Issue 6: September 2017

Woolworths Limited v Salam [2017] NSWWCCPD 35

(a) finding that PIAWE should be calculated by reference to Item 7 of Sch 3 of the 1987 Act (Ground No 1);

(b) not finding that PIAWE should be calculated by reference to either Item 5 or Item 8 of Sch 3 of the 1987 Act, rather than Item 7 (Ground No 2), and

(c) calculating the PIAWE, and hence the weekly entitlement, by reference to PIAWE determined pursuant to Item 7, rather than Item 5 or Item 8 (Ground No 3).

The issue on the worker’s appeal was whether the Arbitrator erred in finding that the worker had a current ability to earn of $600 per week.

Held: The worker’s application to extend time pursuant to r 16.2(12) of the 2011 Rules was refused. As regards the Arbitrator’s decision dated 28 March 2017: paragraph 1 was amended to substitute the figure ‘$151.57’ for the figure ‘$880.36’ and paragraph 2 was confirmed.

THE EMPLOYER’S APPEAL

Ground No 1

1. The employer submitted that the worker’s PIAWE should not be calculated on the basis of Item 7, but on the basis of one of Items 4, 5 or 6 of Sch 3. ([34])

2. The Arbitrator based his finding on Item 7 of the table in Sch 3. The descriptor for Item 7 had the following elements:

(a) the worker employed by 2 or more employers;

(b) the injury resulting in incapacity for work for one or more of the employers, and

(c) the injury not resulting in incapacity for work for all of the employers. ([35])

3. Deputy President Snell looked at whether the Arbitrator’s finding, that Item 7 of Sch 3 applied, could stand with the balance of the Arbitrator’s findings. The Deputy President held that on the Arbitrator’s findings, the first two of the elements were satisfied. On the face of it, the third element was not satisfied as there was a finding of partial incapacity to work for both the employer and Access, which was “all of the employers”. ([35]–[36])

4. The Deputy President observed that there is nothing in the descriptor in Col 2, applying to Item 7, which suggests that satisfaction of any of the elements is based on either total or partial incapacity, to the exclusion of the other. The phrase is “incapacity to work”, which can involve either total or partial incapacity (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] and ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 254 CLR 1 at [29] applied). ([42], [44])

5. Deputy President Snell held that the clear meaning of the text, in Col 2 of Item 7, is that application of the Item requires, as an element, that the injury did not result in incapacity to work for all of the employers. The effect of the Arbitrator’s finding was that the third of the elements required, for Item 7 to have application in the circumstances, could not be established. It followed that Ground No 1 was made out and it was necessary that the Arbitrator’s decision regarding quantification of the weekly entitlement be revoked. ([45]–[46])

Grounds Nos 2 and 3

6. The employer, in grounds 2 and 3, argued that Item 5 or Item 8 of Sch 3 should be applied in the circumstances. These effectively were arguments going to the appropriate orders to be made, if the matter was re-determined on appeal. This issue is discussed below after consideration of the worker’s appeal. ([47])

THE WORKER’S APPEAL

Application to extend time in No A2-6636/16

7. The worker required leave to extend time in the Appeal lodged on 19 May 2017, leave to rely on an Amended Appeal lodged on 30 May 2017, and leave to rely on fresh evidence attached to the Amended Appeal. ([54])

8. The worker’s appeal was registered a little more than three weeks out of time. The sole basis put forward by the worker, to explain the delay, was that it was arguable that his appeal would not pass the threshold in s 352(3) of the 1998 Act. Deputy President Snell held that the variation to the weekly entitlement, sought in the worker’s appeal, substantially exceeded the threshold sum of $5,000 referred to in s 352(3)(a). The worker’s submissions did not contain any calculations going to the threshold in s 352(3)(b). ([59])

9. Section 352(3)(b) requires that the amount of compensation at issue on the appeal be at least 20 per cent of the amount awarded in the decision appealed against. The amount of compensation at issue in the worker’s appeal, based on the weekly award as entered by the Arbitrator, was about 30 per cent of the weekly compensation awarded. If one had regard to the award for medical expenses and the sum specifically claimed for surgery in the Application, this percentage reduced to about 25 per cent. Deputy President Snell noted that there were no specific submissions made by the worker, which identified how the threshold in s 352(3) represented an impediment to commencing the appeal in time. He concluded that the extent of the delay, and the reasons for the delay were not adequately explained. The Deputy President further found that the worker’s submissions did not deal with whether ‘exceptional circumstances’ were present. He held that doubt in the minds of those advising the worker, about whether the thresholds in s 352(3) were met, did not constitute ‘exceptional circumstances’ (Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 at [66] applied) (Bryce v Department of Corrective Services [2009] NSWCA 188 referred to). ([60], [62])

