W E Bromley Pty Ltd v Coggins
[2006] NSWWCCPD 128
•21 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:W E Bromley Pty Limited v Coggins [2006] NSWWCCPD 128
APPELLANT: W E Bromley Pty Limited
RESPONDENT: Gary Allan Coggins
INSURER:NRMA Workers Compensation (NSW) (No 2) Ltd
FILE NUMBER: WCC21127-04
DATE OF ARBITRATOR’S DECISION: 22 July 2005
DATE OF APPEAL DECISION: 21 June 2006
SUBJECT MATTER OF DECISION: Estoppel; sections 40, 42 and 55 Workers Compensation Act 1987; reasons, and current weekly wage rate.
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy
Respondent: P K Simpson & Co
ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s decision of 19 July 2005 is revoked and the following order made:
“The matter is remitted to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to redetermine the Respondent Worker’s entitlements under section 40 of the Workers Compensation Act 1987 in accordance with the reasons in this decision.”
Paragraphs two and three of the Arbitrator’s decision dated 19 July 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 19 August 2005 W E Bromley Pty Limited (‘the Appellant Employer/Bromley’s’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 July 2005.
The Respondent to the Appeal is Gary Allan Coggins (‘the Respondent Worker/Mr Coggins’).
Mr Coggins was born on 17 July 1958. In about 1975 he started work in produce markets as a labourer and truck driver. In 1986 he got involved in selling and buying produce (‘procuring’). This work involved travelling to farms Australia wide procuring produce and wholesaling it back from the market to retailers. On 12 September 1998 he started work as a salesman with the Appellant Employer. The work involved buying and selling produce as well as heavy physical stacking and sorting trays and boxes of fruit and vegetables.
On or about 9 February 1999 the Respondent Worker was required to drive a fork lift for the day and, as a result, he developed severe back and leg pain. On 11 February 1999 he was stacking fruit when he experienced increased back and leg pain. He attended at Auburn Hospital where x rays were done and he was given medication for his pain. After three weeks off he returned to work but was struggling to perform his duties. He continued to work with Bromley’s until the business was sold on 30 June 1999 to Metro Mushrooms Pty Ltd (‘Metro Mushrooms’). He was then employed by that company until 1 December 2000. That work was of a similar nature but he was given a chair and allowed to sit more often as the company had a full time labourer to assist him. From July 1999 until December 2000 Mr Coggins continued to have trouble with his back and was on and off work because of his pain.
From 29 January 2001until August 2001 he worked with a business known as Sumo Fresh where he worked under a rehabilitation program. His duties involved him in procuring fruit and selling while seated. This job did not require him to engage in any physical work. His next job was with Fresh Fellas Pty Ltd t/as Arthur Pang from 2 September 2001 and 26 October 2001. He again did similar work but usually from a seated position. On 6 December 2001 he started with a business called Letto where he did similar work until about 8 March 2002 when he was told not to return because of his inability to perform the physical aspects of the job. From 22 March 2001 until 17 May 2002 he received a Newstart Allowance from Centrelink. On 25 May 2002 Mr Coggins started with Aussie Fresh Products Pty Ltd (‘Aussie Fresh’) where he worked doing similar work until his employment was terminated on 29 November 2002.
In 2001 the Respondent Worker filed an application for weekly and lump sum compensation against Bromley’s in the Compensation Court of NSW (‘the Court’) (matter number 6745/01). The application was amended by means of a Second Amended Application for Determination which was filed in the Court on 30 September 2002. That application sought weekly compensation from 9 February 1999 to date and continuing and $12,000.00 in respect of a 20% impairment of the back, $3,750.00 in respect of a 5% permanent loss of use of the left leg at or above the knee and $30,000.00 compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) and an order for the payment of section 60 expenses. The matter was heard by Commissioner Hogg in the Court on 22 October 2002. Mr Coggins gave evidence in chief and was cross examined before the case was settled on the following terms (‘the Consent Award’):
“By Consent and Without Admission of Liability:
Weekly Payments
1. Award for the Respondent in respect of [sic]
s.66
2.That the Respondent pay the Applicant as lump sum compensation under section 66-
(1)$12,000.00 in respect of 20% permanent impairment of the Applicant’s back.
(2)$3,750.00 in respect of 5% loss of use of the Applicant’s left leg.
s.67
3.That the Respondent pay the Applicant, as lump sum compensation under
section 67, $6,750.00 in respect of pain and suffering.
s.60
Award for the Respondent in respect of.”
Various ancillary orders were made in respect of costs and interest.
It will be noted that Mr Coggins employment with Aussie Fresh ceased about five weeks after the settlement of his case in the Court.
On 22 December 2004 he filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking weekly compensation from 22 October 2002 until 31 December 2004 as a result of his injury on 9 February 1999. Subsequently the claim was amended pursuant to a direction made at a teleconference on 4 March 2005 to claim weekly compensation from 22 October 2002 to date and continuing. A claim was also made for medical expenses under section 60. At the same teleconference the Appellant Employer was given leave, over objection by the Respondent Worker, to file its Reply to Application to Resolve a Dispute (‘Reply’) out of time.
On 20 May 2003 the Respondent Worker obtained employment with Sparacino & Sons (also identified as Sparacino Family Trust and as Sparacino Farms on group certificates in evidence) where he was still working at the time of the Arbitration hearing in the current matter. The Arbitration commenced on 22 March 2005 when evidence was taken from the Respondent Worker and was then adjourned until 6 July 2005 when it concluded.
In a reserved decision the Arbitrator found in favour of the Respondent Worker and Bromley’s now appeal that decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 22 July 2005 records the Arbitrator’s orders as follows:
“1.For the reasons set out in this statement the decision in this matter is:
(a)The Respondent is to pay the Applicant’s weekly entitlements under s38-40 of the Act as follows:
(i)For the period 30 November 2002 to 19 May 2003 the Respondent is pay the Applicant’s weekly entitlements at $920.00 per week.
