre-accident earnings, which were also $1,300.00, leaving an amount of nil. The Arbitrator entered an award for the respondent in respect of the worker’s claim for weekly compensation.
The Arbitrator’s reference to section 43A was an obvious error and he should have referred to section 40(2A) and (2B).

SUBMISSIONS

Appellant’s Submissions

The appellant submitted that the Arbitrator:
(1)     erred in law in permitting or considering a section 40(2B) of the 1987 Act defence in the absence of a notice under the Act or pleading in the section 74 notice;
(2)     erred in law and on the facts in finding the applicant was in breach of section 40(2B) of the 1987 Act;
(3)     failed to properly apply the provisions of section 40 of the 1987 Act, and
(4)     made a decision contrary to the lay and medical evidence.
The appellant submitted the Arbitrator erred in finding that he “refused suitable employment”. It is submitted the Arbitrator made a finding of “no incapacity”, which was inconsistent with the evidence.
Further it is submitted that the Arbitrator erred:
“in considering the applicant’s resignation due to ongoing pain resulting in his wife’s returning to work and he down grading [sic-graded] his duties, to fulfil home duties resultant in his wife’s return to work, a breach of section 40(2B)(b) of the 1987 Act.”
In determining the reasonableness of the resignation the appellant relies on sections 552(3), 659(2)(a) and section 659(2)(f) of the Workplace Relations Act (Cth) which require an employer to act reasonably in relation to employees with an injury, physical disability and family responsibilities and that any termination consequent upon those matters constitutes “unlawful termination”.

Respondent’s Submissions

The respondent submitted:
(1)     the Arbitrator had regard to all relevant documentary evidence including the worker’s resignation and letter dealing with his domestic situation;
(2)     the Arbitrator had proper regard to the request for casual work after Mr McDonald’s resignation in order to accommodate his domestic arrangements;
(3)     the Arbitrator properly had regard to the rehabilitation and medical evidence at the time of the resignation, which confirmed the worker’s ability to continue with work on a fulltime basis;
(4)     the Arbitrator correctly inferred from all of the evidence that the worker did not resign “solely because he was unable to continue with his duties, because of his injury…. but also because of his desire to undertake a greater role in the care and nurturing of his child”, and
(5)     there is no evidence that the worker’s wife returned to full-time work due to his ongoing pain issues, as inferred in the worker’s submissions. The employer objected to the inference being drawn, particularly as it was not raised in the proceedings before the Arbitrator.
As to the Arbitrator’s assessment of the “reasonableness” with respect to the Workplace Relations Act 1996 (Cth), the respondent submits:
(1) the Arbitrator did not err in his assessment of the reasonableness of the worker’s rejection of suitable employment, and
(2) sections 652(3), 659(2)(a) and 659(2)(f) of the Workplace RelationsAct 1996 (Cth) are irrelevant as they refer specifically to termination of employment by an employer.
The respondent submitted that the appellant elected, of his own volition, to resign from his employment. There is no evidence of any “unlawful” termination of employment.
As to the submissions on incapacity:
(1)     the Arbitrator correctly found, in accordance with the evidence of Dr Powell, that the worker was fit to continue with suitable duties with lifting restrictions avoiding overhead work;
(2)     no updated or concurrent medical evidence was relied upon by the worker in the proceedings, and
(3)     the Arbitrator’s finding that the worker was engaged in suitable duties at the time of his resignation was open and correct.
As to whether section 40(2B) was put in issue the respondent made the following submissions:
“(1)   The respondent submits that the issue with section 40 and the entitlement to ongoing weekly benefits pursuant to section 40 was placed in issue in the correspondence date 14 July and in particular by the inclusion of the following paragraph 3.19.1:
‘Your client was certified fit for full pre injury duties on 18 December 2007 by Dr Snow. Your client resigned his fulltime employment to accommodate family care obligation due to his wife returning to fulltime work on 23 November 2007. Your client elected to leave fulltime employment with our insured and requested he go on the casual list so that he could arrange his shifts as needed to fulfil his family obligations. Pursuant to the medical certificate of Dr Snow, your client is fit for full tie [sic, time] pre-injury duties and therefore had no ongoing incapacity for work. Based on the above your client has no entitlement to claim weekly benefit compensation pursuant 38 and 40 of the Act.’
(2)     The respondent submits that section 40 encompasses all subsections and that by referring to section 40 it put section 40(2B)(b) in issue. The respondent submits that this is confirmed by the content and context of the above extract, and
(3)     The respondent submits that the Arbitrator was correct having determined that the appellant had resigned and rejected suitable employment to find that his earnings in suitable employment would have been the amount the appellant was earning at the time of his resignation and would have earned, but for his resignation.”