10. Deputy President Snell stated that it was necessary to have regard to the prospects of success of the worker’s proposed appeal. The Deputy President noted that leave was required under s 352(6) to admit fresh evidence in the form of 3 payslips, which went to the worker’s actual earnings in the education industry. He found that the worker could not establish a basis to admit the fresh evidence applying the first limb in the test in CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 (Strickland) at [27] and [31]. There was no indication that reasonable steps had been undertaken to obtain the payslips prior to the hearing before the Arbitrator, such as by contacting the company, by letter or in person, and seeking copies. There was no indication that this was done or with what result. ([65], [67]–[70])

11. The Deputy President further held that the worker would not satisfy the second limb in the test in Strickland. Section 35 provides for the computation of ‘E’, in the equations under ss 36 and 37 of the 1987 Act. ‘E’ was calculated by the Arbitrator on the basis of “the amount the worker is able to earn in suitable employment”, rather than “the worker’s current weekly earnings”. The fresh evidence in the payslips, if admitted, would not change the figure attached to ‘E’ in the circumstances. The attachment of a monetary value to the worker’s earning capacity was consistent with the Arbitrator’s status as a member of a specialist tribunal, taken to have knowledge of the labour market and wages (J & H Timbers Pty Ltd v Nelson [1972] HCA 12; 126 CLR 625; Cowra Shire Council v Quinn [1996] NSWSC 143; (1996) 13 NSWCCR 175; Australia Pty Ltd v Cassells (1995) 25 NSWCCR 385; Iron & Steel Pty Limited v Elliott (1966) 67 SR (NSW) 87; Goktas v Goodyear Australia Pty Limited [2007] NSWWCCPD 1 at [32]; Forests NSW v Hancock No.2 [2007] NSWWCCPD 191 at [76], and Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 at [75] applied). ([78]–[80])

12. It followed that the worker’s application to rely on fresh evidence, in the Amended Appeal, could not succeed. The fresh evidence would satisfy neither of the limbs in Strickland. It additionally followed that the worker would not be granted leave to rely on the Amended Appeal, as this would be futile. The worker’s prospects of success in his appeal were evaluated by the Deputy President without reference to the fresh evidence. ([82])

13. Deputy President Snell held that the worker’s appeal did not have reasonable prospects of success. The Deputy President stated that the Commission is a specialist tribunal, with knowledge which equips it to make assessments on the worker’s ability to earn. He held that the Arbitrator’s reasons for his findings on the worker’s ability to earn were adequate (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 applied). ([90])

14. Deputy President Snell concluded that delay was not adequately explained, ‘exceptional circumstances’ were not established, and the appeal lacked reasonable prospects of success. The factors did not favour the extension of time for the bringing of the worker’s appeal. The appropriate order was that the application to extend time be refused. ([91])

RE-DETERMINATION

15. It was appropriate that the issue of weekly entitlement be re-determined on appeal. Deputy President Snell held that Items 1, 3, 4, 6, and 9 of Sch 3 did not apply. The worker satisfied the first two requirements in Items 2 and 5. On balance, the Deputy President concluded that the appropriate factual finding (and it was consistent with the employer’s submission) was that Item 5 of Sch 3 applied, and the relevant PIAWE figure was $939.46. Applying the equation in s 37(3) of the 1987 Act, this yielded a weekly entitlement of $151.57 (80 per cent of the PIAWE less the found ability to earn of $600). ([92]–[99])

A FURTHER MATTER

16. Deputy President Snell observed that identification of the ‘Class of worker at time of injury’, for the purposes of Items 2, 3, 4, 5 and 6, involves reference to the worker’s hours of employment, having regard to whether s/he worked for at least the prescribed number of hours (38 per week) and/or at least the applicable hours fixed in any applicable fair work instrument, in one or more of the employments. Whether there is any applicable fair work instrument, and the hours worked pursuant to that instrument or otherwise, are fundamental to identifying an appropriate Item in Sch 3. The Deputy President stressed that it is important that parties specifically address the issues raised by Sch 3 of the 1987 Act, in the evidence lodged in matters where there are “2 or more employers”.

(a) her analysis of the medical and factual evidence in making a finding of fact, in the course of a determination pursuant to s 59A of the 1987 Act, that the worker would not be relevantly entitled to weekly payments of compensation as a consequence of a compensable incapacity for her pre-injury employment, and

(b) failing to give “proper reasons” for her findings.

Held: The Arbitrator’s determination was confirmed. 

Consideration

1. Consistent with Flying Solo Properties Pty Ltd t/as Artee Signs v Collet [2015] NSWWCCPD 14 (Collet), the Arbitrator found that whether the worker may have an “incapacity” when attending the clinic for treatment is not determinative of whether or when weekly compensation is “payable”. ([60])

2. The Arbitrator also found correctly, and consistent with Collet, that should the worker proceed to have the proposed treatment at her own expense and require time off work for the treatment, if medical certificates were submitted at that time in support of a claim for weekly compensation, compensation would once again become payable to her and the insurer would be obliged to meet the cost of the treatment as it has been found to be reasonably necessary. ([61])

3. The appellant submitted that the Arbitrator made several factual errors. Those submissions were against the weight of the evidence and were rejected. ([62]-[65])

