Skilled Workforce Solutions (NSW) Pty Ltd v Eang Teng Heng
[2007] NSWWCCPD 219
•1 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Skilled Workforce Solutions (NSW) Pty Ltd v Eang Teng Heng [2007] NSWWCCPD 219
APPELLANT: Skilled Workforce Solutions (NSW) Pty Ltd
RESPONDENT: Eang Teng Heng
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC296-07
DATE OF ARBITRATOR’S DECISION: 15 May 2007
DATE OF APPEAL DECISION: 1 November 2007
SUBJECT MATTER OF DECISION: Calculation of weekly compensation under section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Leitch Hasson Dent
Respondent: Gajic & Co
ORDERS MADE ON APPEAL: Time to appeal is extended until 15 June 2007.
Paragraph one of the Arbitrator’s determination of 15 May 2007 is revoked and the following order made:
“The matter is remitted to a different Arbitrator for re-determination of the Respondent Worker’s entitlement to weekly compensation under the provisions of the Workers Compensation Act 1987.”
Paragraphs two, three and four of the Arbitrator’s determination of 15 May 2007 are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Eang Teng Heng (‘the Respondent Worker/Mr Heng’) started work for Skilled Workforce Solutions (NSW) Pty Ltd (‘the Appellant Employer/Skilled’) on or about 8 December 2004. Skilled is a labour hire company. It arranged for Mr Heng to work as a process worker/machine operator with a company called Onesteel Metpole (‘Onesteel’), first at its Villawood premises and then at its “George Ward” Division at Granville.
Mr Heng worked in different sections of the factory depending on demand. He worked on a ‘slitter machine’, but in different capacities: sometimes in the strapping role, sometimes in the headset role and sometimes in the coil role (see Mr Heng’s statement 1 May 2007, paragraph two). He also worked in the store. He states that he normally worked 38 hours per week, plus between nil and eight hours of overtime each week.
While working at Onesteel’s premises on 20 October 2005 he injured his right ring finger. X-rays revealed a comminuted fracture of the terminal tuft of the distal phalanx with slight separation of the fragments. He was unfit for work until he attempted light duties for a brief period in December 2005. He was again off work again in January and February 2006 because he was overseas. His local doctor (Dr Tran) declared him fit for his pre-injury duties from 21 February 2006 and Mr Heng gave that certificate to Skilled.
In early March 2006 Mr Heng returned to work with Onesteel but had significant pain in his right hand. He again saw Dr Tran who provided him with certificates for suitable duties from 10 March 2006 until 25 June 2006. In the certificate covering 10 March 2006 until 24 March 2006, Dr Tran declared Mr Heng fit for suitable duties lifting up to five kilograms. In the certificate covering 25 March 2006 until 25 June 2006, Dr Tran declared Mr Heng fit for suitable duties lifting up to eight kilograms. The last certificate from Dr Tran is dated 19 March 2007 and declares Mr Heng to be fit for suitable duties (lifting up to eight kilograms eight hours per day five days per week) from 19 March 2007 until 19 May 2007.
Skilled dispute that these certificates were ever served on it before the service of the Application to Resolve a Dispute (‘the Application’) and submits that Mr Heng returned to work on his normal pre-injury duties and any loss of income suffered by him has resulted solely from a downturn in the availability of work with Onesteel.
Mr Heng’s claim for compensation was initially accepted and he was paid compensation until either late February or early March 2006. In his Application registered in the Commission on 23 January 2007 Mr Heng sought weekly compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the sum of $305.03 per week from 22 February 2006 to date and continuing together with lump sum compensation.
The matter was heard at arbitration on 3 May 2007 and decided in a reserved decision delivered on 15 May 2007. The issue before the Arbitrator was whether Mr Heng suffered any incapacity and, if so, whether that incapacity resulted in any economic loss. The Arbitrator found in favour of Mr Heng and made an award in the sum of $80.00 per week from 4 March 2006 to date and continuing. The award was based on a finding of probable earnings of $920.00 per week and actual earnings of $840.00 per week.
The Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the weekly compensation awarded is in issue and therefore section 352(2)(b) is also satisfied.