(ii)For the period 20 May 2003 to 30 June 2003 the Respondent is to pay the Applicant’s weekly entitlements at $420.00 per week.
(iii)For the period 1 July 2003 to 30 June 2004 the Respondent is to pay the Applicant’s weekly entitlements at $418.33 per week.
(iv)For the period 1 July 2004 to date and continuing the Respondent is to pay the Applicant’s weekly entitlements at $420.00 per week.
2.the Respondent is to pay the Applicant’s medcial expenses under s60 of the Act as follows:
(a)Dr Kuzulagil $120.00
(b)HIC $251.25
Total $371.25
3.I order the Respondent pay the Applicant’s costs to be assessed if not agreed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to properly apply the law in relation to estoppel (‘estoppel’);
(b)failing to properly apply section 55 of the 1987 Act (section 55);
(c)finding that there was a ‘change in circumstances’ under section 55 (‘section 55’);
(d)allowing into evidence a late document on behalf of the Respondent Worker (‘the October letter’) and refusing to allow into evidence an unsigned draft statement from Mr Ienco (‘late evidence’);
(e)failing to take into account the weight of the medical evidence (‘medical evidence’);
(f)drawing an inference against the Appellant Employer because of the absence of evidence from Ms Robyn Graham (‘adverse inference’);
(g)failing to properly apply section 40 of the 1987 Act (‘section 40’);
(h)assessing the Respondent Worker’s probable earnings (‘section 40’);
(i)finding the Respondent Worker was entitled to a car allowance and failing to have regard to the submission that the car allowance would cease after four years (‘section 40’);
(j)failing to give proper reasons in relation to the car allowance and in ignoring sections 40(5), 36 and 42(6)(c) of the 1987 Act (‘section 40’);
(k)failing to make findings in relation to whether the Respondent Worker was either partially or totally incapacitated and, if so, in what periods (‘section 40’);
(l)failed to give reasons or have regard to the evidence in relation to his finding on dependency (‘dependency’), and
(m)failed to properly apply sections 36 and 38 of the 1987 Act (‘section 36 & 38’).
LEAVE TO APPEAL
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 entirety of the award is challenged on appeal. Therefore the threshold in section 352(2)(b) is also satisfied.
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.”
The parties submit that oral submissions are required. The Appellant Employer submits that there are a large number of issues to be traversed and its written submission were prepared without the benefit of a transcript. The transcript of the proceedings before the Court was available to the parties at the Arbitration hearing and the transcript of the Arbitration proceedings was forwarded to the parties on 7 September 2005. No further submissions have been received from either side since the transcript was forwarded to them. I do not believe the issues raised in the appeal are so complex that an oral hearing is required.
Having regard to Practice Directions Numbers 1 and 6, and the documents that are before me, 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.
SUBMISSIONS AND FINDINGS
(a) Estoppel
The Appellant Employer relies on the Consent Award set out above as establishing that the Respondent Worker suffered an injury and that he should “not now be permitted to argue that he suffers an ongoing loss” (see Appellant Employer’s submissions at paragraph 22). The Appellant Employer agrees with the Arbitrator’s comments in paragraphs 17 and 19 (wrongly referred to as 18) of his Statement of Reasons for Decision (‘Reasons’) that:
(a)if one applies Almario v Carrington Constructions Pty Limited (1996) 13 NSWCCR 739 (‘Almario’) to the facts the Respondent Worker “would need to establish a change in his situation to justify a movement from that voluntarily agreed to” (see Reasons at paragraph 17), and
(b)up to 22 October 2002 by reason of the settlement document (the Consent Award) the Respondent Worker is precluded from making any claim for weekly or medical expenses. Thereafter, it is a matter for evidence to rebut a prima facie presumption and to establish a change in circumstances (see Reasons at paragraph 19).
The Respondent Worker concedes that he is estopped from claiming compensation for any period prior to 22 October 2002, the date of the Consent Award. But the Consent Award does not mean that the Respondent Worker was no longer incapacitated but merely that as at that date there was no economic incapacity. That situation changed on 29 November 2002 when he lost he job with Aussie Fresh. I agree with the Respondent Worker’s submissions on this issue.
Whether a consent order creates an estoppel was considered by Judge Neilson in Anderson v Charles Sturt University (2000) 25 NSWCCR 407 (‘Anderson’) where his Honour said a [30]:
“Parties can ask the Court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but, at most, if anything, an admission. Such was the decision of Court of Appeal in APD Snack Foods Pty Limited v Vuic [1984] 58 WCR (NSW) 62, a decision of Hutley AP, Glass and Mahoney JJA.”
Since Anderson was decided the question of whether a consent award creates an estoppel was considered by the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’). In that case the parties settled a claim by consent for 25% loss of use of a leg and an award was entered in those terms. In later proceedings the worker sought an additional payment under section 66 of the 1987 Act as a result of an alleged increase loss of use of the same leg due to further injuries. The trial judge held that the worker had sustained further injuries which had a permanent effect on the leg but she did not increase the award of 25%.
On appeal it was argued that the earlier consent award created estoppels which meant that if the later injuries had a permanent effect then there had to be an increase in the percentage loss of use awarded. Justice Handley set out the principles in some detail from [9] to [12]:
“9 Mr King submitted that the Judge erred in law in failing to give effect to the estoppel created by the consent award by finding that although the worker had suffered further injuries to his left leg his current loss of use was still only 25%. A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley ‘Res Judicata’ 1996 pp 21-2. The estoppels flowing from the consent award bound the second respondent as a party and the appellant as a privy in interest, as the second respondent’s statutory successor: Spencer Bower & Ors (above) pp 119-22.
