Sydney West Area Health Service v Hope
[2013] NSWWCCPD 51
•3 October 2013
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Sydney West Area Health Service v Hope [2013] NSWWCCPD 51 | ||
| APPELLANT: | Sydney West Area Health Service | ||
| RESPONDENT: | Gregory Hope | ||
| INSURER: | Employers Mutual Ltd | ||
| FILE NUMBER: | A1-4234/12 | ||
| ARBITRATOR: | Ms K Haddock | ||
| DATE OF ARBITRATOR’S DECISION: | 10 May 2013 | ||
| DATE OF APPEAL HEARING: | 1 October 2013 | ||
| DATE OF APPEAL DECISION: | 3 October 2013 | ||
| SUBJECT MATTER OF DECISION: | Procedural fairness; wages schedules; non-compliance with Pt 15 r 15.5 of the Workers Compensation Commission Rules 2011 | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | Oral | ||
| REPRESENTATION: | Appellant: | Mr P Rickard, instructed by Moray & Agnew | |
| Respondent: | Mr R Hanrahan, instructed by Slater & Gordon Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Paragraph [1] of the Arbitrator’s determination of 10 May 2013 is revoked and the following orders made in its place: “1. The respondent employer is to pay the applicant worker the following weekly compensation under s 40 of the Workers Compensation Act 1987: (a) 1 July 2009 to 30 June 2010 – $29.72 (b) 1 July 2010 to 30 June 2011 – $30.61 (c) 1 July 2011 to 30 June 2012 – $31.53 (d) 1 July 2012 to 31 December 2012 – $35.76 1A. In respect of the claim for weekly compensation for the period from 1 July 2006 to 30 June 2009, there is an award for the respondent employer.” 2. All other orders in the Arbitrator’s determination of 10 May 2013 are confirmed. 3. The appellant employer is to pay part of the respondent worker’s costs of the appeal, assessed at $1,250, plus GST. | ||
INTRODUCTION
In proceedings in the Commission where the quantum of weekly compensation is or may be an issue, and there is a dispute in respect of the actual or probable earnings of a worker during any relevant period, the applicant must include in the application to resolve the dispute a schedule (known as a wages schedule) containing full particulars of those earnings (Pt 15 r 15.5(1) of the Workers Compensation Commission Rules 2011 (the Rules) – this rule was amended in 2013 in a manner not relevant to this appeal).
If a party wishes to dispute the accuracy of any matter in the applicant’s wages schedule, the party must lodge and serve with the first document lodged and served by the party in the proceedings a schedule of the party’s allegations of the earnings (Pt 15 r 15.5(2)). This is in addition to any documents required under Pt 10 r 10.3(1) of the Rules to be lodged and served by the party. A matter not disputed by a party as provided by the Rules “is deemed to be admitted by the party” (Pt 15 r 15.5(3) (the deeming provision)).
These provisions apply unless the Commission “otherwise orders”.
In the present case, the applicant worker filed a wages schedule in compliance with the Rules, but the employer did not. However, actual and probable earnings were disputed and both sides called evidence on, and made submissions about, that issue. Notwithstanding the way the case was conducted, the Arbitrator determined the case by applying the deeming provision. The question on appeal is whether she erred in doing so.
BACKGROUND
In an Application to Resolve a Dispute (the Application) registered with the Commission on 7 May 2012, the respondent worker, Gregory Hope, a patient service assistant at Auburn Hospital, claimed weekly compensation from 1 July 2006 to date and continuing. The basis of his claim was that he was partially incapacitated for work because of two injuries he received in the course of his employment. The first was contact dermatitis caused by exposure to chemicals in 1993 and which made Mr Hope unable to work in areas where he would be exposed to cleaning agents. The second was a left knee injury on 20 April 2005 which rendered him permanently unfit for repetitive kneeling, bending, squatting, walking long distances or going up and down stairs.
Included in the Application was a “schedule of wages claimed” that set out relevant compensable and actual earnings, as required by the Rules. Mr Hope filed a further wages schedule, dated 29 August 2012, attached to an Application to Admit Late Documents of the same date. Both schedules demonstrated a significant weekly loss, which varied from $176.39 to $402.58 per week, for different periods, between 1 July 2006 to date and continuing. The wages schedule was said to have been based on the wage records for Mr Hope and two comparable employees, which had been provide by the appellant. Essentially, that claim came down to an allegation that, because of his injuries, Mr Hope had lost money because he was no longer offered overtime.
