Miller v NSW Police Service (No 2)
[2007] NSWWCCPD 216
•26 October 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Miller v NSW Police Service (No 2) [2007] NSWWCCPD 216
APPELLANT: Luke Justice Miller
RESPONDENT: NSW Police Service
INSURER:Treasury Managed Fund, Allianz Australia Insurance Limited
FILE NUMBER: WCC5152-06
DATE OF ARBITRATOR’S DECISION: 26 June 2007
DATE OF APPEAL DECISION: 26 October 2007
SUBJECT MATTER OF DECISION: Entitlement to weekly compensation while on parental leave
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Whitelaw McDonald
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Paragraphs one to six inclusive of the Arbitrator’s determination dated 26 June 2007 are revoked and the following orders made:
“That the Respondent pay the Applicant weekly compensation at the rate of:
1.$900.36 per week from 2 March 2005 until 31 August 2005 under section 36 of the 1987 Act;
2.$485.10 per week from 1 September 2005 until 30 September 2005 and $495.00 per week from 1 October 2005 until 24 February 2006 under section 37 of the 1987 Act;
3.$574.50 per week from 25 February 2006 until 31 March 2006 and $586.20 per week from 1 April 2006 until 20 April 2006 under section 37 of the 1987 Act;
4.$586.20 per week from 21 April 2006 until 30 September 2006 and $597.10 per week from 1 October 2006 until 15 October 2006 under section 40 of the 1987 Act;
5.$597.10 per week from 16 October 2006 until 14 March 2007 under section 37 of the 1987 Act, and
6.$597.10 per week from 15 March 2007 until 31 March 2007; $608.70 from 1 April 2007 until 30 September 2007, and $619.50 per week from 1 October 2007 to date and continuing under section 40 of the 1987 Act.”
Paragraphs seven to nine inclusive of the Arbitrator’s determination are confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 16 July 2007 Luke Justice 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 26 June 2007.
The Respondent to the Appeal is the NSW Police Service (‘the Respondent Employer’).
This is the second Presidential appeal between the same parties arising from the same claim for compensation. Acting Deputy President O’Grady heard the first appeal on 8 March 2007 (Miller v NSW Police Service [2007] NSWWCCPD 78). The background facts to this matter have been conveniently summarised in that decision and I gratefully adopt that succinct summary at paragraphs [3] to [15] inclusive:
“3. The Appellant, who was born on 7 November 1977, commenced service as a Police Officer with the Respondent in September 2000 following his successful completion of training at the NSW Police Academy Goulburn, NSW. The Appellant was initially engaged in general duties at Richmond and thereafter in Ballina and Lismore. In September 2004 the Appellant was transferred to the Highway Patrol at Ballina.
4. Whilst on duty in October 2003 the Appellant attended the Cubana Motel, Ballina in the company of other Police Officers in response to reports that there was a male armed with a pistol who wanted to see the Police. The Appellant and two fellow Officers set up a perimeter a short distance from the entrance to the Motel and whilst in this position the Appellant was confronted by a man armed with a pistol. The Appellant drew his service pistol and aimed the weapon at the armed person. The Appellant also shone a torch which he was holding at the man. The Appellant identified himself as a Police Officer and demanded that the gun be dropped. The armed man remained still for a moment and then ran back inside the Motel. The Appellant remained at this point for several hours before being relieved. The Appellant later learnt that the armed person had shot and killed himself with a pistol at the Motel some hours after the Appellant had left the scene.
5. By mid 2004 the Appellant was experiencing irritability, short temper and anger in the course of his duties as a Police Officer. At about this time the Appellant made application for transfer from general duties to the Highway Patrol. In September 2004 the Appellant’s duties were transferred to the Highway Patrol at Ballina, following which the Appellant noticed that his mood and temper had improved.
6. During the course of the second half of 2004 the Appellant experienced a number of troubling incidents involving high speed travel in the course of his duties. The Appellant was also required to attend the coronial inquiry into the death of the armed man. Following these experiences the Appellant found difficulty in attending work.
7. On 30 December 2004 the Appellant, who was rostered to perform two consecutive night shifts, found himself unable to attend work and was again crying uncontrollably. The Appellant was unable to attend work and consulted General Practitioner, Dr Ruth Tinker, who certified his unfitness for one day.