10 The argument based on issue estoppel involved two propositions. The first was that the consent award conclusively determined that as at 16 October 1996 the worker had a permanent impairment of his left leg at or above the knee of 25% which was the result of an injury or injuries sustained in the employment of the second respondent. This is correct. The second was that he suffered two further injuries to his left leg in the employment of the appellant, one from the nature and conditions of his work, and the other the frank injury on 25 May 1998. This was also correct.
11 If these further injuries caused other than temporary aggravations of the worker’s condition they must have increased the impairment in his left leg. The Judge did not find that they only caused temporary aggravations, but nevertheless found no increased impairment. Accordingly it was submitted that she had disregarded the estoppel. Mr King relied strongly on her statement that the consent award was ‘possibly not reflective of an accurate assessment’.
12 These submissions must be rejected because they are contrary to the principles established in O’Donel v Commissioner for Road Transport (1938) 59 CLR 744. A decision that a worker’s total blindness between 14 September 1934 and 15 February 1935 arose from an injury in the course of his employment was held not to issue estop the employer from contending that his blindness after 15 February 1935 arose from other causes. Evatt J said at 763:
‘The argument involves and is based upon the fallacy that where an issue between A and B related to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one date plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day ... this method, thought logically sound, is not permitted by law ... The unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be.’
Dealing specifically with the consent awards his Honour said at [14]:
“The consent award involved admissions by the parties and these, coupled with the presumption of continuance, were of some weight. However there was much other evidence, lay and expert, relating to the worker’s impairment at the later date and the weight to be given to the admissions and the presumption of continuance was a question of fact for the Judge.” (emphasis added)
In the present case the only estoppels that arise from the Consent Award are that the Appellant Employer is estopped from denying that as a result of an injury sustained with it in or about February 1999 the Respondent Worker has, as at 22 October 2002, a 20% impairment to his back and a 5% loss of use of his left leg at or above the knee. The Respondent Worker is estopped from claiming weekly compensation or medical expenses for any period up to 22 October 2002. In respect of any claim after 22 October 2002 the Commission was and is entitled to consider the evidence on its merits and make a determination based on that evidence unrestrained by the Consent Award made by the Court.
There was “much other evidence” (to use the words of Handley AJ in Dimovski) before the Arbitrator relating to the Respondent Worker’s entitlement to weekly compensation after 22 October 2002 and the Arbitrator was not only entitled to take that evidence into account, but was bound to do so. The Arbitrator’s application of Almario and Bruce v Grocon Limited (1995) 11 NSWCCR 247 was consistent with the principles set out above in Dimovski and I see no error of fact, law or discretion.
(b) & (c) Section 55
Reference is then made to section 55 of the 1987 Act. That section provides:
“55 Review of weekly payments
(cf former s 60)
(1) Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.
(2) On any such review:(a) the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment), and
(b) the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.
(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.
(3) On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such an amount as would have been awarded if the worker had, at the time of the injury, been earning the wage or salary which the worker would probably have been earning, at the date of the review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
(4) A review under this section shall be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.”
Because the prior award in this matter was a Consent Award, I believe that section 55 has no application (see De Witte v Tawnay Pty Ltd t/as Country Coast Real Estate [2006] NSW WCC PD 109). There are no findings of the Court to be ‘reviewed’ by the Commission. Whilst Ms Goodman, counsel for the Respondent Worker, submitted as much before the Arbitrator (see transcript at page 68 line 10) the written submissions on appeal have been prepared on the basis that section 55 does apply. In my view the proper question for determination by the Arbitrator was: did the Respondent Worker have any entitlement to weekly compensation and or section 60 expenses under the 1987 Act after 22 October 2002? The answer to that question depends on a assessment of all of the evidence and in particular an assessment of what the Respondent Worker would have earned had he not been injured (section 40(2)(a) of the 1987 Act) and what he is now able to earn (section 40(2)(b).
If I am wrong on this issue it is necessary to consider the parties submissions on section 55. The Appellant Employer submits that the Respondent Worker failed to show any change of circumstances related to the injury on 9 February 1999 and the Arbitrator erred in finding that the cessation of employment with Aussie Fresh on 29 November 2002 was a relevant change of circumstances. No authorities are cited in support of these submissions.
The Respondent Worker submits that the loss of the Respondent Worker’s job with Aussie Fresh was a relevant change of circumstances and relies on Rooney v Australian Iron & Steel Pty Limited (1993) 9 NSWCCR 372 where Moroney J held that a worker’s acceptance of an early retirement package constituted a ‘change of circumstances’ within section 55(1) entitling the worker to an increase in his weekly award payments. Reliance is also placed on Worthington v Alexander [2005] NSW WCC PD 12 where Deputy President Fleming noted at [28] and [29]:
“28. In the absence of any authority on the precise meaning to be afforded to the phrase “change of circumstances” it should, in my view, be given it’s ordinary meaning (Cody v J H Nelson Pty Ltd (1947) 74 CLR 629). Its ordinary meaning must be understood within the context of the 1987 Act. The ‘change of circumstances’ must have relevance to the worker’s entitlement to statutory weekly benefits. As Justice Sheller noted in Weston, the relevant ‘circumstances’ will be those that were before the decision-maker at the time the award of weekly benefits and upon which the findings in relation to a statutory entitlement were made. Some ‘change[s] of circumstances’ may be irrelevant to an entitlement to weekly benefits, for example, a change of residential address or, in some cases, a change of marital status.
29. There is no reason to restrict ‘change of circumstances’ to medical issues or incapacity although in many cases a resolution of medical issues or change in capacity to work is the central reason for making an application for review under section 55. The facts of the present case, and those of Rooney (discussed above), are good examples of other relevant changes of circumstances. Where compensation is payable over many years there may also, for example, be changes in the labour market relative to a workers ability to obtain suitable employment. The Employer’s legal representatives provide a further example; the worker may complete a course of study and/or obtain employment, which impact on his or her ability to earn, relative to pre-injury earnings. In my view the Employer is right to suggest that the Arbitrator erred in applying a narrow test to the meaning ‘change of circumstances’ in section 55 of the 1987 Act.”
