Ngoc Hung Ta v B & E Poultry Pty Ltd
[2009] NSWWCCPD 28
•13 March 2009
| WORKERS COMPENSATION COMMISSION | |||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||||
| CITATION: | Ngoc Hung Ta v B & E Poultry Pty Ltd & anor [2009] NSWWCCPD 28 | ||||||
| APPELLANT: | Ngoc Hung Ta | ||||||
| FIRST RESPONDENT: | B & E Poultry Pty Ltd | ||||||
| SECOND RESPONDENT: | Delahill Pty Ltd t/as Abco Plastics | ||||||
| FIRST RESPONDENT’S INSURER: | GIO General Limited | ||||||
| SECOND RESPONDENT’S INSURER: | WorkCover Authority of New South Wales | ||||||
| FILE NUMBER: | A1-6628/08 | ||||||
| DATE OF ARBITRATOR’S DECISION: | 24 November 2008 | ||||||
| DATE OF APPEAL DECISION: | 13 March 2009 | ||||||
| SUBJECT MATTER OF DECISION: | Factual findings as to pre-injury earnings and hours; worker injured on a “work trial”; correct current weekly wage | ||||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||||
| HEARING: | On the papers | ||||||
| REPRESENTATION: | Appellant: | Ron Kramer Associates | |||||
| Respondent: | Sparke Helmore | ||||||
| ORDERS MADE ON APPEAL: | Paragraphs three and four of the Arbitrator’s determination of 24 November 2008 are revoked and the matter is remitted to a different Arbitrator to re-determine the quantum of Mr Ta’s award of weekly compensation for total incapacity. Paragraphs one, two, five and six of the Arbitrator’s determination of 24 November 2008 are confirmed. | ||||||
| The WorkCover Authority of New South Wales is to pay the appellant worker’s costs of the appeal. Costs of the first arbitration and of the second arbitration are at the discretion of the Arbitrator who hears the second arbitration. | |||||||
BACKGROUND
Mr Ta started work for the first respondent, B & E Poultry Pty Ltd (‘B & E’), in December 2000. His duties consisted of cleaning, cutting and boning chickens. There is conflicting evidence as to whether this job was full-time or part time. On 9 March 2001, he injured his right ring finger in the course of his employment.
In August 2001, Mr Ta came under the care of Workplace Injury Management Services Pty Ltd (‘WIMS’), an authorised rehabilitation provider. He returned to work with B & E on suitable duties in September 2001, but injured his back while performing those duties on 27 November 2001. He continued on suitable duties for a few weeks but ultimately ceased work when no further suitable duties were provided.
After undergoing a Functional Capacity Assessment in February 2002 and a Vocational Assessment in March 2002, WIMS determined that Mr Ta would be best suited to work as a light product assembler, process worker or cleaner. His treating doctor, Dr Letran, approved a vocational goal to return Mr Ta to “employment as a light product assembler/process worker (similar job/different employer) working full-time hours” (see WIMS “Planning Report” by Ms France, occupational therapist, dated 10 May 2002, page three).
WIMS arranged for Mr Ta to be placed with the second respondent, Delahill Pty Ltd t/as Abco Plastics (‘Abco’), under a Work Trial Agreement. An unsigned copy of the agreement is included in the evidence, but it is not suggested that Abco acted on any basis other than that set out in this agreement. The agreement is a voluntary agreement between a host employer (in this case, Abco), an injured worker, a rehabilitation provider and WorkCover NSW. It involves short-term placement of an injured worker with an employer, other than the pre-injury employer. The host employer provides the workplace and the work, but does not pay the injured worker (referred to in the agreement as ‘the trainee’).
The purpose of the placement is to either provide a suitable work environment for increasing the trainee’s capacity to return to his or her pre-injury job or to increase the trainee’s transferrable skills with a view to gaining a different job with either the pre-injury employer or a new employer. The WorkCover Authority of NSW (‘WorkCover’) agrees to pay workers compensation benefits in the event of the worker sustaining an injury in the course of the work trial. It is on this basis that WorkCover has been joined as Abco’s “insurer”.
Ms France prepared a Work Trial Workplace Assessment Report on 5 June 2002. She noted Mr Ta’s rehabilitation status to be fit for “full hours” but with restrictions on lifting with the right hand up to 10kg and no working in a coldroom. Under “Assessment Details” she recorded:
“Job TitleProcess Worker
Hours of Work/Breaks 8.00am – 4.30pm with one 10 minute break at 10am and 30 minutes at 1.00pm. Afternoon shiftwork maybe available in the future.”
