Sinitsky v Workpac Constructions Pty Ltd
[2020] NSWWCCPD 61
•6 October 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Sinitsky v Workpac Constructions Pty Ltd [2020] NSWWCCPD 61 |
| APPELLANT: | Jake Nicholas Sinitsky |
| RESPONDENT: | Workpac Constructions Pty Ltd |
| INSURER: | AAI Ltd t/as GIO |
| FILE NUMBER: | A1-830/20 |
| ARBITRATOR: | Mr J Harris |
| DATE OF ARBITRATOR’S DECISION: | 13 May 2020 |
| DATE OF APPEAL DECISION: | 6 October 2020 |
| SUBJECT MATTER OF DECISION: | Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011 – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Bryce v Department of Corrective Services [2009] NSWCA 188 applied; application of the former ss 44C, 44E, 44F and Item 8 of Sch 3 to the Workers Compensation Act 1987 – calculation of pre-injury average weekly earnings where a worker has two or more employers and was injured prior to 21 October 2019; Schedule 1.1 of the Workers Compensation Legislation Amendment Act2018 – jurisdiction of the Commission to determine a work capacity decision |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Sinitsky | |
| Unrepresented | |
| Respondent: | |
| Mr D Russell, solicitor | |
| Rankin Ellison Lawyers | |
ORDERS MADE ON APPEAL: | 1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. |
INTRODUCTION AND BACKROUND
Mr Jake Nicholas Sinitsky (the appellant) suffered an injury to his right wrist in the course of his employment with Workpac Constructions Pty Ltd (the respondent) on 24 November 2017. At the time of the injury, the appellant held concurrent employment at the Great Central Hotel, Glen Innes, where he performed work in exchange for accommodation and meals. The appellant did not receive any monetary reward for that work.
The appellant was previously involved in a motorcycle accident in 2015 in which he suffered a fracture of the right distal radius and ulna, requiring several surgeries and involving a complex recovery.
In respect of the injury the subject of these proceedings, the appellant was paid weekly payments at varying rates together with treatment expenses. The respondent did not, however, include the value of the appellant’s concurrent employment in its calculation of the appellant’s pre-injury average weekly earnings (PIAWE). The respondent then issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 March 2019, denying liability for ongoing weekly payments and treatment expenses.
The issues raised in the denial of liability were:
(a) that the work-related aggravation to the appellant’s right wrist condition had resolved;
(b) whether the appellant suffered any incapacity for work as a result of the injury, and
(c) whether treatment expenses were reasonably necessary as a result of the injury.
The disputed treatment expenses included the cost of surgery to the right wrist proposed by the appellant’s treating surgeon, Dr Mark Ross, orthopaedic surgeon.
The appellant commenced proceedings in the Commission, claiming weekly payments as well as the cost of surgery and the associated expenses proposed by the appellant’s treating surgeon. The matter proceeded to arbitration before Senior Arbitrator Bamber, who issued a Certificate of Determination (COD) on 17 May 2019, finding that the surgery and associated expenses was reasonably necessary treatment as a result of the injury. The appellant had discontinued the weekly payments claim, presumably because the appellant’s capacity would be affected by the forthcoming surgery.
The appellant then commenced fresh proceedings in the Commission, alleging psychological injury as well as the right wrist injury. He claimed weekly payments of compensation from 24 November 2017 to date and continuing at the rate of $2,101.70 per week, which included the appellant’s pre-injury earnings with the respondent and the value of his benefit from the concurrent employment.
The matter was listed for conciliation and arbitration before Arbitrator Harris (the Arbitrator) on 2 April 2020 but, because of extensive time spent in conciliation, the arbitration was unable to be concluded. The Arbitrator ordered the parties to file written submissions, and he issued a COD dated 13 May 2020. The Arbitrator made findings in respect of the appellant’s PIAWE and ordered weekly payments of compensation at varying rates from 24 November 2017 to date and continuing, with the respondent to have credit for payments already made.
The appellant appeals that decision.
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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the written submissions by the parties indicating that the appeal can 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
Time
Section 352(4) of the 1998 Act provides that an appeal from a decision of an arbitrator can only be made within 28 days after the date of the decision being appealed against.
The Arbitrator’s COD was issued on 13 May 2020. On 11 June 2020, the appellant, without the assistance of legal representation, sought to lodge an appeal from the Arbitrator’s decision on by way of correspondence directed to the President of the Commission, Judge Phillips. The correspondence was not in the required form (Form 9 – Appeal Against Decision of Arbitrator (appeal)) and was outside of the 28 days within which to lodge an appeal prescribed by s 352(3) of the 1998 Act. A delegate of the Registrar advised the appellant that his application was required to be submitted in the correct form and an application for an extension of time was required, with reasons explaining why the application was out of time.
The appellant lodged a substantially compliant appeal on 12 June 2020. In his submissions in support of the extension of time, the appellant submitted that he had no other option than to represent himself in the appeal because of an inability to find a lawyer within the Workers Compensation Independent Review Office funding scheme who was willing to bring the appeal on his behalf. He said he also had been unable to retain a lawyer outside of that scheme because of financial constraints and cited medical grounds for failing to comply with the time frame. The appellant submitted that he had put the respondent and the Commission on notice of his intention to appeal on 11 June 2020.
In its Notice of Opposition to Appeal Against Decision of Arbitrator (opposition), the respondent noted the appellant’s application for an extension of time and advised that it “leaves this matter to the determination of the Commission.”[1]
[1] Respondent’s submissions, [1].
Consideration
Rules 16.2(5) and 16.2(6) of the Workers Compensation Commission Rules 2011 (the 2011 Rules) provide as follows:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
Rule 16.2(5) requires me to consider whether “exceptional circumstances” exist. In Yacoub v Pilkington (Australia) Ltd,[2] Campbell JA considered the expression and concluded (citations omitted):
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.”
[2] [2007] NSWCA 290, [66].
Applying the principles enunciated by Campbell JA, I am satisfied that the appellant’s circumstances are exceptional. The appellant’s allegation of suffering from a psychological condition does not appear to have been disputed by the respondent. The appellant is unrepresented and otherwise does not appear to have sophisticated knowledge of the legal system. The respondent does not challenge the reasons put forward by the appellant in support of the application.
I must also, however, consider whether, in those exceptional circumstances, a substantial injustice would occur if I declined to extend the time limit for filing the appeal. In Bryce v Department of Corrective Services,[3] Allsop P (with Beazley and Giles JJA agreeing) said that whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[4]
[3] [2009] NSWCA 188, (Bryce).
[4] Bryce, [10].
I must therefore consider whether a refusal to extend the time to appeal would cause a substantial injustice to the appellant. In order to determine whether a substantial injustice would result from a refusal to extend the time, it is necessary for me to consider the merits of the appeal.
THE EVIDENCE
The appellant’s statement evidence
The appellant provided three statements. In a statement dated 28 March 2019,[5] the appellant stated that between 20 September 2017 and 23 November 2017, he was performing handyman and maintenance work for the Great Central Hotel in Glen Innes, in return for accommodation and meals. This work was in addition to the work he performed for the respondent. The appellant said that the value of the accommodation was $55 per day and the value of the meals was also $55 per day, which totalled $770 per week. The appellant advised that his employer was Mr Tony Hills, the publican of the Great Central Hotel.
[5] Application to Resolve a Dispute (ARD), p 6.
The appellant said that the respondent refused to take this concurrent employment into account, despite him requesting it do so.
