Tang v Integrated Parramatta Pty Ltd
[2008] NSWWCCPD 63
•23 June 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Tang v Integrated Parramatta Pty Ltd [2008] NSWWCCPD 63
APPELLANT: Biao Tang
RESPONDENT: Integrated Parramatta Pty Ltd
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC6519-07
DATE OF ARBITRATOR’S DECISION: 10 January 2008
DATE OF APPEAL DECISION: 23 June 2008
SUBJECT MATTER OF DECISION: Casual workers; calculation of current weekly wage rate and average weekly earnings; sections 40, 42 and 43 of the Workers Compensation Act 1987; failure to apply the steps in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526; inconsistent findings.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Unilegal
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Paragraph two of the Arbitrator’s determination of 10 January 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the Appellant Worker’s rights under sections 38 and/or 40 of the Workers Compensation Act 1987.
Paragraphs one, three and four of the Arbitrator’s determination of 10 January 2008 are confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
Biao Tang (‘the Appellant Worker/Mr Tang’) was born in China in 1966 and is now 42 years of age. He came to Australia in 1992 and started work for as a causal for Integrated Parramatta Pty Ltd (‘the Respondent Employer/Integrated’), a labour hire company, on 5 September 2003. The arrangement was that a representative from Integrated would telephone Mr Tang and advise where and when he was to work. Most of his assignments were for short-term jobs lasting not more than five days, resulting in his wages fluctuating accordingly. His duties varied but, as best I can determine from the inadequate evidence, were usually in the nature of storeman or labouring activities.
On 9 August 2006, Mr Tang was assigned to work at Invacare Australia Pty Ltd (‘Invacare’) as a storeman for seven hours per day at $17.85 per hour. In the course of his duties with Invacare on 11 August 2006, Mr Tang lifted and carried some cabinets from the warehouse to the office with two other workers when one of his co-workers lost his grip resulting in the cabinet forcing Mr Tang onto the ground (Mr Tang’s statement 7 August 2007, paragraph six). As a result, Mr Tang felt a sharp pain in his right knee but, after a rest for about 15 minutes, he continued working until his normal finishing time. It is unclear if he worked on 12 August 2006.
Mr Tang received a phone call from a female at Integrated at 8pm on 13 August 2006 advising him of work with BSL Australia, at Blacktown. He advised the caller of his injury with Invacare and said he could not lift heavy objects, presumably because of his knee injury, and enquired if lighter work was available. The caller suggested that Mr Tang see a doctor.
On 14 August 2006, Mr Tang saw a doctor at the Merrylands Medical Centre and was advised that he had a soft tissue injury. On the advice of his employer, he again attended the Merrylands Medical Centre on 15 August 2006 when he saw Dr Wanigaratne who provided him with a WorkCover medical certificate declaring him fit for light duties from 16 to 20 August 2006 because of a “knee injury/soft tissue injury”.
Integrated accepted Mr Tang’s claim and provided him with suitable duties from August 2006 until 12 July 2007, as per the restrictions his medical certificates. Integrated’s insurer, QBE Workers Compensation (NSW) Ltd (‘QBE’), denied liability by a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) dated 27 July 2007.
On 24 August 2007, Mr Tang filed an Application to Resolve a Dispute (‘the Application’) in the Commission alleging that on 11 August 2006 he sustained an injury to his right knee and foot, and seeking weekly compensation from 13 November 2006 together with lump sum compensation in respect an alleged 5% whole person impairment. As I understand the evidence, there was no direct trauma to the right foot, but foot symptoms developed later as a result of the right knee injury. As the Schedule of Wages in Part 5.2 of the Application suggests that Mr Tang suffered a loss of income from 20 August 2006, I do not know why weekly compensation is claimed from 13 November 2006. Though it is not identified in the Application, Mr Tang claimed weekly compensation under section 38 and/or section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The matter was heard before a Commission Arbitrator on 11 December 2007 and decided by her in a reserved decision delivered on 10 January 2008 in which she made the following orders and determinations:
“1.Award in favour of the Applicant for an injury to the right knee and right foot as a result of an incident that occurred on 11 August 2006. Employment with the Respondent was a substantial contributing factor.
