Miller v A & R Pearson Pty Limited
[2007] NSWWCCPD 111
•14 May 2007
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 of income. He again claimed compensation from Pearson’s workers compensation insurer (CGU Workers Compensation (NSW) Limited (‘CGU’)). This claim was denied and resulted in an Interim Payment Direction being issued by Jennifer Robichaud, by delegation of the Registrar, on 3 August 2006. Ms Robichaud appears to have found that the incident on 25 May 2006 resulted from the 23 February 2004 injury and, therefore, compensation was payable by Pearson for any incapacity said to have resulted from it. Under section 298(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) Ms Robichaud ordered Pearson to pay to Mr Miller weekly compensation under section 40 from 25 May to 24 July 2006 but was unable to calculate the rate at which that compensation should be paid because insufficient information was available to her.
On 21 August 2006 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking weekly compensation from 26 May 2006 to date and continuing together with lump sum compensation and $400.00 for hospital and medical expenses as a result of the injury on 23 February 2004.
By its Reply filed on 12 September 2006 the Respondent Employer stated that it had made all payments under the Commission’s Interim Payment Direction dated 3 August 2006 and that Mr Miller had return to work on 14 August 2006 and suffered no wage loss from that date. In respect of the claim for lump sum compensation it was alleged that no claim had been duly made.
A Commission Arbitrator heard the matter on 21 November 2006 when it was conceded that the claim for weekly compensation was only for the period 29 May until 14 August 2006. In a reserved decision decided on 19 December 2006 the claim for weekly compensation was decided in the Appellant Worker’s favour but the claim for lump sum compensation was declared a nullity and struck out. The Arbitrator made a general order for the payment of hospital and medical expenses.
Mr Miller seeks leave to appeal the Arbitrator’s decision in respect of the calculation of his weekly compensation and his entitlement to medical expenses.
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 1998 Act.
The 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.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 December 2006, records the Arbitrator’s orders as follows:
“1. That the Applicant’s claims under sections 66 and 67 of the 1987 Act are a nullity and are struck out.
2.That the Respondent pay the Applicant’s weekly payments of compensation as follows:
Week commencing Weekly payments
29.5.07 [sic-2006] $138.00
5.6.07 [sic-2006] $347.90
12.6.07 [sic-2006] $347.90
19.6.07 [sic-2006] $318.00
26.6.07 [sic-2006] $318.00
3.7.07 [sic-2006] $210.00
10.7.06 $347.90
and thereafter to 14 August 2006 at the rate of $330 per week, credit to be given for amounts paid.
3.That the Respondent pay the Applicant’s medical and related expenses under section 60 of the 1987 Act upon production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to accept the uncontradicted evidence of earnings in Mr Miller’s statement of 13 July 2006;
(b)failing to determine the issue of whether the claimed section 60 expenses under the 1987 Act were “fair and reasonable”;
(c)determining Mr Miller’s probable earnings but for injury under section 40(2)(a) of the 1987 Act by reference to his post injury earnings;
(d)failing to apply specialist knowledge of the taxation rates on net earnings;
(e)failing to place any weight on the letter from Holbel Pty Limited (‘Holbel’) (Mr Miller’s employer from 14 August 2006) dated 20 October 2006 (‘the Holbel letter’) in determining comparable wages;
(f)finding that Mr Miller carried an evidentiary onus to prove that he would have continued to work for Pearson if it had not gone out of business;
(g)determining Mr Miller’s probable earnings but for injury on the basis of his net income rather than on his gross earnings;
(h)failing to give any proper consideration to the effect of the injury on Mr Miller’s ability to get work as an element of incapacity under section 40;
(i)exercising his discretion under section 40 to reduce weekly compensation otherwise payable and in failing to give reasons for doing so;
(j)capping the weekly payments of compensation to the maximum statutory rate of compensation for a single worker when Mr Miller was still within the first 26 weeks of his incapacity, and
(k)refusing to allow the statement of SCM Framing Pty Limited into evidence.