8. The Appellant resumed duties and made contact with the Police Service Employment Assistance Program (“EAP”) and sought guidance with respect to the difficulties he had experienced. He was informed that arrangements would be made to have a Psychologist examine him.
9. In January 2005 the Appellant attended premises near Nimbin where it had been reported that shots had been fired and that a property had been set on fire. The Appellant approached the premises in a Police vehicle at which time a male person ran from the property shouting “Shoot me”. The Appellant and other Officers sprayed the person with OC spray and apprehended the person.
10. During early 2005 the Appellant continued in his policing duties and experienced a number of troubling and upsetting incidents. At that time the Appellant made an application for “parental leave” and that application was approved on 11 February 2005. Following discussions with his Commander it was agreed that the Appellant’s leave would commence on 22 March 2005. During discussion with his Commander it was indicated to the Appellant that his duties would be transferred from the Highway Patrol back to general duties.
11. On 1 March 2005 the Appellant consulted Mr Michael du Sautoy, Psychologist as arranged by the EAP. The Appellant was advised to take two weeks sick leave and the Respondent was informed that the Appellant would be absent from work for a period of up to two weeks. The Appellant then consulted Dr Dan Ewald who prescribed Zoloft as medication, and certified the Appellant as being unfit for work for two days.
12. Following his consultation with Dr Ewald the Appellant continued to experience distress and consulted by telephone, Dr David Howe of Orange, NSW. Dr Howe had been the Appellant’s Family Doctor during an earlier period of years. It appears that Dr Howe issued a medical certificate dated 12 April 2005 certifying that the Appellant was suffering post traumatic stress disorder, anxiety and depression and was unfit for work from 2 March 2005 and would remain unfit until 2 June 2005.
13. The Appellant has not attended for duty since 2 March 2005. The medical certificate issued by Dr Howe was submitted to the Respondent’s Insurer in support of a claim for workers compensation benefits. That claim was declined by the Insurer in June of 2005.
14. On 29 March 2006 the Appellant filed an Application to Resolve a Dispute (‘the Application’) with the Commission seeking orders with respect to his entitlement to weekly payments and medical expenses. That Application alleged that the date of injury was:
‘Nature and conditions of employment. Frank injury some time in October 2003.’
The injury was described as:
‘Demonstrable psychological or psychiatric injury, in particular post traumatic stress disorder and a major depressive disorder.’
15. That Application was heard by an Arbitrator on 30 June 2006 and determined on 11 July 2006.”
The Arbitrator in the first matter made an award in favour of the Respondent Employer. Mr Miller’s appeal to Acting Deputy President O’Grady was successful and the matter was remitted to another Arbitrator for re-determination. That re-determination was heard on 5 June 2007 and decided in a reserved decision delivered on 26 June 2007. The Arbitrator found in favour of Mr Miller on all issues and for all periods, save for the period 23 March 2005 until 19 March 2006 when Mr Miller was on parental leave. Mr Miller seeks leave to appeal that part of the Arbitrator’s decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 June 2007, records the Arbitrator’s orders as follows:
“1.That the respondent pay the applicant weekly compensation at the rate of $991.80 from 2 March 2005 to 22 March 2005 under s36 of the Workers Compensation Act 1987.
2.That the respondent pay the applicant weekly compensation at the rate of $991.80 from 20 March 2006 to 20/4/2006 under s36 of the Workers Compensation Act 1987.
3.That the respondent pay the applicant weekly compensation at the maximum statutory rate for a worker with a dependent spouse and two dependent children from 21 April 2006 to 15 October 2006 with credit for wages and any compensation paid during that period under s40 of the Workers Compensation Act 1987.
4.That the respondent pay the applicant weekly compensation at the rate of $991.80 from 16 October 2006 to 24 February 2007 under s36 of the Workers Compensation Act 1987.
5.That the respondent pay the applicant weekly compensation at the rate of $597.10 from 25 February 2007 to 14 march 2007 under s37 of the Workers Compensation Act 1987.