In a supplementary statement dated 30 April 2019,[6] the appellant confirmed that the last date he worked for the Great Central Hotel was the 23 November 2017. He explained that the agreement he had with Mr Hills was an oral contract. The appellant stated that he had every intention of working at the Great Central Hotel on 24 November 2017, but he was unable to do so because he suffered the right wrist injury while working for the respondent on that day. The appellant said that he did not resign his employment with the Great Central Hotel and he had no intention of resigning that employment.
[6] ARD, p 8.
In a further statement dated 7 June 2019,[7] the appellant asserted that he had no work capacity for any type of employment because of his injuries with the respondent. The appellant described being verbally attacked and allocated menial tasks when he attempted to return to alternate duties with the respondent following the injury. The appellant said that this treatment led to the development of anxiety and depression, for which he sought treatment from his general practitioner. The appellant reported that he had attempted to take his own life and was suffering from night terrors, which he had not experienced since ceasing military service. The appellant reiterated that he had no work capacity and was not mentally able to make his own coffee or breakfast.
[7] ARD, p 9.
The evidence of Mr Tony Hills, publican of the Great Central Hotel
Mr Hills also provided several statements. In a short statement dated 11 February 2019,[8] Mr Hills confirmed that the appellant was a resident of the Great Central Hotel between 20 September 2017 and 24 November 2017 and during that time performed handyman and maintenance work at the hotel in exchange for meals and accommodation. Mr Hills further confirmed that the value of the meals was $55 per day and the value of the accommodation was also $55 per day.
[8] ARD, p 1.
Mr Hills provided a more substantive statement, signed by him on 18 March 2019.[9] Mr Hills stated that the provision of meals and accommodation was not subject to taxation by the Australian Taxation Office because it was a barter agreement. Mr Hills confirmed the agreement was a verbal arrangement between him and the appellant. Mr Hills described the duties performed, which included gardening, cleaning, repairs and maintenance and said that the appellant worked between 30 and 35 hours per week and there were no issues with the appellant’s performance.
[9] ARD, pp 2–5.
In a further short statement dated 29 April 2019,[10] Mr Hills advised that the appellant did not work on 24 November 2017 because he had suffered the injury with the respondent. Mr Hills confirmed that the appellant did not resign from his employment with the Great Central Hotel and his employment was not terminated.
[10] ARD, p 7.
The medical evidence
The appellant’s challenge to the Arbitrator’s decision in respect of his capacity to work is limited to whether the Arbitrator had the jurisdiction to determine the appellant’s work capacity prior to the declinature of liability on 4 March 2019 and the Arbitrator’s finding that the appellant had some capacity for work between 23 February 2018 and 4 March 2019. It is not necessary, therefore, to deal with the entirety of the medical evidence adduced in the proceedings, and only the evidence relevant to the appeal is included in this summary.
In the absence of sufficient evidence from the appellant to address the matters referred to in s 32A of the Workers Compensation Act 1987 (the 1987 Act), the Arbitrator drew assistance from the histories provided to the various medical experts who reported after 4 March 2019. This summary of evidence also includes reference to that evidence for the purpose of addressing Ground Two of the appeal.
Dr Phillip Correy, general practitioner
Dr Correy’s clinical notes recorded between 24 November 2017 and 21 December 2017 were in evidence.[11] The notes disclosed that on 24 November 2017, Dr Correy provided the appellant with a WorkCover a certificate of capacity and on 28 November 2017 referred the appellant to Dr Robin Diebold, orthopaedic surgeon. On 4 December 2017, the appellant attended, with complaints that he was not coping with the workload, he was experiencing pain and swelling and was being harassed by his supervisor. The appellant did not attend the further consultation arranged for 21 December 2017.
[11] Reply to Application to Resolve a Dispute (Reply), p 63.
Dr Correy reported to a representative of the respondent on 1 January 2018.[12] He reported that the appellant was experiencing pain in his right wrist and reduced ability to use his right hand, which impacted on his return to work. Dr Correy recommended that the appellant should follow the advice of Dr Diebold and, hopefully, his wrist symptoms would recover, and the appellant could return to work. Dr Correy said that the appellant had returned to work on selected duties, but was unable to cope and the pain was unbearable. Dr Correy said he therefore certified the appellant as unfit for any duties. Dr Correy was of the view that the wrist would improve over time.
[12] Reply, pp 29–30.
Dr Robin Diebold, orthopaedic surgeon
Dr Diebold provided progressive reports directed to Dr Correy in relation to the appellant’s treatment regime.
Dr Diebold initially reported to Dr Correy on 29 November 2017.[13] Dr Diebold advised that he could not identify the cause of the appellant’s pain, which may have been a flare up of the degeneration in the wrist from the 2015 motorcycle accident. Dr Diebold recommended a splint to improve comfort, medication and gentle physiotherapy, with a review in two weeks. On 13 December 2017,[14] Dr Diebold noted that the appellant’s wrist was markedly irritable and stiff and there had been minimal improvement. Dr Diebold noted diffuse tenderness over the distal radius, but not the wrist joint and not particularly the tendons. Dr Diebold suspected a crack fracture of the distal radius which was not evident in the x-rays. Dr Diebold arranged for an urgent MRI scan and bone scan and certified the appellant as fit to return to one-handed duties from the following week.
[13] Reply, p 39.
[14] Reply, p 40.
On 21 December 2017, Dr Diebold noted some improvement with the wrist being less irritable, possibly as a result of wearing the splint, or simply because of the passage of time. Dr Diebold advised that the MRI scan was of no use because of the plates from the old injury. Dr Diebold considered that the appellant may be able to perform work using the right hand after physiotherapy treatment.
Dr Diebold reported to Dr Correy on 15 January 2018,[15] advising that the bone scan revealed increased uptake which was solid evidence of a fracture of the distal radius. Dr Diebold thought that the symptoms would settle down within two months. Dr Diebold considered that the appellant would be fit for light duties in two weeks. Dr Diebold arranged for a further bone scan. In a further report of the same date,[16] Dr Diebold reported only mild improvement, with tenderness, irritation and limited movement still present. Dr Diebold certified the appellant as unfit for work for three weeks.
[15] Reply, p 42.
[16] Reply, p 43.
On 7 February 2018, Dr Diebold further reviewed the appellant,[17] at which time the appellant reported a 50% improvement in his wrist. Dr Diebold noted that the appellant was moving to Queensland and referred the appellant to the hand surgeons at the Brisbane Hand and Upper Limb Clinic. Dr Diebold certified the appellant as being fit for one-handed duties only for a further seven weeks.
[17] Reply, p 48.
Dr Diebold also provided a response to questions raised by Ms Natalie Seneviratne of Rehabilitation Services Pty Ltd on 7 February 2018.[18] Dr Diebold indicated that he approved work for the appellant in customer service, as a weighbridge operator and a carpark attendant. Dr Diebold indicated that he anticipated that the appellant would have a complete recovery in the long term, required ongoing physiotherapy, and workplace rehabilitation would depend on the appellant’s recovery.
[18] Reply, pp 45–47.
Mr Matthew Hess, rehabilitation consultant
Mr Hess performed a functional capacity assessment of the appellant’s abilities on 8 March 2018 and reported on 14 March 2018.[19] Mr Hess summarised various reports from Dr Diebold and Dr Correy and an MRI scan report by Dr Kevin Seow, radiologist. Mr Hess noted that the appellant had not worked since 18 December 2017 and his employment with the respondent had been terminated. Mr Hess recorded the appellant’s functional limitations and lifting ability and concluded that the appellant may be capable of performing sedentary work on a graduated basis. He recommended that the appellant:
(a) take part in a pain management program, psychological assessment and should be provided with counselling;
(b) may benefit from a trial work placement in alternative vocational options with a gradual increase of work capacity, and
(c) may benefit from an exercise program to assist him to build up his functional tolerances.