Applying the above authorities to the present matter, the Respondent Worker’s loss of his job on 29 November 2002 and his failure to obtain new employment until some months later was a ‘change of circumstances’ that had direct relevance to his entitlements under the 1987 Act. The Arbitrator was entitled to take that change into account in assessing the Respondent Worker’s entitlement to weekly compensation.
The Appellant Employer submits that the Arbitrator erred in finding that the loss of employment in November 2002 was a relevant change in circumstances that would “rebut the prima facie presumption in favour of the issue estoppel” (see Appellant Employer’s submissions at paragraph 24). No authorities are cited for this submission. For the reasons set out above under ‘Estoppel’, I reject this submission.
The Appellant Employer also challenges this part of the award on the basis that the Arbitrator “failed to properly analyse and refer to the evidence in relation to whether there has been a change in circumstances” under section 55 (see Appellant Employer’s submissions paragraph 25). This point is related to its next point that the Arbitrator failed to give adequate reasons as to why the cessation of work at Aussies Fresh was a relevant change in circumstances.
The Arbitrator’s Reasons on this issue are set out in paragraph 20 of his decision which reads:
“I accept the Worker continues to have physical difficulties so as to effect his work capacity. The Worker needs to satisfy me pursuant to Amario and Bruce that there had been a material change in his situation after 22 October 2002. I note that on 29 November 2002, the Worker’s employment with Aussies Fresh Produce ceased. As at 22 October 2002, when settlement was achieved that employment was in place. From 30 November 2002 until May 2003 the Worker was unemployed. Thereafter he commenced work at Sparacino Farms earning $500.00 per week, which was less than he had achieved at Aussie Fresh Farms or indeed at the Respondent. The cessation of the Worker’s employment is precisely the type of circumstance that may lead me to conclude that there has been as and from 30 November 2002 a change in situation to satisfy at an evidentiary level the test proposed by Neilson J in Bruce’s case. Further, based on Dr Matalani’s assessement, I accept that the Applicant was from that date unfit for his pre accident duties.”
The above passage is really directed to identifying a change in circumstances to rebut the presumption of continuance that Justice Handley spoke of in Dimovski but it is, for the reasons already stated above, just as relevant to a change of circumstances under section 55 if that section is, contrary to my view, applicable.
The requirement for an Arbitrator to give reasons has been considered in many cases by the Commission. In NSW Department of Education and Training v Sanders [2004] NSWWCCPD 89 (‘Sanders’) it was held:
“11. An Arbitrator has a statutory duty to provide adequate reasons for decision. Section 294(2) of the 1998 Act and Rule 73 require the Commission to provide reasons for decision in the determination of a dispute. (See also Absolon v NSW TAFE [1999] NSWCA 311 and YG v Minister for Community Services [2002] NSWCA 247). Failure to provide adequate reasons is not only a breach of an Arbitrator’s statutory and common law obligations, it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology, Supreme Court of NSW, per Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267). If the failure is established, it may be a ground to revoke the decision made. An Arbitrator is not required to give lengthy and detailed reasons for decision, nor to recite and analyse in detail the content of the evidence and submissions. The standard by which adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47). The Commission is not a court and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see Objectives of the Commission in section 367 of the 1998 Act). Fundamentally, the reasons given must be capable of conveying adequately to the parties, the basis upon which the Arbitrator came to the decision that was made.”
The Arbitrator has clearly and succinctly set out the basis for his conclusion on this issue, namely, that because of the Respondent Worker’s change in employment coupled with his continuing incapacitating symptoms as a result of his injury he was entitled to weekly compensation from 30 November 2002. Whilst he remained in full time employment with Aussie Fresh his entitlement to weekly compensation was less certain. I say ‘less certain’ because on one view of the evidence and the authorities the Respondent Worker may well have been entitled to a very modest award of weekly compensation from 23 October 2002 until 30 November 2002. As this potential entitlement has not been raised by the Respondent Worker on appeal I express no concluded view about it.
The Appellant Employer argues that the Arbitrator’s Reasons do not adequately address the issue of why Mr Coggins ceased work with Aussie Fresh (see Appellant Employer’s submissions at paragraph 26). The evidence was that the employment with Aussie Fresh had been negotiated for the Respondent Worker with the assistance of a rehabilitation provider and that the employment was terminated on 28 November 2002 (see Respondent Worker’s statement paragraph nine). This evidence was not challenged by the Appellant Employer. In these circumstances it was not necessary for the Arbitrator to refer to why the employment ceased. It was sufficient to find that the employment had ceased and that the Respondent Worker remained incapacitated for his pre injury employment. It was not necessary that the Respondent Worker ceased work because of his injury only that he remained unfit for his old job because of that injury. That is what the Arbitrator found and I see no error of fact, law or discretion in that approach.
(d) Late Evidence
The Appellant Employer sought to tender an unsigned statement from Mr Dominic Ienco, the former owner/manager of Bromley’s. The background to this statement is relevant. The hearing in this matter commenced on 22 March 2005. On that day the Respondent Worker sought to tender a letter on the Appellant Employer’s letter head dated 30 October 1998 (‘the October letter’) which provided as follows:
“Gary Coggins is employed by this company on a full time basis. His gross weekly salary is $700 plus any commission owing to him. He is also paid a $200 weekly car allowance.
Yours faithfully
R Graham
Secretary”
The letter had not been attached to the Application filed in the Commission nor had its tender been foreshadowed at any time up to 22 March 2005. The Appellant Employer objected to the letter being allowed into evidence. The Arbitrator ultimately deferred ruling on the admissibility of the letter and granted the Appellant Employer an adjournment to make enquires as to its contents and to issue further relevant Directions for Production.