The appellant filed a Reply on 28 May 2012 in which it disputed liability on the ground that Mr Hope suffered no incapacity as a result of his injuries. In breach of the Rules, the employer did not file a wages schedule with the Reply and did not otherwise indicate that wages were disputed.
The Commission listed the matter for hearing on 8 November 2012 when, by consent, various late documents, including the further wages schedule dated 29 August 2012 and a further statement from Mr Hope responding to certain late evidence filed by the appellant dealing with his claim for lost overtime, were admitted into evidence. Because of that material, the appellant sought an adjournment to seek instructions and file further evidence. Over objection, the Arbitrator adjourned the matter to give the appellant the opportunity to obtain further evidence.
Before adjourning the matter, the Arbitrator asked if the appellant intended to file a wages schedule. Counsel for the appellant, Mr Barnes, replied, at T5.12:
“It may require that. It may require that subject to further instructions. But looking at the nub of this case, if it is, as I apprehend, about an overtime issue, pretty much solely, then if we were to put on a wages schedule with concurrent comparables, in other words something that could be adjudicated as being agreed between the parties, and if that was the case, give Ms Goodman time to respond to that, then it might be that a lot of this is just broken down into really simple core issues rather than prevaricate and to try and get everything into a tailored box if we could and get some consensus. I think that would be appropriate.”
Notwithstanding this statement, the appellant still did not file a wages schedule prior to the next hearing date.
The hearing resumed on 15 March 2013 and both sides tendered further late evidence without objection. The appellant’s late evidence consisted of statements from Bruce Hampton, the appellant’s general services manager at Auburn Hospital, where Mr Hope worked, and Elizabeth Drain, the appellant’s general services supervisor. These statements disputed Mr Hope’s claim that he had lost significant income because he had not been offered overtime due to his injuries. Mr Hampton conceded that Mr Hope may have lost a total of $649.49 between May 2005 and November 2012. That approach to a claim for weekly compensation was fundamentally flawed.
The case proceeded with submissions, neither side seeking leave to call oral evidence. Mr Barnes submitted that Mr Hope suffered either no loss or only the loss conceded by Mr Hampton. That loss was ultimately reduced to writing in a hand written document called “Respondent Wages Schedule” that Mr Barnes sought to tender during his submissions in reply. This document set out the loss as $96.22 for each of the financial years from 30 June 2006 up to 30 June 2012. Though it was not stated in the document, this amount averaged $1.90 per week, rounding up. It allowed the same amount ($96.22) for the period from 1 July 2012 to 16 November 2012. For convenience, I will refer to this document as the appellant’s wages schedule.
Counsel for Mr Hope, Ms Goodman, objected to the wages schedule being admitted and the following exchange took place, at T21.14:
“ARBITRATOR: You’re objecting to the document --
MS GOODMAN: Yes.
ARBITRATOR: -- as being a wage schedule?
MS GOODMAN: Yes.
ARBITRATOR: And no objection to me admitted [sic, admitting] it as an aide to my --
MS GOODMAN: Precisely.
ARBITRATOR: -- figures have been made out?
MS GOODMAN: Precisely.
ARBITRATOR: And I’ll admit it as an assistance to aid in not having to go through Mr Hampton’s figures, just in case you have any objection to it being described as a wages schedule.
MS GOODMAN: Yes, there is no wages schedule.
ARBITRATOR: An aide memoire to assist me. Alright, is there anything further?”
Ms Goodman then made a submission about costs.
In a detailed decision delivered on 10 May 2013, the Arbitrator determined (at [99]) that Mr Hope was partially incapacitated for work as a result of both his dermatitis and his knee injury. That determination has not been challenged on appeal.
Dealing with the extent of his wage loss resulting from that incapacity, the Arbitrator noted the contradictory evidence from Mr Hope, on the one hand, and Mr Hampton and Ms Drain on the other. She said that Mr Hampton’s evidence was “confusing, at best” ([113]) and that she was “unable to comprehend” ([113]) what he meant by one particular expression he used. Though she did not think his evidence offended the principle in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, as Ms Goodman had submitted, she said it was “unhelpful” ([113]). She did not say if she accepted or rejected his evidence.
The Arbitrator said that, as the appellant had not filed a schedule of earnings, Mr Hope’s schedule was “deemed to be admitted” and she “accordingly had regard to it in determining the amount of his award” ([114]). She then made an award in the terms set out in Mr Hope’s wages schedule dated 29 August 2012.