[19] Reply, pp 14–28.
Dr Damien Mergard, general practitioner
The clinical records of the appellant’s general practitioner Dr Mergard and other practitioners from the same practice were in evidence and commenced from 19 December 2018.[20] At the consultation on that date, Dr Mergard took a history of the appellant’s motorcycle accident in 2015, in which the appellant suffered a fractured distal radius, requiring five surgeries. Dr Mergard noted the further injury to the right wrist on 24 November 2017, which occurred in the course of the appellant’s employment with the respondent.
[20] ARD, pp 96–109.
Dr Mergard further noted that the appellant developed anxiety and depression after the work injury and recorded that the appellant had a long term battle with amphetamines. Dr Mergard recorded that the appellant’s main problem in relation to a return to work was his psychological condition.[21]
[21] ARD, pp 96–97.
On 8 January 2019, the appellant consulted Dr Mergard complaining of a left ankle injury which had occurred on 4 January 2019, when he had been found in a collapsed state in his room with a cupboard on top of him. Dr Mergard considered that the appellant was unfit for work as a result of major depression, left ankle injury (which was not work related) and right wrist injury.[22]
[22] ARD, p 99.
The appellant attended Dr Mergard’s practice on numerous further occasions for review of his right wrist injury, but predominantly for treatment of his psychological condition. The following entries in the clinical notes are relevant to the issues on appeal:
(a) on 15 January 2019, Dr Mergard recorded that the appellant had been offered a job in electronics, for which he had the requisite training and about which he was passionate. Dr Mergard certified the appellant as fit for suitable duties at the request of the appellant;[23]
(b) on 25 January 2019, Dr Gemma Beatson recorded the appellant’s complaint that an Independent Medical Examiner had grabbed the appellant’s right hand and aggravated the injury’;[24]
(c) a lifting restriction of 2.5 kilograms was put in place on 6 February 2019;[25]
(d) on 13 February 2019, Dr Mergard noted that the new employer was unable to accommodate the appellant, that the appellant was frustrated, but there were no new symptoms of depression and the appellant was in a good “mind space”, and[26]
(e) on 5 March 2019, the appellant reported to Dr Mergard that he had been verbally advised that liability for his compensation claim was going to be denied. The appellant reported feeling angry, upset and hopeless, and had started to use amphetamines again. The appellant requested a medical certificate indicating that he had no capacity for work, and Dr Mergard diagnosed an adjustment disorder.[27]
[23] ARD, p 101.
[24] ARD, p 102.
[25] ARD, p 103.
[26] ARD, p 104.
[27] ARD, p 105.
Dr Mergard also provided a number of certificates of capacity. Those certificates do not relate to the period challenged by the appellant in this appeal. The clinical notes recorded that Dr Mergard issued certificates as to the appellant’s capacity between 19 December 2018 and 5 March 2019, but those certificates were not in evidence.
Dr Trevor Lotz, psychiatrist
Dr Lotz examined the appellant at the request of the appellant’s legal representatives. Although Dr Lotz did not examine the appellant until 17 October 2019, the history recorded by Dr Lotz and his opinion on capacity are relevant. In his report of that date,[28] Dr Lotz took a consistent history of the appellant’s motorcycle injury in 2015 and the injury the subject of these proceedings. Dr Lotz noted that the appellant was not able to successfully return to employment with the respondent but attended film school in December 2017 for a period of three months, until the insurer stopped payment in March 2018 and his attendance at the film school had to cease.[29] Dr Lotz recorded that the appellant then found work with the assistance of the occupational therapist at J1 LED, and worked in that employment from June to September 2018. Dr Lotz said that the appellant complained of no improvement in his symptoms during that time and ultimately had to cease that work because he was unable to keep up with the workload.
[28] ARD, pp 287–294.
[29] Dr Lotz’s report p 2, ARD, p 288.
In respect of the appellant’s incapacity, Dr Lotz said:
“Between 24/11/17 and the 2/7/19. It appears [the appellant] was unable to hold employment. He worked three months with J1 LED but could not sustain employment. He also struggled with studying at film school. It appears that his depressive disorder commenced shortly [after] the injury of November 2017.
[The appellant] did try to do some light duties with J1 LED, however, was unable to manage. Therefore I would conclude that he had no capacity for employment with regard to his age, education, skills and work experience.”[30]
[30] Dr Lotz’s report pp 6–7, ARD, pp 292–293.
Dr Anthony Smith, orthopaedic surgeon
Dr Smith examined the appellant on 25 January 2019 and reported to the respondent on 12 February 2019.[31] Dr Smith also took the history that the appellant had undertaken selected full time work for J1 LED for 12 weeks after the injury on 24 November 2017. Dr Smith also recorded that the appellant had commenced a job in electronics two weeks prior to the examination and was hoping to work full time.
[31] Reply, pp 34–38.
Dr Smith was of the view that in the incident on 24 November 2017, the appellant had aggravated pre-existing post-traumatic osteoarthritis in his right wrist, Dr Smith said that the aggravation had ceased some time ago, but there was continued aggravation with the appellant’s various work activities. Dr Smith considered that the appellant was fit to work full time in an appropriate occupation that would not aggravate the right wrist condition.
Dr Robert Ivers, orthopaedic surgeon
Dr Ivers examined the appellant and provided a report dated 12 November 2019 at the request of the appellant’s legal representatives.[32] He provided a summary of the appellant’s employment history and confirmed that the appellant advised he was able to cope with the return to work in new employment in February 2019, but a position was not made available. Dr Ivers noted that the appellant had experienced a reasonable result from surgery and opined that the appellant was not fit for pre-injury duties, but was fit to perform light or sedentary work such as electrical bench work.
THE ARBITRATOR’S REASONS
[32] ARD, pp 295–300.
The calculation of the PIAWE
The Arbitrator noted that there was some complexity with the manner in which the appellant’s PIAWE was to be calculated because the appellant had been employed by the respondent for approximately 30 hours per week but also had concurrent employment which was rewarded by the provision of free accommodation and food. The Arbitrator further noted that both parties had filed submissions and that the appellant himself had filed submissions in reply to the respondent’s submissions after the termination of his legal representative’s retainer.
The Arbitrator noted that the following matters were not in contention:
“(a) Ordinary earnings based on 29.8 hours per week with the respondent were $839.39;
(b) Allowances/overtime with the respondent were $549.84 per week;
(c) Gross average weekly earnings from concurrent employment were $770 in exchange for services of 32.5 hours provided in the form of accommodation and food; and
(d) The applicant has been in receipt of weekly compensation from the date of injury.”[33]
[33] Sinitsky v Workpac Constructions Pty Ltd [2020] NSWWCC 152 (reasons), [10].
The Arbitrator summarised the submissions of both parties. As the submissions made to the Arbitrator are relevant to an assessment of the merits of the appeal, it is useful to record the Arbitrator’s summary, which was that:
(a) “The applicant referred to ss 44C, 44E and Item 8 of Schedule 3 of the Workers Compensation Act 1987 (1987 Act). The applicant submitted that the free accommodation and food from the Great Centrel [sic, Central] Hotel be treated as a fringe benefit and the value be calculated in accordance with s 44F, that is $770 x (1/ 1 - .47) totalling $1452.83”;
(b) “The applicant provided a simple addition of the earnings with the respondent and the monetary value of the earnings with the Great Central Hotel to arrive at a combined figure of $2,842.04 per week”;
(c) “The applicant provided an alternative calculation based on Item 8 of Schedule 3 of the 1987 Act by averaging the value of these earnings over 38 hours and adding overtime with the respondent for the first 52 weeks”;
(d) “The respondent noted that the non-pecuniary benefits received in the concurrent employment do not relate to the applicant’s employment with the respondent. It however made submissions based on the amended version to the 1987 Act and not the version in force as at the date of the applicant’s injury”, and
(e) “The respondent accepted that the PIAWE over the first 52-week period was $2,159.21. It submitted, without reference to figures, that the calculation had to be reduced after the initial 52-week period due to the fact that overtime and allowances were not included.”[34]
[34] Reasons, [12]–[16].