2.Award in favour of the Respondent for weekly compensation payments from 13 July 2007.
3.I remit the matter to the Registrar for a referral to an AMS for assessment of permanent impairment in relation to an injury to the right lower extremity (right knee and right foot) resulting from an injury that occurred on 11 August 2006.
4.The Respondent to pay the Applicant’s costs as agreed or assessed. For the purposes of Schedule 6 of the Workers Compensation Regulations 2003 I certify the matter as complex pursuant to Table 4, and certify that there be a 15% uplift in costs.”
By an appeal filed on 7 February 2008, Mr Tang seeks leave to appeal the Arbitrator’s determination that he has no entitlement to weekly compensation.
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 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. No award of weekly compensation has been made in this case but the Arbitrator’s determination will, if it stands, result in the Appellant Worker receiving no weekly compensation and therefore the second limb of section 352(2) does not apply (see Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
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 submission 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.
REVIEW
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; (2006) 4 DDCR 358 (‘Zheng’) 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) 4 DDCR 421; [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]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
I intend to apply the above principles in the matter before me.
THE ARBITRATOR’S REASONS
The Arbitrator found in favour of Mr Tang on the issue of injury to the right knee and that his employment was a substantial contributing factor to that injury. She also found that, as a result of that injury, Mr Tang developed pain in his right foot (wrongly referred to as the left foot at paragraph 42 of her Statement of Reasons for Decision (‘Reasons’)). No challenge is made to these findings.
The Arbitrator agreed with the Respondent Employer’s submission that any residual incapacity was “minor” (Reasons, paragraph 32) or “very minor” (Reasons, paragraph 38). In apparent contradiction of these statements, she then added at paragraph 33 that the medical evidence from Drs Leung, Muratore and Field persuaded her that “incapacity had ceased to the right knee and right foot”. At paragraph 39, the Arbitrator found Mr Tang had no incapacity “that would prevent him from working and earning at least his pre-injury earnings” but added at paragraph 40 that she accepted that “he may still be affected by the incapacitating effects of his injury and that there may exist some element of permanent impairment”.
Under “Summary”, at paragraph 42 of her Reasons, the Arbitrator concluded:
a)Mr Tang to be partially incapacitated as a result of his injuries from 11 August 2006 until 12 July 2007;
b)Mr Tang’s “actual weekly earnings” at the time of injury to be $228.92;
c)the average weekly amount Mr Tang earned from 11 August 2006 until 12 July 2007 was $471.77;
d)Mr Tang had no entitlement to weekly benefits because he ceased being partially incapacitated for work from 12 July 2007, and
e)from 13 July 2007 Mr Tang suffered no incapacity for work.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)determining Mr Tang’s average weekly earnings before his injury to be $228.98 per week (‘average weekly earnings’);
(b)determining that Mr Tang has no entitlement to weekly compensation because he ceased to be partially incapacitated for work from 12 July 2007 (‘entitlement to weekly compensation’);
(c)finding that Mr Tang suffered no economic loss as a result of his injuries (‘entitlement to weekly compensation’);
(d)failing to give adequate weight to Mr Tang’s evidence and the medical evidence of Drs Costa, Harrison and Conrad, and Ms Wong (‘weight of medical evidence’), and
(e)failing to give adequate reasons as to why she preferred the opinions of Drs Leung, Muratore and Field (‘reasons’).