DISCUSSION AND FINDINGS

Section 74 Notice

The appellant submits that the Arbitrator erred in law in permitting or considering section 40(2A) of the 1987 Act to be raised in defence of the appellant’s claim in the absence of a notice under the Act or a pleading in the Section 74 Notice.
Other than to raise this issue, the appellant does not further develop the submission or provide any relevant authority to support the submission that the Section 74 Notice was deficient.
The respondent’s Section 74 Notice clearly placed in issue the appellant’s decision to voluntarily resign from his employment to fulfil his family obligations as a central issue in the decision to refuse benefits. Specific reference was made in the Section 74 Notice to the impact the appellant’s decision to resign would have on his entitlements to weekly benefit under sections 38 and 40 of the Act.
The respondent complied with its obligations under section 74. The central issue that was argued before the Arbitrator concerned the very matter that was raised in the Section 74 Notice, namely, the impact on entitlements to benefits having regard to the Appellant’s voluntary decision to resign his employment.
The Section 74 Notice made express reference to the provisions of section 38 and section 40. Although no separate reference was made to the sub-paragraphs of those provisions, the reference to sections 38 and 40 coupled with the express reasons for refusing any further benefits, satisfied the respondent’s obligations under section 74.
No argument was raised before the Arbitrator that the Section 74 Notice was deficient. Indeed the appellant’s representative, Mr Ian Collins, noted at the outset of the proceedings, “The only live issue, Mr Arbitrator, is the section 40 dispute between the applicant and the respondent from 18 November 2007.” (T1.55)
If I am wrong in my assessment of the respondent’s compliance with section 74, then I would regard this as an appropriate matter for the exercise of the discretion provided in section 289A of the 1998 Act. Given the way in which the matter unfolded before the Arbitrator, the lack of any objection to the section 40(2A) arguments proceeding before the Arbitrator and the fact that the appellant’s voluntary resignation from employment was a central issue in the assessment of his entitlements, I would consider it “in the interests of justice” to allow the section 40(2A) arguments to proceed on appeal. I note that the correspondence making the worker’s claim and the Section 74 Notice were exchanged between the legal representatives for the parties. Having regard to the matters listed as relevant to the exercise of the discretion under section 289A, as articulated by Roche DP in Mateus v Zodune Pty Ltd (t/as Tempo Cleaning Services) [2007] NSWWCCPD 227, I am of the view that there is no relevant prejudice in allowing the section 40(2A) arguments to be raised on appeal and, if it is necessary, I give leave to do so.

Did the worker unreasonably reject suitable employment?

Section 40(2A), (2B) and (3) are in these terms:

(2A) Calculation of reduction in earnings of worker—workers rejecting suitable employment

If the worker has unreasonably rejected suitable employment, the reduction in the worker’s weekly earnings is the difference between:

(a) the current weekly wage rate for the worker’s pre-injury employment (but not exceeding $1,000), and
(b) the current weekly wage rate for some suitable employment for the worker from time to time after the injury (but not exceeding $1,000).

(2B) For the purposes of subsection (2A), a worker unreasonably rejects suitable employment if:

(a)a period of 28 days has elapsed since the worker was offered suitable employment by any person and the worker has unreasonably refused or not accepted the offer (whether or not the offer was available during the whole of that period), or
(b)the worker obtains suitable employment with any person but subsequently unreasonably discontinues that employment.

(3) Ability to earn in suitable employment The determination of the amount that an injured worker would be able to earn in some suitable employment is subject to the following:
(a)the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker,
(b)the determination is to be made having regard to suitable employment for the worker within the meaning of section 43A.”