Time
Appeals under section 352 must be filed within 28 days of the Certificate of Determination (section 352(4) of the 1998 Act). The appeal was initially filed within time on 8 June 2007 but rejected by the registry because no submissions were attached on a number of threshold issues. The appeal was filed again, out of time, on 15 June 2007.
Part 16 Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’) gives the Commission a discretion to extend the time to appeal in certain circumstances. That rule provides:
“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
The question of extending time to appeal was considered by Justice McHugh in Gallo v Dawson (1990) 93 ALR 479 (‘Gallo’) where his Honour said at 480:
“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.”
For the following reasons I am prepared to extend the time to appeal in this matter:
(a)the appeal was initially filed in time but was rejected because of errors in the documentation;
(b)the Appellant Employer’s solicitor acted promptly to rectify the errors and to resubmit the appeal;
(c)the appeal is only three days out of time;
(d)the Respondent Worker raises no issue of prejudice, and
(e)the appeal raises issues that are arguable.
Time to appeal is extended until 15 June 2007 and I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 May 2007, records the Arbitrator’s orders as follows:
“1.The Respondent to pay the Applicant weekly benefits of compensation, pursuant to s40 of the 1987 Act, in the amount of $80.00 per week from 4 March 2006 to date and thereafter continuing in accordance with the provisions of the Act.
2.The claim pursuant to s66 of the 1987 Act be remitted to the Registrar for referral to an Approved Medical Specialist pursuant to s293 of the 1998 Act,
3.The claim pursuant to s67 of the 1987 Act to be adjourned pending the issue of the Medical Assessment Certificate by the Approved Medical Specialist.
4.The Respondent to pay the costs of the Applicant as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to give any or any sufficient weight to the following evidence:
i.Mr Heng’s evidence that his post injury duties were the same as his pre-injury duties;
ii.Mr Heng’s evidence that he would be able to perform “more hours of employment if they were available to him”;
iii.the last medical certificate in possession of the Appellant Employer certified Mr Heng to be fit for his pre-injury employment;
iv.the Appellant Employer provided Mr Heng with work without restrictions after his injury and in accordance with the pre-injury employment arrangements, and
v.Mr Heng was employed on a casual basis.
(b)giving inappropriate weight to the evidence of wage records of full-time employees of the ‘host’ employer (Onesteel);
(c)calculating Mr Heng’s post injury earnings, and
(d)not finding there was no difference between Mr Heng’s pre and post injury earnings and therefore no economic loss under section 40 of the 1987 Act.
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Limited v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
The Appellant Employer submits:
(a)the evidence of Ms Smith, the Appellant Employer’s self-insurance manager, is that Mr Heng has suffered no wage loss;
(b)Mr Heng’s post injury classification and duties are the same as they were before his injury. If he was working on light duties he would not have returned to Onesteel but would have been employed at the their ‘light duties centre’;
(c)Mr Heng admitted that he would do more hours if they were offered to him;
(d)any variation in Mr Heng’s pre and post injury earnings is due to fluctuations in the level of overtime available with Onesteel, therefore, his “actual wages should be assessed at the worker’s pre-injury earnings” (Appellant Employer’s submissions filed 15 August 2007, paragraph 2.6.2);
(e)once the Arbitrator accepted that there was no true comparable then, in the absence of evidence that there was a reduction in the hours Mr Heng could work or that he was unable to do his pre-injury job, the Arbitrator had to find there was no loss under section 40 of the 1987 Act, and
(f)on the evidence of Ms Smith, Mr Heng was earning more after the accident than before it.