SUBMISSIONS
In addition to outlining the above issues, the Appellant Worker submits:
a) the Arbitrator failed to give reasons for not accepting Mr Miller’s uncontradicted evidence of earnings;
b) by referring to Mr Miller’s post injury earnings the Arbitrator failed to consider the effect the injury had on his pre-injury ability to earn. In the absence of evidence to the contrary from Pearson, the Arbitrator should have accepted Mr Miller’s evidence as to his earnings at the time of injury;
c) the wages information in the letter from Holbel was evidence of comparable earnings in the same or similar employment and should have been considered;
d) the Arbitrator was not limited to assuming that Mr Miller would have remained in exactly the same employment (Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 540;
e) the Arbitrator should have found that “continuation of the worker’s employment is part of the hypothesis which the first step in section 11(1) requires. Whether or not the actual facts of the worker’s employment are consistent with that hypothesis is beside the point” (per McHugh JA (as he then was) in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 54D (‘Nicholson’), and
f) the Arbitrator should have had regard to the fact that expenses claimed by Mr Miller as a tax deduction continue over the period he was not working.
The Respondent Employer submits:
a) because Pearson no longer trades it was not possible to ascertain comparable earnings from that organisation for the purpose of calculating probable earnings under section 40(2)(a) of the 1987 Act;
b) the method adopted by the Arbitrator was to take Mr Miller’s gross income for the 2005 tax year ($60,878.00) less expenses incurred in earning that income ($23,115.00) to give a taxable income of $37,763.00. This figure divided by 52 weeks gives a weekly amount of $726.21 to which the Arbitrator added 3% to give $747.99 which he rounded up to $750.00 to give the probable earnings but for injury. This figure was well short of the figure of $1,100.00 per week “after taxation” Mr Miller claimed he “averaged” with Pearson (see Mr Miller’s statement 13 July 2006 paragraph 11);
c) there was no evidence before the Arbitrator that Mr Miller’s earnings in the 2005 tax year were adversely affected by his injury;
d) the figures in Mr Miller’s 2006 tax return did not support his claim that he averaged $1,300.00 per week since working on his own (Mr Miller’s statement 13 July 2006, paragraph 12) and did not correlate with the invoices he produced. Therefore, the Arbitrator was entitled to reject Mr Miller’s statement of his actual earnings;
e) the Arbitrator was entitled to reject the figures set out in the letter from Holbel;
f) the Arbitrator did not err in the exercise of his discretion. From 12 July until 14 August 2006 Mr Miller could have sought work from someone other than the party to whom he had previously been contracted. His ability to earn between 12 July and 14 August 2006 was the same as it had been between 29 May and 11 July 2006. The Arbitrator effectively found that Mr Miller’s ability to earn between 12 July and 14 August 2006 was the average of his actual earnings between 29 May and 11 July 2006;
g) it is conceded that Mr Miller’s first 26 weeks of compensation had not been exhausted under section 34 of the 1987 Act but no submissions were made on this point before the Arbitrator;
h) the Arbitrator did not err in making a general order for the payment of section 60 expenses as some of the items claimed were clearly not related to the relevant injury, and
i) it is conceded that there is an obvious error in the Certificate of Determination where it refers to 2007 instead of 2006.
DISCUSSION AND FINDINGS
Section 40 Assessment
Probable Earnings But For Injury (section 40(2)(a))
In determining probable earnings the following principles are applicable:
a) it must be assumed that the worker’s pre-injury job continued, even if that is not in fact the case (Nicholson at 54, applied in Singh v TAJ (Sydney ) Pty Limited [2006] NSWCA 330. It is a hypothetical calculation;
b) a determination must be made of the worker’s probable earnings “as a worker” had he or she remained uninjured and remained employed in the “same or some comparable employment”, and
c) regard must be had to the whole of the evidence.
Several methods were put to the Arbitrator as being the correct way to calculate Mr Miller’s probable earnings. First, to consider the wage for a “full-time carpenter in Mr Miller’s position” (T5.14). In support of this argument Mr Miller relied on the Holbel letter which set out Mr Miller’s earnings with that company for a 40-hour week as being $1,200.00. With overtime that figure could increase to $1,500.00 per week but the average was said to be $1,350.00 per week. However, it is unclear exactly what work Mr Miller performed for Holbel and whether that work could be classified as ‘the same or some comparable’ employment to the work of a carpenter performed by Mr Miller with Pearson. In addition, the letter was expressed in vague and general terms when specific information could and should have been provided. The Arbitrator was right to have reservations about its accuracy and to reject it as probative evidence of comparable earnings.
