Severino v Turner
[2009] NSWWCCPD 144
•12 November 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Severino & anor v Turner [2009] NSWWCCPD 144 | ||||
| APPELLANT: | Alba and Santo Severino | ||||
| RESPONDENT: | Ryan Christopher Turner | ||||
| INSURER: | Employers Mutual NSW Ltd | ||||
| FILE NUMBER: | A1-1637/09 | ||||
| ARBITRATOR: | Mr G McIlwaine | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 July 2009 | ||||
| DATE OF APPEAL DECISION: | 12 November 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 40(2)(a) of the Workers Compensation Act 1987; probable earnings in the same or some comparable employment for a labourer aged 18 at the time of accident | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Stephen Lee Legal | |||
| Respondent: | Rishworth Dodd & Co | ||||
| ORDERS MADE ON APPEAL: | Paragraph 5 of the Arbitrator’s determination of 23 July 2009 is revoked and the assessment of the worker’s entitlement to weekly compensation from 15 June 2008 to date and continuing is remitted to a different Arbitrator for re-determination. Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Arbitrator’s determination of 23 July 2009 are confirmed. | ||||
| Each party is to pay his or their own costs of the appeal. | |||||
BACKGROUND
On 5 May 2005, Ryan Turner was working as a labourer on the construction of the Miramare Gardens Conference and Event Centre at Terrey Hills, a site owned by the appellant employers, Alba and Santo Severino. In the course of his duties, Ryan fell three metres through a hole on the first floor of the building under construction and sustained a serious closed head injury with a right temporal bone fracture and a left anterior temporal lobe contusion.
At the time of the accident, Ryan was 18 years old. His father, Christopher Turner, a qualified carpenter, also worked on the project as the site foreman.
As a result of his injuries, Ryan has a loss of hearing in his right ear, loss of balance, memory impairment, tinnitus and vestibular disequilibrium preventing him from climbing ladders, facial nerve weakness, loss of smell and loss of taste. It is not disputed that he is unfit for his pre-injury employment in the building industry.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 3 March 2009, Ryan sought weekly compensation from 5 May 2005 to date and continuing in the sum of $606.00 together with lump sum compensation in the sum of $32,500.00 in respect of a 22 per cent whole person impairment. In a Reply filed on 24 March 2009, the Severinos disputed liability on the ground that Ryan was not a worker or a deemed worker within the terms of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and that his capacity to earn was equal to or greater than $606.00 per week.
The matter was listed for conciliation and arbitration on 29 May and 23 June 2009. In respect of the claim for weekly compensation, the parties agreed (see Arbitrator’s Statement of Reasons (‘Reasons’) at [89]) that:
(a) average weekly earnings at the date of accident were $606.00;
(b) “comparable wages” were $606.00 per week from 5 May 2005 to 15 September 2008, and
(c) actual earnings and ability to earn were $524.00 per week from 1 December 2007 to 15 June 2008 and $575.00 per week from 15 September 2008 to date and continuing.
It was argued that, as Ryan would have become a qualified carpenter by mid 2008, probable earnings from 15 September 2008 were $1,600.00 per week. Though this claim was never disputed in the section 74 notice or the Reply, I infer from the conduct of the arbitration that the Arbitrator gave leave for the Severinos to dispute it.
In a reserved decision delivered on 23 July 2009, the Arbitrator found Ryan to be a worker employed by the Severinos on 5 May 2005 and made the following awards of weekly compensation by consent:
(a) $606.00 per week from 5 May 2005 to 5 November 2005;
(b) $380.00 per week from 6 November 2005 to 30 November 2007, and
(c) $82.00 per week from 1 December 2007 to 14 June 2008.
In respect of the disputed claim for weekly compensation from 15 June 2008 to date and continuing, the Arbitrator determined Ryan’s probable earnings but for the injury to be $975.00 per week (on the basis that by 15 June 2008 he would have become a qualified carpenter earning $30.00 per hour for 32.5 hours per week) and that his ability to earn was $615.00 per week in work mowing lawns. As a result, he made an award in the sum of $360.00 per week under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
In an appeal filed on 20 August 2009, the Severinos seek leave to appeal the Arbitrator’s determination, but only with respect to his finding of probable earnings but for the injury of $975.00 per week from 15 June 2008. There is no challenge to the Arbitrator’s finding that Ryan was a worker at the time of the accident.
