Regalado v Austdac Pty Limited

[2007] NSWWCCPD 98

WORKERS COMPENSATION COMMISSION

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

CITATION:Regalado v Austdac Pty Limited [2007] NSWWCCPD 98

APPELLANT:  Rafael Regalado

RESPONDENT:  Austdac Pty Limited

INSURER:QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC9884-06

DATE OF ARBITRATOR’S DECISION:          23 October 2006

DATE OF APPEAL DECISION:  20 April 2007

SUBJECT MATTER OF DECISION: Fresh evidence on appeal; section 40 of the Workers Compensation Act 1987 calculations

PRESIDENTIAL MEMBER:  Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:      Turner Freeman

Respondent:   McCulloch & Buggy

ORDERS MADE ON APPEAL:  Paragraph one of the Arbitrator’s determination dated 23 October 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlement under section 40 of the Workers Compensation Act 1987 to be redetermined.”

Paragraphs two and three of the Arbitrator’s determination are confirmed.

No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 17 November 2006 Rafael Regalado (‘the Appellant Worker/Mr Regalado’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 October 2006.

1. The Respondent to the Appeal is Austdac Pty Limited (‘the Respondent Employer/Austdac’).

1. Mr Regalado was born in El Salvador on 18 September 1966 and came to Australia in 1991.  He started work for Austdac as an electronics technician in July 1996.  He injured his back as a result of the nature and conditions of his employment from 10 to 17 and 19 to 24 June 2001.  He was off work until 31 July 2001 when he returned to work with Austdac on light duties, which he continued until his employment was terminated on 16 October 2002.  His claim for compensation was accepted and voluntary payments made until 19 January 2005.

1. In 2004 Mr Regalado retrained by completing a Certificate IV in Community Services Welfare at Campbelltown TAFE and in 2005 obtained a Diploma in Community Services Welfare.  On 3 April 2006 he obtained employment with Mission Australia as a “Comm Services Worker L2” (pay slip 3 May 2006).

1. On 29 June 2006 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission.  The Application claimed weekly compensation from 20 January 2005 to date and continuing together with medical expenses.

1. The matter was listed for hearing before a Commission Arbitrator on 27 September 2006.  The only issue at the hearing was whether Mr Regalado remained incapacitated as a result of his work injury and, if so, the extend of the incapacity and the quantification of any economic loss flowing from that incapacity.

1. At the hearing Mr Regalado gave oral evidence and was cross-examined by counsel for the Respondent Employer.  In a reserved decision the Arbitrator made an award in favour of Mr Regalado for various amounts from 20 January 2005 to 2 July 2006 and for $22.18 per week from 3 July 2006 to date and continuing.

1. Mr Regalado seeks leave to appeal the quantum of that award.

LEAVE TO APPEAL

Monetary Threshold

1. 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’).

1. The Respondent Employer concedes that the thresholds in section 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

PRELIMINARY MATTERS

1. 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.”

1. 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. 

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 23 October 2006, records the Arbitrator’s orders as follows:

“1.That the Respondent pay the Applicant weekly compensation pursuant to s40 of the Workers Compensation Act 1987 as follows:

·at the rate of $296.20 from 20 January 2005 to 6 June 2005

·at the rate of $313.20 from 7 June 2005 to 2 April 2006

·at the rate of $119.10 from 3 April 2006 to 2 July 2006

·at the rate of $22.18 from 3 July 2006 to date and continuing in accordance with the provisions of the Workers Compensation Act 1987.

2.That the Respondent pay the Applicant’s medical and treatment expenses pursuant to s60 of the Workers Compensation Act 1987 on production of accounts, receipts or HIC charge.

3.That the Respondent pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are whether the Arbitrator erred in the calculation of the Appellant Worker’s ability to earn and whether fresh evidence should be allowed on appeal.

FRESH EVIDENCE

1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:

“(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.”

1. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. An application is made to rely on the following material as fresh evidence on appeal:

a)a letter from Mr Regalado to his solicitor dated 6 November 2006;

b)an undated statement signed by Mr Regalado and date stamped 7 November 2006, and

c)a copy of the award rates extracted from the Social and Community Services Employees (State) Award (‘Social Services Award’).

1. In support of his application to rely on fresh evidence the Appellant Worker’s only submission is that the evidence only came into existence following the Arbitrator’s determination. 

1. The Respondent Employer opposes the application and submits that the material could have been obtained prior to or at the time of the arbitration and the Appellant Worker’s letter and statement are merely a “critique” of the Arbitrator’s decision.  There is no reason why Mr Regalado could not have filed a statement before the Arbitration setting out the matters now sought to be raised.

