Mulwaree Shire Council v Brown
[2005] NSWWCCPD 57
•30 June 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mulwaree Shire Council v Brown [2005] NSW WCC PD 57
APPELLANT: Mulwaree Shire Council
RESPONDENT: Mark Brown
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC 14184-03
DATE OF ARBITRATOR’S DECISION: 31 May 2004
DATE OF APPEAL DECISION: 30 June 2005
SUBJECT MATTER OF DECISION: Awards under sections 38 and 40 of the Workers Compensation Act 1987; discretion under section 40(1).
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Nevill & Edwards Solicitors
Respondent: White Barnes Solicitors
ORDERS MADE ON APPEAL: (1) That part of the Arbitrator’s decision of 31 May 2004 awarding payments of weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 is confirmed.
(2) That part of the Arbitrator’s decision awarding payments of weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 Act is revoked and the following decision is made in its place. The Appellant shall pay the Respondent compensation pursuant to section 40 of the 1987 Act as follows:
(a) For the period from 24 July 2003 to 29 August 2003, $441.90 per week;
(b) For the period from 1 September 2003 to 30 January 2004, $390.80 per week;
(c) For the period from 2 February 2004 to 12 March 2004, $8.40 per week;(d) For the period from 15 March 2004 to the date of the Arbitrator’s determination and continuing, $100.64 per week.
(3) The Appellant, Mulwaree Shire Council, is to pay the Respondent, Mr Brown’s costs in this appeal as agreed or assessed.
BACKGROUND TO THE APPEAL
On 25 June 2004, Mulwaree Shire Council (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 31 May 2004.
The Respondent to the Appeal is Mark Brown (‘the Respondent’).
Mr Brown was born on 11 February 1959 and is aged 46. He states he is separated from his wife (since approximately 27 October 2002) with whom he shares custody of his two children, a son born on 2 March 1993 who is aged 12, and a daughter born on 4 March 1995 who is aged 10. He was employed by the Council as a truck driver/labourer based in Goulburn from 15 February 1994 until his employment was terminated on 30 January 2003 when no suitable position with the necessary restricted duties could be found for him.
On 14 February 2000, Mr Bown was injured when the truck he was driving hit a tree as a result of a steering failure. On 17 February 2000, he lodged a claim for workers’ compensation. On 6 March 2003, the Compensation Court of NSW made orders by consent pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’) including the following:
“2. (a) The respondent pay the applicant weekly compensation at the rate of $434.50 from 1–02–03 to date and continuing pursuant to s 37, such weekly payment to continue in accordance with the provisions of the Act at the rate appropriate for a worker with two dependent children.
3. The respondent pay the applicant lump sum compensation pursuant to Section 66:
(a) $15,000 in respect of a 25% permanent impairment of the applicant’s back
(b) $4,000 in respect of 10% permanent impairment of the applicant’s neck
(c) $7,500 in respect of 10% permanent loss of use of the applicant’s right leg at or above the knee, and(d) $3,750 in respect of 5% permanent loss of use of the applicant’s left leg at or above the knee.
4. The respondent pay the applicant lump sum compensation of $14,750 pursuant to Section 67 for pain and suffering.”
On 24 July 2003, Mr Brown commenced casual employment at Bradfordville Public School as a general assistant and later also as a teacher’s aide.
On 3 September 2003, the Council’s ‘Application to Resolve a Dispute’ was filed with the Commission, seeking a variation of the Compensation Court Order of 6 March 2003 in respect of its award of weekly payments of $494.16 from 6 March 2003 and continuing.
The Arbitrator conducted a teleconference with the parties on 3 May 2004, subsequent to which the parties agreed that the Arbitrator should determine the matter ‘on the papers’ without a conference or formal hearing.
THE DECISION UNDER REVIEW
Although not stated, it can be inferred that the Arbitrator found a change of circumstances, in so far as Mr Brown had found employment since the date of the Compensation Court award, thereby empowering her to review Mr Brown’s weekly payments pursuant to section 55 of the 1987 Act. The Certificate of Determination, dated 31 May 2004, records the Arbitrator’s orders as follows:
“1. The Applicant to pay the Respondent under s 38 the statutory weekly rate with consideration for two dependent children from 06/03/03 to 23/07/03.
2. The Applicant to pay the Respondent pursuant to s 40, $504.30 per week from 24/07/03 to 29/08/03, $449.14 from 01/09/03 to 30/01/04, $125.57 per week from 2/2/04 to 12/3/04 and thereafter, $112.12 per week to date and continuing.