LEAVE TO APPEAL
Monetary Threshold
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act 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 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
The ‘Certificate of Determination’ dated 23 July 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
FINDINGS
By Consent
1. Mr Turner suffered an injury during the course of his
employment on 5 May 2005 to his forebrain resulting in vestibular disequilibrium, loss of hearing and loss of taste.
2.Mr Turner was totally incapacitated for work from 5 May 2005 to 1 December 2007 and partially incapacitated thereafter.
By Determination
3.On 5 May 2005 Mr Ryan Turner was a worker within the meaning of the Workplace Injury Management and Workers Compensation Act 1987 [sic, 1998] and as such was employed at all relevant times by Alba and Santo Severino.
ORDERS
By Consent4.Respondent is to pay the applicant weekly compensation as follows
a.$606 per week from 5 May 2005 to 5 November 2005.
b.$380 per week from 6 November 2005 to 30 November 2007.
c.$82 per week from 1 December 2007 to 14 June 2008
By Determination
5.Respondent is to pay the applicant $360 per week from 15 June 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
6.Respondent is to pay the applicant’s expenses under section 60 of the Workers Compensation Act 1987.
7.File is remitted to the Registrar for necessary referral to an Approved Medical Specialist for an assessment of the Whole Person Permanent Impairment of Mr Turner on the basis of the claim made in Part 4 of the Application – Injury Details (date of injury: 5 May 2005) with the affected Body Parts/Systems Claimed being: ‘forebrain, vestibular disequilibrium, loss of hearing and loss of taste’
8.The documentation to be referred to the Approved Medical Specialist is the Application and Reply together with all Attachments and the other documentation referred to in paragraph 18 of these Reasons as well as a copy of these Reasons.
9.Respondent is to pay the Applicant’s costs as agreed or assessed. In this matter, the conciliation conference/arbitration hearing was extended over two days. There was a need for careful consideration to be given to Section 4 of the Workplace Injury Management and Workers Compensation Act 1998 along with the definition of ‘Deemed Worker’ in that Act. Directions to Produce were ordered. The parties had to review the material produced. Further, a detailed section 40 assessment was required to be prepared. There was a need to balance conflicting lay evidence and provide additional Statements in rebuttal. Accordingly, in any such agreement or assessment as to costs it is to be noted that I am satisfied that the matter is complex and it is so certified. Both parties are to receive a 30% uplift in their costs.”
ISSUE IN DISPUTE
The issue in dispute is whether the Arbitrator erred in finding probable earnings but for injury under section 40(2)(a) of the 1987 Act were $975.00 per week from 15 June 2008 and, as a consequence, erred in making an award in Ryan’s favour in the sum of $360.00 per week from 15 June 2008 to date and continuing.
THE EVIDENCE
Ryan’s evidence is set out in three statements. The first is dated 14 January 2009, the second is dated 16 February 2009 and the last is merely dated “2009”.
Ryan was born in 1986 and has recently turned 23 years of age. He left school towards the end of year 10, but did not obtain his school certificate. Doing the best I can with the inadequate evidence presented in his statement, it seems that he started work as a labourer on building sites with his father in or about the first half of 2003. His father is a qualified carpenter who started his working career as a builder’s labourer and progressed to become a building foreman. He holds a builder’s licence and a supervisor’s licence.
Both Ryan and his father had been working at the Terrey Hills site for approximately 11 months prior to the accident on 5 May 2005. Christopher’s job was to set out quantities and do all the ordering for the site, and to check deliveries and invoices before they were sent to the Severinos for payment. Because Ryan did not have a drivers’ licence, his father would drive him to and from work each day.