Section 40(2A) provides that where the worker has unreasonably rejected an offer of suitable employment the method of calculating his or her entitlement is the difference between the current weekly wage rate for the worker’s pre-injury employment and the current weekly wage rate for some suitable employment for the worker from time to time after the injury.
Section 42 defines “current weekly wage rate” in these terms:
“(1) Subject to this section, a reference in this Division to the current weekly wage rate of a worker, being a worker who is incapacitated for work and who, immediately before being incapacitated:
(a)was remunerated under an award fixing or providing for the fixing of a rate for a weekly or longer period (not being a worker who belongs to a class of workers prescribed by the regulations for the purposes of paragraph (c))-is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(b)was an employee of the Crown or of an employer constituted by an Act and was remunerated, pursuant to a determination made by the Crown or made under the Public Service Act 1979 or under the provisions of any other Act, being a determination fixing or providing for the fixing of a rate for a weekly or longer period-is, at any time during that incapacity, a reference to the rate of remuneration under that determination at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated,
(c)belonged to a class of workers prescribed by the regulations for the purposes of this paragraph-is a reference to a rate calculated in accordance with a formula (or calculated in any other manner) prescribed by the regulations in respect of that class of workers for the purposes of this paragraph, or
(d)was not a worker or employee to whom paragraph (a), (b) or (c) applies-is a reference to the prescribed proportion of the worker’s average weekly earnings in respect of work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate.”
In assessing the worker’s entitlement, if any, the Arbitrator wrongly referred to the provisions of section 43A(2)(a) and (4)(b). The reference to section 43A(4)(b) is probably a typographical error and is intended to refer to section 43A(4)(a). In any event, the Arbitrator erred by not referring to section 40(2A).
At paragraph [39] of his Reasons the Arbitrator made a finding that the “current weekly wage rate” for some suitable work from time to time after the injury was the amount Mr McDonald was earning at the time of his resignation - $1,300.00. It can be seen from paragraph [12] of the Reasons that the parties had agreed that the worker’s comparable wage but for the injury was $1,300.00 and his actual wages post accident were $670.00. The Arbitrator confused the “current weekly wage rate”, that is, the award rate, with the worker’s probable earnings but for injury. Having examined the wages material filed with the Application, it is clear to me that the sum of $1,300.00 represents the worker’s probable weekly earnings, including penalty rates, weekend work and a range of other matters. It is not his award rate.
It follows from the above that the Arbitrator fell into error in the quantification of the worker’s entitlements under section 40. That being the case, the determination of 9 February 2009 must be revoked and the matter re-determined.

