Sirijovski v BlueScope Steel (AIS) Pty Ltd
[2021] NSWPIC 34
•19 March 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Sirijovski v BlueScope Steel (AIS) Pty Ltd [2021] NSWPIC 34 |
| APPLICANT: | Peter Sirijovski |
| RESPONDENT: | BlueScope Steel (AIS) Pty Ltd |
| MEMBER: | Mr Nicholas Read |
| DATE OF DECISION: | 19 March 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for weekly benefits compensation under section 40 of the Workers Compensation Act 1987 (repealed) and medical expenses; worker claimed he had suffered loss of income as result of a reduced capacity to undertake overtime shift work at pre-injury level; worker relied on Wages Schedule identifying comparative earnings; Held – satisfied worker suffered partial incapacity for work; satisfied worker entitled to rely on Wage Schedule; assessment of loss undertaken in accordance with Mitchell v Central West Health Service; award for applicant on claim for weekly payments under section 40 and medical expenses. |
| DETERMINATIONS MADE: | 1. The Injury Details of the Application to Resolve a Dispute is amended to allege separate injuries to the lumbar spine on 16 April 2002, 24 January 2005, 30 April 2010 and 4 August 2010 and separate injuries to the cervical spine 24 January 2005 and 3 December 2008. 2. Award for the applicant under section 40(1) of the Workers Compensation Act 1987 (the 1987 Act) as follows: (a) for the period 16 April 2002 to 30 June 2002, at a rate of $300 per week; (b) for the period 1 July 2002 to 30 June 2003, at a rate of $424.50 per week; (c) for the period 1 July 2003 to 30 June 2004, at a rate of $474 per week; (d) for the period 1 July 2004 to 30 June 2005, at a rate of $748.92 per week; (e) for the period 1 July 2005 to 30 June 2006, at a rate of $701.09 per week; (f) for the period 1 July 2006 to 30 June 2007, at a rate of $372.50 per week; (g) for the period 1 July 2007 to 31 December 2007, at a rate of $546.65 per week; and (h) for the period 1 January 2008 to 31 December 2012, at a rate of $25 per week. 3. Award for the applicant on the claim for medical expenses pursuant to section 60 of the 1987 Act. The respondent is pay the applicant’s reasonably necessary medical expenses on production of accounts, receipts and/or HIC Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Peter Sirijovski, the applicant, worked for Bluescope Steel (AIS) Limited, the respondent, as a full-time labourer, primarily undertaking work in the finishing plate mill.
In or around late 2019 the applicant made a claim for lump sum compensation alleging he sustained various injuries over the course of his employment and arising from the nature and conditions of same. The applicant also made claims for weekly benefits compensation and medical expenses.
The respondent declined liability of the claims and the matter proceeded to an arbitration hearing before Arbitrator Brett Bachelor on 18 December 2019. At the arbitration hearing the applicant’s claims for weekly benefits compensation and medical expenses were discontinued.
On 15 January 2020 Arbitrator Batchelor issued a Certificate of Determination in which he determined the applicant suffered discrete injuries to his lumbar spine on 16 April 2002, 24 January 2005, 30 April 2020 and 4 August 2010 and discrete injuries to his cervical spine on 24 January 2005 and 3 December 2008. The matter was remitted to an Approved Medical Specialist (AMS) to assess the degree of whole person impairment suffered by the applicant as a result of those injuries.
On 24 March 2020 Dr Yiu-Key Ho, issued a Medical Assessment Certificate (MAC) in relation to the applicant’s lump sum compensation claim.
In these proceedings the applicant seeks weekly benefits compensation for the period 16 April 2002 to 31 December 2012 and medical expenses. The applicant’s claim for weekly benefits compensation arises from his assertion that he was partially incapacitated for work and suffered loss of earnings as a result of being unable to perform overtime and/or “doubler” shifts.
ISSUE FOR DETERMINATION
The respondent did not notify the matters in a dispute notice as required by section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Previous dispute notices had been issued dealing with the application for lump sum compensation, however the notices did not contain any relevant information to the claim for weekly benefits compensation and medical expenses.