At the resumption of the hearing on 6 July 2005 the Appellant Employer restated its objections to the letter. On the issue of whether the letter was admissible the Arbitrator accepted into evidence an Affidavit from Daniel John Stiles, solicitor, sworn on 6 July 2005 (‘the Affidavit’) (see transcript page 48 lines 50-55). The Affidavit set out the fact that Mr Stiles had made contact with Mr Ienco by phone on 12 April 2005. As a result of that conversation Mr Stiles prepared a draft statement for Mr Ienco to sign with a view to it being tendered at the further hearing. The draft statement (annexure ‘B’ to the Affidavit) was forwarded to Mr Ienco by facsimile on 18 April 2005. On 23 May 2005 a Summons to Attend addressed to Mr Ienco was filed with the Commission and served on him on 28 June 2005. A letter was forwarded to Mr Ienco on 30 May 2005 requesting him to return the signed statement. Mr Ienco neither signed the statement nor attended to give evidence on 6 July 2005. On 30 May 2005 the Appellant Employer filed and subsequently served an Application to Admit Late Documents attaching a copy of Mr Ienco’s unsigned statement. A file note from Mr Stiles’ secretary was also attached to the Affidavit (annexure ‘E’) stating that she had telephoned Mr Ienco to see if had received the facsimile of 18 April 2005. This file note is undated but was probably made about 27 May 2005. The note records that Mr Ienco denied receiving any fax in April and that he wanted nothing to do with the matter.
After considering the contents of the Affidavit the Arbitrator admitted into evidence the October letter noting at page 49 lines 14 to 23 of the transcript that on its face the letter was a document emanating from the Appellant Employer and that it appeared to be a business record. This conclusion is reinforced when one considers the evidence before Commissioner Hogg at page 21 line six that Ms Graham was the Appellant Employer’s “paymaster”. Its existence had been known to the Appellant Employer since at least October 2002 because in the proceedings before Commissioner Hogg as its counsel cross examined the Respondent Worker about it at length. In addition, if there was any potential prejudice to the Appellant Employer as a result of the late tender of the letter that prejudice was overcome by the Arbitrator granting an adjournment of the Arbitration hearing until 6 July 2005. On that day the Appellant Employer was given leave to further cross examine the Respondent Worker.
In respect of the draft statement of Mr Ienco which the Appellant Employer sought to tender the Arbitrator stated at page 49 lines 33 to 40:
“I have some real concerns as to what probative value I could place to a draft document where the author is not available and in a situation where it is an untested proposition. The fact that Mr Ienco has not signed the document, on the face of it, suggests that he does not adopt it, which leads me to have real doubts about what, if any, value I can attach to it.”
The draft statement was rejected by the Arbitrator (see transcript page 55 lines 29 to 37). The Arbitrator correctly noted that he was not bound by the strict rules of evidence (see section 354 of the 1998 Act) but he was obliged to deal with “probative material” (see Rule 70 of the Workers Compensation Commission Rules 2003) (‘the Rules’). In his Reasons the Arbitrator stated at paragraph 28 that the Appellant Employer did not provide a sufficient basis to justify the exercise of his discretion in its favour to allow the statement into evidence where there was “undoubted prejudice to the Applicant which in my view outweighs the minimum [sic] probative value that the draft statement might otherwise have”.
The Appellant Employer argues that the rejection of the draft statement was “against the interests of justice” and involved a denial of natural justice (see Appellant Employer’s submissions paragraph 33) particularly given the Arbitrator allowed into evidence the October letter which was also served late. The difficulty with this submission is that it fails to acknowledge that the draft statement was never signed or adopted by Mr Ienco. There may have been many reasons for that but in the absence of some formal acceptance of the contents of the draft statement by the author, I do not see how the Arbitrator could have done anything else but reject it. Acceptance into evidence of an unsigned statement would have caused significant prejudice to the Respondent Worker. Such a document had no probative value until it was formally adopted by the author. Consistent with Rule 70(a) of the Rules the Arbitrator was right to reject it.
The Respondent Worker submits that there was no explanation as to why Mr Ienco did not answer the summons served on him and no application was made for an adjournment to make further attempts to secure his attendance on another occasion. Therefore, it is submitted, the only inference is that Mr Ienco was not prepared to support the Appellant Employer’s case. I do not agree that that is the only inference in circumstance where the Appellant Employer’s solicitor took reasonable steps to secure Mr Ienco’s attendance. There was some evidence as to why he did not attend. In the Mr Stiles’ Affidavit there is a reference to Mr Ienco not wishing to attend to give evidence (see Affidavit at paragraph seven). There is no evidence that anyone telephoned him on or shortly before 6 July 2005 to politely remind him of the importance of his evidence.
The Arbitrator’s decision to admit the October letter and reject the unsigned statement did not involve any error of fact, law or discretion.
(e) Medical Evidence
The Appellant Employer submits that the Arbitrator was in error in not referring to or analysing the medical evidence before him (see Appellant Employer’s submissions paragraph 28). It is correct to say that the Arbitrator only referred to the report of Dr Matalani dated 29 October 2004 and made no reference to the reports attached to the Appellant Employer’s Reply. Those reports included:
· the CT scan of 25 March 1999 which concluded that the Respondent Worker had a “moderate sized central herniation of the L5/S1 disc with adjacent thecal compression”;
· a report from Dr Anderson dated 11 October 2000 addressed to the Appellant Employer’s solicitors which concluded by saying that the Respondent Worker was fit to continue with the managerial aspects of his work, and
· a report from Dr Stephenson dated 18 October 2000 addressed to the Appellant Employer’s solicitors stating that the Respondent Worker’s history appeared consistent with the clinical findings and the reported radiological studies and that he should avoid heavy work.