6.That the respondent pay the applicant weekly compensation at the maximum statutory rate for a worker with a dependent spouse and two dependent children from 15 March 2007 to date and continuing under s40 of the Workers Compensation Act 1987.
7.That the respondent pay the applicant reasonable medical and related expenses on production of receipts or accounts under s 60 of the Workers Compensation Act 1987.
8.Certify that this was a complex matter.
9.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 finding that the fact that Mr Miller was on parental leave from March 2005 to March 2006 disentitled him to compensation on the ground that “he would not have earned any income regardless of his injury” (Statement of Reasons for Decision (‘Reasons’) at paragraph 52) and, if the Arbitrator was in error on this issue, is Mr Miller’s entitlement to compensation in the period from 23 March 2005 until 19 March 2006 to be calculated under section 40 or under sections 36 and 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).
LEAVE TO APPEAL
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’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the compensation for the period from 23 March 2005 until 19 March 2006 is ‘at issue’ on appeal and the second limb of section 352(2) is also satisfied.
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 submissions 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.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
The Appellant Worker submits that the Arbitrator’s approach to the claim for compensation from March 2005 to March 2006 discloses an error because the acceptance of unpaid parental leave does not of itself disentitle a worker to the receipt of weekly compensation. Reliance is placed on the authorities of Hirst v Illawarra Health Service (2000) 21 NSWCCR 82 (‘Hirst’), Myer Sydney Limited v Buckley [1980] WCR 319 and Steele v Australian Gas Light Company (1963) 80 WN (NSW) 503.
The Arbitrator accepted that Mr Miller suffered a psychological injury as a result of the incident in 2003 and as a result of the nature and conditions of his employment, and that his employment was a substantial contributing factor to that injury. Dealing with the claim for weekly compensation, the Arbitrator noted that Mr Miller took sick leave from 2 March 2005 until 19 March 2005 and commenced unpaid leave on 22 March 2005 until 19 March 2006. He accepted that Mr Miller’s sick leave was the result of his psychological injury and that Mr Miller was totally unfit from 2 March until 22 March 2005. He awarded Mr Miller compensation under section 36 of the 1987 Act for that period at the rate of $991.80 per week.
In respect of the period from 23 March 2005 until 19 March 2006 the Arbitrator stated at paragraphs 51 and 52:
“51.I find that but for the injury Mr Miller would have earned $991.80 per week if he had not taken parental leave.
52.As he did take unpaid parental leave for one year I find that for the period 22 [sic] March 2005 until 21 [sic] March 2006 he would not have earned any income regardless of his injury and consequently I do not propose to make an order with respect to that period.”
The Arbitrator then accepted evidence that Mr Miller was totally unfit from 20 March 2006 until 20 April 2006 and awarded him compensation for that period at $991.80 per week under section 36 of the 1987 Act.
The Respondent Employer argues that Mr Miller has no entitlement to compensation from March 2005 to March 2006 because he applied for parental leave prior to the onset of any psychological injury or the deemed date for that psychological injury. For the reasons set out below, I do not accept that submission.
By December 2004 Mr Miller was finding it increasingly difficult to attend work and started to believe that he might die on duty. It was these symptoms that led him to consult Dr Tinker on 30 December 2004 and obtain a medical certificate from that doctor. Dr Tinker’s notes for 30 December 2004 read:
“Thursday December 30 2004 16:15:07
Dr Ruth Tinker
Overwhelmed
Stressed
Reason for visit
Stress
Management:
ex 5/worker 30 mins
recreation
monthly outing with Beck
daily relation
1,5,10 yr plan
work counsellingActions
Letter written – re. CERTIFICATE”
Mr Miller made enquiries about parental leave in February 2005. At paragraph 42 of his statement of 22 January 2006 he said:
“At the time I believed taking parental leave may solve my problems at work and at home. I thought there would be less stigma attached to this than taking sick leave to get some help. I thought I would avoid copping any flack from colleagues because I am ‘to [sic] junior’ to be stressed.”
Approval for parental leave was apparently granted on the same day as Mr Miller’s enquiry. When that happened he saw a way to escape his problems (Mr Miller’s statement 22 January 2006, paragraph 46). Later that day he was told that he would be transferred from highway patrol back to general duties. As a result of a request from Commander Lyons, it was agreed that Mr Miller would start his leave on 22 March 2005. This upset Mr Miller because he did not wish to return to general duties, as he did not feel capable of “being able to perform” (Mr Miller’s statement 22 January 2006, paragraph 49).