The Arbitrator noted that the Workers Compensation Legislation Amendment Act2018 (the 2018 Amendment Act) amended the provisions of the Workers Compensation Act 1987 (the 1987 Act) in relation to the calculation of a worker’s PIAWE but did not apply to injuries before 21 October 2019, so that the amendments were not applicable to the appellant’s case. The Arbitrator pointed out that any reference to “the 1987 Act” in his reasons was a reference to the provisions of the 1987 Act as in force prior to those amendments.
The Arbitrator reproduced s 44E of the 1987 Act. He referred to the appellant’s submissions in relation to Item 8 of Schedule 3 of the 1987 Act, which makes provision for workers who have more than one employer. The Arbitrator reproduced that provision.
The Arbitrator observed that the appellant’s ordinary earnings included any non-pecuniary benefit which is to be calculated in accordance with s 44F of the 1987 Act and, noting the appellant’s submissions that the monetary value of all earnings should be calculated in accordance with ss 44E and 44F, the meaning of ordinary hours as defined must be given application.
The Arbitrator noted that the appellant’s non-pecuniary benefit for his employment with the Great Central Hotel was in return for an average of 32.5 hours’ work. The Arbitrator observed that the non-pecuniary benefit was not paid by the respondent in addition to payments the respondent already made. He further noted that, in those circumstances, s 44E provided that the monetary value of the non-pecuniary benefits was to be included in the calculation of the appellant’s ordinary hours. The Arbitrator said, however, that because the appellant’s ordinary earnings were derived from two employments, Item 8 of Sch 3 required the ordinary hours to be averaged in order to obtain the earnings for 38 hours.
The Arbitrator said that there was no inconsistency between ss 44E and 44F and Item 8 of Sch 3. He reasoned that, consistent with the decision in Commissioner of Police v Eaton,[35] the general provision (s 44 E) must give way to the specific provision in Item 8 Sch 3, when a worker works for two or more employers for more than the prescribed 38 hours.
[35] [2013] HCA 2; 252 CLR 1; 87 ALJR 267; 294 ALR 608, [21].
The Arbitrator accepted the appellant’s submission in relation to the calculation of the value of the benefit provided but pointed out that the appellant clearly worked for both employers together for more than 38 hours.
The Arbitrator referred to the alternate construction submitted by the appellant that the earnings from the concurrent employment should be treated as payment for hours worked, but that s 44F required the appellant’s average ordinary earnings to be averaged over the prescribed number of hours, which is 38 hours.
The Arbitrator noted that there was no dispute that the appellant’s overtime and shift allowances were $549.85 per week and that the appellant was entitled to include that amount during the first 52 weeks. The Arbitrator accepted the appellant’s alternate submission that the ordinary earnings were $1,398.02 per week and the overtime and shift allowances were $549.85 per week.
The Arbitrator referred to the respondent’s concession of a higher figure but observed that the calculation was based on the legislation as amended by the 2018 Amendment Act, which did not apply, so that the concession was incorrect.
The Arbitrator further observed that the respondent had not submitted contrary to the appellant’s figure for the period after the first 52 weeks. The Arbitrator concluded that, accepting the appellant’s alternate submission, the appellant’s PIAWE during the first 52 weeks was $1,947.86, and thereafter, $1,398.02 per week.
The appellant’s capacity
The Arbitrator noted the submissions made by both parties in relation to the appellant’s capacity for work. He observed that the appellant bore the onus of proof and referred to and reproduced the definitions of ‘current work capacity’ and ‘suitable employment’ in s 32A of the 1987 Act.
The Arbitrator referred to and quoted from the High Court decision in Calman v Commissioner of Police,[36] where the High Court observed:
“Whether incapacity results from injury is a question of fact. Upon the findings in this case, however, the answer to that question could admit of only one answer. As a matter of law, the Tribunal was bound to find that the incapacity of the appellant resulted from injury within the meaning of s 33 of the Workers Compensation Act. Although the incapacity would not have arisen but for the appellant being told that he was to be transferred, there would have been no incapacity but for the existence of his underlying anxiety disorder. The incident, which was the immediate cause of his incapacity, merely exacerbated the underlying anxiety disorder which continued to exist, notwithstanding that immediately before the incident it manifested no symptoms. In those circumstances, the injury was a contributing cause to the incapacity. As Jordan CJ pointed out in Salisbury v Australian Iron and Steel Ltd:
‘It is not necessary that the employment injury should be the sole cause of disability. It is sufficient if it is a contributing cause. It may be the catalyst which precipitates disability in a medium of disease. But when the stage is reached at which the employment injury ceases to produce effects and could therefore no longer be a contributing cause to any incapacity which may then exist, the right to compensation ceases.’
In the present case, the underlying anxiety disorder continued and was capable of producing serious effects if exacerbated or aggravated, as the Tribunal's findings showed. That being so, the Tribunal was bound to find as a matter of law that the appellant’s incapacity resulted from injury within the meaning of s 33 of the Workers Compensation Act.”[37] (footnotes omitted)
[36] [1999] HCA 60; 167 ALR 91 (Calman).
[37] Calman, [39]–[40].
The Arbitrator further referred to the Presidential decision in McCarthy v Department of Corrective Services,[38] in which Roche DP considered Calman and said (citations omitted):
“It is trite law that a loss can result from more than one cause. The authority of Calman is also instructive on this issue. The Court held (at [38], excluding footnotes):
‘Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act, he was entitled ‘to compensation ... under [that] Act’ upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant’s incapacity was causally connected to the underlying anxiety disorder. It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes. Indeed, death or incapacity may result from a work injury even though the death or incapacity also results from a later, non-employment cause. Thus, in Conkey & Sons Ltd v Miller, Barwick CJ, with whose judgment Gibbs, Stephen, Jacobs and Murphy JJ agreed, held that it was open to the Workers’ Compensation Commission to find from the medical evidence in that case ‘that the death by reason of myocardial infarction when it did ultimately occur, ‘resulted’ from the work-caused injury of the first infarction, even if it could not be said that the final infarction was itself caused by work-caused injury.’”[39]
[38] [2010] NSWWCCPD 27 (McCarthy).
[39] McCarthy, [148].
The Arbitrator considered the submission by the respondent that the appellant had a prior psychological condition and a drug problem, and the appellant’s submission that his incapacity was solely caused by the work injury. The Arbitrator said that the relevant question to be answered was whether the work injury materially contributed to the incapacity.