The Respondent Worker submits:
(a)the Arbitrator accepted that Mr Heng “cannot perform a full range of duties due to the injury and therefore does have a partial incapacity for work” (Statement of Reasons for Decision (‘Reasons’) paragraph 23);
(b)Mr Heng’s pre-injury duties required him to work on a slitter machine. As a result of his injury he returned to work in a different capacity doing strapping work;
(c)the Arbitrator accepted that there had been a down turn in work after the injury (Reasons, paragraph 24) but took into account Mr Heng’s prospects of obtaining work elsewhere on the days when work was not available with Onesteel;
(d)the Arbitrator exercised her discretion under section 40 of the 1987 Act correctly and in accordance with Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56;
(e)it is not conceded that the last medical certificate in the possession of the Appellant Employer certified Mr Heng fit for his pre-injury duties;
(f)the parties agreed that Mr Heng’s pre-injury earnings between 11 December 2004 and 22 October 2005 were $841.00 per week (T3.11) and that comparables in evidence showed a pay increase of 9.25%;
(g)the Arbitrator accepted that Onesteel’s permanent employees could not be regarded as “true” comparables but the increase in their base rate would have impacted on loadings and allowances and an “overall increase in earnings in excess of 10% appears to be reasonable and this supports the comments in respect of the probable earnings of” Mr Heng (Reasons, paragraph 26). This finding would not be disturbed;
(h)the power to award weekly compensation under section 40 of the 1987 Act is discretionary and requires the application of the five steps set out in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526 (‘Mitchell’). Applying those steps in the present matter leads to the following:
i.the evidence disclosed that the base rate of pay for a casual machine operator had increased by 8.64% and by 9.25% for permanent machine operators. Mr Heng’s pre-injury earnings were agreed at $841.00 per week and his post injury earnings at $840.00 per week. The Arbitrator found probable earnings but for the injury (step 1) to be $920.00 per week;
ii.Mr Heng’s actual earnings were agreed at $840.00 per week and that is the figure in step 2;
iii.the difference between step 1 and step 2 is $80.00 per week (step 3);
iv.there are no discretionary factors that warrant the figure of $80.00 per week being reduced;
v.the Arbitrator correctly awarded $80.00 per week.
Before the Arbitrator the Appellant Employer argued that according to Dr Bookalill, Mr Heng’s ability to work had not been reduced (T5.1). The Arbitrator rightly rejected this argument (Reasons, paragraph 22). In the alternative, it argued that the only limit on the work performed by Mr Heng after his injury was the availability of work (T5.28). In respect of determining wages for comparable employees, it was argued that it was impossible to obtain the correct comparable and the fact that there did not appear to have been any change in Mr Heng’s pre and post accident earnings “would point to the fact that there’s no change” (T5.39). That is, so it was put to the Arbitrator, the comparable and Mr Heng’s ability to earn were said to be the same. Therefore, “when you do the mathematics you would come up with a zero award” (T5.43).
Mr Heng’s position before the Arbitrator was that his earnings in the three months before the accident averaged $995.66 per week and in the three months subsequent they were $638.55 per week. Therefore, he sustained a loss of $357.11 per week. The Arbitrator rightly rejected that submission. An alternative approach referred to the fact that wages had increased by 9.25% after the accident (T3.32). The Arbitrator appears to have accepted an approach similar to the alternative suggested by Mr Heng’s solicitor. She took $841.00 as the pre-injury wage and appears to have added 10% to that figure ($84.10) and made a “small reduction due to ‘availability of work’” and assessed probable earnings but for the injury to be $920.00.
The Appellant Employer has not made any specific submissions on the Arbitrator’s calculation of probable earnings but has challenged every other finding and has challenged the award in general. On 24 September 2007 I issued a Direction to the parties inviting submissions on each of the five steps in Mitchell. The Appellant Employer chose not to respond to that Direction and the Respondent Worker filed submissions on 23 October 2007. Those submissions have been referred to above.
The Respondent Worker’s broad submission that the power contained in section 40 of the 1987 Act is discretionary is an over generalisation. The discretionary component in section 40 arises at step 4 of the Mitchell process. In determining probable earnings an Arbitrator is required to assume that the worker’s pre-injury employment would have continued. Though it is a “hypothetical calculation” (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87) the decision-maker is not “entirely at large” and “cannot speculate, without limitation, upon what might have been but for injury” (per Kirby P in Australian Wheat Board v Pantaleo (1984) 1 NSWCCR 1 at 14).
The Respondent Worker’s submission is that the discretionary nature of the power in section 40 in conjunction with the specialist jurisdiction of the Commission “overcomes the difficulties that may be created by the absence of [a]‘true’ comparable employee” (Respondent Worker’s submissions 23 October 2007, paragraph 10). Whilst the Commission is a specialist tribunal and is entitled to make assessments about earnings likely to be paid to injured workers (Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 and J & H Timbers Pty Ltd v Nelson (1972) 126 CLR 625 at 632), those assessments are always subject to the evidence in each case.