After making contact with the Police Service Employment Program in December 2004, Mr Miller saw Mr du Sautoy, psychologist, on 1 March 2005. Mr du Sautoy recommended he take leave “straight away” and that he consult his local doctor “for a medical certificate and for a prescription for medication to treat depression” (Mr Miller’s statement 22 January 2006, paragraph 67). Mr Miller ceased work immediately after seeing Mr du Sautoy and attended his general practitioner, Dr Ewald.
Mr Miller states that Dr Ewald gave him a certificate (not in evidence) on 1 March 2005 for two days off work. He returned home in some distress until his wife came home. She then contacted his previous family doctor in Orange, Dr Howe, by phone who provided a certificate for unfitness from 2 March 2005 until 19 March 2005.
Dr Howe’s notes confirm phone consultations on four occasions in March 2005. The entry for the consultation on 2 March 2005 reads:
“30mns P/C PTSD re: to incident at work & following Coroner’s inquest
®¯ enjoyment ¯ concentration ¯ memory, crying
Suicidal ideation
D/W Counsellor – M du Sautoy
10 mns ® Time off work & Zoloft”
Other entries for March 2005 state that Mr Miller seemed more settled, did not want to make a WorkCover claim and was looking forward to a holiday. The entry for April 2005 reads “now wants to proceed with WorkCover claim – M/C issued”. The first WorkCover medical certificate was issued on 12 April 2005 declaring Mr Miller unfit to work from 2 March 2005 until 2 June 2005 because of “Post-Traumatic Stress Disorder, Anxiety, Depression” as a result of “involvement in situation whilst at work causing anxiety & depression”.
Having regard to the above evidence it is clear that Mr Miller’s condition was well established before he applied for leave, and deteriorated after his leave was approved. The Arbitrator accepted that Mr Miller sustained injury as a result of the 2003 incident and as a result of the nature and conditions of his employment up to 2 March 2005 (Reasons, paragraph 48). That finding has not been challenged and was open on the evidence. I agree with it. I therefore reject the Respondent Employer’s submission that Mr Miller applied for leave before the onset of his psychological injury. His symptoms were well entrenched before he applied for leave and he saw the application for leave as a method of dealing with the situation. He sought leave because of his illness which illness the Arbitrator found was caused by his work with the Respondent Employer.
More importantly, an employer’s liability does not cease because of supervening incapacity as a result of external non-work related events (see McCann v Scottish Co-op Laundry Association Ltd [1936] 1 All ER 475; Salisbury v Australian Iron & Steel Ltd [1943] WCR 97 and Doudie v Kinneil, Cannell & Coking Coal Co Ltd [1947] AC 377). The position is well summarised in the text Workers Compensation (New South Wales), 1979, second edition, by C P Mills at 244:
“The question in every such case is whether, had there been no supervening non-employment event, the worker would, at the date in question be incapacitated by the effects of the employment injury operating as a sole or contributing cause of the incapacity.”
The issue was also considered in Australia Wire Industries v Nicholson (1985) 1 NSWCCR 50 at 55 where McHugh JA stated of the Workers Compensation Act 1926 (‘the 1926 Act’):
“The right to compensation for incapacity is given by section 9 [see sections 9, 33 and 36 of the 1987 Act] and not by section 11. Retirement or intention to retire are not relevant to section 9, which is only concerned with total or partial incapacity for work resulting from injury, nor are they relevant to the first two steps in section 11(1).”
The right to compensation under the 1987 Act still arises under section 9, but Division 2 of that Act governs the quantification of weekly compensation. Section 33 of the 1987 Act provides that if total or partial incapacity for work results from an injury, compensation payable shall include weekly compensation. Compensation for total incapacity is determined by the application of sections 34 to 37 inclusive of the 1987 Act. As with section 9 of the 1926 Act, retirement or other supervening events are not relevant to determining entitlement to compensation for total incapacity. They are, however, most relevant to the exercise of the discretion under section 40 (section 11(1) of the 1926 Act), as is well illustrated in Hirst and other authorities such as Wrigley Co Pty Ltd v Holland (2002) 23 NSWCCR 463 (‘Wrigley’).