Other reports attached to the Reply were earlier reports from the Respondent Worker’s qualified doctors all of whom supported his claim. The only evidence post dating the Consent Award were reports filed by the Respondent Worker. They included Dr Matalani, (24 October 2004), Dr Rao (2 December 2004) and Dr Kalnins (5 November 2004). All of these doctors supported the Respondent Worker’s claim of ongoing incapacity as a result of the relevant work injury.
The submission made is that the Arbitrator’s reliance on Dr Matalani “lead the Arbitrator into error in so far as Dr Matalani did not examine or provide a report for the [Respondent Worker] for the purposes of the earlier Compensation Court proceedings” and did not address the issue of “deterioration since the previous settlement” (see Appellant Employer’s submissions at paragraph 29). I reject this submission as it is inconsistent with the authorities noted above that make it clear that in order to establish a change of circumstances it is not necessary to establish a change in medical condition. The medical evidence in this case was all to the effect that the Respondent Worker suffered a significant injury to his back at work with the Appellant Employer in February 1999 and that the effects of that injury were continuing as at late 2004. The Appellant Employer tendered no evidence after the Consent Award to suggest that the Respondent Worker’s condition had improved such that his capacity to work had increased.
It is also submitted that “according to some doctors” the Respondent Worker’s condition had improved (see Appellant Employer’s submissions paragraph 30). The submissions do not identify which doctors formed that view. Dr Rao noted at page three of his report that “after 3 to 4 years he has improved to some extent but his injury has not completely resolved because of the problem of [sic] disc lesion”. The doctor also records that the Respondent Worker was working in a different job which did not require excessive bending or lifting. Dr Kalnins states that the Respondent Worker had improved “compared to the severe symptoms originally in 1999” (see report 5 November 2004 page two). In his conclusion Dr Kalnins said that whilst the Respondent Worker had improved to a “certain extent” he still had symptoms in his low back and left posterior thigh. The degree of improvement noted by the doctor is relative to the condition in 1999, not the condition in 2002.
The Arbitrator made no error of fact, law or discretion on this issue.
(f) Adverse Inference
The Appellant Employer submits that an adverse inference should be drawn against the Respondent Worker because he did not call R Graham (identified in evidence as Robyn Graham an employee of the Appellant Employer’s), the signatory of the October letter. The argument is that Mr Coggins knew where Ms Graham worked and, as the Appellant Employer has ceased trading, its solicitors no longer have access to witnesses “who might otherwise be available” (see Appellant Employer’s submissions at paragraph 32). The evidence is that when Mr Stiles spoke to Mr Ienco he ascertained that Ms Graham had been an employee of the Appellant Employer, but he did not ask if she was a personal secretary or was the company secretary. Mr Stiles was given a contact phone number for Ms Graham and the name of her current employer but he made no attempt to contact her (see transcript page 50 line 53). The evidence also suggested that the Respondent Worker knew where Ms Graham worked.
It was open to either party to call Ms Graham. The Respondent Worker’s case was clearly and succinctly stated in the October letter which was written on the Appellant Employer’s letter head and, on the face of it, was part of the business records of the company. If the Appellant Employer wanted to rebut that inference it was free to do so. The case was adjourned from 22 March 2005 until 6 July 2005 for the express purpose of giving the Appellant Employer time to meet the allegations in the October letter. Once it ascertained Ms Graham’s phone number and current employer it did nothing about taking a statement from her or contacting her to check the accuracy of the Respondent Worker’s assertions about the terms and conditions of his employment.
The failure to call a witness can give rise to an inference that the witness does not advance the case of the party who would normally be expected to call that witness (see Jones v Dunkel (1959) 101 CLR 298). The Respondent Worker’s case was that the terms of his contract of employment were as set out in the October letter. If the Appellant Employer wished to challenge the contents or authenticity of the letter it was given every opportunity to do so. For reasons that were not explained it did not call Ms Graham. I do not believe any adverse inference should be drawn against the Respondent Worker for not calling Ms Graham. The Arbitrator did not draw an adverse inference against the Appellant Employer for not calling Ms Graham but merely noted that Mr Stiles did not check if Ms Graham was the company secretary or if she had authority to write the October letter. They were perfectly reasonable and accurate observations.
The Arbitrator has made no error of fact, law or discretion on this issue.
(g) (h) (i) & (j) Section 40 1987 Act
It is submitted that the Arbitrator failed to properly apply section 40 of the 1987 Act in that he made no assessment of the Respondent Worker’s ability to earn as required by section 40(2) and failed to follow the five steps set out in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) (see Appellant Employer’s submissions paragraph 37).
The five steps set out in Mitchell are:
1. determine the amount the worker would have been earning if uninjured (section 40(2)(a));
2. 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));
3. subtract the figure derived in 2 from the figure derived in 1 (section 40(2));
4. 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)), and
5. make an award in the amount arrived at in step 4.
In the present case the Arbitrator:
1. determined the amount the Respondent Worker would have been earning if uninjured to be $920.00 per week (see Reasons paragraph 33);
2. determined the Respondent Worker’s actual earnings per week for the period from 30 November 2002 to be as follows (see Reasons paragraph 34 and 39) :
(a)30 November 2002 – 19 May 2003 Nil
(b)20 May 2003 – 30 June 2003 $500.00
(c)1 July 2003 – 30 June 2004 $501.67
(d)1 July 2004 – to date and continuing $500.00
3. subtracted the figures set out in 2 from the figures set out in 1 to arrive at a ‘difference’ as follows (see Reasons at paragraph 39):
(a)30 November 2002 – 19 May 2003 $920.00
(b)20 May 2003 – 30 June 2003 $420.00
(c)1 July 2003 – 30 June 2004 $418.33
(d)1 July 2004 to date and continuing $420.00
4. no consideration was given to the exercise of the discretion under section 40(1), and
5. made an award for the amounts set out in 3 above.