Ryan has no recollection of his accident, but the medical reports confirm that he was admitted to hospital for one week and then had a lengthy recuperation at his parents’ home. It is not disputed that he was totally unfit for work until 30 November 2007 when he commenced work mowing lawns. He continued that work from December 2007 until June 2008 when he was put off because of lack of work during the winter. He recommenced the same work in late August 2008 earning $615.00 per week. He added in his third statement that:
“If I hadn’t had my accident I would have started my apprenticeship and finished it as a carpenter. I understand if I was employed as a carpenter I would be earning $30.00 and $40.00 per hour. I don’t believe I could do any more work than I am currently doing as it includes not working for three months of the year when I am put off in the middle of winter.”
Christopher states in his statement of 16 February 2009 that Ryan completed six months of a carpentry course at some time prior to his accident, but ceased because, according to his father, “he was of the opinion he was not being given suitable teaching”. He then did no courses for 12 months but worked on building sites with his father until the date of his accident. He asserts that carpenters are employed on building sites as contractors and are paid “approximately $40.00 per hour as sub-contractors”. He added that had his son not been injured he believes he would have completed his course and been employed in that sort of position as a carpenter/sub-contractor on building sites.
Both Ryan and his father gave brief oral evidence on an unrelated issue at the arbitration, but neither was cross-examined about Ryan’s likely career path but for his injury.
The only other evidence relevant to the issue raised on appeal is the history recorded by Dr Scoppa, ear, nose and throat physician, in his report of 15 September 2008 that Ryan had returned to work as a lawnmower operator and as a tyre fitter. Dr Mellick, consultant neurologist, recorded in his report of 3 December 2008 that Ryan did not drive a vehicle because he had lost his drivers licence because of drink driving. Dr Mellick also recorded that Ryan had commenced a lawn mowing business in 2007 in which he worked 38 hours per week. He sub-contracted work and his business enterprise was successful. Surprisingly, none of the issues raised by Drs Mellick and Scoppa are dealt with in Ryan’s evidence.
THE ARBITRATOR’S REASONS
In his reserved decision delivered on 23 July 2009, the Arbitrator dealt mainly with the contentious issue of whether Ryan was a worker or a deemed worker. In respect of the issue in dispute on appeal, the Arbitrator referred to the evidence noted above from Ryan and Christopher and made the following observations and findings:
(a) he placed some weight on the fact that Ryan had been employed by the Severinos since June 2004. This indicated that he was in the process of maturing and building up considerable experience on a building site “which could be transferred to a learning experience with TAFE” (Reasons at [95]);
(b) based on Christopher Turner’s evidence, the Arbitrator expected that it was “probable that Mr Ryan Turner would attain the higher figure of $1,600.00 gross per week in due course” (Reasons at [95]);
(c) the Arbitrator accepted that Ryan could earn $30.00 per hour working 32.5 hours per week from 15 June 2008 to date and continuing giving a figure for probable earnings under section 40(2)(a) of the 1987 Act of $975.00 per week (Reasons at [100]);
(d) Ryan had limited transferrable skills and his alternative employment prospects were restricted to physically demanding jobs. However, his ability to obtain and perform that kind of work on an unrestricted basis was greatly impaired as a result of his injury and disabilities (Reasons at [97]);
(e) having regard to the whole of the evidence, Ryan’s ability to earn in some suitable employment in the labour market accessible to him was $615.00 per week (Reasons at [101]), and
(f) the difference between $975.00 and $615.00 was $360.00 per week and the Arbitrator saw no reason to reduce that amount in the exercise of his discretion under section 40(1) of the 1987 Act and he made an award in that amount from 15 June 2008 to date and continuing (Reasons at [102] to [104]).
SUBMISSIONS, DISCUSSION AND FINDINGS
The Severinos challenge the award made in Ryan’s favour from 15 June 2008 on the basis that the Arbitrator erred in finding probable earnings but for the injury to be $975.00 per week. They argue that the Arbitrator erred in finding that Ryan would have commenced and finished a carpentry apprenticeship when there was no evidence, apart from Ryan’s statement, supporting such a conclusion and there was no independent evidence that carpenters earn $30.00 to $40.00 per hour. Ryan submits that the Arbitrator was entitled, based on the evidence, to conclude that his probable earnings but for the injury would have increased to $975.00 per week by June 2008.
