Miller v A & R Pearson Pty Limited - [2007] NSWWCCPD 111

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Miller v A & R Pearson Pty Limited [2007] NSWWCCPD 111
APPELLANT:  Gregory Miller
RESPONDENT:  A & R Pearson Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC13173-06
DATE OF ARBITRATOR’S DECISION:          19 December 2006
DATE OF APPEAL DECISION:  14 May 2007
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; calculation of average weekly earnings where the employer has ceased to trade; calculation of ability to earn where the worker is self employed.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      CBD Law
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: Paragraph two of Arbitrator’s determination of 19 December 2006 is revoked and the following order made:

“2.Award for the Applicant under section 40 of the Workers Compensation Act 1987 as follows:
$186.00 per week from 29 May 2006 to 4 June 2006;
$696.00 per week from 5 to 11 June 2006;
$546.00 per week from 12 to 18 June 2006;
$486.00 per week from 19 June to 2 July 2006;
$306.00 per week from 3 to 11 July 2006, and
$606.00 per week from 12 July to 14 August 2006.
The Respondent is given credit for weekly compensation already paid by it in the above periods.”

Paragraphs one, three and four of the Arbitrator’s determination of 19 December 2006 are confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 9 January 2007 Gregory Miller (‘the Appellant Worker/Mr Miller’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 December 2006.

The Respondent to the Appeal is A & R Pearson Pty Limited (‘the Respondent Employer/Pearson’).

Mr Miller was born on 18 February 1982 and started work for the Respondent Employer in 2001 as an apprentice carpenter. He completed his apprenticeship in February 2004 and continued working for Pearson as a carpenter until it ceased trading in December 2005.

On 23 February 2004 Mr Miller was working for Pearson performing his usual duties when he lifted steel battens and injured his back. An incident report form was completed and he attended on a doctor. A claim form was completed and his claim was accepted. He was off work for about one week. On his return to work he did light duties for a period and then returned to full duties after a few months (Appellant Worker’s statement 13 July 2006, paragraph 25).

In January 2005 Mr Miller set up his own business as a carpenter. While working for himself he suffered an increase in his back pain on Thursday 25 May 2006. He continued working for himself on a light duties basis from 29 May until 11 July 2006 when that work was no longer available. He remained out of work until 14 August 2006 when he resumed employment without any continuing loss…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 111
Decision Date: 14 May 2007

CaseChat Overview and Summary

In the case of Miller v A & R Pearson Pty Limited, the appeal was brought by Gregory Miller, the Appellant Worker, against a decision made by the Workers Compensation Commission. The Respondent Employer was A & R Pearson Pty Limited, and the insurer involved was CGU Workers Compensation (NSW) Limited. The Appellant Worker sought to appeal the Arbitrator's decision regarding the calculation of his weekly compensation and his entitlement to medical expenses. The key issues in the appeal were the calculation of probable earnings, the assessment of the ability to earn in suitable employment, and the determination of medical expenses.

The Arbitrator's decision was found to be incorrect in several aspects. Firstly, the Arbitrator erred in calculating the Appellant Worker's probable earnings but for injury, as they failed to assume that the worker's pre-injury employment continued. The correct method of calculating probable earnings was to look at the gross income in the 2005 tax return. Secondly, the Arbitrator failed to assess the Appellant Worker's ability to earn in suitable employment between 12 July and 14 August 2006. The appropriate award for this period was $606.00 per week under section 40 of the Workers Compensation Act 1987.

The Arbitrator's decision on medical expenses was found to be correct, as no further submissions were made on this issue, and the Arbitrator's reasons disclosed no error.

As a result of the appeal, the Arbitrator's determination was revoked, and a new order was made regarding the Appellant Worker's weekly compensation. The Respondent Employer was ordered to pay the Appellant Worker's costs of the appeal.

Orders