WIMS also prepared a Work Trial Return To Work Plan on 5 June 2002. That document identified the parties to the work trial and stated that Mr Ta’s hours would be “40 hours/week”. His starting date was 17 June 2002 and his hours were described as “Full time – 8am – 4.30pm”. The plan was signed by a supervisor (presumably from Abco), Mr Ta, a doctor, a representative from WIMS, and an interpreter. On 13 June 2002, WorkCover approved a two-week work trial with Abco.
Mr Ta started the work trial with Abco on 17 June 2002. Whilst engaged in the work trial on 18 June 2002, Mr Ta injured his back. He returned to work the next day, but left at about 9.30am because of his back pain. He completed a WorkCover Authority Worktrial Participant’s Compensation Claim on 4 July 2002. What happened to Mr Ta’s claim is not explained in the evidence. I assume it was submitted to WorkCover and that compensation was paid, but the evidence does not disclose at what rate or by whom. A letter from WorkCover dated 6 November 2007 lists payments made by it to Mr Ta, but only from 18 December 2002 to 1 November 2007.
By letters dated 3 and 4 April 2007, GIO declined liability in respect of the claim against B & E on the following grounds:
(a)the medical evidence concluded that the nature and conditions of Mr Ta’s employment with “both B & E Poultry Pty Limited and Delahil Pty Ltd t/as Abco Plastics (‘Abco Plastics’) has aggravated the underlying degenerative disease of your back”;
(b)the last employer to which the aggravation was due was Abco Plastics, which occurred on 17 June 2002, when you were repetitively lifting 20 kilogram boxes over the course of the day at work, and
(c)in accordance with section 16 of Workers Compensation Act 1987 (‘the 1987 Act’), as the injury is an aggravation of an underlying degenerative disease, liability for the compensation rests with the last employer on risk to which the aggravation of the disease process is due, and that is Abco Plastics and WorkCover NSW. GIO has no liability.
Mr Ta disputed the quantum of his weekly compensation and registered an Application to Resolve a Dispute (‘the Application’) in the Commission on 25 August 2008. The Application joined B & E, insured by GIO General Limited (‘GIO’), as the first respondent and Abco, insured by WorkCover, as the second respondent. Mr Ta claimed from Abco weekly compensation in the sum of $561.20 per week (under the Plastic Moulding (State) Award) from 19 June 2002 to date and continuing and lump sum compensation as a result of a 15% permanent impairment of his back under the Table of Disabilities as a result of the back injury on 18 June 2002. He claimed from B & E weekly compensation in the sum of $515.10 per week (under the Poultry Award) from “18 June 2002” [sic, 19 June 2002] to date and continuing and lump sum compensation in respect of a 14% permanent impairment of the back and 3.5% loss of use of use of the left leg at or above the knee as a result of a back injury on 27 November 2001 and as a result of the nature and conditions of his employment up to that date.
By letter dated 15 September 2008, GIO issued a “Review Notice Under Section 74 of the Workplace Injury Management and Workers Compensation Act 1998” in which it confirmed its decision to decline liability on the ground that the injury was an aggravation of a disease and liability rested with the “last employer on risk to which the aggravation of the disease process is due” and “the liable employer was Abco Plastics and WorkCover NSW”.
B & E and Abco have both instructed Sparke Helmore to act for them. They filed separate Replies on 15 September 2008. B & E’s Reply relies on the matters disputed in the letters from the GIO dated 3 and 4 April 2007 and 15 September 2008, set out above. Abco’s Reply states that it relies on the dispute notice/s attached to the Application. The only dispute notices attached are the letters from the GIO of 3 and 4 April 2007 and 15 September 2008. Abco’s Reply also sought leave to dispute Mr Ta’s claim on the basis that WorkCover was paying weekly compensation at the correct rate, namely, the rate of Mr Ta’s average weekly earnings with B & E ($350.00) based on him working 20 hours per week. It also sought leave to dispute Mr Ta’s entitlement to lump sum compensation and whether Mr Ta’s wife and children were dependent on him for support.
The Commission listed the matter for conciliation and arbitration on 6 November 2008. The same counsel represented B & E and Abco. In respect of the claim against B & E, counsel sought leave to dispute the occurrence of the injury on 27 November 2001. The Arbitrator did not rule on that issue at the arbitration but heard full submissions on the injury issue.