In view of the Arbitrator’s findings and the unsatisfactory way Mr Tang presented the appeal, I issued a Direction to the parties on 21 May 2008 seeking submissions on the following matters:
“1.whether the Arbitrator found that the Appellant Worker’s incapacity ceased (Statement of Reasons for Decision (‘Reasons’) at paragraph 33), or, found that he suffered an incapacity but the incapacity resulted in no economic loss (Reasons, paragraph 39);
2.the relevance of the Arbitrator’s failure to apply the five steps set out in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526 (‘Mitchell’) for the determination of the claim under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) and whether that failure amounts to an error;
3.the relevance of the Arbitrator’s apparent failure to determine the Appellant Worker’s claim for compensation under section 38 of the 1987 Act and whether that failure amounts at an error;
4.the relevance of the Storemen and Packers General (State) Award, in light of the fact that section 43(3) of the 1987 Act defines “basic wage” to mean “the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996, at the time of the computation” and makes no mention of award rates;
5.the quantum of the Appellant Worker’s “full wage for a full normal working week” (section 43(1)(f) of the 1987 Act), and
6.the quantum of the “basic wage”, as defined in section 43(3) of the 1987 Act.”
Each of the parties has filed further submissions in response to this Direction and I have considered those submissions in reaching my decision.
SUBMISSIONS DISCUSSION AND FINDINGS
Average Weekly Earnings
The Arbitrator determined Mr Tang’s pre-injury earnings to be $228.98 per week based on his taxable income of $11,907 in the 2006 financial year. The correct calculation of Mr Tang’s average weekly earnings is complicated by the fact that Mr Tang was employed by Integrated as a casual and because of the unsatisfactory way his case has been presented.
Mr Tang submits:
a)he could be categorized as a casual as well as a part-time employee at the time of the injury;
b)it is not disputed that he was covered by the Storeman and Packers, General (State) Award as a casual level 2 employee;
c)for the week of his injury (7 to 11 August 2006, inclusive) he was paid $615.23 at $17.85 per hour;
d)the Respondent Employer’s wage schedule dated 4 December 2007 stated his “probable earnings” under section 43(1)(e) of the 1987 Act to be $370.81 per week;
e)the QBE NSW Early Report of Injury Form completed by the Respondent Employer dated 16 August 2006, refers to award earnings of “$419.65pw 23.5 hrs”, and
f)the Arbitrator’s finding of $228.98 per week was based on his tax return for the 2006 financial year when his taxable income was $11,907.
The Respondent Employer submits that the Arbitrator’s approach was reasonable and open in the circumstances, or, in the alternative, the appropriate rate should be $370.81 per week (as set out in the Integrated’s wage schedule). This figure was calculated on the basis of Mr Tang’s average weekly earnings in the 12-week period preceding the date of injury.
The Arbitrator’s approach to Mr Tang’s wages was incorrect. Because Mr Tang made claims under section 38 and/or 40 the Arbitrator had to determine his “current weekly wage rate” under section 42, his “average weekly earnings” under section 43 and the amount he would probably have been earning but for his injury (“probable earnings”) under section 40(2)(a). These terms are all technical terms defined in the 1987 Act. Rather than making calculations in accordance with the legislation, the Arbitrator calculated what she described as Mr Tang’s “actual weekly earnings at the time of injury”. She did this by dividing his total income in the 12 months to 30 June 2006 by 52 to give an average of $228.92. That approach was not consistent with the legislation.
A worker’s current weekly wage rate is usually his or her award rate of pay. There is no evidence that Mr Tang was employed under an award and the evidence as to his usual duties is extremely limited. It seems that he was usually employed in labouring or storeman roles, but it is hard to be certain. If a worker is not employed under an award, his current weekly wage rate is 80% (the “prescribed proportion”, as defined in section 42) of his average weekly earnings “in respect of the work being performed by the worker immediately before becoming incapacitated or, if a specific rate is prescribed by the regulations for the purposes of this paragraph, is a reference to that rate” (section 42(1)(d)). The “rate prescribed by the regulations” only applies to workers entitled to weekly compensation before 1 February 1992 and has no application in this matter. Therefore, it is necessary to determine Mr Tang’s average weekly earnings.
A worker’s average weekly earnings are calculated under section 43. Section 43(1)(a) provides:
“(a) Average weekly earnings shall be computed in such manner as is best calculated to give the rate per week at which the worker was being remunerated, except that if, because of the shortness of the time during which the worker has been in the employment of the employer or the terms of the employment, it is impracticable at the date of the injury to compute the rate of remuneration, regard may be had to the average weekly amount which, during the 12 months previous to the injury, was being earned:
(i) by a person in the same grade, employed at the same work, by the same employer, or
(ii) if there is no person so employed, by a person in the same grade employed in the same class of employment, and in the same district.”