During the conciliation/arbitration hearing leave was granted to the respondent to raise the following previously unnotified issues pursuant to section 289A of the 1998 Act:
(a) whether applicant suffered a partial incapacity for work in the period 16 April 2002 and 31 December 2012 as a result of his injuries;
(b) if so, what is the applicant’s entitlement to compensation having regard to the evidence adduced as to his probable earnings but for injury and his ability to earn in terms of section 40 of the 1987 Act; and
(c) whether the claimed medical expenses were reasonably necessary as requested by section 60 of the 1987 Act.
I was satisfied granting leave to raise the above issues was appropriate in the circumstances where the issues were raised at the telephone conference before me on 1 February 2021 and the applicant had adduced sufficient evidence to address them. The applicant did not oppose an order granting leave for the respondent to raise the previously unnotified issues.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration before me on 22 February 2021.
Mr Paul Stockley of counsel appeared for the applicant. Mr Peter Licca, solicitor, appeared for the respondent.
I was satisfied that the parties to the dispute understood the nature of the application and the legal implications of the assertions made in the information supplied. I used my best endeavours to attempt to bring the parties to a settlement acceptable to them. I was satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and have been taken into account in making this determination:
(a) Application to Resolve a Dispute, and attachments (ARD);
(b) Reply filed by the respondent, and attachments (Reply);
(c) three Applications to Admit Late Documents lodged by the applicant, and
(d) two Applications to Admit Late Documents lodged by the respondent.
Witness evidence
In a statement dated 30 September 2019, the applicant provided an overview of his employment with the respondent and set out a history of his various injuries.
The applicant said from 2002 to 2013 he worked primarily as a test pit operator, which was physical work. He also undertook other operating jobs, as required.
The applicant said in the years leading up to his back injury in April 2002 he would work three to four overtime shifts per week of eight hours each (and paid at double time). The applicant estimated he had lost “at least $30,000 per year in overtime” (ARD page 3).
The applicant injured his back on 16 April 2002 when he slipped walking down steps at the respondent’s workplace. He said from the time of his injury on 16 April 2002 he suffered pain radiating down his lower back and into his legs. According to the applicant, he was certified unfit for overtime (ARD page 1).
The applicant said after his injury in April 2002 he relied on pain relief medication to get through his ordinary working hours and when he got home he would either lie on the couch or go to bed.
The applicant asserted that but for his back injury in April 2002 he would have continued to do overtime, however this was taken away from him on medical advice.
The applicant conceded that there may have been times when overtime was reduced or not offered, such as around the time of the Global Financial Crisis (GFC) however it was generally available (ARD page 3).
In a further statement dated 10 October 2020 the applicant said:
“After my back injury on 16 April 2002, I continued working 8 hour shifts on Saturdays or Sundays whenever I could and these were paid as double shifts and may have been classified as overtime but I did not perform any 'doublers' overtime shifts, as these would have required me to work 16 hour shifts when my Certificates restricted me to working no more than 8-hour shifts...
But for my back injury (and other injuries, preceding and subsequent to the back injury) I would have continued to do as many 'doublers' overtime shifts as I could, which...was usually three or four per week.
In relation to precisely when I stopped doing 'doublers', it may actually have been a couple of weeks before I injured my back [16 April 2002], as a consequence of previous injuries” (ARD page 19).
The applicant said his injury to his back on 16 April 2002, and the subsequent injuries, took “doubler” overtime shifts off the table for him for the remainder of his employment (ARD page 20).
The respondent relied upon evidence from Mr Chris Kimber, Despatch Co-ordinator. In response to the applicant’s evidence Mr Kimber said the respondent never returned the level of overtime for some time after the GFC and the business was restructured in 2012 due to limited amount of steel plate being ordered. According to Mr Kimber the number of shifts available to workers significantly declined (respondent’s ALD 22/2/21 page 5).