The Commission issued a Certificate of Determination on 10 May 2013 in the following terms (punctuation as per original):
“The Commission determines:
1. That the respondent is to pay to the applicant pursuant to section 40 of the Workers Compensation Act 1987 weekly compensation at the following rates:
(a)1 July 2006 to 30 June 2007: $203.90 per week
(b)1 July 2007 to 30 June 2008: $176.39 per week
(c)1 July 2008 to 30 June 2009: $402.58; and
(d)1 July 2009 to 31 December 2012: $251.72
2. That the respondent is to have credit for payments made.
3. That the award for the period from 1 July 2008 to 30 June 2009 is subject to the provision of evidence, if required, as to the dependency of the applicant’s daughter/s.
4. That in respect of the applicant’s entitlement to weekly benefits after 1 January 2013, I direct:
(a)That the applicant is granted leave to file submissions within 21 days after publication of this decision;
(b)That the respondent is to file submissions within seven days thereafter; and
(c)That the applicant is to file any further submissions within seven days.
5. That the respondent is to pay the applicant’s costs as agreed or assessed.
Certification of Complexity
The matter is certified complex pursuant to Workers Compensation Regulation 2010 due to the factual and medical issues involved, and each party is entitled to a 30 per cent uplift of costs.”
The appellant has appealed the Arbitrator’s order in paragraph [1] of the Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal were identified in the notice of appeal as being whether the Arbitrator erred in:
(a) her application of Pt 15 r 15.5 in finding that the appellant’s failure to file a wages schedule was an admission of the wages schedule filed by Mr Hope;
(b) relying solely on Mr Hope’s wages schedule in determining the award, and
(c) failing to consider or adequately consider the nature and content of the appellant’s evidence on wages.
Because of the unsatisfactory and generally unhelpful nature of the submissions filed in support of the appeal, and by Mr Hope’s solicitor in response, I listed the matter for teleconference on 6 August 2013. I set a timetable for further submissions and listed the matter for oral hearing.
In the further submissions filed by the appellant on 20 August 2013, the above grounds were repeated and, for the first time, it was submitted that by relying on Pt 15 r 15.5, and not giving the appellant an opportunity to address on that rule, the Arbitrator denied the appellant procedural fairness.
SUBMISSIONS
The appellant’s counsel on appeal, Mr Rickard, submitted that the arbitration had been conducted with the full knowledge that the figures in Mr Hope’s wages schedule were disputed. The appellant called evidence on that issue and Mr Barnes made extensive submissions on it. He said that the Arbitrator’s comments during the arbitration would have led a reasonable person to believe that she was going to consider and weigh the conflicting evidence and reach a decision based on that evidence.
This, he submitted, was consistent with the Arbitrator’s comments (at T21.31) that she would “admit it [the appellant’s wages schedule] as an assistance to aid in not having to go through Mr Hampton’s figures, just in case you have any objection to it being described as a wages schedule”. Notwithstanding that comment, the Arbitrator did not determine the dispute between Mr Hope and Mr Hampton, but determined the case on the deeming provision in Pt 15 r 15.5(3).
Counsel for Mr Hope on appeal, Mr Hanrahan, drew attention to the Arbitrator’s statement that she felt Mr Hampton’s evidence was confusing and submitted that she was not satisfied that his evidence was sufficient for her to disregard Mr Hope’s schedule. He said that the Arbitrator did not err, but did the best she could with the evidence. She gave reasons for relying on Pt 15 r 15.5(3), namely, that Mr Hampton’s evidence was confusing.
DISCUSSION AND FINDING
It is a denial of procedural fairness to decide a case on a basis not argued (Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 at [78]; 3 DDCR1; Workers Compensation Nominal Insurer v Al Othmani [2012] NSWCA 45 at [75]). While Ms Goodman did submit that Mr Hope’s wages schedule was deemed to be admitted, the general conduct of the arbitration clearly indicated that the case would be determined on the evidence and not on the deeming provision.
The history of this matter demonstrates that the quantum of weekly compensation was always in dispute. The case was adjourned on 8 November 2012 to allow further evidence to be obtained on that issue. That evidence was obtained and admitted into evidence without objection. Whether overtime was available to Mr Hope, and whether his wages schedule was correct, became the central focus of the evidence and the parties’ submissions. If the Arbitrator intended to determine the case by reference to the deeming provision, she was required to bring that to the parties’ attention and to give them the opportunity to be heard.