The second method put by Mr Miller’s solicitor was to rely on the tax return for the financial year 2005 (T5.51). He argued that Mr Miller’s total income for that year was $60,878.00 or an average of $1,169.57 per week which, it was argued, should be increased by 3% to give the appropriate figure for 2006 of $1,204.66 as comparable earnings (T6.18). My calculations come to slightly different figures but I have adopted the Appellant Worker’s figures set out in the transcript.
Before the Arbitrator, the Respondent Employer submitted:
a) Mr Miller was running his own business in 2006 and expenses for that business must be deducted before arriving at probable earnings under section 40 (T11.8);
b) the letter from Holbel was of no probative value in assessing Mr Miller’s ability to earn on the open labour market (T11.13);
c) the documents tendered in evidence stated that Mr Miller earned $23,805.00 from his own business from 16 January to 22 May 2006, a period of 19 weeks or an average of $1,252.90 per week (T11.20). However, that figure is gross income before deduction of business expenses;
d) the 2005 tax return shows a gross income of $60,878 with deductions of $23,115 for “business related expenses” (T11.30) leaving a taxable income of $37,763 or an average of $726.21. Adding 3% to this figure gives $747.99 per week, which the Arbitrator rounded up to $750.00 (T12.5);
e) Mr Miller’s income with Pearson from 1 July to 19 December 2005 was $26,068 plus $4,182 in allowances giving a total of $30,250 or an average of $1,260 per week for the 24-week period covered. However, “business related expenses” must be considered;
f) Mr Miller went into business for himself in 2006 and whatever he earned from that business represents his ability to earn (T13.2), and
g) if you combine Mr Miller’s income for 2006 from all sources and deduct business expenses the figure arrived at is $46,902 or $900.00 per week (rounded down).
The Arbitrator accepted the approach outlined in paragraph [23 (d)] above and found Mr Miller’s probable earnings but for injury to be $750.00 per week (Reasons, paragraph 39). He seems to have done so for two reasons. First, on the basis that there was no evidence that Mr Miller would have continued to work for Pearson if it had not gone out of business, and, second, on the basis that “after allowable deductions” Mr Miller’s taxable income for 2005 was $37,763 or $726.21 per week which, after adjusting for 3% and rounding up, came to $750.00.
In my view the Arbitrator was in error in making that finding. The authorities of Nicholson and Singh are clear that in calculating probable earnings it is necessary to assume that the pre-injury employment continued. If Mr Miller’s employment with Pearson had continued he would have earned an amount similar to that disclosed in his 2005 tax return. He was not conducting a business at that stage but was employed by Pearson ‘as a worker’. His probable earnings ‘as a worker’ were his gross earnings as a carpenter employed by Pearson. That figure for the 2005 tax year was $60,878 or $1170.73 per week. His tax deductions for that year included motor vehicle expenses, laundry, sunglasses, tools, telephone, meals and union fees. These deductions were all appropriate and legitimate deductions for an employee and did not alter his status as a worker under the legislation. They did not turn his wage into a business income and could not be characterised as ‘business expenses’. Therefore, the appropriate method of calculating probable earnings was to look at the gross income in the 2005 tax return.
The figure of $1,170.73 before tax is less than the amount of $1,100.00 after tax Mr Miller claimed he earned (see Mr Miller’s statement 13 July 2006, paragraph 11). However, it is a figure well within the figures set out in the four “Pay Advice” documents from Pearson tendered in evidence dated 15 February, 22 March, 12 April and 19 April 2004. They all related to one-week pay periods and reveal an average gross income of $1,539.
In respect of Mr Miller’s argument on appeal that his earnings in 2005 are not relevant, it should be noted that after a short period on light duties after the February 2004 injury he was declared fit for his pre-injury duties from 25 May 2004 (medical certificate from Dr Fagg, 24 May 2004) and he continued to work for Pearson doing the full duties of a carpenter (see Mr Miller’s statement 13 July 2006, paragraph 24) until Pearson ceased trading in December 2005. Whilst Mr Miller’s earnings in the 2005 tax year did post date his injury, the evidence is clear that until May 2006 he had no incapacity in either a physical or economic sense. Therefore, the earnings in the 2005 tax return were an appropriate guide as to Mr Miller’s probable earnings and were in fact higher than in his 2004 tax return because for half of that year he was paid at the much lower rate applicable for an apprentice.