3. The Applicant to pay the Respondent costs as agreed or assessed.”
The Council’s solicitors lodged an ‘Appeal Against Decision of Arbitrator’ with the Commission on 25 June 2004.
ISSUES IN DISPUTE
The grounds of appeal identified by the Council’s solicitors are:
(a)as to the award pursuant to section 38 (in respect of the period 6 March 2003 to 23 July 2003):
(i) the Arbitrator erred in making the award since Mr Brown did not claim an entitlement under this section and the Arbitrator applied the section of her own volition without giving the Council the opportunity to make submissions in relation to it;
(ii) the Arbitrator also failed to take into account section 38(4), as further explained in section 38A(2);
(b) as to the awards pursuant to section 40:
(i) the award for the period 6 March 2003 to 23 July 2003 (see above) should have been made under section 40 on the basis of what Mr Brown was able to earn in suitable employment;
(ii) the award for the period 24 July 2003 to 28 August 2003 exceeded the statutory maximum of $441.90 during this period and was incorrect, but the Arbitrator’s approach to calculating the section 40 entitlement was in any event incorrect;
(iii) the award for the period 30 August 2003 to 1 February 2004 is incorrect because the Arbitrator applied the incorrect approach in calculating the award payable;
(iv) the award for the period 2 February 2004 to 12 March 2004, is similarly incorrect;
(v) the award for the period 13 March 2004 to date and continuing, is incorrect for the same reason.
Mr Brown’s solicitors dispute the above claims except in so far as they agree that the statutory maximum for an award for a worker with two dependent children for the period 24 July 2003 to 28 August 2003 was $441.90, and that the Arbitrator’s award for that period should therefore be reviewed.
ON THE PAPERS REVIEW
12.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
13.Having regard to the Commission’s Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by both 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.
14.Neither party sought to adduce fresh evidence.
LEAVE
15.Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:
“352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
16.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
17.With regard to section 352(2), I am satisfed the amount of compensation at issue, which includes continuing weekly payments, is both at least $5,000 and at least 20% of the amount awarded.
18.Thus, the appeal meets the threshold requirements of section 352. I am therefore satisfied that I should grant the Appellant leave to appeal and leave is granted.
SUBMISSIONS
19.First, in relation to the Arbitrator’s award pursuant to section 38 of the 1987 Act, the Council’s solicitors submitted:
(1)that the Arbitrator made an error of law in so far as the Council was denied natural justice because Mr Brown did not make a claim under section 38, the Arbitrator applied the section of her own volition, and the Council did not have the opportunity to make submissions in relation to it; and
(2)that the Arbitrator made findings that Mr Brown had been “co-operating with his vocational re-deployment program” and had been certified fit for light work, findings that were not supported by the evidence. Moreover, pursuant to section 38(4), section 38 is only applicable where the worker is seeking suitable employment as further explained in section 38A. The Arbitrator failed to address the requirements of section 38A(2).
20.Mr Brown’s solicitors noted that the original proceedings filed in the Compensation Court sought compensation pursuant to sections 36 to 40 of the 1987 Act. An award was made by consent pursuant to section 37. The Council then sought to vary that award once Mr Brown obtained employment. However, the Council failed to specify the proper section pursuant to which Mr Brown should be compensated - this was not addressed in the Council’s submissions. The Arbitrator accepted submissions made by the Council that Mr Brown was partially incapacitated for work during the period 6 March 2003 to 23 July 2003 but found he was co-operating with his vocational redeployment programme in seeking work and that the Council had failed to provide suitable duties. In those circumstances, Mr Brown was entitled to an award under section 38. Mr Brown’s solicitors submit there is ample evidence to support the Arbitrator’s findings on these matters. There was no denial of natural justice – the Council prosecuted its review application as it saw fit. In the alternative, if the Council’s submissions as to the applicability of section 38 are accepted, Mr Brown’s solicitors refute the suggestion that Mr Brown’s ability to earn during this period should be assessed on the basis of his demonstrated ability to work 12 months later.