In respect of the claim against Abco, the case appears to have proceeded on the assumption that Abco employed Mr Ta under a contract of service.
In a Statement of Reasons for Decision (‘Reasons’) delivered on 24 November 2008 the Arbitrator refused leave to B & E to dispute injury and found that:
(a)Mr Ta injured his back on 27 November 2001 with B & E and on 18 June 2002 with Abco (Reasons, paragraph 40);
(b)Mr Ta was totally unfit for work (Reasons, paragraph 44 and 50);
(c)that incapacity resulted from the injury with Abco on 18 June 2002 (Reasons, paragraph 43);
(d)immediately before being incapacitated, Mr Ta was “remunerated” by Abco under the Plastic Moulding (State) Award (Reasons, 51);
(e)when Mr Ta commenced work with Abco until his injury he was “still only certified to work 20 hours per week”. Therefore, the award rate of pay was the hourly rate applicable under the Plastic Moulding (State) Award. The average hourly rate was “agreed” at $16.95. Multiplying that rate by 20 hours gave a “weekly rate of $339.00” (Reasons, paragraph 52), and
(f)the current weekly wage rate was $339.00 per week and Mr Ta was entitled to an award at that rate under section 36 of the 1987 Act from 18 December 2002 until 18 June 2003 and thereafter at that rate under section 37.
By an appeal filed on 12 December 2008, Mr Ta seeks leave to review the Arbitrator’s determination as to the appropriate quantum of weekly compensation awarded.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no dispute that 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.
ON THE PAPERS
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 24 November 2008, records the Arbitrator’s orders as follows:
“The Commission determines:
1.The Applicant sustained an injury to his back on 27 November 2001 arising out of or in the course of his employment with the First Respondent.
2.The Applicant sustained an injury to his lumbar spine on 18 June 2002 arising out of or in the course of his employment with the Second Respondent.
3.That the Second Respondent pay the Applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $339.00 per week from 18 December 2002 until 18 June 2003.
4.That the Second Respondent pay the Applicant weekly compensation pursuant to section 37 of the 1987 Act from 19 June 2003 and continuing at the rate of $339.00 per week.
5.That the claim for lump sum for permanent impairment set out below is remitted to the Registrar for referral to an AMS for assessment of the degree of permanent impairment if any:
· permanent impairment of the back and permanent loss of efficient use of the left leg at or above the knee in respect of an injury on 27 November 2001
· whole person impairment of the lumbar spine in respect of an injury on 18 April 2002.
6.The documents to be included in the referral to the AMS comprise the following:…”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in that:
(a)having found that Mr Ta’s incapacity resulted solely from his injury with Abco on 18 June 2002, she then calculated weekly compensation on the basis that he was employed for only 20 hours per week, and
(b)she relied on the incorrect award.
SUBMISSIONS
Mr Ta submits that the Arbitrator erred because there is no evidence that from the time he started work with Abco until his injury on 18 June 2002 he was only certified fit to work 20 hour per week. He also relies on the evidence set out at [6] and [7] above as establishing that his current weekly wage rate is the rate under the Plastic Moulding (State) Award.
Abco submits:
(a)the reference to “full hours” in Ms France’s report of 5 June 2002 (see [6] above) should be taken to be a reference to full hours with the first respondent, which were 20 hours per week, and
(b)the reference at page four of the WIMS report of 21 June 2002 to Dr Letran reporting that “Mr Ta is only required to work twenty hours per week, as per pre-injury hours, rather than the previous goal of forty hours per week” supports the inference that, in his view, at the commencement of the work trial Mr Ta was not fit for hours greater than 20 per week.
I do not accept Abco’s submissions. The Arbitrator’s conclusion that Mr Ta was only certified fit for 20 hours per week at the time he started the work trial is unsupported by the evidence. It is clear beyond doubt that Abco engaged Mr Ta as a full-time process worker for a two-week work trial. The terms of the Work Trial Return To Work Plan are unambiguous – Mr Ta was to work for Abco for 40 hours per week from 8.00am until 4.30pm. That fact is confirmed in the Work Trial Employer’s Report of Injury form completed by Abco on 15 July 2002. Mr Ta had been cleared for a work trial with Abco as a full-time process worker (with restrictions on his lifting capacity) and the Arbitrator’s finding was incorrect.