It was not in issue that the Respondent Worker was only ever partially incapacitated for work and therefore his entitlement to weekly compensation was under section 40 of the 1987 Act. It is submitted that the Arbitrator failed to have regard to section 40(5) which provides:
“(5) Maximum rate of compensation. The weekly payment of compensation to an injured worker in respect of any period of partial incapacity for work is not to exceed the weekly payment that would be payable to the worker if it were a period of total incapacity for work.”
Next it is submitted that the Arbitrator failed to assess what the appropriate rate of compensation would have been if the Respondent Worker had been totally unfit (section 36 of the 1987 Act). To do so requires evidence of the “current weekly wage rate” (section 42 of the 1987 Act). In determining the current weekly wage rate regard must be had to section 42(6) of the 1987 Act which provides:
“(6) In determining a worker’s current weekly wage rate in accordance with subsection (1) (a) or (b) or (4), any amount paid or payable to the worker:
(a) in respect of shift work, overtime or other penalty rates,
(b) under the terms of the worker’s employment in excess of the ordinary
rate fixed by any award for the work performed by the worker, or
(c) to cover special expenses incurred by the worker because of the nature of the worker’s employment,
is, except in so far as the regulations otherwise provide, to be disregarded.”(emphasis added)
Therefore, the above provisions do not allow the Respondent Worker’s car allowance to be taken into account in calculating the current weekly wage rate under section 42 of the 1987 Act. In so far as the Arbitrator did not have regard to the provisions of sections 40(5) and 42 he was in error and that error has affected the award entered for the period from 30 November 2002 to 19 May 2003. Unfortunately there is no evidence of the Respondent Worker’s current weekly wage rate and this omission requires that the matter be remitted to the Arbitrator for further evidence and submissions.
In addition, as the Respondent Worker was never totally unfit for work the calculation of his entitlement for the period from 30 November 2002 to 19 May 2003 must be under section 40 of the 1987 Act. As he was not working in that period it was necessary for the Arbitrator to assess the Respondent Worker’s ability to earn under section 40(2)(b). The Arbitrator was in error in that he made no assessment of the Respondent Worker’s ability to earn in that period. The Respondent Worker submits that the Arbitrator has made an assessment of the ability to earn in paragraph 34 of his Reasons. What the Arbitrator said in paragraph 34 was:
“I further find that the Applicant’s actual earnings for the period from 30 November 2002 to date are as set out in the following schedule, and that such earnings reasonably represent the Applicant’s true earning capacity.” (emphasis added)
It is unclear to me if the Arbitrator was directing his attention in paragraph 34 to an assessment of the Respondent Worker’s ability to earn whilst unemployed or was only considering his actual earnings when he was employed. When one looks at the ‘schedule’ referred to by the Arbitrator the ‘actual earnings’ for the period from 30 November 2002 to 19 May 2003 were nil. The submission made by the Respondent Worker at the Arbitration hearing only dealt with the period when the Respondent Worker was actually employed (see transcript page 115 line 8). An assessment of a worker’s ability to earn requires additional matters to be taken into account compared to the situation where a worker is employed. It is not apparent that the Arbitrator has taken those matters into account.
The submissions on appeal by the Respondent Worker state that he is prepared to accept the sum of $420.00 per week for the period 30 November 2002 to 19 May 2003. However the correct calculation in this period requires evidence or agreement as to the current weekly wage rate and a finding of the Respondent Worker’s ability to earn together with evidence of how much of the first 26 weeks of compensation remains to be paid. There is no evidence before me on these issues. In addition, section 42 states that expenses such as a car allowance are not amounts that can be taken into account in calculating the current weekly wage rate.
The Appellant Employer submits that the car allowance would have ceased after four years (by October 2002) and it should therefore not be taken into account in assessing probable earnings under section 40(2)(a). Once that allowance is removed then, it is submitted, probable earnings should have been assessed at $700.00 per week. The Arbitrator dealt with this point at paragraph 32 of his Reasons where he said:
“However I also take note that in the usual course that the Applicant could have expected to receive salary increases, that there was a commission arrangement in place and that in any replacement arrangement but for this injury, the Worker could have expected to receive a probable salary and benefits at least as favourable as he had at the date of his accident whilst working for the Respondent.”
The Arbitrator was required to assume, for the purposes of the section 40(2)(a) calculation, that Respondent Worker’s salary package with the Appellant Employer would have continued up to the date of the hearing (see Harding v Transfield Pty Ltd (2003) 25 NSWCCR 86 (‘Harding’) and Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 55 (‘Australian Wire Industries’)). In Harding Judge Armitage said at [44]:
“Those authorities, particularly Australian Wire Industries, appear to me to point to a necessity to hypothesise that the applicant’s probable earnings at the time of injury with the respondent would have continued, for [sic] purpose of stage 1 under the s 40 calculation. That approach seems to be mandated by the terms of s 40 itself, which in this respect correspond largely with those of s11(1) of the Workers Compensation Act 1926, which was being considered in Australian Wire Industries and in Pantaleo.”
The fact that the neither the employment nor the car allowance continued until 2005 is a factor to take into account in the exercise of the Arbitrator’s discretion (the fourth step in Mitchell but referred to as the third step in Nicholson). Judge Armitage added in Harding at [49]:
“The Court of Appeal said in Australian Wire Industries that it was at the third sage, namely, the discretionary stage where the Court had to decide whether the applicant should receive the whole difference between his probable earnings but for injury and ability to earn in suitable employment or some part of it, that the fact that the employment would not in fact have continued, should be taken into account: see McHugh JA at 55A.”