The appeal raises the meaning of the phrase “the same or some comparable employment” in section 40(2)(a) of the 1987 Act.
The High Court considered this phrase in Johnston v Commissioner of Railways [1973] HCA 46; (1973) 128 CLR 632 (‘Johnston’) in the context of section 11 of the Workers Compensation Act 1926, which was in substantially the same terms as section 40 of the 1987 Act. The Court considered the situation where the worker was a “cleaner, acting foreman” at the time of his injury but the trial judge accepted evidence that he would have progressed to the position of an engine-driver and awarded him compensation on the basis that the wage of an engine-driver was the “same or some comparable employment”. Stephen J held at 640:
“If, in the relevant phrase of s 11(1)(a), ‘employment’ bears the meaning ‘occupation’ the reference to the worker continuing ‘to be employed in the same or some comparable employment’ means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.” (emphasis added)
At 642 his Honour concluded:
“It follows from the view which I have formed concerning the phrase ‘employed in the same or some comparable employment’ that when his Honour, having heard Johnston’s application for an award of compensation, made the findings of fact which he did, he was then required, in ascertaining the weekly amounts which Johnston would probably have been earning but for his injury, to postulate Johnston’s continued engagement in the occupation in which he was engaged when injured. On the facts as found Johnston’s occupation was that of an officer of the Commissioner employed in the locomotive branch of the Commissioner for Railways and in those circumstances his Honour was, in my view, required to act as he did and to pay regard to the promotion within his chosen occupation which Johnston would probably have received had he not been injured.” (emphasis added)
In the same case Mason J (as he then was) held at 644:
“The subsection provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury.” (emphasis added)
In Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 (‘Pantaleo’) the Court of Appeal considered the situation where a secretary became a beautician after her injury. The trial judge calculated her potential earnings as an uninjured beautician (found to be $400.00 per week) and compared them to “her earnings situation” (at 534), which he found to be $350.00 per week and he awarded the difference. The Court of Appeal set aside the decision because, among other reasons, the trial judge had not addressed whether the work as a beautician was “comparable” to that of a secretary. On that issue, Glass JA (with whom Samuels JA agreed) noted (at 545) that the evidence disclosed “no point of comparison” between the work of a beautician and that of a secretary.
Applying the principles explained in Johnston, it is clear that the Commission is required to form its own view of what Ryan would “probably” have been earning but for his injury and how he would have fared in “the same or some comparable employment” had he not been injured.
The evidence on this issue is vague and unsatisfactory. Christopher’s bald assertion that carpenters earn “approximately $40.00 per hour as sub-contractors” is of little assistance. It makes no allowance for the age and experience of those carpenters, their overheads, or the intermittency of employment. His statement that Ryan would have completed his course but for his accident ignores the fact that Ryan was not enrolled in any course at the time of the accident and, on the evidence, had no immediate plans to enrol.
Ryan’s evidence is equally unhelpful. He had already attempted a carpentry course and withdrawn after only six months because, in his father’s words, he did not think he was being given “suitable teaching”. He says nothing about when and why he determined that he would recommence a carpentry course. Given this evidence and the lack of evidence of attempts or plans by Ryan to return to TAFE to resume his course (or start a new course) prior to his accident, there is no satisfactory basis for concluding that he would have done so. Nor is there any evidence that, had he resumed a carpentry course, he would have completed that course by June 2008.
In these circumstances it was pure speculation to conclude that Ryan would have been earning $975.00 per week as a carpenter by June 2008. That finding seems to have been made on the basis of an acceptance of Ryan’s evidence that he would have commenced and completed a carpentry apprenticeship by that date, though the Arbitrator did not actually make that finding. Such a finding was not open on the evidence.