21.Secondly, in relation to the Arbitrator’s awards under section 40 of the 1987 Act, the Council’s solicitors submitted that the Arbitrator erred in her approach to the steps required by section 40 in so far as she initially applied a discount to Mr Brown’s actual earnings to take into account the probable loss of hours during the school holidays, and had thereby “annualised down” his actual earnings, rather than exercising the section 40(1) discretion after calculating the difference between his probable earnings had he not been injured and his actual earnings post-injury. Moreover, the Council’s solicitors submitted Mr Brown was capable of working for 40 hours per week from 6 March 2003, and that his actual earnings were not a true reflection of his earning capacity. With regard to the period 24 July 2003 to 28 August 2003, the Council also submitted that the Arbitrator had erred in law in entering an award for Mr Brown during this period that was in excess of the statutory rate of $441.90 per week for a worker with two dependent children.
22.In relation to the period 24 July 2003 to 28 August 2003, Mr Brown’s solicitors accepted that the Arbitrator’s award should be reviewed and an order substituted with the then statutory maximum of $441.90 per week. However, they disputed the Council’s submissions as to the approach to be adopted in relation to section 40, arguing that the authorities allow for the use of some discretion in calculating the award pursuant to section 40. Further, with regard to the Council’s submission that Mr Brown’s ability to earn ought to be reflective of a 40 hour week, his solicitors submitted that Mr Brown’s position was a tenuous, casual one and that during school holidays only a limited amount of work was available for him. Other suitable employment in the labour market accessible to Mr Brown was not available during those periods given his age, impairments and limited education.
EVIDENCE
23.Mr Brown commenced casual employment at Bradfordville Public School on 24 July 2003 as a general assistant (a handyman) initially earning for the period 24 July 2003 to 29 August 2003, according to Mr Brown, $303.20 per week, or according to the Council, an average of $325 per week, with no provision being made for annual leave, sick leave or public holidays. The Arbitrator averaged the parties’ figures and found that he earned $314 per week during this period. Mr Brown states that he obtained this employment through his own endeavours.
24.Mr Brown was able to increase his hours from 1 September 2003, earning for the period to 30 January 2004, according to Mr Brown, $379.20 per week.
25.On 2 February 2004, Mr Brown was, in addition, given casual employment at the School as a teacher’s aide, working on a one to one basis with a boy with a learning disability during school term time. Mr Brown states that between 2 February 2004 and 12 March 2004, he was working 20 hours a week as a general assistant and 20 hours a week as a teacher’s aide. The Arbitrator found him to be earning $761.60 per week during this period. Mr Brown stated that work as a teacher’s aide is “far lighter” than that as a general assistant and that work as a general assistant is “much lighter” than his work as a truck driver for the Council (Supplementary Statement dated 28 April 2004, paragraphs 10-11). There is no teacher’s aide work available during the school holidays.
26.From 15 March 2004, Mr Brown’s mix of work changed so that he was working 24 hours per week as a teacher’s aide and 15 hours per week as a general assistant, earning $777.50 per week during school term time.
27.The Arbitrator found, and there was no dispute, that had Mr Brown continued in his pre-accident employment with the Council, he would probably have earned $746.60 per week in the period 6 March 2003 to 30 June 2003, and $770 per week thereafter up to the date of the Arbitrator’s decision.
28.Mr Brown’s employment with the Council was terminated by letter from Phil Hansen, Director of Engineering Services, dated 17 January 2003. The letter states that for the Council to offer Mr Brown “continued ongoing employment” required that he be able “to return to full pre-injury duties”. Because it appeared that this would never be the case, the Council had decided to terminate his employment effective from 30 January 2003. The parties submitted extensive medical evidence, in particular as to Mr Brown’s lower back and neck condition and the consequent restrictions on his ability to work.
DISCUSSION AND FINDINGS
29.The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, the Council must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Ltd v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.
The Award Pursuant to Section 38
30.The Arbitrator made her decision on the papers after receiving written submissions from the parties. The application by the Council was to vary a consent award under section 37 of the 1987 Act made by the Compensation Court in favour of Mr Brown. The Council submitted that Mr Brown has always had an ongoing residual earning capacity, demonstrated by his employment with the Bradfordville Public School, there being no evidence to demonstrate any significant change in his capacity. Therefore, the award should be terminated from 6 March 2003. In the alternative, there should be a revision of the award since 6 March 2003 to take account of Mr Brown’s earning capacity.