The Arbitrator made a finding that the duties offered to the worker at the point of his resignation were suitable duties (see Reasons at [26]). I agree with that finding. Indeed, in his resignation letter, the worker made it clear that he regarded himself as capable of undertaking any shifts offered to him except those that would require him to work on Mondays and Tuesdays. The medical experts appear to be ad idem that he was fit to undertake the duties made available to him so long as he complied with the lifting limitation of no more than 10kg and avoided repetitive overhead work and alternated his duties. It is submitted on appeal that the Arbitrator made a finding of “no incapacity”, which was inconsistent with the evidence. I reject that submission. At his Reasons [25] and [26], the Arbitrator accepted the evidence of Dr Powell, that shortly before the worker’s resignation, Mr McDonald was partial incapacity in terms of the restrictions I have identified above.
That then leads to the question of whether, in rejecting the suitable employment, the worker has acted “unreasonably” within the meaning of section 40(2A). This issue is only briefly touched upon by the appellant in his submissions on appeal. I note that neither party has provided any relevant submissions as to what constitutes an unreasonable rejection of suitable employment.
The meaning of ‘unreasonable’ is not defined for the purpose of applying section 40(2A) and (2B) of the 1987 Act. That is perhaps not surprising as an assessment of ‘reasonableness’ is a subjective assessment that will vary from case to case. Some guidance can be gained from the following cases where the term has been considered.
In Freight Corp v Duncan [2000] NSWCA 309, Davies AJA (Handley and Beazley AJA agreeing) held that it was not unreasonable for a worker to accept a voluntary redundancy in circumstances where the employer proposed to abolish the worker’s position. Mr Duncan was employed by Freight Corp as a station assistant. He suffered injuries during the course of his employment and was partially incapacitated. During a workplace reform process, Mr Duncan’s position was redesigned from that of station assistant to terminal operator level 1 division 1. Mr Duncan applied for the position of terminal operator but was unsuccessful. After failing to obtain his redesigned position Mr Duncan accepted an offer of voluntary redundancy. The trial judge held that Mr Duncan’s decision to accept the voluntary redundancy was entirely reasonable. The Court of Appeal agreed stating at [18] and [19]:
“18. In any event, the provision requires that there be an unreasonable rejection or discontinuation by the worker of suitable employment. In the present case, that did not happen. Freightcorp proposed to abolish MrDuncan's position and, reasonably, he accepted the offer of voluntary redundancy made to him.
19. I should note that an assessment of the reasonableness of a worker's refusal depends upon the worker's knowledge at the relevant time. Cf Fazlic v Milingimbi Community Inc. [1982] HCA 3; (1982) 150 CLR 345. Although MrDuncan was aware that redundancy was not compulsory, he was informed that he would lose his position which was redesigned and that he had certain options, one of which was redundancy. In the light of the information given to him, his acceptance of the redundancy offered was reasonable, as the trial Judge found.”
In Fazlic v Milingimbi Community Inc. [1982] HCA 3; (1982) 150 CLR 345 the worker had suffered an injury which was compensable under the Workman’s Compensation Ordinance [NT]. Major back surgery had been recommended. The operation carried some risk. The worker refused the operation he had a fear of operations generally and was concerned that there was a risk that following the surgery his condition might be worse. The tribunal concluded that from a medical point of view the only reasonable course open to the worker was to submit to the operation, however, his refusal was not unreasonable having regard to the information given to him. He was awarded compensation. On appeal to the Supreme Court of the Northern Territory the issue was resolved in the employer’s favour. An appeal to the Federal Court was dismissed. The worker successfully appealed to the High Court. In a joint judgment the Court held that an assessment of the reasonableness of the worker’s refusal of treatment depended upon the worker’s knowledge at the relevant time. In the light of the information given, his refusal was not unreasonable. Medical evidence showing that the operation might reasonably be performed was irrelevant to the question of whether the workers refusal was reasonable.
In Hines v WorkCover / HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171 (‘Hines’) the South Australian Workers Compensation Tribunal dealt with a question of reasonableness in so far as it concerned the refusal by a worker to participate in a rehabilitation programme, which refusal could lawfully be the basis of a discontinuance of his workers compensation payments under the South Australia legislation. Prior to his injury the worker had been employed as a marine supervisor. He worked 16 hours per week but was on call for anything up to double that number of hours. Initially he accepted a voluntary redundancy primarily because of his wife’s deteriorating health. The worker’s wife had undergone surgery for bowel cancer and had undertaken a course of chemotherapy treatment. She was later diagnosed with Parkinson’s disease. Having accepted the voluntary redundancy the worker was then offered a position as a casual marine pilot’s assistant working 16 hours per week. This enabled him to provide the care necessary for his ailing wife. In due course the employer prepared a rehabilitation plan, which would have obliged the worker to undertake a regular 38 hours per week. He refused to do so. Deputy President Gilchrest said at [51]:
“The Full Bench in Alexander (supra) noted that the observations of Bray CJ in Percic v Broken Hill Pty Co Ltd (1973) 6 SASR 1 at 4 where he said:-
‘...suitable for this purpose means suitable having regard to the physical condition of the man, the nature and character of his occupation before his injury, and the nature of the work available after the injury... personal preference, geographical convenience or family circumstances are irrelevant (Eyre v Houghton Main Colliery Co Ltd per Cozens-Hardy MR at pp 697-698; Broughton v London and North Eastern Railway Co)’
This may not reflect the modern law… Although this narrow view of suitable employment has been used in other cases in Australia, I think it is a mistake to give almost statutory force to the philosophy of employer and workman which existed two to three generations ago, when a workman was largely an economic chattel whose personal circumstances could be disregarded, and who could be dealt with at the employer's whim.
Thirdly, I do not think that so restricted a view is in consonance with the philosophy of the 1986 Act. This Act is tailored to the rehabilitation of the individual workman, with his individual needs, deficiencies, and personality.”
At [52] the Deputy President said:
“In determining the reasonableness of a rehabilitation and return to work plan or its provisions, consideration must be given to the personal circumstances of the worker. They are not paramount, but they must be taken into account.”
In Joseph Marmara v K Mart Australia Ltd 13 November 2000 (unreported), Curtis CCJ considered the context of reasonableness in section 52A of the 1987 Act. His Honour was concerned with a worker who had been employed by the employer for nineteen years prior to his injury and had risen to the position of supervising mechanic in charge of five staff. After the injury, and with the intervention of rehabilitation providers, the worker found work as a consol operator at a service station working eighteen hours a week. He was required to work three nights per week between midnight and 6.00am. He resigned that position to find another and more suitable job. He subsequently attempted several other jobs unsuccessfully. His Honour found that the injured worker resigned suitable employment because of the uncongenial hours, adding that the worker conceded that his wife did not like him doing the work although she had not asked him to resign. Relevant to understanding the scope of unreasonable, his Honour stated:
“The applicant (worker) is not a serf or a peon. If he has uncongenial employment it is reasonable that he would attempt to find something better. This was a man who is married with four young children working from midnight until 6.00am. It would be unreasonable to expect that he would not attempt to find something better.”
In the present matter the worker’s resignation was prompted by a change in his personal circumstances. His wife had returned to fulltime employment and was due to commence work on 12 November 2007. As a family they had been able to arrange for day care for their 20-month-old son on Wednesdays, Thursdays and Fridays. That meant that the worker was required to provide care for the child on Mondays and Tuesdays. As noted in his letter of resignation he held himself available “to work any shifts required from Tuesday night through to Sunday evening shift”. For reasons that are perfectly valid, that request could not be accommodated. The employer noting that it had a duty to provide fair and equitable rostering for all staff as well as insuring that the hospital was adequately staffed 24 hours a day 7 days a week.
I agree with the observations of Deputy President Gilchrest in Hines where he noted that in determining the question of reasonableness regard should be had to the personal circumstances of the worker. Although they may not be paramount they must be taken into account.
This is not a case where the worker’s decision was prompted by folly or irresponsibility, as discussed in Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25; (1988) 4NSWCCR 138 (‘Novello’). Adequate arrangements for appropriate childcare are a perennial problem confronting modern families. There was no challenge to the worker’s evidence that there was no other reasonable alternative to arrange for the childcare other than for the worker to provide the care himself on Mondays and Tuesdays. Before finally resigning the worker explored with the employer all viable options to retain his job, including volunteering to make himself available to work any shift, provided it did not fall on a Monday or Tuesday. Whilst the situation is regrettable, particularly given the considerable compassion and flexibility displayed by the employer to accommodate the worker’s return to work plan, I consider the worker’s resignation in the circumstance was not an unreasonable rejection of suitable employment.
Given the finding that the worker’s resignation was not an unreasonable rejection of suitable employment, the provisions of section 40(2A) are not triggered, so that to the extent to which the worker was entitled to weekly compensation the assessment is undertaken pursuant to section 40(1) of the 1987 Act.