As Mr Tang was usually employed as a “casual worker”, section 43(1)(e) and (f) apply. They provide:
“(e) The average weekly earnings of a casual worker, that is to say a worker whose contracts of service are mainly contracts for separate periods each of which is of not more than 5 working days in the same industry, shall be computed as if the worker’s earnings under all his or her contracts of service, for a period of 12 months preceding the injury or any shorter period during which the worker may have been engaged in the industry, were earnings in the employment of the employer for whom the worker was working at the time of the injury.
(f) If a worker is a worker to whom paragraph (e) applies or has been absent from work by reason of illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause, the average weekly earnings of the worker shall, notwithstanding the foregoing provisions of this section:
(i) in the case of a worker who is 21 years of age or over, be deemed to be not less than the full wage for a full normal working week of that worker or the basic wage, whichever is the greater, and
(ii) in the case of any other worker, be deemed to be not less than the full wage for a full normal working week of that worker.”
I assume it was section 43(1)(e) that the Arbitrator relied on to calculate the figure of $228.92 referred to in paragraph [25] above. However, the evidence did not address and the Arbitrator did not refer to the matters raised in section 43(1)(f). If a casual worker has been absent from work by reason of “illness, strikes, lockouts, bad weather, intermittency of employment, slackness of trade or any other reasonable cause” his average weekly earnings shall be “deemed to be” not less than the full wage for a full normal working week or the “basic wage”, whichever is the greater. The “basic wage” is not the award wage (as Mr Tang has submitted) but is defined to mean “the basic wage in force under clause 15 of Schedule 4 to the Industrial Relations Act 1996, at the time of the computation” (section 43(3)).
Next, once the average weekly earnings have been calculated, it is necessary to determine the current weekly wage rate under section 42. This calculation is more difficult as the evidence does not disclose if Mr Tang was paid under an award or some other system. If he was paid under an award, his current weekly wage rate “is, at any time during the incapacity, a reference to the rate of remuneration under that award at that time for 1 week in respect of the work being performed by the worker immediately before being incapacitated” (section 42(1)(a)).
If Mr Tang was not paid under an award, then section 42(3) is relevant. It provides:
“(3) For the purposes of subsection (1) (a), if a worker is not remunerated in respect of the work performed by the worker under an award fixing or providing for the fixing of a rate for a weekly or longer period but:
(a) there is such an award under which the worker would be entitled to be remunerated if the worker performed that work under a contract of service-the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award, or
(b) although paragraph (a) does not apply, there is an award fixing or providing for the fixing of a rate for a weekly or longer period which, having regard to the nature of that work, it would be fair and reasonable to apply to and in respect of that work-the worker shall be deemed to be remunerated in respect of that work under that lastmentioned award.”
However, if the amount of a part-time worker’s current weekly wage rate, as determined by section 42(1), exceeds his average weekly earnings, then a reference to his current weekly wage rate “is a reference to those average weekly earnings” (section 43(4)). It is not possible to determine whether this provision applies to Mr Tang because his average weekly earnings have not been calculated correctly because of a lack of evidence.
Neither the evidence nor the parties’ submissions have properly dealt with this issue and, as a result, the matter must be remitted for re-determination. These calculations are essential if Mr Tang wishes to pursue his claim under section 38 because, if he is successful with that claim, he will be entitled to be compensated as if his incapacity for work were total (section 38(1)(b)). A totally incapacitated worker is compensated at his current weekly wage rate for the first 26 weeks of incapacity. The rate of compensation payable under section 38 after the first 26 weeks of incapacity is 80% of the worker’s current weekly wage rate or the statutory rate prescribed by the 1987 Act for a period of incapacity after the first 26 weeks, whichever is the greater (section 38(3)).