31.In my view, there was sufficient evidence before the Arbitrator to enable her to exercise her power under section 55(2) of the 1987 Act to find “a change of circumstances” and vary the award made by the Compensation Court; more partularly, to find that the appropriate award in respect of the period 6 March 2003 to 23 July 2003 was under section 38 rather than section 37, on the basis that Mr Brown had a partial incapacity for work as a result of his work injuries rather than a total incapacity. Such a finding was a foreseeable consequence of the Council’s application to vary the consent award and should have been foreseen by the Council’s solicitors, especially since Mr Brown’s original claim for compensation was made pursuant to sections 36 to 40 of the 1987 Act. I do not accept that the Council was denied the opportunity to make appropriate submissions and I am not satisfied that there has been any denial of natural justice or error of law made by the Arbitrator in this regard.
32.With regard to the Council’s submission that the Arbitrator failed to take into account section 38(4), I note that this subsection states:
“(4) Worker to seek suitable employment
Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”
Subsection 38A(2) states:
“(2) General requirements
The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.”
33.The Arbitrator found that Brown “was co-operating with his vocational redeployment program in seeking out work and that his activities resulted in success within a reasonable period after the change of medical certification and he should therefore be entitled to the section 38 statutory benefit”. While the Arbitrator did not systematically work through the requirements of section 38A(2) in stating her reasons, which would have been the preferred course, she referred elsewhere to evidence of the termination of Mr Brown’s employment by the Council (the letter from the Director of Engineering Services dated 17 January 2003) because the Council had no suitable employment for him, and to medical and rehabiliation reports supplied to the Council or its insurer.
34.I am satisfied that despite a lack of clarity in the Arbitrator’s reasons, they were not so inadequate as to amount to an error of law, and she was justified in finding that the requirements of section 38A(2) were met so that Mr Brown was entitled to an award of compensation under section 38. The decision was not the result of some legal, factual or discretionary error by the Arbitrator such that I could exercise my power to change her decision on this issue. (I note that the statutory limit of 52 weeks for section 38 payments was not exceeded because Mr Brown had been receiving section 37 payments before 6 March 2003.)
The Award Pursuant to Section 40
35.Section 40(1) of the 1987 Act states:
“(1) Entitlement
The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.”
36.The approach to be adopted in determining an entitlement under section 40 was set out by the NSW Supreme Court, Court of Appeal, in Mitchell v Central West Health Service (1997) 14 NSW CCR 526 (‘Mitchell’) at 529. Thus, in the present case, the Arbitrator was required:
“1. To determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a)) …
2. To determine ‘the average weekly amount that the worker is earning or would be able to earn in suitable employment from time to time after the injury’ (section 40(2)(b)). Section 40(3) provides that the determination of this amount 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 …
3. To subtract the figure derived from (2) from the figure derived from (1) (section 40(2).
4. To decide whether and to what extent the reduction calculated as above bears ‘such relation to the amount of that reduction as may appear proper in the circumstances of the case’ (section 40(1)) …
5. To make an award in the amount arrived at in step 4.”
37.Although the Arbitrator did not specifically refer to the decision in Mitchell, or to the required five steps, nevertheless, she did work through these steps, determining:
1. the weekly amount Mr Brown would probably have earned had he not been injured (paragraph 27 of the Determination - $770);
2. the average weekly amount Mr Brown would have earned in suitable employment post-injury;
3. the difference between (1) and (2);
4. to exercise the section 40(1) discretion to take into account the casual nature of Mr Brown’s employment and that his earnings would be affected by the loss of his teacher’s aide hours during the school holidays when he would not be required to perform such duties; and
5. an award in the amount arrived at in step 4.
38.The Council submits that the Arbitrator erred in her approach to steps (3) and (4) in so far as she applied a discount to Mr Brown’s actual earnings (pursuant to section 40(1)) to take into account the probable loss of hours during the school holidays in calculating his actual earnings. Moreover, she did this at step 3 rather than step 4 of the Mitchell approach. Whilst it is clear from the Arbitrator’s reasoning that this was in fact what she did, nevertheless, in terms of the outcome in this case, this confusion in the steps does not of itself appear to have made any difference.
39.What is more important is the Arbitrator’s discounting of actual earnings to take account of the casual status of Mr Brown’s employment by Bradfordville Public School. Mr Brown’s solicitors cited Ozer v State Rail Authority [1983] 57 WCR (NSW) 246 (‘Ozer’) and Dabav Pty Ltd v Fowler (1998) 17 NSWCCR 301 (‘Dabav’) in support of their contention that the discretion in section 40(1) could be exercised in the way used by the Arbitrator. In Ozer, the Court was dealing with the ascertainment of probable earnings had the worker not been injured, rather than actual post-injury earnings. In Dabav, Priestley JA, at paragraph 13, said he could see no reason why what Coleman J said in Ozer, should not be applicable to post-injury earnings.