In the present matter Skilled employed Mr Heng as a casual. As a result, his income fluctuated according to demand. There was no basis for concluding that but for his injury his income would have increased by the 10% allowed by the Arbitrator and the Arbitrator was, in the circumstances of the present case, in error in making that adjustment. Prima facie, the correct approach was to look at the post injury earnings for comparable employees and compare them to Mr Heng’s post injury earnings. If (as here) there were no comparable employees then, all other things being equal, an adjustment for the general movement in wage rates will often be appropriate. However, Mr Heng’s income was not determined solely by his hourly rate of pay, but was dependent on the number of hours he worked each week. In some weeks he did not work at all. Therefore, it could not be assumed that but for his injury his income would automatically have increased by 10% of his pre-injury earnings, even with a “small reduction due to availability of work”.
The Appellant Employer argues that the correct approach is to compare Mr Heng’s pre-injury income with his post injury earnings. Based on the wages that were apparently agreed before the Arbitrator, the Appellant Employer submits that that approach reveals there is no relevant loss because Mr Heng’s pre-injury earnings of $841.00 per week are virtually equal to his post injury earnings of $840.00 per week.
This argument might have some force if the agreed wage figures were accurate and if Mr Heng was performing the same duties after his injury as he had before. An analysis of the wage records tendered indicates that in the period from 11 December 2004 (when Mr Heng started for Skilled) until 22 October 2005 he earned a total of $35,247.70. Dividing by the total number of weeks in that period (46) gives an average weekly income of $766.25, not $841.00. There are two relevant post injury periods. The first was from 5 November 2005 until 24 December 2005. In that period Mr Heng was on selected duties or compensation payments and it can therefore be excluded from the post injury calculations. The second was from 4 March 2006 until 24 February 2007 when Mr Heng’s total earnings were $34,615.28. Dividing by the total number of weeks in that period (51) gives an average weekly income of $678.73. This indicates that Mr Heng’s post injury earnings had in fact decreased by $87.52 per week, which is consistent with Mr Heng’s evidence that he suffered a loss of income after his return to work in March 2006 compared to his pre-injury earnings.
However, that is not the end of the analysis. Skilled argues that the only factor limiting Mr Heng’s income is the availability of work, which has decreased significantly since Mr Heng returned to work in March 2006. Whilst the Arbitrator made a “small reduction due to [the] ‘availability of work’ issue” (Reasons, paragraph 26) she did not consider and assess the conflicting evidence on this issue. This is hardly surprising as neither of the parties made any relevant submissions on that evidence.
Skilled relied on a letter from its Injury Management Co-ordinator, Mr Woods, dated 26 February 2007 in which he concluded that “it can be reasoned that Mr Heng’s claim for wage loss is due to a general limitation of employment due to a lack of work” (emphasis added). This conclusion was based on the fact that Mr Heng produced a fit for work medical certificate dated 21 February 2006 and was engaged on a “pay and charge” basis. It was also based on the assumption by Mr Wood that Mr Heng had in fact returned to and performed his pre-injury duties without restriction. It was not based on his own observations. There is no suggestion that Mr Wood attended the premises of Onesteel to observe Mr Heng performing his post injury duties or that he had any first hand knowledge of Mr Heng’s duties. Therefore, though the Commission is not bound by the rules of evidence, limited weight can be given to Mr Wood’s comments, as they are based on speculation and unsubstantiated assumptions.
Skilled also relies on a statement from Ms Smith, its self-insurance manager from June 2006, dated 23 March 2006 (presumably this should be 23 March 2007). In general, Ms Smith merely repeated the assertions in Mr Wood’s statement. She added that “according to enquiries undertaken” she could confirm that Mr Wood’s assertion that it could be reasoned that Mr Heng’s claim for wage loss was due to a general limitation of employment due to lack of work was correct. She then added that she was informed that Mr Heng’s post injury duties were the same as those he performed pre-injury. She did not identify the source of her information and the reliability of her assertions is open to doubt.
In any event, Ms Smith stated that Mr Heng had suffered no loss of income since his return to work because since 10 March 2006 Mr Heng worked 43 weeks at an average of $852.74 per week and that amount was higher than his average weekly earnings at the time of the injury on 20 October 2005, which she calculated to be $772.05 per week. The figure of $852.74 per week is not supported by the wage records tendered in evidence. Ms Smith may have worked off different figures or may have made that calculation by dividing Mr Heng’s earnings by the number of pay periods and not by the total number of weeks over the period concerned. If the second approach was adopted, it is not the correct method to be used to determine a worker’s average weekly earnings under section 43 of the 1987 Act, as it makes no allowance for the fact that Mr Heng did not work every week.