It is not clear to me that the Arbitrator applied the reasoning set out in Harding and Australian Wire Industries. Paragraph 32 of his Reasons suggests that he acceded to the Appellant Employer’s submission that the car allowance was only short term and therefore should not be taken into account in determining the section 40(2)(a) amount. The Arbitrator then gives reasons why, notwithstanding the loss of the car allowance, the probable earnings but for injury would still be $920.00 per week. There are certain problems with this approach. First, unless there is evidence or agreement about the movement of wages in certain industries over the relevant period (and there is no evidence or agreement in this case), it not appropriate to speculate about wage movements. Second, the evidence of the “commission arrangement” was unsatisfactory and did not justify any allowance being made for that component in the assessment under section 40(2)(a). Third, in arriving at the figure of $920.00 per week the Arbitrator has assumed that the car allowance was $220.00 per week when in fact it was $200.00 (see the October letter).
It follows from the above analysis that I reject the Appellant Employer’s submission that probable earnings should have been found to be $700.00 per week. Probable earnings should have been assessed having regard to the earnings the Respondent Worker would have received had he remained uninjured and had he continued to be employed in the same or some comparable employment. Once actual earnings (or ability to earn in respect of the period when the Respondent Worker was unemployed) have been ascertained and deducted from probable earnings it is then necessary to consider the exercise of the discretion in section 40(1). At the ‘discretion’ stage of the process it is appropriate to consider the fact that the car allowance would not have continued long term. In the present case the exercise of the discretion will not necessarily mean that the full wage difference between steps one and two in the section 40 calculations will not be awarded. The Respondent Worker has a proven capacity to find employment in the area where he has considerable experience and expertise. If he had remained uninjured it seems reasonably clear that he would have obtained alternative employment at a similar or higher salary than he was being paid with the Appellant Employer.
Nevertheless, the failure to apply the principles set out in Harding means that the Arbitrator erred and failed to correctly apply the provisions of section 40 and the Respondent Worker’s entitlement under that section will need to be redetermined. As the entitlement to compensation for the period 30 November 2002 to 18 May 2003 must be remitted for redetermination it is appropriate that the whole of the section 40 claim be remitted and redetermined at the same time. For the Arbitrator to redetermine this matter he may require further evidence dealing with the Respondent Worker’s current capacity for work, probable earnings but for injury (section 40(2)(a)), actual earnings (section 40(2)(b)), when the Respondent Worker’s first 26 weeks of incapacity expired (see section 36 of the 1987 Act), the current weekly wage rate between 30 November 2002 and 18 May 2003, and such further matters as the Arbitrator may direct.
A further challenge is made to the Arbitrator’s findings under section 40 in respect of the car allowance. The Appellant Employer disputes this allowance as it was never disclosed in the Respondent Worker’s income tax return for 1999 and the document relied on in support of the claim (the October letter) was not a valid record of the Appellant Employer’s (see Appellant Employer’s submissions at paragraph 31). The October letter has been dealt with above (see paragraphs 41 to 48). As noted above the allowance of $220.00 per week was incorrect and should have been $200.00 per week.
The evidence in respect of the car allowance is as follows:
(a)in the transcript of proceedings before the Court (page one line 41; page 11 line 34; page 12 line 9; page 16 line 9, and page 17 line 28);
(b)in cross examination before the Arbitrator on 6 July 2005 (page 57 to 58);
(c)in the Respondent Worker’s statement dated 22 March 2005 at paragraph eight, and
(d)in the October letter referred to above.
The Respondent Worker has been cross examined about the car allowance on two separate occasions (first before Commissioner Hogg in the Court on 22 October 2002 and second before the Arbitrator in the present claim on 6 July 2005). On each occasion he has given consistent evidence about it and why and how it was paid to him. His evidence was corroborated by the October letter. Though the income from the car allowance was not disclosed in his 1999 tax return (as it should have been), the Arbitrator was entitled to accept the evidence before him that the car allowance was paid and formed part of the Respondent Worker’s income with the Appellant Employer. The Arbitrator’s decision on this issue discloses no error of fact, law or discretion.
(k) Reasons
This challenge relates to the Arbitrator’s alleged failure to give adequate reasons so far as the medical evidence and section 40 assessment is concerned (see Appellant Employer’s submissions at paragraph 37). The Arbitrator’s reasons dealing with the medical evidence have been considered above at paragraphs 49 to 52.
In respect of the reasons dealing with the section 40 claim it is submitted that the Arbitrator has failed to give adequate reasons as to why he believes the Respondent Worker’s probable earnings but for injury would now be $920.00 per week. As this part of the award will need to be redetermined for other reasons (see paragraph 72 above) it is not necessary to consider this ground of appeal.
(l) Dependency
The submission made is that the Arbitrator failed to give adequate reasons for his finding in relation to dependency (see Appellant Employer’s submissions at paragraph 41). The Arbitrator accepted that the children Curtis born 17 June 1998 and Justin born 21 September 1990 were dependent on the Respondent Worker.
The evidence on this issue is found at page seven line 45 to 55 of the transcript of evidence before the Arbitrator on 22 March 2005. The evidence was that the Respondent Worker has two sons who were both still at school at the time of the Arbitration. They do not reside with him but he pays maintenance for them. No questions were put in cross examination to suggest that the two children were not dependent on the Respondent Worker and no submissions were made to the Arbitrator to that effect. In these circumstances the Arbitrator was entitled to find that they were dependent on the Respondent Worker and that finding involves no error of fact, law or discretion.
(m) Sections 36 & 38 of the 1987 Act
No submissions have been made on this ground of appeal.
DECISION
Paragraph one of the Arbitrator’s decision of 19 July 2005 is revoked and the following order made:
“The matter is remitted to the Arbitrator under section 352(7) of the Workplace
Injury Management and Workers Compensation Act 1998 for the Arbitrator to redetermine the Respondent Worker’s entitlements under section 40 of the Workers Compensation Act 1987 in accordance with the reasons in this decision.”
Paragraphs two and three of the Arbitrator's decision of 19 July 2005 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.
Bill Roche
Acting Deputy President
21 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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