In a statement dated 11 February 2021, Mr Kimber said he had been employed by the respondent for 42 years and prior to his current role supervised the applicant in the Plate Finishing Department from 2002 to 2005. During this time, he had direct supervision of the applicant’s day to day work activities.
Mr Kimber said:
(a) for the period from 2002 to around 2008 regular overtime was available to all employees within the plate finishing department, including “doubler” shifts which was allocated by way of an overtime sharing system. According to Mr Kimber
the system was managed so overtime could be allocated fairly across the employees;(b) for the period from 2008 to 2012 there was a “significant decrease” in available overtime due to a downturn in business as a result of the GFC. Overtime was only offered “very sporadically”, and
(c) in his opinion the applicant had a poor work ethic and would only do overtime when it suited him (respondent’s ALD 11/2/21 pages 1-2).
Medical evidence
In or around March 2002 the applicant saw Dr William J Lyons, orthopaedic surgeon, in respect of previous injuries and continuing symptoms in his neck, across the shoulders and down his arm on the left side.
In a report dated 5 March 2002, Dr Lyons noted the applicant had continued to work without subsequent loss of time and undertook one or two doublers per week (Reply page 150). Dr Lyons stated the applicant’s symptoms were minor in nature. Dr Lyons opined he was fit for his normal work as a stamp tester, and available overtime (ARD pages 19-20; respondent’s ALD 8/10/2020).
On 16 April 2002 the applicant suffered the injury to his lumbar spine when he slipped and fell down steel steps.
The attachments to the ARD included a number of BHP Work Capabilities Forms. The forms were completed by Dr Ian Tague, the respondent’s in-house occupational physician. The forms set out the details of the applicant’s physical capability for work. The forms included an area to identify physical restrictions, a permitted work schedule and an area for indicating whether overtime in the form of regular rostered overtime or “doublers” was permitted.
The work capabilities form for the period 19 April 2002 to 1 May 2002 showed the applicant was capable of working eight hours per day with rostered overtime, but no doublers (ARD page 57).
The work capabilities form for the period 1 May 2002 to 15 May 2002 showed the applicant was permitted to work eight hours per day, seven days per week with restrictions. The form provided no information as to whether the applicant was able to work rostered overtime or doublers (ARD page 58).
The work capabilities form for the period 15 May 2002 to 29 May 2002 showed the applicant was permitted to work eight hours per day seven days per week with restrictions, and was able to work regular rostered overtime, but no doublers (ARD page 59).
The work capabilities form for the period 29 May 2002 to 14 June 2002 showed the applicant was able to work eight hours per day, seven days per week with restrictions. The form provided no information as to whether the applicant was able to work rostered overtime or doublers (ARD page 60).
A subsequent work capabilities form dated 11 June 2002 showed the same information (ARD page 61).
The work capabilities form for the period 3 July 2002 to 14 August 2002 showed the applicant was permitted to work within the same restrictions eight hours, seven days per week and rostered overtime, but no doublers (ARD page 62).
The work capabilities form for the period 14 August 2002 to 4 September 2002 showed the applicant was under the same physical restrictions and was permitted to work to eight hours, seven days per week with rostered overtime. The form contained no information as to whether the applicant was able to work doublers. However, unlike the rostered overtime box, the doubler box was not ticked (ARD page 63).
The work capabilities form for the period 4 September 2002 to 6 November 2002 showed the applicant was under the same physical restrictions. No information was been provided in respect of a permitted work schedule (ARD page 64).
The work capabilities form for the period 6 November 2002 to February 2003 showed the applicant was under the same physical restrictions and was permitted to work to eight hours, seven days per week with rostered overtime. The form contained no information as to whether the applicant was able to work doublers. However, unlike the rostered overtime box, the doubler box is not ticked (ARD page 65).
The work capabilities form dated 17 February 2003 provided the applicant was able to work regular rostered overtime. The form contained no information as to whether the applicant was able to work doublers. However, unlike the rostered overtime box, the doubler box was not ticked. The applicant was to be reviewed in mid-April 2003 (ARD page 66).