Entitlement to Weekly Compensation
The Arbitrator’s finding that Mr Tang has a continuing restriction, though only minor, required her to consider whether he has an entitlement under section 38 and she erred in failing to do so.
Next, to determine if Mr Tang has an entitlement to compensation under section 40 it is necessary to apply the five steps in Mitchell v Central West Area Health Service (1997) 14 NSWCA 526 (‘Mitchell’). The first step requires an Arbitrator to determine ‘probable earnings’ under section 40(2)(a). This is the amount the worker would probably have been earning as a worker but for the injury and had he or she continued to be employed in the same or some probable employment. The Arbitrator did not consider this question but seems to have relied on the figure of $228.92, which she described as his “actual weekly earnings”, an expression not used in the legislation. That figure does not represent Mr Tang’s probable earnings but for his injury and the Arbitrator erred in her approach to this issue. Probable earnings are normally arrived at by reference to the earnings of at least two persons employed by the employer in the same or some comparable grade as the worker (section 43(2)(c)). There is no evidence of such comparable earnings in the present matter and that needs to be addressed at the re-determination. If it is alleged that there are no employees comparable to Mr Tang, then alternative methods may be used to determine the appropriate figure for probable earnings.
In respect of step two in Mitchell (calculation of actual earnings and/or ability to earn in some suitable employment), the Arbitrator stated that Mr Tang’s actual earnings from 16 August 2006 to 12 July 2007 averaged $471.77 per week. She then seems to have determined that the fact that Mr Tang earned more while on light duties than his actual weekly earnings up to 30 June 2006, made it hard to conclude that he “met the criteria” for partial incapacity (Reasons, paragraph 35). Whilst the figure of $471.77 may well represent the average of Mr Tang’s weekly earnings between 16 August 2006 and 12 July 2007, and whilst it provides prima facie evidence of a worker’s ability to earn whilst employed (Aitken v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 (‘Aitken’), it does not determine his ability to earn in the labour market reasonably accessible to him once his employment ceases. Nor did those earnings indicate, without more, that Mr Tang had no economic incapacity from 13 July 2007. The Arbitrator was required to assess Mr Tang’s ability to earn in the labour market reasonably accessible to him having regard to the matters set out in section 43A and she erred in failing to make that assessment.
Having not made the calculations required under section 40 and having found that Mr Tang continued to have a restriction as a result of his proven work injury, it was not open to the Arbitrator to find that from 13 July 2007 Mr Tang had no (economic) incapacity that would prevent him from earning at least his pre-injury earnings (Reasons, paragraphs 39 and 42).
Weight of Medical Evidence
The Appellant Worker submits:
a)the Arbitrator did not find Mr Tang to be an unreliable witness and his evidence had to be taken into consideration by the Arbitrator;
b)the MRI of by Dr De Costa dated 1 November 2006, revealed “Bone contusion of the anteromedial surface of the medial femoral condyle, with marrow oedema and mild flattening of the cortex. Findings are almost certainly related to prior direct trauma”;
c)the most important and persuasive medical expert is the treating specialist, Dr Harrison, orthopaedic surgeon, who examined Mr Tang on several occasions and who accepted his case and considered him fit for suitable selected duties;
d)Drs Wanigaratne, Leung and Ly, general practitioners, all agreed that Mr Tang had certain incapacities though they expressed different opinions as to the lifting restrictions that should be placed on him;
e)the WorkCover Guidelines on Independent Medical Examinations and Reports (‘the Guidelines’) dated 1 November 2006 state, among other things, that the input from a worker’s treating doctors is invaluable to the management of the worker’s injury;
f)it is settled law and it was the legislative intention, as indicated in the Guidelines, that special weight should be given to the treating medical practitioners’ opinions and an Arbitrator should not depart from the Guidelines unless there is a good reason for doing so and unwarranted or unexplained departures constitute an error of law;
g)Ms Wong, occupational therapist, concluded that it was reasonable that he perform “light-medium duties on a full time basis” with various and considerable restrictions, and
h)the Arbitrator’s reasons do not show that she gave adequate weight to the evidence of Ms Wong and Dr Conrad.