The Arbitrator agreed with the respondent that the appellant’s evidence did not address the matters referred to in s 32A of the 1987 Act, but reasoned that the appellant’s relevant skills, education and experience were addressed in the histories provided to the various medical experts. The Arbitrator noted that:
(a) the appellant asserted he had no capacity for work of any type because of his injuries, which included matters related to his psychological condition;
(b) the evidence of Dr Diebold was that:
(i)in December 2017, the appellant’s right wrist was markedly stiff and irritable;
(ii)in January 2018, the wrist was likely to settle in two months rendering the appellant fit for light duties, and
(iii)in February 2018 there was further improvement;
(c) certificates of capacity dated 23 March 2019 and 3 July 2019 certified the appellant as having no capacity from 23 March 2019 to 21 July 2019 and 2 July 2019 to 16 July 2019 respectively, with the first certificate noting surgery on 2 July 2019 and the second noting the surgery on 4 July 2019;
(d) Dr Mergard’s clinical notes recorded:
(i)PTSD consequent upon military service and a long term battle with amphetamines with the development of depression following the work injury;
(ii)on 8 January 2019, the appellant was unfit for work because of major depression, a left foot injury and right hand/wrist injury. A recent accident was noted;
(iii)on 15 January 2019, at the appellant’s request, he was given a clearance for suitable duties in order to perform work in electronics;
(iv)on 25 January 2019, the appellant complained of increased pain following an examination by a doctor at the request of the respondent;
(v)a lifting restriction of 2.5 kilograms was put in place on 6 February 2019 and on 13 February 2019, the new host employer’s insurer would not accept the appellant;
(vi)the appellant was diagnosed with an adjustment disorder on 5 March 2019, the appellant had no work capacity as a result of the adjustment disorder and depression, as well as the wrist injury, and
(vii)ongoing complaints of mood disorder, sleeping problems and methamphetamine use.
(e) Dr Mergard issued a certificate of capacity on 5 March 2019, certifying that the appellant had no capacity for work as a result of the wrist injury and an adjustment disorder with depression and referred the appellant to Dr Joyce Arnold, psychiatrist;
(f) Dr Mergard issued further certificates of capacity dated 2 April 2019, 8 May 2019 and 6 June 2019, certifying that because of psychological and physical conditions, the appellant had no capacity for work;
(g) the appellant was diagnosed by Dr Purushothaman with a major depressive disorder and substance abuse in late 2018;
(h) Dr Arnold reported to Dr Mergard on 7 June 2019 that the appellant suffered from a mood disorder, recurrence of major depression, a history of paranoid personality and illicit drug use;
(i) Dr Ivers provided a summary of the appellant’s employment history and confirmed that the appellant advised he was able to cope with the return to work in new employment in February 2019, but a position was not made available;
(j) Dr Ivers opined that the appellant was not fit for pre-injury duties but was fit to perform light or sedentary work such as electrical bench work;
(k) Dr Ivers subsequently noted on 12 November 2019 that the appellant had experienced a reasonable result from surgery and confirmed his earlier opinion as to capacity;
(l) the appellant suffered a previous distal radial fracture in 2015, following which he recovered sufficiently to undertake the work for the respondent without restrictions;
(m) the appellant underwent extensive ongoing treatment for the right wrist injury, and complained of current complaints of pain at rest, increasing with lifting up to 10 kilograms and difficulty with fine movements;
(n) the history provided to Dr Lotz referred to the appellant participating in film school in December 2017 and three months of work from June to September 2018, with ongoing psychological problems including increasing drug use. Dr Lotz diagnosed work related major depression and certified that, in the context of the appellant’s age, education and work experience, the appellant had no capacity for work, but further psychological treatment may offer improvement in work capacity;
(o) a functional capacity assessment by Mr Hess dated 14 March 2018 noted that psychological factors inhibited a return to work and recommended pain management and psychological assessment, and
(p) on 12 February 2019, Dr Smith also noted the history of subsequent full time selected work for 12 weeks, as well as recent “unpaid” work.
The Arbitrator concluded that, based on the above evidence, the appellant:
(a) at all times was unfit for his pre-injury duties because of his injury;
(b) had an initial period of no capacity after the injury, and
(c) had some capacity from 23 February 2018 until early 2019, on the basis of Dr Diebold’s evidence that there was some improvement and the evidence of the post injury employment.
On the same basis, the Arbitrator rejected Dr Lotz’s opinion that the appellant had no capacity for employment at all times.
The Arbitrator remarked that it was difficult to assess the worker’s capacity during the period he actually worked because of a lack of evidence about the work performed. The Arbitrator was, however, satisfied that during that period, given his skills and age, the appellant was fit for work of a lighter nature with a capacity to earn $750 per week.
The Arbitrator accepted the evidence from Dr Mergard, which was consistent with that of Dr Ross, that the appellant’s psychological condition deteriorated in early 2019. The Arbitrator added that, while he accepted the respondent’s submissions that there was an underlying psychological condition and illicit substance abuse, there was clear evidence that the appellant’s psychological condition worsened in early 2019 because of the work injury. The Arbitrator reiterated that the appellant does not need to show that the work injury was the sole cause of the incapacity.
The Arbitrator further accepted that the appellant’s psychological condition was aggravated by the work injury. While noting that Dr Lotz foreshadowed that there would be some improvement of the appellant’s psychological condition with treatment, the Arbitrator accepted Dr Lotz’s opinion, insofar as it was relevant to period after 4 March 2019, that the appellant had no capacity for work.
The Arbitrator noted a further submission by the appellant that he should be deemed to be incapacitated for certain work because of the operation of s 47 of the 1987 Act. The Arbitrator observed that there was no evidence to support that submission and it was otherwise contrary to the opinion of Dr Ivers that the appellant was fit for light sedentary work. The Arbitrator rejected the submission.
The Arbitrator concluded that:
(a) “The applicant had no current work capacity from 24 November 2017 to 22 February 2018, current work capacity at $750 per week from 23 February 2018 to 4 March 2019 and no current work capacity since 5 March 2019.”
(b) “The applicant’s PIAWE in the first 52 weeks is $1,947.86 and $1,398.02 thereafter.”
(c) “The applicant is entitled to 95% of the PIAWE for the first 13 weeks and at 80% of the PIAWE thereafter, save for the period of approximately three months when the applicant was working at least 15 hours per week with J1 Led.”
(d) “During the period of employment with J1 Led, the applicant’s entitlement increases to 95% of the PIAWE less $750 per week pursuant to s 37(2) of the 1987 Act. Based on the history in the reports and the applicant’s concession in his submissions, I have estimated this three-month period to be from 1 June 2018 to 31 August 2018.”[40]
[40] Reasons, [94]–[97].
The Certificate of Determination issued on 13 May 2020 records:
“The Commission determines
Findings
1. The applicant’s pre-injury average weekly earnings are:
(a)$1,947.86 in the first 52 weeks; and
(b)$1,398.02 after 52 weeks.
2. The applicant had no current work capacity from 24 November 2017 to 22 February 2018, current work capacity at $750 per week from 23 February 2018 to 4 March 2019 and no current work capacity from 5 March 2019 to date and continuing.
Orders
3. The respondent pays the applicant weekly compensation as follows:
(a)$1850.47 per week pursuant to s 36(1) of the Workers Compensation Act 1987 (1987 Act) from 24 November 2017 to 22 February 2018 based on no current work capacity;
(b)$808.29 per week pursuant to s 37(3) of the 1987 Act from 23 February 2018 to 31 May 2018;
(c)$1,100.47 per week pursuant to s 37(2) of the 1987 Act from 1 June 2018 to 31 August 2018;
(d)$808.29 per week pursuant to s 37(3) of the 1987 Act from 1 September 2018 to 23 November 2018;
(e)$368.42 per week pursuant to s 37(3) of the 1987 Act from 24 November 2018 to 4 March 2019;
(f)$1,180.42 per week pursuant to s 37(1) of the 1987 Act from 5 March 2019 to date and continuing pursuant to s 37 of the 1987 Act based on no current work capacity.
4. The respondent has credit for previous payments of weekly compensation.”
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred as follows:
(a) Ground One: error of law in the calculation of the appellant’s PIAWE, and
(b) Ground Two: error in the assessment of the appellant’s capacity for work.
LEGISLATION
Section 43 of the 1998 Act prescribes the decisions which constitute work capacity decisions. The section provides:
“43 Work capacity decisions by insurers
(1) The following decisions of an insurer are work capacity decisions—
(a) a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c) a decision about the amount an injured worker is able to earn in suitable employment,
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions—
(a) a decision to dispute liability for weekly payments of compensation,
(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) (Repealed)”.