For the period 13 May 2003 to 13 May 2004 the work capabilities form showed the applicant’s physical work restrictions continued. The form showed the applicant was able to work regular rostered overtime. The form contained no information as to whether the applicant was able to work doublers. However, unlike the rostered overtime box, the doubler box is not ticked (ARD page 67).
In a work capabilities form dated 1 September 2004 various restrictions were recorded. The permitted work schedule appears to be recorded as eight hours per day with regular rostered overtime. The form contains no information as to whether the applicant was able to work doublers. However, unlike the rostered overtime box, the doubler box is not ticked. The certification continued until January 2005 (ARD page 68).
On 24 January 2005 the applicant suffered further injuries to his lumbar and cervical spines.
In a work capabilities form dated 27 January 2005 it was noted the applicant was fit for temporary suitable duties. No information was provided in respect of a permitted work schedule (ARD page 69).
In a work capabilities form dated 1 February 2005 the applicant was certified as being fit for normal duties. The permitted work schedule was not completed (ARD page 70).
The work capability form for the period 27 April 2005 to April 2006 showed the applicant’s physical restrictions were the same as had been assessed in July 2004. The form showed the applicant was permitted to work seven hours per day, four days per week with rostered overtime but no doublers (ARD page 71).
The work capabilities form dated 19 April 2006 showed the applicant was certified for permanent suitable duties with a permitted work schedule of eight hours per day. The regular rostered overtime box was ticked however the doublers box was not ticked (ARD page 72).
A number of WorkCover certificates of capacity from Dr Sokolovska, the applicant’s general practitioner, were also included in the ARD covering the relevant period. Relevantly, on 19 June 2006 Dr Sokolovska assessed the applicant as having reached maximum medical improvement and being fit for permanently modified duties. The certificate noted the applicant had capability for work eight hours per day, seven days per week with restrictions (ARD page 90).
The applicant saw Dr Peter Giblin, orthopaedic surgeon, on 24 January 2007. In a report dated 25 January 2007 Dr Giblin recorded a history of the applicant’s various work injuries. Dr Giblin diagnosed soft tissue injuries to the applicant’s back related to the work incidents and consistent with findings on MRI investigations.
In respect of capacity for work Dr Giblin opined:
“Whilst he [the applicant] remains fit at this stage, for his normal duties, I would anticipate that in the near term, he will have to seek permanent restricted duties. These physical restrictions would entail avoiding heavy labouring duties, having to avoid heavy repetitive bending, lifting and twisting or using his upper limbs at or above shoulder height in a heavy, repetitious or impact fashion” (Reply pages107-198).
In a report dated 14 May 2007 Dr Thomas Silva, consultant orthopaedic surgeon, recorded history of the applicant’s injuries and noted that the applicant had not worked overtime since his 2002 back injury. Dr Silva opined that the applicant remained fit and continued to undertake full hours pre-injury normal duties (Reply page 207 - 209).
The applicant sustained an additional injury to his cervical spine on 3 December 2008 and further injuries to his lumbar spine on 30 April 2010 and 4 August 2010.
In a report dated 21 December 2010, Dr Raymond Wallace, orthopaedic surgeon, noted that when he had reviewed the applicant on 22 November 2010, he had been considered fit for full-time employment (Reply page 264).
In a report dated 28 February 2011 Dr Wallace noted the applicant was continuing pre-injury duties, but had been off work for two days in the last week due to ongoing pain (Reply page 267).
On 29 November 2011 Dr Sokolovska issued a certificate of capacity in respect of the 16 April 2002 back injury. Dr Sokolovska recorded the applicant had reached maximum medical improvement and was fit for permanently modified duties from 29 November 2011 with capacity to work eight hours per day seven days per week (Reply page 599).
The applicant saw Dr Medhat Guirgis, orthopaedic surgeon, on 12 December 2016. In a report dated 15 March 2017 Dr Guirgis took a history of the applicant’s various injuries noting that since the incident of 2005 (injurious event to the lumbar and cervical spines) the applicant stated his neck and arms were never “100% normal” and he had continued to complain of neck pain.