A further issue arises from inconsistencies with the agreement reached between the parties at the arbitration and the Arbitrator’s decision. The Arbitrator noted in his decision, and it is not disputed on appeal, that comparable wages up to 15 September 2008 were agreed at $606.00 per week. In these circumstances it is unclear why the Arbitrator made a finding of probable earnings but for the injury of $975.00 per week from 15 June 2008.
The parties also agreed that Ryan’s ability to earn from 15 September 2008 was $575.00 (Reasons at [89] and T10.55), not the figure of $615.00 found by the Arbitrator. Though an arbitrator is not bound to act on agreements made by the parties but must determine cases according to law (Damberg v Damberg [2001] NSWCA 87; (2001) 52 NSWLR 492 (at [157]), he or she should not depart from such agreements without giving the parties the opportunity to be heard and giving reasons. The Arbitrator gave no reasons for not accepting the parties’ agreement as to Ryan’s ability to earn.
In these circumstances, the Arbitrator’s findings are flawed in a number of respects and the question of Ryan’s entitlement to weekly compensation from 15 June 2008 to date and continuing has to be re-determined. Whilst the evidence is unsatisfactory and does not support the finding made, that does not mean that there should be an award for the employer from 15 June 2008, as has been submitted on appeal. Given the apparent agreement reached at the arbitration (comparable earnings were agreed at $606.00 per week up to 15 September 2008 and ability to earn was agreed at $575.00 per week from 15 September 2008), Ryan is entitled to an award of weekly compensation, though, in view of the way the case was prepared and presented, the quantification of that award is problematic. I am not satisfied that the appropriate award is $31.00 per week (the difference between $606.00 and $575). At the least, even if it were found that Ryan would have remained a labourer, his probable earnings but for his injury would have increased once he turned 20 (see [40] below).
Due to the unsatisfactory state of the evidence, I am unable to conduct that re-determination and the matter must be remitted to another Arbitrator for that purpose. At that re-determination both parties will, notwithstanding the agreement reached at the first arbitration, be permitted to adduce further evidence on probable earnings and, if necessary, Ryan’s ability to earn (The Nominal Defendant v Gabriel & Anor [2007] NSWCA 52 at [113]).
Whilst the future conduct of the case is a matter for the second Arbitrator, I would have thought that, at a minimum, detailed evidence would be tendered dealing with the likely future earnings of a worker in Ryan’s circumstances as at May 2005. For example, when and why did Ryan change his mind about completing a carpentry course? Where and when did Ryan intend to re-commence his carpentry course? How long would that course take to complete? What wage would he expect to earn in the course of and at the completion of his apprenticeship? What would his employment prospects be upon completion of the course? What would his earnings have been had he not completed a carpentry apprenticeship but had continued to work as a labourer?
The parties are reminded that the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits (section 354(2) of the 1998 Act). The Arbitrator who re-determines the matter may find some assistance on the wages paid to carpenters and joiners in the publication What Jobs Pay, 10th edition, 2009, Yorkcross, by Rodney Stinson, where it is noted that carpenters and joiners aged between 20 and 24 earn $705.00 per week. It also records that building and plumbing labourers aged 20 to 24 earn $821.00 per week. Naturally, that publication is a guide only and, if, after giving the parties proper notice of his or her intention to do so, an arbitrator were to refer to it, the parties would be at liberty to call evidence of different wage rates in the labour market accessible to the worker.
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 have concluded that the Arbitrator erred in his assessment of the worker’s entitlement to weekly compensation under section 40 of the 1987 Act from 15 June 2008 to date and continuing. Given the unsatisfactory state of the evidence, I am unable to re-determine the matter and it will be remitted for that purpose to another Arbitrator.
DECISION
Paragraph 5 of the Arbitrator’s determination of 23 July 2009 is revoked and the assessment of the worker’s entitlement to weekly compensation from 15 June 2008 to date and continuing is remitted to a different Arbitrator for re-determination.
Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Arbitrator’s determination of 23 July 2009 are confirmed.
COSTS
Each party is to pay his or their own costs of the appeal.
Bill Roche
Deputy President
12 November 2009
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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