Applying the above authorities, it is irrelevant when Mr Miller applied for leave. The critical question is: whether, if he had not taken leave, he was incapacitated during the relevant period as a result of his work injury? The answer to that question in the present matter is clearly, yes.
It follows that the Arbitrator was in error in finding that because Mr Miller would not have earned anything in the period from 23 March 2005 until 19 March 2006 he was not entitled to compensation in that period.
The Respondent Employer submits that if the Commission finds that the Arbitrator was in error, the matter should be remitted to the Arbitrator to re-determine if Mr Miller’s incapacity from March 2005 until March 2006 was partial or total. The Appellant Worker submits that the matter has already been the subject of two appeals and two arbitrations and the matter should be re-determined by the Presidential member who hears the appeal. Having regard to the history of matter, the submissions by both parties on appeal and, given that there are no significant credit issues involved, I believe that the proper course is that I should re-determine the matter and that is the course I propose to adopt.
The Respondent Employer argues that Mr Miller was not totally incapacitated between 23 March 2005 and 19 March 2006 but was only partially incapacitated. Therefore, it is argued that in the exercise of the discretion under section 40 of the 1987 Act any entitlement Mr Miller has to weekly compensation is nominal, as determined in Hirst and Wrigley.
The Respondent Employer relies on the following evidence:
(a)Superintendent Lyons stated that prior to ceasing work in March 2005, Mr Miller had been a satisfactory performer with no interpersonal conflict;
(b)Mr Sawyer, clinical psychologist, reported on 9 June 2005 that Mr Miller was psychologically fit to participate in a graduated return to work program, and
(c)clinical notes (presumably from Dr Howe) in March 2005 state that Mr Miller “seemed more settled” and was “coping OK”.
It is submitted that this evidence indicates Mr Miller was not suffering any significant symptoms that would have prevented him from returning to work “at least on a partial basis”.
The above submission ignores the following:
(a)medical certificates from Dr Howe dated 12 April 2005, 1 June 2005 and 16 August 2005 which declared Mr Miller to be “unfit to work” from 2 March 2005 until 1 November 2005;
(b)the report from Dr Scurrah, Mr Miller’s treating psychiatrist, dated 4 January 2006, and
(c)the fact that Mr Miller’s anti-depressant medication (Zoloft) was increased from 50mg to 100mg in September 2005, to 150mg in early December 2005 and to 200mg in late December 2005.
Mr Miller first saw Dr Scurrah on 22 September 2005, having been referred by Dr Howe. So far as is relevant for the current dispute, Mr Miller had further consultations with Dr Scurrah on 6 October 2005, 3 November 2005, 1 December 2005, 18 December 2005, 25 January 2006, 20 February 2006 and 20 March 2006. The Arbitrator accepted (Reasons, paragraphs 53 and 71(2)), and it is not disputed on appeal, that Mr Miller was totally unfit as a result of his injury from 2 March 2005 until 22 March 2005 and from 20 March 2006 until 20 April 2006. Dr Scurrah declared Mr Miller fit for suitable duties from 21 April 2006, which the Arbitrator also accepted.
Two reports were tendered from Dr Scurrah, the first dated 4 January 2006 and the second dated 5 April 2007. In the first report Dr Scurrah confirmed that Mr Miller suffered from post-traumatic stress disorder and a major depressive disorder, and that treatment appeared to be improving both conditions. However, he thought that Mr Miller was unfit for his normal duties as a police officer. He did not suggest that Mr Miller was fit for any suitable alternative duties and deferred providing a prognosis for three months.
This report must be read with Dr Scurrah’s hand written note of 11 April 2006 which stated:
“Mr Miller’s depression /PTSD has progressively improved with treatment. Treatment was formally initiated [on] 22/9/05 and began having a significant impact from early 2006.
His condition has improved to the level where he is suitable for a graded/gradual RTW in an administrative role (without direct public contact).”