Dr Guirgis recorded that towards the end of June 2012 the respondent indicated that unless work restrictions were removed the applicant would not have a job. The history in Dr Guirgis’ report stated:
“He did not want to lose his job because of his financial commitments and he opted to remove the restrictions and resume his normal duties of machine operator on an eight hour per day five days per week and if available he did eight hours over the Saturday and Sunday but he could not do overtime more than eight hours. He was trying his best to persevere but needs help to control his symptoms and to be able to remain on the go, and keep his job” (ARD pages 95-96).
Under the heading “Fitness Issues” Dr Guirgis noted that the applicant had continued doing eight hours five days a week as compared to pre-injury hours of extra eight hours overtime shifts averaging 3 to 4 a week. Dr Guirgis recorded the overtime had stopped since 2002. (ARD page 13).
The applicant’s employment was terminated in May 2013.
In a report dated to August 2017 Dr Silva opined that at the time of the applicant’s dismissal he was doing full pre-injury hours and normal duties (Reply page 278).
On 24 March 2020 Dr Ho, orthopaedic surgeon, issued a MAC in which he assessed the applicant as having suffered various levels of permanent impairment for six discrete injuries to the lumbar and cervical spines.
The applicant also relied on a brief report from Dr Sokolovska dated 15 December 2020. Dr Sokolovska opined that as a result of the applicant’s work-related injuries he would have been unable to perform “doubler” shifts from at least 16 April 2002 through to termination of his employment in May 2013 (applicant’s ALD 22/2/21).
REASONS
Did the applicant suffer a partial incapacity for work?
The applicant has the onus of proving that he suffered economic loss resulting from incapacity arising from his injuries.
Partial incapacity for work is reduced physical capacity, by reason of physical disability, for actually doing work in the labour market in which an employee was working or might reasonably be expected to work (Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2 at [178]).
The extent of the applicant’s incapacity involves an assessment as to what work would have been available to the him had he not been injured. The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is reduced.
Whether the applicant suffered incapacity is a question of fact. I must be satisfied, on the balance of probabilities, having regard to the whole of evidence that, as a result of the work injury (or injuries), the applicant had an incapacity in the labour market reasonably accessible to him (see McCabe Terrill Lawyers v A [2009] NSWWCCPD 46 at [70]).
The applicant submitted that from16 April 2002 to 31 December 2012 he was partially incapacitated for work by reason of the fact that he was under medical certification to work no more than 40 hours per week. The effect of this was he was unable to do overtime and doubler shifts at the level he had done prior to his injury on 16 April 2002.
I am satisfied that the evidence supports the applicant’s submission. There is no lay evidence or employment records that contradict the applicant’s assertion that he participated in overtime and doubler shifts prior to his injury in April 2002.
The weight of medical evidence supports the applicant suffered from partial incapacity for employment.
I accept the applicant’s submission that the injury to his lower back was relatively severe and resulted in ongoing physical restrictions. The clinical notes following the injury record the applicant reported severe lower back pain at times travelling to the tops of the legs.
Whilst the BHP work capabilities forms do not appear to have been completed accurately, on balance they support the applicant was unable to work doubler shifts. The forms consistently show the applicant having ongoing work restrictions for pre-injury duties from the 16 April 2002 injury. In the circumstances, it is reasonable to infer the applicant suffered an incapacity to undertake overtime at a level he had previously done because of the ongoing work restrictions recorded in the forms.
On 29 November 2011 Dr Sokolovska, who treated the applicant since at least 19 April 2006, certified the applicant as being fit for permanently modified duties only. Prior to this certification the applicant had suffered further injuries, which caused further permanent impairment, to his lumbar and cervical spine.
Although the opinion given by Dr Soklovska in his report of 15 December 2020 if brief, he has seen the applicant since at least 19 April 2006, and accordingly I give weight to his opinion that the applicant was unable to participate in doubler shifts following the injury to his back on 16 April 2002.