The parties appear to have agreed at the arbitration that a 3% adjustment was appropriate to bring the figure up to 2006 levels. Adopting that approach (which will not be appropriate in the absence of agreement or evidence) I find the correct figure for probable earnings is $1,206.00 per week (rounding up to the nearest whole dollar). This figure represents Mr Miller’s average weekly earnings under section 43 of the 1987 Act.
Ability to Earn in Suitable Employment (section 40(2)(b))
In the first period claimed (29 May to 11 July 2006) Mr Miller was still working as a carpenter in his own business. The parties have made no specific submissions about Mr Miller’s ability to earn. The Arbitrator found Mr Miller’s actual earnings for this period to be the figures set out in the wage schedule “less 40% for probable tax deductible expenses” (Reasons paragraph 42). The Appellant Worker’s submissions indicate an acceptance of the actual earnings set out in the wage schedule without any deduction for business expenses.
When a person is working in his or her own business what is required is a determination of the value of the person’s labour (Hill v Bryant [1974] 2 NSWLR 423 at 428). That determination can be made by either calculating the worth of his or her work to the business, or by calculating what it would cost the business to employ someone else to do his or her work (J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 631 and Cage Developments Pty Ltd t/as Monaro Mix Specified Concrete v Schubert [1981] 2 NSWLR 227). The evidence is that when Mr Miller was self-employed he was a sole trader. The business income came solely from his labour. There is no evidence that he employed anyone or that he incurred any expenses in addition to those he incurred when Pearson employed him. He did not hire equipment or rent premises. Therefore, ‘the worth of his work to the business’ was the cost of his labour. That cost is determined by examining invoices tendered in evidence from “Greg Miller Carpentry”. In those invoices the hourly rate charged for “supply labour” was $30.00. That is the worth of his work to the business. Mr Miller’s diary provided evidence of the hours he worked between 29 May and 11 July 2006. The figures set out in the wage schedule have been calculated by multiplying the number of hours worked by $30.00. Therefore, the figures set out in the wage schedule are Mr Miller’s actual earnings and should have been accepted as such by the Arbitrator without adjustment for business expenses.
The appropriate findings for actual earnings are as follows:
29 May to 4 June 2006 $1,020.00
5 to 11 June 2006 $510.00
12 to 18 June 2006 $660.00
19 to 25 June 2006 $720.00
26 June to 2 July 2006 $720.00
3 to 9 July 2006 $900.00
10 to 11 July 2006 $360.00
In respect of the payment for 10 and 11 July 2006 the Arbitrator seems to have assumed that that payment was for one week commencing on that date. That seems unlikely as Mr Miller states at paragraph 36 of his statement of 13 July 2006 that he has been out of work since 11 July 2006 because no light duties were available for him. His diary entries indicate that he worked for six hours each day on 10 and 11 July 2006. I therefore assume that the payment on 10 July relates to work done on those two days. The payment for those two days is equal to the daily rate earned in the preceding week ($900.00 for a five day week).
As there was no evidence that Mr Miller was deliberately avoiding work, his actual earnings represent his ability to earn in the relevant period (Aitken v Goodyear Tyre & Rubber Co (Australia) Ltd (1945) 46 (NSW) SR 20).
Deducting actual earnings from probable earnings gives the following difference:
29 May to 4 June 2006 $1,206 less $1,020 = $186
5 to 11 June 2006 $1,206 less $510 = $696
12 to 18 June 2006 $1,206 less $660 = $546
19 to 25 June 2006 $1,206 less $720 = $486
26 June to 2 July 2006 $1,206 less $720 = $486
3 to 9 July 2006 $1,206 less $900 = $306
The proper award for 10 and 11 July 2006 is an award under section 40 for two days calculated at $306.00 per week. The award for the second period claimed commences on 12 July 2006 not on 11 July.
The above period of compensation is still within Mr Miller’s first 26 weeks of incapacity (see section 34 of the 1987 Act). Therefore, his maximum compensation is his current weekly wage rate, as determined under section 42 of the 1987 Act (normally the award rate). The Respondent Employer is not correct when it submits that no submissions were made about ‘the first 26 weeks of compensation’ at the arbitration. At page five line six of the transcript Mr Miller’s solicitor made exactly that point. There is no evidence that Mr Miller was employed under an award so his maximum compensation in the first 26 weeks of incapacity is 80% of his average weekly earnings (see section 42 and the definition of ‘prescribed proportion’ in that section), a point conceded by counsel for Pearson at the arbitration at page 13 line 33 of the transcript. Applying 80% to Mr Miller’s average weekly earnings ($1,206) gives a figure of $964.80, which sets the upper limit of his entitlement to weekly compensation in the first 26 weeks of his incapacity.