The appellant refers to ss 44C, 44E and 44F of the 1987 Act. Those sections have been repealed but remain in force for the purposes of injuries received before 21 October 2019 by operation of Sch 6 Pt 21, cl 7 to the 1987 Act.
Section 44C relevantly provided:
“44C Definition—pre-injury average weekly earnings
(1) In this Division, pre-injury average weekly earnings, in respect of a relevant period in relation to a worker, means the sum of:
(a) the average of the worker’s ordinary earnings during the relevant period (excluding any week during which the worker did not actually work and was not on paid leave) expressed as a weekly sum, and
(b) any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable).
…
(4) In relation to a worker of a class referred to in Column 2 of an item in Schedule 3, pre-injury average weekly earnings means the amount determined in accordance with Column 3 of that item, expressed as a weekly sum.
(5) An overtime and shift allowance payment is permitted to be included in the calculation of pre-injury average weekly earnings (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable) if:
(a) the worker worked paid overtime or carried out work that attracted a shift allowance during the relevant period, and
(b) the worker would, but for the worker’s injury, have been likely, at any time during that 52 week period, to have worked paid overtime or carried out work that attracted a shift allowance.
(6) The amount of an overtime and shift allowance payment that is permitted to be included is to be calculated in accordance with the following formula:
where:A is the total amount paid or payable to the worker for paid overtime and shift allowances in respect of the relevant period.
B is the number of weeks during the relevant period during which the worker worked or was on paid annual leave.”
Section 44E defined the meaning of “ordinary earnings:”
“44E Definitions applying to pre-injury average weekly earnings—ordinary earnings
(1) Subject to this section, in relation to pre-injury average weekly earnings, the ordinary earnings of a worker in relation to a week during the relevant period are:
(a) if the worker’s base rate of pay is calculated on the basis of ordinary hours worked, the sum of the following amounts:
(i) the worker’s earnings calculated at that rate for ordinary hours in that week during which the worker worked or was on paid leave,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week, or
(b) in any other case, the sum of the following amounts:
(i) the actual earnings paid or payable to the worker in respect of that week,
(ii) amounts paid or payable as piece rates or commissions in respect of that week,
(iii) the monetary value of non-pecuniary benefits provided in respect of that week.
(2) A reference to ordinary earnings does not include a reference to any employer superannuation contribution.”
The appellant also relies on s 44F, which defined non-pecuniary benefits, and relevantly provided as follows:
“44F Definition of ‘non-pecuniary benefits’
(1) The following benefits provided in respect of a week to a worker by the employer for the performance of work by the worker are non-pecuniary benefits in respect of that week:
(a) residential accommodation,
(b) use of a motor vehicle,
(c) health insurance,
(d) education fees.
…
(4) The monetary value of a non-pecuniary benefit referred to in subsection (1) in respect of a week is:
(a) the value that would be the value as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth, calculated in accordance with subsection (5), divided by 52, or
(b) in the case of residential accommodation that is not a fringe benefit or is otherwise not subject to fringe benefits tax, the amount that would reasonably be payable for that accommodation, or equivalent accommodation in the same area, in respect of that week if it were let on commercial terms.
(5) Value as a fringe benefit is to be determined in accordance with the formula:
where:TV is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.
FBT rate is the rate of fringe benefits tax imposed by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth that applies when the non-pecuniary benefit is provided.”
SUBMISSIONS
The respondent makes general submissions in relation to the appeal.
The respondent submits that the Arbitrator’s decision was correct in fact, law and discretion and the COD should be confirmed. The respondent submits that it is difficult to understand the appellant’s submissions, which are illogical and have no proper basis in law. The respondent says that it is difficult to understand the appellant’s submissions but that it uses its best endeavours to respond to the appeal.
Ground One: The calculation of the PIAWE
The appellant’s submissions
The appellant refers to the respondent’s failure to include his concurrent employment in the calculation of his PIAWE and the concession by the respondent at the arbitration that the concurrent employment should be included in the calculation. The appellant also refers to his refusal of the offer made by the respondent to resolve the appellant’s claim for $20,000 because the amount was insufficient.
The appellant acknowledges that the Arbitrator’s task of determining the PIAWE is a difficult one but notes that the Arbitrator accepted that the calculation of the appellant’s PIAWE fell within Item 8 of Sch 3. The appellant submits that his PIAWE is to be calculated in accordance with the legislation as in force before the 2018 Amendment Act.
The appellant further submits that the Arbitrator ought to have determined the issue by following Practice Direction No 13, which deals with schedules of earnings, and Practice Direction No 15, which deals with work capacity decisions. The appellant says that those documents give an outline of how the Commission directs that the issue should be determined.
The appellant contends that the Arbitrator misinterpreted the wording of Item 8 of Sch 3, which amounts to an error of law. The error is said to be the Arbitrator’s decision to ascertain the fringe benefit as an hourly rate. The appellant says that in this case, the non-pecuniary benefit paid to the appellant was in the form of accommodation and food (the appellant’s “remuneration”) in return for 32.5 hours of work with the Great Central Hotel. The appellant says that this was in addition to the payments made by the respondent.
The appellant submits that the Arbitrator failed to take into account Mr Hills’ evidence, which was that the benefit provided to the appellant by the Great Central Hotel was completely in the form of non-taxable fringe benefits. That is, it was in the form of provision of meals and accommodation. The appellant submits that Mr Hill’s evidence referred to the agreement between the Great Central Hotel and the appellant, which was that the appellant would make himself available to work up to a maximum of four hours each day in return for the fringe benefit.
The appellant asserts that the Arbitrator erred in fact and law when he disregarded the factual evidence of Mr Hills detailing the appellant’s terms of employment. The appellant reproduced s 44E of the 1987 Act, which defined “pecuniary benefits.” The appellant also reproduced ss 44C(4), 44F, and Item 8 of Sch 3 of the 1987 Act. He referred to the Arbitrator’s observation that there was no inconsistency between Item 8 of Sch 3 and ss 44C and 44E of the 1987 Act. The appellant asserts that there are several inconsistencies that the Arbitrator failed to recognise which resulted in the Arbitrator failing to correctly calculate the appellant’s PIAWE.
The appellant proposes that the correct way in which to calculate the PIAWE is:
(a) multiply “A,” which is the worker’s pre-injury average earnings. That is, the worker’s average ordinary earnings expressed as an amount per hour for all work carried out by the worker for all employers, in this case $27.90 per hour;
(b) by “B,” which is the prescribed number of hours per week, in this case 29.8 hours;
(c) “A” multiplied by “B” equals actual earnings of $831.42 per week, plus allowances and overtime with the respondent of $549.84 per week;
(d) the monetary value of the non-pecuniary benefit from the concurrent employer for that week is $1,452.83 per week, and
(e) the sum of $831.42, $549.84 and $1,452.83 is $2,834.09, which is the appellant’s PIAWE, in accordance with Item 8 of Sch 3.
The appellant asserts that Sch 3 does not give any direction or instruction that fringe benefits are to be expressed as an hourly figure, so that the Arbitrator, by doing so, erred in law.
The respondent’s submissions
The respondent contends that there was no misinterpretation of the provision on the part of the Arbitrator when he calculated an hourly rate for the fringe benefits and that the Arbitrator did not disregard the evidence of Mr Hills. The respondent submits that the Arbitrator clearly took that evidence into account when making the PIAWE calculation.
The respondent refers to the appellant’s submissions in which the appellant asserts that the Arbitrator incorrectly applied various provisions of the 1987 Act, causing an error in the calculation of the appellant’s PIAWE. The respondent submits that there was no error in the Arbitrator doing so.