There is no medical opinion evidence that adequately contradicts the applicant’s evidence or Dr Soklovska’s opinion. In 2017 Drs Giblin and Silva both noted the applicant was fit for normal duties but they did not specifically address any incapacity for overtime and/or doublers. Similarly, Dr Wallace’s opinion that the applicant was fit for full-time employment in November 2010 does not cast any light on his capacity to undertake overtime or doublers, and if so at what level.
I reject the respondent’s submission that the pathology identified in the applicant’s lumbar and cervical spine were not sinister and would not have resulted in a reduced physical capacity for work. Relatively trivial pathology may still cause symptoms and a reduced capacity for work. The respondent’s submission is not consistent with the work capabilities form which show ongoing physical restrictions resulting from the 16 April 2002 injury.
Moreover, the injuries were sufficiently serious to result in permanent impairment to the lumbar and cervical spines, as assessed by Dr Ho. The applicant does not claim the injuries caused total incapacity for work, only that it excluded him from participating in overtime, including doublers, at a level he had previously undertaken.
I am therefore satisfied on the balance of probabilities that the applicant suffered a partial incapacity for work in the period claimed, in particular a reduced capacity resulting from an inability to undertake overtime work including doublers at a level had undertaken prior to the April 2002 injury.
What is the extent of the applicant’s incapacity?
Section 40(1) of the 1987 Act provides the weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is to be an amount not exceeding the reduction in the worker’s weekly earnings, but is to bear such relation to the amount of that reduction as may appear proper in the circumstances of the case.
The applicant has the onus of establishing his entitlement to compensation under section 40 (J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625).
Section 40(1) provides a statutory formula for determining an entitlement to compensation, as follows:
(a) determine the weekly amount the worker would probably have been earning if uninjured (section 40(2)(a));
(b) determine the average weekly amount that the worker is earning or would be able to earn in some suitable employment from time to time after the injury (section 40(2)(b)). Section 40(3) provides that the determination of this amount is subject to the following:
(i)the determination is to be based on the worker’s ability to earn in the general labour market reasonably accessible to the worker;
(ii)the determination is to be made having regard to suitable employment for the work of the meaning of section 43A;
(c) to subtract the figure derived from (b) from the figure derived from (a) (section 40(2));
(d) to decide whether and to what extent the reduction calculated as above bears “such relation to the amount of that reduction as may appear proper in the circumstances of the case” (section 40(1));
(e) to make an award in the amount arrived at step (d) (Mitchell v Central West Health Service (1997) 14 NSWCCR 526 at [529] – [530]).
Step 1: probable earnings
The calculation of probable earnings but for injury is a hypothetical calculation only which assumes that the worker’s pre-injury employment continued (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87). In making a finding as to probable earnings I am not able to speculate without limitation upon what might have been but for the injury.
The applicant has lodged a document titled Wages Schedule which purports to show the loss of wages in the relevant period. The Wages Schedule sets out the difference in the gross weekly earnings between the applicant and an identified comparator, Andreas Wojdyla. The explanation for the difference in income is said to result from the loss of availability to participate in overtime and/or doublers.
The applicant submitted the document was a Schedule of Earnings for the purposes of rule 15.5 of the Workers Compensation Commission Rules 2011, and as the accuracy of the document had not been disputed by way of a competing schedule, the contents of it was deemed to be admitted by the respondent.
It is not clear to me how rule 15.5 is intended to operate in the context of a claim under section 40 of the pre-2012 amended 1987 Act, especially one that claims loss by way of assessment against an alleged comparable employee.
However, it is clear that the applicant has made the claim for partial incapacity based on an allegation that Mr Wojdyla was a comparable employee. The respondent had a statutory duty to either accept or deny the applicant’s allegation in a dispute notice. The respondent has not done so, nor had it provided any evidence to show that Mr Wojdyla was not a comparable employee. No doubt Mr Kimber, who has worked with the respondent for over four decades, would have been in a good position to provide evidence as to whether Mr Wojdyla was comparable employee for the purposes of the wage loss claimed.