40.The Council’s solicitors cited J CLudowici & Son Ltd v Cutri (1992) 26 NSWLR 580 (‘Ludowici’) in support of their contention that actual earnings may not be discounted. In that case, Kirby P, with whom Handley and Shelley JJA agreed, said at 593:
“where the worker is earning, the average weekly amount produced thereby is normally taken as the par (b) component of the equation. It is only otherwise where the decision-maker concludes that the worker is able to earn more than that sum in some suitable employment. Then, but only then, is a notional sum to be taken into account.”
41.Mr Brown’s evidence and that of the Principal of the School (see the Principal’s letter dated 25 February 2004) establishes that his position with Bradfordville Public School is a casual one, that his work as a teacher’s aide is only available during school term time, and that his work as a general assistant is likely to be for reduced hours during school holidays. Mr Brown’s actual earnings for any period will therefore be affected by whether there are school holidays during that period. Where the award of compensation is in respect of a past period, in my view Mr Brown’s actual earnings for that period must be those that are used in the calculation. While I recognise that casual employment makes no provision for the usual benefits enjoyed by permanent employees such as sick or recreation leave and paid public holidays, having regard to the decision in Ludowici, and the emphasis placed by the courts on the worker’s actual earnings in applying section 40(2)(b) (see eg Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd [1945] 19 WCR (NSW) 107; (1945) 46 SR NSW 20), it would be an error of law to discount Mr Brown’s actual earnings because his employment is of a casual nature for the purpose of calculating any award which may be payable pursuant to section 40. The purpose of the legislation is to compensate him for loss of earnings.
42.Thus, the Arbitrator made an error of law by discounting Mr Brown’s actual earnings in the period 24 July 2003 to 29 August 2003 to take into account the school holidays over the course of a year when no school holidays occurred during this period. In the calculations that follow, I have relied on the Arbitrator’s findings that were not disputed and which I accept as to Mr Brown’s probable earnings had he not been injured and as to his actual post injury earnings at Bradfordville Public School.
43.I find that for the period 24 July 2003 to 29 August 2003, Mr Brown’s section 40 entitlement calculation was $770 (the probable earnings for a grade 3 driver found by the Arbitrator) less $314 (actual earnings found by the Arbitrator) ie $456 per week. In terms of the discretion in section 40(1), the amount representing the difference between his probable and actual earnings appears proper in the circumstances of the case. However, as the parties recognise, the Arbitrator erred by making an award for this period in excess of the statutory maximum of $441.90 per week for a worker with two dependent children (see section 40(5) of the 1987 Act). The award for this period must therefore be the statutory maximum of $441.90.
44.In respect of the periods 1 September 2003 to 30 January 2004 and 2 February 2004 to 12 March 2004, I find that the Arbitrator should have used Mr Brown’s actual earnings in calculating his section 40 entitlement, which would, therefore, reflect the effect of any school holidays that did occur in those periods. For the period 1 September 2003 to 30 January 2004, his entitlement was $770 less $379.20 actual earnings ie $390.80 per week, and for the period 2 February 2004 to 12 March 2004 his entitlement was $770 less $761.60 actual earnings ie $8.40 per week. Again, in terms of the section 40(1) discretion, no alteration to the mathmatical calculation is required.
45.With regard to the period from 13 March 2004 to the date of the Arbitrator’s determination and continuing, in calculating Mr Brown’s actual earnings or his likely future average weekly earnings, his reduced earnings during school holidays should, in my view, be taken into account in calculating his entitlement to ongoing section 40 payments. Following the approach in Mitchell in relation to this period gives rise to the following result:
Step 1: Mr Brown’s probable earnings if uninjured are $770.00 gross per week.
Step 2: to determine what Mr Brown would have earned in suitable employment (as to which see paragragh 46 below), it is, in my view, appropriate to take into consideration his earnings between 24 July 2003 (when he commenced employment) and 12 March 2004. During this period, his gross weekly earnings were $314.00 from 24 July 2003 to 31 August 2003, $379.20 from 1 September 2003 to 1 February 2004, and $761.60 from 2 February 2004 to 12 March 2004. During this period of 33.285 weeks (233 days), he earned a total of $14,508.11 or an average of $435.86 gross per week.