Mr Heng’s evidence is equally unsatisfactory. In his second statement (1 May 2007) he said that his pre-injury duties were as a process worker and machine operator and that he worked in different parts of the factory, depending on demand. His work on the slitter machine had several different roles: strapping, headset and coil. He also worked in the store before his accident. He states that he normally worked 38 hours per week plus overtime, which would fluctuate. His statement is inaccurate. The wage records indicate that in fact his normal hours fluctuated over time.
His evidence is that since his injury he has not worked in the headset role on the slitter machine because he does not think he could “unscrew the nut, change the rubber, carry the rubber nor screw the nut on the machine” (statement 1 May 2007, paragraph 20). Whilst he claims that his restriction is as a result of his injury, it is not clear what it is about his injury that prevents him from doing those tasks. Apart from an assertion of having pain in his hand in March 2006, his statements are silent on this most critical issue. He adds that since his return to work he has been working in the store and on strapping steel, jobs he also performed before his injury.
He claims that he does not work overtime any more but the evidence does not properly address whether that is because of an absence of overtime or because of his injury. Mr Heng claims that since his return to work the six people who work on the slitter machine work about eight hours of overtime per week. Presumably, his case is that but for his injury he would have continued to work on the slitter machine and been offered overtime. If that is Mr Heng’s case, the evidence falls short of establishing that he has suffered a loss of overtime as a result of his injury. Without some supporting documentary or other evidence from Onesteel and much clearer evidence from Mr Heng, his vague general assertion that other workers (employed by Onesteel and not by Skilled) are working overtime is of little, if any, probative value.
Further, the medical evidence is of limited assistance in assessing Mr Heng’s claim. Dr Tran’s certificate of 19 March 2007 states that Mr Heng is fit for suitable duties for 8 hours per day five days per week lifting up to eight kilograms but makes no mention of overtime. There is no evidence that Mr Heng’s pre-injury duties required him to lift more than eight kilograms. The certificate does not suggest what restrictions (apart from the eight kilogram lifting limit) should be placed on Mr Heng because of the continuing effects of his injury. Dr Bleasel’s report of 7 June 2006 is of limited assistance in that it concludes that “he [Mr Heng] does not appear to be capable of any work using his right hand” (Dr Bleasel’s report 7 June 2006, page three). That conclusion is clearly inconsistent with Mr Heng’s known work record since March 2006.
The parties did not call probative evidence to engage the matters in dispute before the Arbitrator and did not make any submissions on those issues. Further, Mr Heng gave evidence that on 13 April 2007 he was told that it was to be his last day at Onesteel. On 27 April 2007 Mr Heng attended Skilled and was told that they had no work for him. On 30 April 2007 Mr Heng phoned Skilled and was again told that they had nothing available. On the face of it, Mr Heng’s actual earnings were nil at the arbitration hearing on 15 May 2007. Again, the parties made no submissions on this point.
The Arbitrator’s error in calculating probable earnings but for injury requires that the award be set aside and re-determined. I have carefully considered whether I should conduct that re-determination and have concluded that, in view of the unsatisfactory state of the evidence and the incorrect agreed wages, the appropriate course is for the matter to be remitted for re-determination by a different Arbitrator. The parties are urged to attend to the evidentiary matters referred to in this decision and to call probative evidence on the matters in dispute. In view of the medical dispute in this matter, it may well be that a referral to an Approved Medical Specialist for a general medical assessment under section 321(1) of the 1998 Act would be appropriate.
DECISION
Time to appeal is extended until 15 June 2007.
Paragraph one of the Arbitrator’s determination of 15 May 2007 is revoked and the following order made:
“The matter is remitted to a different Arbitrator for re-determination of the Respondent Worker’s entitlement to weekly compensation under the provisions of the Workers Compensation Act 1987.”
Paragraphs two, three and four of the Arbitrator’s determination of 15 May 2007 are confirmed.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
1 November 2007
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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