In my view the respondent ought to have investigated and responded to this aspect of the applicant’s claim, and it should not be open to it to simply deny that Mr Wojdyla was an appropriate comparator. The claim for loss arising from partial incapacity under section 40 was first made in 2019 (although discontinued at the arbitration hearing before Arbitrator Batchelor).
I am satisfied that Mr Wojdyla ought to be used as a suitable comparator for determining any loss suffered by the applicant. There does not appear to be any reason to dispense with rule 15.5 as it applies to an allegation to Mr Wojdyla was a comparator.
The respondent also submitted that the Wages Schedule could not be treated as reflective of the applciant’s probable earnings because no breakdown had been provided of the ordinary hours worked by each employee and overtime or doublers. There were no pay slips attached to any information admitted into evidence either for the applicant or the alleged comparator. The respondent submitted in the circumstances it was not possible to determine the applicant’s probable earnings from any reduced capacity to undertake overtime and/or doublers.
I accept the applicant is likely to be exaggerating about undertaking two to four doubler shifts per week. The evidence is not consistent with the history given to Dr Lyons in 2002 (one to two doublers per week) (Reply page 150).
However, Mr Kimber has given evidence that overtime was allocated equitably between the respondent’s workers (respondent’s ALD 11/2/21 pages 1 - 2). Accepting that Mr Wojdyla was a comparative worker during the relevant period, both he and the applicant would have had the same amount of overtime and/or doublers made available to them. Therefore, a reasonable explanation for the applicant’s income being less than Mr Wojdyla’s was the applicant’s inability to engage in the extent of overtime offered, including doublers, due to a reduced physical capacity.
If the respondent wished to dispute Mr Wojdyla was a comparator or that he participated in more overtime than the applicant it was open for it to do so by reviewing the relevant wage records and providing evidence that put in issue the validity of the applicant’s assertions.
I am satisfied on the balance of probabilities that the applicant’s probable earnings are consistent with those of Mr Wojdyla. I accept the applicant’s submission that the most likely explanation for the difference between his and Mr Wojdyla’s income is his inability to participate in overtime and/or doublers during the relevant period.
This matter is further complicated by the lack of evidence of comparable wage date (and therefore probable earnings) for the periods 16 April 2002 to 30 June 2002, the financial year ending 2009, the period 1 July 2012 to 30 December 2012 and the fact that the applicant earned more than the nominated comparator in the financial years ending 2011 and 2012.
For the periods where there is no available data, the applicant submitted I ought to draw inferences from the other periods of loss where comparable wage data was available. It was submitted that there was an obvious reduction in earning capacity due to the inability to participate in overtime and/or doublers that ought to be realised irrespective of the availability of comparable data. It was also submitted the loss was roughly $30,000 gross per year, as set out in the applicant’s statement evidence.
Where earning capacity has been reduced but its extent is difficult to assess on the evidence, it is not open to the Commission to abandon the task of assessment of probable earnings (NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217).
I am satisfied that the use of the averaging method, as set out in the Wages Schedule is an appropriate method for calculating the loss during these periods.
For the period 16 April 2002 to 30 June 2002, I find that applicant’s loss was $300 per week. I make this finding having regard to the loss claimed in the subsequent years, the applicant’s evidence about the level of overtime and/or doubler shifts worked and the applicant’s evidence that he ceased doing doublers a couple of weeks prior to the 16 April 2002 injury (ARD page 19).
The periods where the applicant has earned more than the comparator are difficult to reconcile. The applicant has not provided an explanation as to why the years the comparator earned less than him were not “representative” or why a different comparator could not have been identified and included in the Wages Schedule. However, I am satisfied that the applicant suffered a partial incapacity for work during this period and I accept his averaging method to be a reasonable assessment of his loss..
Step 2: actual earnings
The second step is to determine the average weekly amount which the applicant was able to earn after the injury (or injuries) (section 40(2)(b)).