Having regard to the whole of the evidence and the fact that the Arbitrator rightly rejected the evidence of Mr Sawyer, I have no hesitation in finding that Mr Miller was totally unfit for employment from 2 March 2005 until 20 April 2006. I place particular weight on the following evidence, which I accept:
(a)that Mr Miller was totally unfit from 2 March until 22 March 2005;
(b)medical certificates from Dr Howe declared Mr Miller to be unfit for work from 2 March 2005 until 1 November 2005;
(c)in the period from September 2005 until March 2006 (and beyond), Mr Miller remained under the care of Dr Scurrah;
(d)in that period Mr Miller’s medication was significantly increased, especially in December 2005 when Mr Miller had increased his consumption of alcohol (Mr Miller’s statement 22 January 2006, paragraphs 91 to 95 inclusive);
(e)Mr Miller’s evidence that as at January 2006 he still had trouble with stressful situations, no matter how minor (Mr Miller’s statement 22 January 2006, paragraph 100);
(f)Mr Miller’s evidence that in January 2006 his energy and motivation levels were quite low and some days he could not get himself going. On other days he could get things done but often needed a short sleep during the day (Mr Miller’s statement 22 January 2006, paragraph 101);
(g)that Mr Miller was totally unfit from 20 March 2006 until 20 April 2006, and
(h)whilst there was an improvement in his condition in early 2006, Dr Scurrah did not declare Mr Miller fit for suitable duties until 21 April 2006.
It follows that the Arbitrator’s award must be revoked and a new award entered to reflect the above findings.
For the first 26 weeks of total incapacity a worker is entitled to be compensated at his or her current weekly wage rate (section 36 of the 1987 Act). In the present case that amount was agreed to be $900.36 per week (T7.47), not the sum of $991.80 awarded by the Arbitrator. Therefore, Mr Miller is entitled to an award in the following terms:
1.$900.36 per week from 2 March 2005 until 31 August 2005 under section 36 of the 1987 Act;
2.the maximum statutory rate of compensation for a worker with a dependent wife and child from 1 September 2005 until 24 February 2006 under section 37 of the 1987 Act;
3.the maximum statutory rate of compensation for a worker with a dependent wife and two dependent children from 25 February 2006 until 20 April 2006 under section 37 of the 1987 Act;
4.the maximum statutory rate of compensation for a worker with a dependent wife and two dependent children from 21 April 2006 until 15 October 2006 under section 40 of the 1987 Act;
5.the maximum statutory rate of compensation for a worker with a dependent wife and two dependent children from 16 October 2006 until 14 March 2007 under section 37 of the 1987 Act, and
6.the maximum statutory rate of compensation for a worker with a dependent wife and two dependent children from 15 March 2007 to date and continuing under section 40 of the 1987 Act.
In making the above findings I have not re-determined the Arbitrator’s section 40 assessments for the periods 21 April 2006 to 15 October 2006 and 15 March 2007 to date and continuing as neither party has challenged those assessments.
DECISION
Paragraphs one to six inclusive of the Arbitrator’s determination dated 26 June 2007 are revoked and the following orders made:
“That the Respondent pay the Applicant weekly compensation at the rate of:
1.$900.36 per week from 2 March 2005 until 31 August 2005 under section 36 of the 1987 Act;
2.$485.10 per week from 1 September 2005 until 30 September 2005 and $495.00 per week from 1 October 2005 until 24 February 2006 under section 37 of the 1987 Act;
3.$574.50 per week from 25 February 2006 until 31 March 2006 and $586.20 per week from 1 April 2006 until 20 April 2006 under section 37 of the 1987 Act;
4.$586.20 per week from 21 April 2006 until 30 September 2006 and $597.10 per week from 1 October 2006 until 15 October 2006 under section 40 of the 1987 Act;
5.$597.10 per week from 16 October 2006 until 14 March 2007 under section 37 of the 1987 Act, and
6.$597.10 per week from 15 March 2007 until 31 March 2007; $608.70 from 1 April 2007 until 30 September 2007, and $619.50 per week from 1 October 2007 to date and continuing under section 40 of the 1987 Act.”
Paragraphs seven to nine inclusive of the Arbitrator’s determination are confirmed.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
26 October 2007
I, TUYET WALLIS, 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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