The respondent further refers to the appellant’s assertion that his pecuniary benefits from the concurrent employment should have been $1,452.83. The respondent observes that this submission appears to re-agitate a submission made to the Arbitrator that the fringe benefit should be calculated in accordance with s 44F of the 1987 Act, which the Arbitrator referred to in his reasons. The respondent points out that the appellant made an alternate submission, which the Arbitrator accepted. The respondent submits that there was no error on the part of the Arbitrator, the Arbitrator’s approach was correct and should be upheld.
Ground Two: error in the assessment of the appellant’s capacity for work
The appellant’s submissions
The appellant contends that the Arbitrator erred by deducting money from his PIAWE, and that error has affected the outcome of his case. The appellant submits that the Commission has no jurisdiction to make a work capacity decision of this type and that only a “review panel” of the Supreme Court has the power to determine matters under ss 43 and 43A of the 1987 Act.
The appellant also raises the question of whether the Arbitrator had jurisdiction to “back date” the work capacity decision, and again refers to s 43 of the 1987 Act. The appellant also queries whether the Arbitrator had jurisdiction to determine otherwise than in accordance with s 32A of the 1987 Act. The appellant challenges the Arbitrator’s jurisdiction to determine the matter in accordance with s 43 in the absence of a work capacity decision issued by the respondent and whether the Arbitrator had the power to back date the decision on the appellant’s capacity to a period prior to any issue being raised by the respondent as to his capacity.
The appellant submits that the Arbitrator made it clear that in relation to the medical dispute before him, he disagreed with the appellant’s medical evidence. The appellant asserts that, on the basis of the rejection of the appellant’s medical case, and in accordance with s 43 of the 1987 Act, it is clear that the Arbitrator erred in law in relation to his decision on capacity.
The appellant submits that a “medical dispute” is not a work capacity decision, referring to s 43(2)(b) of the 1987 Act. The appellant contends that a decision about a medical dispute cannot be a decision about a work capacity decision.
The appellant complains of the conduct and ethics of the Arbitrator, the respondent and both legal representatives. The appellant thereafter asserts breaches of Federal taxation laws, extortion and contempt of the law.
The respondent’s submissions
The respondent indicates that it is unable to understand the appellant’s submissions. The respondent asserts that the Arbitrator undertook a detailed consideration of the medical evidence before reaching a conclusion as to the appellant’s work capacity. The respondent submits that the Arbitrator’s findings were supported by the evidence and should not be disturbed.
The respondent takes issue with the appellant’s criticism of it and of the Arbitrator and notes that the appellant has revealed that he conducted an illegal recording of the telephone conference. The respondent describes those submissions as inappropriate and asserts that the appellant has committed a criminal offence by recording what was said during the telephone conference.
The respondent concludes that it wholly opposes the appeal application and that the Arbitrator’s COD should be confirmed.
The appellant’s general reply to the respondent’s submissions
The appellant lodged submissions in response to the respondent’s submissions.
The appellant maintains that the Arbitrator did not have jurisdiction to make a work capacity decision and refers to s 42(2)(b) (presumably a reference to s 43(2)(b)) of the 1987 Act. The appellant restates his position that the Arbitrator failed to provide the correct law but has also committed a criminal offence.
The appellant says that he does not disagree with the Arbitrator’s finding that his psychological condition was aggravated by his work related injury.
DISCUSSION
Section 352(5) of the 1998 Act provides for an appeal from a decision of an arbitrator as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The appellant is therefore required to identify an error of fact, law or discretion in order to succeed in this appeal.
Ground One: The calculation of the PIAWE
The appellant alleges that the Arbitrator erred in his application of the legislation, which is an allegation that the Arbitrator erred in law.
The appellant submitted to the Arbitrator and again in this appeal, that Item 8 of Sch 3 of the 1987 Act applies to his case.
Item 8 of the Schedule applies to workers who are employed by 2 or more employers in circumstances that are not provided for in previous items in the Schedule. It provides that:
“The worker’s pre-injury average weekly earnings are the worker’s average ordinary earnings expressed as an amount per hour for all work carried out by the worker for all employers multiplied by:
(a) the prescribed number of hours per week, or
(b) the total of the worker’s ordinary hours per week,
whichever is the lesser.”
The Arbitrator noted that the calculation of the appellant’s ordinary earnings must include the non-pecuniary benefit that is defined and calculated in accordance with s 44F of the 1987 Act. The Arbitrator accepted the appellant’s submission that the monetary value of the earnings was to be calculated in accordance with ss 44E and 44F of the 1987 Act and that Item 8 of Sch 3, which specifically provided for the manner in which the ordinary earnings were to be calculated where the worker worked for two or more employers, must be given effect.
The appellant submits that the Arbitrator misinterpreted the wording of Item 8 by ascertaining the fringe benefit as an hourly rate and failed to take into account the evidence of Mr Hills, which was that the provision of meals and accommodation was a non-taxable benefit in return for 32.5 hours of work. The Arbitrator clearly took into account that evidence in accepting the appellant’s submission that the monetary value of the benefit was $770 per week as proposed by Mr Hills, to which the Arbitrator applied the formula set out in s 44F(5) of the 1987 Act, arriving at a figure of $1,452.83. There is no challenge by either the appellant or the respondent to the Arbitrator’s treatment of the non-pecuniary benefit as a “fringe benefit” or to the Arbitrator attributing a monetary value of $1,452.83 to that benefit. The challenge is merely that the Arbitrator determined that the amount was required to be divided by the number of hours worked by the appellant.
The appellant submits that the correct approach should have been to multiply $29.70 (the hourly rate in his pre-injury average ordinary earnings) by 29.8 hours per week to arrive at a figure of $831.42 per week, to which $549.84 in respect of overtime and shift allowances should be added. The appellant asserts that the monetary value of the non-pecuniary benefit in the sum of $1,452.83 should then be added, resulting in a PIAWE of $2,834.09.
The appellant contends that Sch 3 does not direct or instruct that fringe benefits are to be expressed as an hourly rate.
Item 8 clearly provides that, in circumstances where the worker has more than one employer, the average ordinary weekly earnings for all work carried out by the worker for all employers is to be expressed as an hourly rate, multiplied by the prescribed hours per week. As the Arbitrator observed, s 44C(1)(a) of the 1987 Act provides that the monetary value of the non-pecuniary benefits is to be included in the appellant’s ordinary earnings.[41] That is, the appellant’s ordinary earnings were $839.37 in the employ of the respondent plus the figure agreed by the parties and adopted by the Arbitrator of $1,452.83, which is a total of $2,292.20. Applying Item 8 of Sch 3, that figure must be divided by the total hours worked by the appellant for all employers. On the evidence, the total of the hours which the appellant carried out work for both employers was 62.3, which gives an hourly rate of $36.79. Item 8 then allows for that hourly rate to be multiplied by the prescribed hours, which is 38 hours, to arrive at the figure calculated by the Arbitrator of $1,398.02. The overtime and shift allowances, which are not “ordinary hours” and are not caught by Item 8, are then to be added. This is exactly the approach taken by the Arbitrator, which discloses no error.
[41] Reasons, [23].
The appellant submits also that the Arbitrator failed to recognise the inconsistencies between Item 8 of Sch 3 and ss 44C and 44E of the 1987 Act. The appellant does not elaborate on that submission nor provide any basis upon which it could be concluded there is any such inconsistency. The submission is not persuasive of error.