I am satisfied that the applicant’s actual earnings were those recorded in the Wages Schedule. For the reasons set out above, I am satisfied that the applicant suffered a reduced capacity for undertaking overtime and/or doublers in the relevant period. I reject the respondent’s submission that the applicant had the capacity to participate in overtime and doublers and his actual earnings ought to be assessed as being greater than those claimed in the schedule. In the circumstances, it is not necessary to fix a hypothetical sum of what the applicant was able to earn.
Step 3: deduct earnings (step two) from probable earnings (step one)
The deduction is a mathematical difference between the applicant’s probable earnings and his actual earnings. Save for the period 16 April 2002 to 30 June 2002 the relevant calculations are set out in the Wages Schedule.
Step 4: discretion:
The final step involves a broad discretion to adjust the weekly benefit amount awarded by taking into account the circumstances of the case. The purpose of an award for weekly benefits compensation is to compensate a worker for lost earnings as a result of work injuries. Money which is not likely to be earned cannot be regarded as lost earnings (Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 at [54] – [57]).
In this case relevant factors to the exercise of the discretion are the impact of the GFC on the availability of overtime and the applicant’s purportedly poor work ethic. I am not satisfied the latter issue is any reason to make a deduction in the circumstances where the applicant took advantage of overtime and doubler shifts available to him prior to the April 2002 injury.
However, it is common sense that the GFC would have resulted in a significant downturn in work and impacted the respondent’s operations.
The circumstance of an employer reducing the amount of overtime available is a proper factor to take into account under section 40(1) of the 1987 Act. It assists in ascertaining the applicant’s loss of earning capacity which is due to the work injury, as opposed to what loss might be due to other circumstances
I accept Mr Kimber’s evidence that there would have been a downturn in the availability of overtime and doublers from at least 2008 until 2012. Mr Kimber has been employed by the respondent for a long period of time and is in a good position to provide evidence about the availability of overtime during this period.
Mr Kimber’s evidence is supported, to some extent, by the earnings of the comparable employee, which significantly reduced from the financial year ending 2010 (the data for the financial year ending 2009 not being available).
There is no precise evidence as to the availability of overtime and/or doubler shifts during this period. Mr Kimber does not say that such shifts were eradicated altogether, but only that they were offered sporadically.
A substantial deduction is warranted from the difference in gross weekly earnings claimed in the Wages Schedule the period 1 January 2008 to 31 December 2012. The applicant cannot be compensated for money that he was not likely to earn. In my view, the amount awarded to the applicant for the period 1 January 2008 to 31 December 2012 ought to be reduced to $25 per week, which equates to roughly six doubler shifts per year. In reducing the figure to this amount, I have also taken into account that the applicant earned more than the identified comparative employee and that there is no comparable wage date. Also, it may well have been that during this period the applicant would have lost his job in the restructure of the respondent’s business (see for example, Harding v Transfield Pty Ltd (2003) 25 NSWCCR 86; Goktas v Goodyear Australia Pty Ltd [2007] NSWWCCPD at [63]-[64]).
I reject the respondent’s submission that the applicant’s termination was a factor which might be used to adjust the weekly benefit amount awarded. The termination was effected in May 2013. The applicant’s termination and any legal action in May 2013 is not relevant to claim for weekly benefits compensation in the period 16 April 2002 to 30 December 2012.
There will be an award for the applicant on the claim for weekly compensation pursuant to section 40 of the 1987 Act in the amounts specified above.
Medical expenses
Finally, the applicant seeks an order for past medical expenses under section 60 the 1987 Act. The parties made limited submissions on the issue of the claimed medical expenses, the primary focus being on the section 40 claim.
The applicant attached a schedule of pocket expenses covering the period 21 June 2002 to 2 August 2018.
Whilst there is limited efficacy in making such order, I am of the view that a general order is appropriate.
There will be an award for the applicant on the claim for past medical expenses pursuant to section 60 of the 1987 Act. The respondent is pay the applicant’s reasonably necessary medical expenses up to on production of accounts, receipts and/or HIC Notice of Charge.
Nicholas Read
MEMBER
19 March 2021
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