Moreover, having admitted the appellant’s wages schedule as “assistance to aid in not having to go through Mr Hampton’s figures”, and thereby having led the parties to believe that she would determine the case on the evidence called, the Arbitrator erred in then deciding the case on the basis of the deeming provision.
I have reached this conclusion with some reluctance because, given the appellant’s tardy preparation of the case in general, and non-compliance with the Rules in particular, the Arbitrator may well have been entitled to determine the case by reference to the deeming provision. However, having conducted a hearing on the merits, having admitted evidence on the wages issue, and having admitted the appellant’s wages schedule, albeit as an “aid” to understanding Mr Hampton’s evidence, it was not open to then rely on the deeming provision.
In the event that the appeal was upheld, both parties consented to me re-determining the matter.
As the appellant did not comply with Pt 15 r 15.5, it is necessary that the Commission “otherwise orders” before the matter can be determined on its merits. As neither side objected to the matter being determined on its merits, I order that, in the particular circumstances of this case, the deeming provision does not apply and that the quantum of weekly compensation payable be determined by reference to the evidence tendered.
Though the parties made submissions about the general effect of the evidence, the case ultimately came down to an analysis of the wage records attached to Mr Hope’s Application, which were also tendered by the appellant in an Application to Admit Late Documents. Those records set out, in fortnightly periods, the earnings for Mr Hope and two co-workers for the period from 2005 until June 2010. There was no dispute that the co-workers were comparable to Mr Hope, their wages having been produced by the appellant in response to a request by Mr Hope’s solicitor for comparable earnings.
The analysis of the wage records revealed the following:
Period Comparable Mr Hope’s Difference
earnings earnings1.7.06 – 30.6.07 $804.82 $810.72 no loss
1.7.07 – 30.6.08 $833.05 $881.67 no loss
1.7.08 – 30.6.09 $856.77 $858.14 no loss
1.7.09 – 30.6.10 $915.46 $885.74 $29.72
1.7.10 – 30.6.11 $942.92 $912.31 $30.61
1.7.11 – 30.7.12 $971.21 $939.68 $31.53
1.7.12 – 31.12.12 $1,003.63 $967.87 $35.76
The figures for the periods after June 2010 were arrived at, with the consent of the parties, by allowing a three per cent adjustment for each financial year after that date. After obtaining instructions, both parties agreed with the above figures, thus eliminating the need for any further analysis of the evidence. Neither side submitted there was any ground for exercising the discretion in s 40(1) of the Workers Compensation Act 1987 and it follows that Mr Hope is entitled to orders in accordance with the above figures.
CONCLUSION
It follows that the Arbitrator’s determination in paragraph [1] of the Certificate of Determination must be revoked and orders made as per the figures set out at [33] above.
While the appellant has succeeded on appeal, this decision should not be seen as an endorsement of its preparation of the matter. It was most unsatisfactory that no wages schedule was filed with the Reply and quite extraordinary that none was sought to be filed until the end of the submissions on the second day on which the matter had been listed for hearing. That should not have happened. Respondent employers are reminded of their clear obligation under the Rules.
DECISION
Paragraph [1] of the Arbitrator’s determination of 10 May 2013 is revoked and the following orders made in its place:
“1. The respondent employer is to pay the applicant worker the following weekly compensation under s 40 of the Workers Compensation Act 1987:
(a) 1 July 2009 to 30 June 2010 $29.72
(b) 1 July 2010 to 30 June 2011 $30.61
(c) 1 July 2011 to 30 June 2012 $31.53
(d) 1 July 2012 to 31 December 2012 $35.76
1A. In respect of the claim for weekly compensation for the period from 1 July 2006 to 30 June 2009, there is an award for the respondent employer.”
All other orders in the Arbitrator’s determination on 10 May 2013 are confirmed.
COSTS
The appellant has succeeded with its argument that, given the way the case was conducted, the Arbitrator erred. However, it argued in its written submissions, relying on Mr Hampton’s evidence, that Mr Hope was only entitled to compensation of $1.90 per week. An analysis of the wage records produced by the appellant, and tendered by both sides, demonstrated that figure to be incorrect. Moreover, for reasons that are not necessary to explore on appeal, Mr Hampton’s approach to the issue was fundamentally flawed.
In all the circumstances, the appropriate order is that the appellant pay part of Mr Hope’s costs on appeal, which I assess at $1,250 plus GST.
Bill Roche
Deputy President
3 October 2013
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
3
0