Entitlement to Compensation

During the course of the arbitration, certain agreements were reached between the parties and noted by the Arbitrator, in particular, it was agreed and noted that the worker’s probable weekly earnings but for the injury are $1,300.00 per week. It was also agreed that the average amount that the worker is currently earning is $670.00 per week. I have the transcript of submissions made at the arbitral hearing, the submissions on appeal and the evidence relied upon by the parties. I note that no oral evidence was called at the hearing and the worker’s credit is not in issue. In these circumstances I have given consideration to re-determining of the worker’s entitlements, (see Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344), however, for the reasons I shall explain, I am unable to re-determine the matter.
I have no difficulty accepting the agreement reached between the parties that the worker would probably have been earning if uninjured (section 40(2)(a)) is $1,300.00 (see Reasons, at [12]).
Since June 2008 the worker has been employed by Stanhope Health Care Services (‘Stanhope’) in Port Macquarie as a casual registered nurse earning on average $670.00 per week. Where the worker is in employment the appropriate amount to be considered in section 40(2)(b) is, prima facie, the worker’s actual earning unless it is established that the worker’s actual earnings are not a proper test: (Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26; Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; [1945] WCR (NSW) 107, and Novello).
The worker’s statement in this matter is seriously deficient. In the absence of any oral evidence from the worker to supplement his statement there is a void in the evidence regarding the worker’s post-injury employment. It can reasonably be assumed that, given his reasons for resigning from the respondent, the worker does not work on Mondays and Tuesdays by reason of his childcare responsibilities on those days. This appears to be consistent with the “pay advices” produced from Stanhope for the short period from 10 November 2008 to 21 December 2008. These are the only records from Stanhope in evidence, notwithstanding that the worker commenced duties there in July 2008. No explanation is given regarding the failure to produce a complete record of the worker’s hours of work and earnings with Stanhope. It is reasonably clear from the records I examined that the worker does not work a full working week.
There is no evidence to suggest that the worker is not capable of working a full working week, indeed the evidence is to the contrary. In these circumstances it seems extremely doubtful that Mr McDonald’s earnings of $670.00 per week are a proper test of his ability to earn under section 40(2)(b).
The difficulty in undertaking an assessment under section 40 is exacerbated by the way in which the worker’s legal representatives chose to present his case. That is, by firstly alleging a loss of $1,000.00 per week in the Application, and subsequently, in an exchange of particulars, reducing the claim to $200.00 per week on the basis of lost overtime opportunities. The case as particularised, however, was not pursued before the Arbitrator. In the submissions before the Arbitrator the worker’s legal representative submitted that the appropriate award is an award at the maximum statutory amount reflecting $670.00 as the maximum of the worker’s ability to earn, but no argument was advanced in support of this proposition.
There is no reliable evidence as to what the worker is in fact doing in his post-injury employment in terms of hours worked or the nature of the duties undertaken. Nor is there any evidence that the nature of his duties as a casual nurse with Stanhope differ from the duties he would have been required to undertake had he not resigned his employment with the respondent. There is no evidence was to why Mr McDonald is only working limited hours. These are all matters that will need to be clarified in the next arbitration.
On one view of the evidence, at the time the worker resigned he was either fit for full duties in accordance with the final certificate from his general practitioner or he continued to suffer from a modest restriction in his ability to earn in that he was unable to lift more than 10kg or carry out repetitive activities above shoulder height. There was some expectation that those limitations could be removed over time and whether or not that has in fact occurred will also need to be carefully explored.
It may be seen from the foregoing that in my view, although the worker is currently earning $670.00 per week, on the current evidence that figure does not appear to accurately reflect his ability to earn under section 40(2)(b). Further, if indeed the worker has voluntarily withdrawn his labour on Monday and Tuesday each and every week to attend to his domestic arrangements, that in my view, would be a significant discretionary factor in assessing a proper figure under section 40(1) to reflect the reduction in the worker’s ability to earn, however, that is a matter which will need to be determined at the next arbitration.
All of the above issues will have to be re-determined in the light of such other evidence and submissions the parties may present at the next arbitration hearing.