Therefore, if it is conceded that Abco employed Mr Ta under a contract of service (and it is not clear from the transcript or the evidence if this concession was made), then the appropriate wage rate is the award rate for a full-time process worker. There is, however, a fundamental legal problem in this matter that does not seem to have been addressed. The evidence suggests that Abco engaged Mr Ta in a work trial, as per the terms of the Work Trial Agreement set out at [4] above, not under a contract of service. In these circumstances, it is difficult to see how the hours of the work trial with Abco are relevant to the calculation of Mr Ta’s current weekly wage rate or average weekly earnings.
Rights and liabilities under the workers compensation legislation only arise when “a worker” has received an injury. The term “worker” is defined in section 4 of the 1998 Act to mean a “person who has entered into or works under a contract of service or a training contract with an employer”. The evidence does not suggest that a contract of service existed between Mr Ta and Abco. Abco merely agreed to act as a “host employer” in a two-week “work trial”. Such an arrangement does not normally give rise to a contract of employment (see Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197). On the evidence, I do not see how a contract of employment arises between Mr Ta and Abco and I doubt whether that company should even be a party to the proceedings. It cannot have any liability and therefore has no interest in the proceedings.
This conclusion is consistent with the WorkCover’s Work Trial Guidelines, which state, “A work trial agreement is a voluntary agreement between the host employer, injured worker, rehabilitation provider and WorkCover. It is not a contract of employment.” Though the Guidelines have no legal force, the position stated in them is consistent with the legislation and with the evidence in the current matter. It therefore follows that, as no contract of service existed between Abco and Mr Ta, no question arises as to his current weekly wage rate or average weekly earnings with that company.
As no submissions have been made on this issue, I have not determined the appeal on this basis and the above comments are merely observations. However, as the Arbitrator erred in finding that Mr Ta had only been certified to work 20 hours per week, the matter must be re-determined before a different Arbitrator in any event and the parties may consider it appropriate to consider these issues at the re-determination.
The question of which award applies is resolved once it is determined that Mr Ta was never employed by Abco. In those circumstances, the only relevant award is the Poultry Award. If it is conceded, however, contrary to the evidence and the legislation, that Mr Ta’s work trial is relevant to the determination of his current weekly wage rate and average weekly earnings, I am unable to decide whether the appropriate award is the Plastic Moulding (State) Award, as Mr Ta submits, or the Saddlery, Leather, Canvas and Plastic Material Workers’ (State) Award, as Abco submits. Neither party has provided any evidence or reasoning to properly support its position. As the matter must be re-determined in any event, the parties are at liberty to call further evidence or make further submissions at the re-determination on the question of which award applies, if it arises.
OTHER MATTERS
The following matters also arise and will need to be addressed:
(a)the Arbitrator gave no reasons for deciding that Mr Ta only worked 20 hours per week with B & E, but merely expressed that conclusion. Depending on the approach taken at the second arbitration, this issue may also have to be re-determined;
(b)the Arbitrator’s finding that Mr Ta was “remunerated under the Plastic Moulding (State) Award” is unsustainable. The evidence does not disclose by whom Mr Ta was paid from 17 June 2002 until 18 December 2002 or the basis on which those payments were calculated. It is clear from the documents tendered that Abco had no legal obligation to make any payments and I infer that it did not do so, and
(c)the orders made did not apply section 37(1)(a) of the 1987 Act, which provides that weekly compensation after the first 26 weeks of incapacity are not to exceed 90% of the worker’s average weekly earnings.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view that the Arbitrator erred in her approach to the quantification of Mr Ta’s award of weekly compensation and that matter must be re-determined. Neither party has challenged the Arbitrator’s findings that Mr Ta is totally unfit for work as a result of the injury on 18 June 2002 and that finding is undisturbed.
DECISION
Paragraphs three and four of the Arbitrator’s determination of 24 November 2008 are revoked and the matter is remitted to different Arbitrator to re-determine the quantum of Mr Ta’s award of weekly compensation for total incapacity.
Paragraphs one, two, five and six of the Arbitrator’s determination of 24 November 2008 are confirmed.
COSTS
The WorkCover Authority of New South Wales is to pay the appellant worker’s costs of the appeal. Costs of the first arbitration and of the second arbitration are at the discretion of the Arbitrator who hears the second arbitration.
Bill Roche
Deputy President
13 March 2009
I, MARIE JOHNS, 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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