The appellant also refers to the Commission’s Practice Direction No 13 and asserts that the Direction requires the Arbitrator to determine the issue in accordance with that document. The Practice Direction relevantly provides:
“15. The main differences in the methods to apply concern the calculation of a worker’s pre-injury average weekly earnings (PIAWE):
(a)For injuries received before 26 October 2018, PIAWE means the average of the worker’s ordinary earnings during the relevant period expressed as a weekly sum. Ordinary earnings are determined with reference to s 44E of the 1987 Act, as it stood prior to the 2018 amending Act. In determining ordinary earnings, regard must be had to the worker’s base rate of pay, actual earnings paid or payable, and the monetary value of non-pecuniary benefits in respect of a week. Overtime and shift allowance payments are only included in the calculation of PIAWE for the purpose of the first 52 weeks of weekly payments (see s 44C–44I and Sch 3 of the 1987 Act, as it stood prior to the 2018 amending Act).”
And
“17. Where a worker was, at the time of injury, employed by two or more employers:
(a)For injuries before 21 October 2019, regard should be had to Sch 3, Items 2–8 of the 1987 Act as it stood prior to the 2018 amending Act.
(b)For injuries on or after 21 October 2019, the average weekly earnings from each job are to be added together to determine the worker’s pre-injury average weekly earnings.”
The appellant does not elaborate on this submission and it is not apparent from a plain reading of the Arbitrator’s reasons how it is that the appellant says the Arbitrator’s determination was not consistent with the Practice Direction. The appellant makes the same allegation in respect of Practice Direction No 15 and again does not elaborate on the submission or give reasons as to how it is that the Arbitrator’s determination was not consistent with that Practice Direction.
The appellant has failed to establish error on the part of the Arbitrator of the kind described, and this ground of appeal has no prospects of success.
Ground Two: the assessment of the appellant’s incapacity
The appellant firstly complains that the Arbitrator had no jurisdiction to make a work capacity decision, in particular a “back dated” work capacity decision. It is apparent that the appellant relies on s 43 of the 1987 Act as it was enacted prior to the amendments made by the 2018 Amendment Act. Prior to the 2018 Amendment Act, s 43 relevantly appeared as follows:
“43 Work capacity decisions by insurers
(1) The following decisions of an insurer (referred to in this Division as work capacity decisions) are final and binding on the parties and not subject to appeal or review except review under section 44BB or judicial review by the Supreme Court:
(a) a decision about a worker’s current work capacity,
(b) a decision about what constitutes suitable employment for a worker,
(c) a decision about the amount an injured worker is able to earn in suitable employment,
(d) a decision about the amount of an injured worker’s pre-injury average weekly earnings or current weekly earnings,
(e) a decision about whether a worker is, as a result of injury, unable without substantial risk of further injury to engage in employment of a certain kind because of the nature of that employment,
(f) any other decision of an insurer that affects a worker’s entitlement to weekly payments of compensation, including a decision to suspend, discontinue or reduce the amount of the weekly payments of compensation payable to a worker on the basis of any decision referred to in paragraphs (a)–(e).
(2) The following decisions are not work capacity decisions:
(a) a decision to dispute liability for weekly payments of compensation,
(b) a decision that can be the subject of a medical dispute under Part 7 of Chapter 7 of the 1998 Act.
(3) The Commission does not have jurisdiction to determine any dispute about a work capacity decision of an insurer and is not to make a decision in respect of a dispute before the Commission that is inconsistent with a work capacity decision of an insurer.”
Section 43 of the 1987 Act was amended by the 2018 Amendment Act. Subs (1) was amended by Item 1.1[1] of Sch 1 to the 2018 Amendment Act to remove reference to work capacity decisions being “final and binding” and not subject to review. Subsection (3) was repealed by 1.1[2] of Sch 1 to the 2018 Amendment Act. Both amendments were operational from 1 January 2019. Section 105 of the 1998 Act vests jurisdiction in the Commission to hear and determine all matters arising under the 1987 and 1998 Acts, subject to any specific prohibition. There is now no bar to the Commission determining the appellant’s work capacity so that in this case, the Arbitrator was vested with such jurisdiction.
The appellant further asserts that the Arbitrator did not have the power to “back date” the decision on the appellant’s capacity to a period prior to any issue being raised by the respondent as to his capacity. In the proceedings, the appellant sought weekly compensation from the date of his injury, that is, from 24 November 2017. The appellant challenged the respondent’s assessment of his entitlement. In order to assess the appellant’s entitlement to compensation, it was incumbent upon the Arbitrator to consider the extent of the appellant’s capacity for work. As Mason P observed in NSW v Moss:[42]
“where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task.”[43]
[42] [2000] NSWCA 133 (Moss).
[43] Moss, [87].
The finding by the Arbitrator in respect of the appellant’s incapacity is a finding of fact. There was a paucity of evidence as to the appellant’s capacity between 23 February 2018 and 4 March 2019. In Swann v Spiropoulos,[44] Campbell J (as his Honour then was) observed that, when faced with a paucity of evidence, the appropriate approach was to put himself in the position of a juror and assess as best as he could the extent of the compensation payable.
[44] [2006] NSWSC 860; ANZ ConvR 496.
Both parties submitted at arbitration in relation to the appellant’s capacity for work. The matter proceeded on the basis that the issue of the appellant’s capacity was a matter for determination. The Arbitrator rejected the opinion of Dr Lotz insofar as Dr Lotz opined that, since the work-related injury, the appellant had no capacity for employment. The Arbitrator did not reject the entirety of Dr Lotz’s opinion but did reject that part of the opinion that was inconsistent with the factual evidence presented. That is, that the appellant actually performed work for J1 LED, attended film school, and trialled work with a host employer. The Arbitrator also took into account the appellant’s concession to Dr Ivers that he was able to cope with the return to work in February 2019, Dr Ivers’ medical opinion that the appellant had some capacity for work and the observations made by Dr Diebold, the appellant’s treating surgeon.
In determining whether an arbitrator erred in making a factual finding, the Commission has consistently applied the principles enunciated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[45] Deputy President Roche provided the following summary of those principles in Raulston v Toll Pty Ltd:[46]
“An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that [the] conclusion was wrong’.
Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[47]
[45] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[46] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[47] Raulston, [19].
That is, in order for the appellant to succeed on this point, it is necessary for him to establish that material facts were overlooked or given too little weight, or that the available opposite inference is so preponderant that the decision must be wrong. These principles are relevant to appellate review in the Commission where the appeal is not a review and there is a requirement to show error (s 352(5) of the 1998 Act).
The appellant has not pointed to any evidence that the Arbitrator failed to consider, or any material fact that was overlooked or afforded too little weight. On the basis of the appellant having performed some work, about which there was no direct evidence from the appellant, it was open to the Arbitrator to draw an inference that the appellant had some capacity for employment between 23 February 2018 and 4 March 2019.
The Arbitrator’s determination of the appellant’s capacity was within jurisdiction and consistent with the evidence. Applying the principles enunciated in Whiteley Muir, the appellant has not shown that the Arbitrator erred in the manner required by s 352(5) of the 1998 Act and this appeal ground has no prospects of success.
CONCLUSION
The appeal grounds raised by the appellant have no prospects of success. It follows that the failure to extend the time to file the appeal would not result in a substantial injustice to the appellant as required by s 352(4) of the 1998 Act. In accordance with r 16.2(5) of the 2011 Rules, I therefore decline to extend the time to lodge an appeal.
ADDITIONAL MATTERS
The appellant complains about the conduct of the respondent and the Arbitrator. There is no basis for those complaints and in any event, it is not appropriate to make such complaints in an appeal to a Presidential member, where the role of the Presidential member is limited to the identification and correction of error.
DECISION
The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.
Elizabeth Wood
Deputy President
6 October 2020
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