It has not been suggested that there are any discretionary factors relevant to this period. Therefore, Mr Miller’s award for the period 29 May to 11 July 2006 (not 10 July as stated by the Arbitrator) is as follows:
29 May to 4 June 2006 $186.00
5 to 11 June 2006 $696.00
12 to 18 June 2006 $546.00
19 June to 2 July 2006 $486.00
3 to 11 July 2006 $306.00 per week
Mr Miller did not work or earn any income from 12 July to 14 August 2006. The Arbitrator did not assess Mr Miller’s ability to earn in the labour market reasonably accessible to him (section 40(2)(b)). Instead he reduced the figure of $750 by $420, being the average of Mr Miller’s earnings in the period from 29 May to 10 July 2006 after deduction of business expenses. He then awarded the resulting figure ($330) to 14 August 2006. This involves an error. What is required is an assessment of Mr Miller’s ability to earn having regard to the terms of sections 40 and 43A.
Mr Miller said in his statement of 13 July 2006 that:
a) he could not lift anything at all and could not use a screw gun or use 90% of the tools required of the job of a carpenter (paragraph 37);
b) he could only work for six hours because he could not stand for any longer (paragraph 40);
c) he could not sit for long periods because of back pain (paragraph 41), and
d) he did not have a builders licence (paragraph 42).
The only medical report in this period is a report from Dr Powell, orthopaedic surgeon qualified by CGU, dated 17 July 2006. Dr Powell recorded Mr Miller’s back condition to be improving but he still complained of a constant dull ache in the midline region of the lumbosacral spine radiating across to the right side with occasional sharp exacerbations of pain related to activity. A CT scan dated 8 April 2004 revealed a minor central L5/S1 disc prolapse. A further CT scan dated 23 June 2006 showed a slightly more obvious L5/S1 prolapse without neural compromise.
Dr Powell thought that Mr Miller was unfit for his normal pre-injury duties. He recommended a lifting restriction of 5 kilograms and that he avoid repetitive bending, lifting or twisting, prolonged sitting or standing and that he have the opportunity for regular rest breaks. The doctor thought that Mr Miller remained “significantly symptomatic” (report 17 July 2006, page eight).
In addition six medical certificates were tendered from Dr Fagg covering the period 25 May to 7 July 2006. The certificates initially declared Mr Miller to be fit for suitable duties for eight hours a day five days per week with a lifting restriction of one kilogram. However, the doctor decreased the number of hours to six per day five days per week. Mr Miller was also to avoid walking over uneven ground.
Having regard to the whole of the evidence and to the provisions of section 43A I find that Mr Miller had an ability to earn in some suitable employment between 12 July and 14 August 2006 the sum of $600.00 per week. This amount is arrived at having regard to his demonstrated capacity to earn in May and June 2006 when he successfully performed suitable duties. It allows for Mr Miller being able to perform light carpentry work but for reduced hours as per Dr Fagg’s certificates.
Deducting $600.00 from the probable earnings of $1,206.00 gives $606.00. There are no discretionary factors that warrant that figure being reduced.
Whilst the sum of $606.00 is well above the maximum statutory rate of weekly compensation payable for a single worker, Mr Miller remains within the first 26 weeks of his incapacity and the maximum compensation payable to him in that period is $964.80, as set out at paragraph [36] above. Therefore, the appropriate award for the period from 12 July to 14 August 2006 is $606.00 per week under section 40.
Section 60 Expenses
The Appellant Worker’s challenge to this part of the decision is that the Arbitrator failed to determine whether Mr Miller’s medical expenses were “fair and reasonable”. No further submissions have been made on this issue. The Arbitrator noted that the amount claimed under this section included items that were clearly unrelated to the relevant injury (cold and flu tablets). Mr Miller made no submissions to the Arbitrator about section 60 expenses. The only reference to them is on page eight of the transcript where counsel for the Respondent Employer stated that the cost of gym membership had been agreed. In these circumstances the Arbitrator’s Reasons disclose no error.
DECISION
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.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
14 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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