OTHER MATTERS

The claims for benefits under section 66 and section 60 were not controversial. By agreement between the parties the section 66 claim was remitted to the Registrar for referral to an Approved Medical Specialist. It was also agreed between the parties that it was appropriate that a general order under section 60 be made in the worker’s favour. Those agreements were appropriate. I do not propose to disturb the orders made by the Arbitrator as a consequence of those agreements.
The appellant’s submissions relying on sections 552(3), 659(2)(a) and 659(2)(f) of the Workplace RelationsAct 1996 (Cth) are misguided. The former provisions relate to factors to be taken into account in determining whether a termination of employment was harsh, unreasonable or unjust under the Commonwealth legislation. Section 659 of the Workplace RelationsAct 1996 (Cth) places a prohibition on termination on certain grounds. Mr McDonald was not terminated. His employment came to an end by reason of his voluntary resignation. Whilst the appellant asserts that the Arbitrator’s reasoning on “reasonableness” “contravenes the Parliamentary intentions” of the Workplace Relations Act 1996 (Cth), the submission was not developed beyond that assertion, nor was any authority for the proposition advanced. In the circumstances I reject the submission.

CONCLUSION

Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in his approach to the assessment of compensation under section 40 and in particular in the application of section 40(2A) and (2B). However, Mr McDonald’s fitness for employment and his ability to earn must be re-determined. Because of the unsatisfactory state of the evidence, I am not able to re-determine those issues and the case will need to be remitted to a different arbitrator for that purpose.

DECISION

Paragraph 1 of the Arbitrator’s determination of 9 February 2009 is revoked and the question of the workers entitlement to weekly compensation from 18 November 2007 to date and continuing is remitted to a different arbitrator for re-determination in accordance with the reasons in this decision.
Paragraphs 2, 3 and 4 of the Arbitrator’s determination of 9 February 2009 are confirmed.

COSTS

The appellant’s submissions in this matter were extremely brief, being limited to less than one page. The reliance on the Workplace Relations Act 1996 (Cth) was completely misguided. Apart from claiming a lack of jurisdiction, the appellant provided no submissions on the application of section 40(2A) and (2B), which was the central issue in this appeal. The submissions that were made were not developed by reference to the evidence or relevant authority. I certainly do not consider it appropriate that the appellant be entitled to the upper limit of costs payable for a successful appeal. In the circumstances I assess costs in the sum of $500.00. I direct the respondent to pay the appellant’s costs so assessed.

His Hon. Judge Keating
President
14 May 2009

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

ASSOCIATE