Step 3: the deduction of $435.86 from $770.00 gives a reduction in gross earnings of $334.85 per week compared to probable earnings if uninjured.
Step 4: consideration of the exercise of the discretion in section 40(1). In my view, the reduction in earnings figure arrived at pursuant to step (3) does not accurately reflect Mr Brown’s capacity to earn in suitable employment for the period from 15 March 2004. During the period 24 July 2003 to 12 March 2004, Mr Brown was initially working part-time and then, having secured full-time work in early 2004, the nature of his duties changed. The Arbitrator found Mr Brown’s average weekly earnings in respect of the immediate past period of 2 February to 12 March 2004 to be $761.60 gross per week. During this period, he was working 20 hours a week as a general assistant and 20 hours a week as a handyman. However, according to Mr Brown’s statement of 28 April 2004, from 15 March 2004, he worked 15 hours a week as a general assistant (at $18.95 per hour) and 25 hours a week as a teacher’s aide (at $19.73 per hour), totalling $777.50 gross per week. In my view, it is appropriate to use evidence of Mr Brown’s most recent earnings in deciding whether the reduction calculated in step (3) above bears “such relation to the amount of that reduction as may appear proper in the circumstances of the case” (section 40(1)).
However, the figure for Mr Brown’s most recent earnings still does not accurately reflect what his probable future earnings in such suitable employment would be over the course of a year, because the more limited work hours available to Mr Brown in the school holidays have not been taken into account. According to paragraph 8 of Mr Brown’s statement of 28 April 2004, during the school holidays in April 2004, he was employed for one of the two weeks of the school holidays for six and a half hours a day so that at $18.95 per hour, he earned $615.87 gross for that week. This is consistent with a letter dated 25 February 2004 from the Principal of Bradfordville Public School who said that “some general assistant work will be undertaken during school holidays”. Assuming, therefore, that of the 12 weeks of school holidays in the course of the school year, Mr Brown works for 6 weeks at $615.87 gross per week, he would earn a total for those weeks of $3,707.22. Assuming that for the other 40 weeks (four school terms of 10 weeks), he earns $777.50 per week, he would earn during those weeks a total of $31,100.00. Thus, in relation to step (4), I am satisfied on the evidence available that, over the course of a year, Mr Brown would earn a total of $34,807.22 or an average of $669.36 gross per week.
In my view, it is proper in the circumstances to deduct $669.36 from $770.00, resulting in a figure of $100.64 gross per week, and to reduce the award pursuant to section 40 accordingly.
Step 5: Mr Brown should receive an award of weekly payments from 15 March 2004 to the date of the Arbitrator’s determination and continuing of $100.64 gross per week.
46.Turning to the Council’s submission that Mr Brown was capable of working 40 hours per week from 6 March 2003, I am satisfied that there was no error in the Arbitrator’s findings of fact in respect of Mr Brown’s obtaining employment and as to his capacity for full-time work being dependent on the nature of the work. His work at the school, especially his work as a teacher’s aide, was considerably less physically demanding than his work as a truck driver. The Arbitrator found that suitable job opportunities in the Goulburn area are very limited for a person with Mr Brown’s impairments and of his education and background.
DECISION
47.That part of the Arbitrator’s decision of 31 May 2004 awarding payments of weekly compensation pursuant to section 38 of the 1987 Act is confirmed.
48.That part of the Arbitrator’s decision awarding payments of weekly compensation pursuant to section 40 of the 1987 Act is revoked and the following decision is made in its place. The Appellant shall pay the Respondent compensation pursuant to section 40 of the 1987 Act as follows:
(1)For the period from 24 July 2003 to 29 August 2003, $441.90 per week;
(2)For the period from 1 September 2003 to 30 January 2004, $390.80 per week;
(3)For the period from 2 February 2004 to 12 March 2004, $8.40 per week;
(4)For the period from 15 March 2004 to the date of the Arbitrator’s determination and continuing, $100.64 per week.
COSTS
49.While I have modified that part of the award made by the Arbitrator pursuant to section 40, nevertheless, her decision remains substantially intact and, in my view, it is therefore appropriate that there should be an order for costs in favour of Mr Brown.
50.The Appellant, Mulwaree Shire Council, is to pay the Respondent, Mr Brown’s costs in this appeal as agreed or assessed.
Robin Handley
Acting Deputy President 30 June 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION
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