1. I agree with the Respondent Employer’s submissions.  It is always important to draw a distinction between ‘fresh evidence’ and ‘more evidence’.  In the present matter Mr Regalado was legally represented and gave oral evidence at the arbitration.  He was given every opportunity to put his case.  A wage schedule was filed and lengthy submissions made about Mr Regalado’s earnings and ability to earn.  An arbitration is not a trial run.  Parties should present all of their evidence at the arbitration hearing.  All of the material now sought to be relied on, as ‘fresh evidence’, was available at the time of the original hearing.  It could and should have been presented to the Arbitrator.

1. Further, an appeal to a Presidential member is by way of a review.  It is not a second hearing.  To allow Mr Regalado’s additional material into evidence would be to embark on a fresh hearing and that is not the purpose of a review (see Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 [39]).

1. The application to rely on fresh evidence is refused.

SUBMISSIONS AND FINDINGS

1. The Appellant Worker’s argument is that the Arbitrator erred “in calculating the weekly pay rates”. At paragraph 61 of her Statement of Reasons for Decision (‘Reasons’) the Arbitrator stated that the hourly rate for a youth worker was $19.41, being the state award for a ‘youth worker’ of $679.22 divided by 35 hours. She then used that rate in all of her section 40 calculations. It is submitted that this pay rate is incorrect and that the correct rate is set out in the Social Services Award attached to the application to rely on fresh evidence.

1. The Respondent Employer submits that appeal should fail because:

a)Mr Regalado did not put before the Arbitrator any evidence in relation to his hourly rate or ability to earn.  The Social Services Award was not in evidence before the Arbitrator;

b)the Arbitrator’s assessments were open on the evidence, and

c)there was no evidence that the rates provided by the Vocational Capacity Centre were incorrect.

1. As the application to rely on fresh evidence has been refused, I will not have regard to the Social Services Award.  However, the question of Mr Regalado’s job classification and his rate of pay was the subject of detailed evidence before the Arbitrator and I am entitled to consider that evidence on review in determining if an error has been made in calculating the pay rates on which the Arbitrator’s award was based.

1. The figure of $679.22 is found in the ‘Job Match Report’ prepared by Neville Taylor, vocational psychologist, on behalf of the Vocational Capacity Centre on 22 May 2006.  Given that Mr Regalado’s evidence in his statement dated 11 September 2006 and in his oral evidence at T9.14 was that he was employed by Mission Australia as a ‘youth worker’ it is not surprising that the Arbitrator considered the rate of pay for that classification to be applicable.  However, his pay slips from Mission Australia were in evidence.  They indicated that he was classified as a “Comm Services Worker L2” (see pay slips from Mission Australia dated 3 May 2006 to 9 August 2006 inclusive) and that his ‘normal’ hourly rate of pay was $16.5689, substantially lower than the hourly rate for a youth worker.  Counsel for the Respondent Employer did not challenge this evidence.  In these circumstances the Arbitrator was in error in relying on the figures of $679.22 per week and $19.41 per hour when direct evidence indicated unequivocally that Mr Regalado was not paid under that award or at that rate.

1. This error has affected all of the Arbitrator’s calculations upon which she relied in order to make the award and the whole award of weekly compensation must therefore be revoked and redetermined.  The question arises as to whether I should redetermine the matter or if it should be remitted to another Arbitrator.  In light of the fact that Mr Regalado gave oral evidence and that the findings in respect of his ability to earn were based, in part at least, on the Arbitrator’s rejection of a significant part of his evidence, it is appropriate that the matter be remitted for re-determination before a different Arbitrator.  At the second arbitration hearing each party may seek to adduce further evidence and will no doubt wish to refer the Arbitrator to the authorities of Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 and Pira Pty Ltd v Tucker (1996) 14 NSWCCR 26 at 31-32 which establish that a worker’s actual earnings are prima facie evidence of his or her ability to earn for the purposes of section 40(2)(b) of the 1987 Act.

DECISION

1. Paragraph one of the Arbitrator’s determination dated 23 October 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Appellant Worker’s entitlement under section 40 of the Workers Compensation Act 1987 to be redetermined.”

1. Paragraphs two and three of the Arbitrator’s determination are confirmed.

COSTS

1. Had the Appellant Worker’s case been properly presented and argued before the Arbitrator it is unlikely an appeal would have been necessary.  In these circumstances the proper order in respect of costs of the appeal is: no order as to costs of the appeal.

Bill Roche

Deputy President  

20 April 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