The Respondent Employer submits that the Arbitrator considered the Appellant Worker’s evidence at paragraphs 26, 27, 28 and 30 of her Reasons. In any event, these opinions, when combined with Mr Tang’s post injury ability to earn more than he did pre-injury, are not persuasive on the issue of economic incapacity.
The Arbitrator’s failure to properly assess Mr Tang’s entitlement under section 40 means that the claim must be re-determined. Because of the inadequacy of the evidence and submissions, I am unable to conduct that re-determination and the matter must be remitted to a different Arbitrator for that purpose. The determination of Mr Tang’s ability to earn will require an assessment of all of the evidence dealing with incapacity and may well require oral evidence to be taken. In these circumstances it is not appropriate that I express a view about the medical evidence save to say that this evidence will need to be re-assessed, along with all of the other evidence, at the re-determination and the new Arbitrator is not bound by the first Arbitrator’s assessment of the medical evidence or her finding that Mr Tang’s incapacity is minor.
I should note, however, that Mr Tang’s submissions about the weight to be attached to evidence from treating doctors are incorrect. His reference to the Guidelines has been taken out of context. It is true that the Guidelines state that input from treating doctors is “invaluable to the management of the worker’s injury”. That statement is made in the context of “managing” a worker’s claim, not in the context of determining the claim in the Commission. The Guidelines do not mean that an Arbitrator necessarily errs by not accepting the opinion of a treating doctor. The assessment of issues of injury and incapacity require an Arbitrator to consider all of the probative evidence in order to reach a fair and balanced decision. A treating doctor’s report may or may not be more persuasive than a qualified doctor’s opinion depending on his or her expertise and specialty, training, the history recorded, how often and over what period he or she examined the worker, and many other factors.
Reasons
In light of my decision on the other grounds of appeal, it is not necessary for me to comment further on this ground of appeal.
Other Matters
I note that the Arbitrator stated that the medical evidence from Drs Leung, Muratore and Field persuaded her that “incapacity had ceased to the right knee and right foot” (Reasons, paragraph 33). It is difficult to see how that could be the case, as neither Dr Leung nor Dr Field gave evidence that Mr Tang’s incapacity had ceased. Dr Muratore gave evidence Mr Tang had fully recovered from the effects of the injury, but the Arbitrator’s conclusion that he was still affected by the injury and that there may be some element of permanent impairment suggests that she did not accept that evidence. These inconsistent findings provide further reasons why the Arbitrator’s determination on incapacity must be revoked.
CONCLUSION
Whilst it follows that the Arbitrator’s determination on the issue of incapacity must be revoked, her findings on injury and substantial contributing factor are confirmed. At the re-determination the parties may wish to call further evidence on, or make submissions clarifying, the following matters:
a)the date on which the claim for compensation commences;
b)Mr Tang’s entitlement, if any, to an award under section 38;
c)the appropriate figures for Mr Tang’s current weekly wage rate, average weekly earnings and the alleged probable earnings but for the injury;
d)whether Mr Tang was “remunerated under an award” (section 42(1)(a)). If not, whether the Storeman and Packers, General (State) Award is an appropriate award under section 42(3)(b);
e)the matters raised in section 43(1)(f) (for example, intermittency of employment);
f)the “basic wage” as defined in section 43(1)(f), and
g)the matters set out in section 43A.
I strongly urge Mr Tang to retain counsel at the re-determination and to file an amended wage schedule setting out the current weekly wage rate, average weekly earnings and the alleged probable earnings but for injury. I expect the Respondent Employer will fully comply with its obligations under section 43(2) relating to the provision of comparable earnings and award information, if it has not already done so.
DECISION
Paragraph two of the Arbitrator’s determination of 10 January 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the Appellant Worker’s rights under sections 38 and/or 40 of the Workers Compensation Act 1987.
Paragraphs one, three and four of the Arbitrator’s determination of 10 January 2008 are confirmed.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.
Bill Roche
Deputy President
23 June 2008
I, EMMA LETHBRIDGE-GILL, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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