4. The appellant’s submission that the Arbitrator erred by applying s 37 of the 1987 Act, when s 36 of the 1987 Act was the relevant provision, was rejected. The Arbitrator concluded that, because of an absence of evidence, no entitlement to compensation under s 36 had been established. The submission failed to provide any reasoned argument to support the alleged error. It followed that the appellant’s submission that the application of the formula in s 36 would entitle her to an award of compensation could not be entertained. ([66]-[67])

Adequacy of reasons 

5. The appellant submitted that the Arbitrator failed to give proper reasons for her findings. No submissions were made in support of this ground. ([68])

6. The President considered the nature of an Arbitrator’s duty to give reasons and the standard by which the adequacy of reasons must be determined (s 294(2) of the 1998 Act, r 15.6 of the 2011 Rules; NSW Police Force v Newby [2009] NSWWCCPD 75; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied). ([69]-[72])

7. The President was satisfied that the Arbitrator discharged the statutory obligation to provide reasons. The path of reasoning which led the Arbitrator to her ultimate conclusion was clearly stated. Namely, the absence of evidence concerning the number of hours the worker worked per week or any evidence concerning her regular hours of work. This coupled with an absence of evidence concerning the operating hours of the audiology clinic where she would undergo the proposed treatment, and the absence of any medical certificates of incapacity, led the Arbitrator to conclude that the worker had failed to discharge the onus of proving incapacity and an entitlement to weekly compensation whilst undergoing treatment. It followed that in those circumstances s 59A(3) did not operate to revive the worker’s entitlement to the compensation claimed. ([73])

(a) finding that the worker had not suffered a work injury in the course of or arising out of his employment with the respondent, and

(b) making an adverse finding as to the creditworthiness of the worker.

Held: The Arbitrator’s determination was confirmed. 

Consideration

1. The President observed that the appellant sought to challenge the Arbitrator’s factual finding, which could only be overturned where error is established. (Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 considered). ([57]-[58])

2. The President also observed the following principles in Fox v Percy [2003] HCA 22; 214 CLR 118. Error will be found where there were “incontrovertible facts”, or other “uncontested testimony” demonstrating the error (at [28]). The finding may be “glaringly improbable” or “contrary to compelling inferences” in the case (at [29]). The mere appearance of witnesses - that is, their demeanour - as a determinant of truth is now cautioned against as a means of making findings of fact (at [30]). Trial judges are urged to pay more attention to the “apparent logic of events”, the existence of “contemporary materials”, and other “objectively established facts” as a means of reasoning to a conclusion (at [31]). ([59])

3. Applying the above principles to the facts, the President did not accept the worker’s submission that the text message exchange on 22 February 2016 was only explicable in the context of an earlier report of injury having being made. The incontrovertible facts that weighed against that submission was that the text message concerned a request by the worker for information concerning his rate of pay. It did not make any reference to any alleged injury. ([60]-[61])

4. Contrary to the appellant’s submission, the President found that the entry “no mention of any injuries” in the chronology of events submitted by the worker’s employer was merely commentary of the author. It did not support the proposition that it must be inferred that the text message exchange on 22 February 2016 was consistent with an earlier report of injury. The note simply drew attention to the absence of a report of any injuries in the relevant text message exchanges. ([62])

5. The President found that the first recorded history of the injury, namely to the chiropractor on 24 February 2016 of lifting some heavy objects at work, was inconsistent with the mechanism of injury sought to be relied upon, namely moving a large steel cabinet. ([64]-[65])

6. The President rejected the submission that there had to be “real doubts” about the reliability of the recollection of the worker’s employer. The preciseness of the hours worked, the timing of text messages down to the exact minute and the record of the time at which texts messages were received, demonstrated that, in all probability, it was prepared with access to the history of the text message exchanges and perhaps other materials occurring between February 2016 and March 2016. ([66])

7. The Arbitrator assessed the reliability of the worker against “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy). Not only was there an issue with respect to the date of the occurrence of the alleged injury but when the matter was first reported the most contemporaneous medical records provide a description of injury which was not consistent with the worker’s allegations. There was no evidence to support the submission that the reporting of the date of injury could be explained by the worker being a “rather disorganised individual”, accordingly it was rejected. ([67]-[68])

8. The President rejected the submission that the text message exchanges and the chiropractor’s certificate should have led to the Arbitrator to conclude that the worker discharge the onus of proof. The text message exchanges made no reference to the alleged injury and were not consistent with an injury having occurred as alleged. ([69])

9. The President observed that the absence of medical treatment on 20 February 2016, immediately after the alleged incident, and the worker’s attendance at a social function appeared inconsistent with his description of intense pain, allegedly limiting his ability to walk. ([71])

10. The Arbitrator did not accept the worker’s evidence regarding the date and circumstances of the alleged injury. The Arbitrator’s findings were consistent with the contemporaneous evidence including the history initially provided by the worker to his chiropractor whom he saw within days of the alleged injury. It was also consistent with the information provided in the worker’s claim form and histories to treating doctors, which indicated that if an injury did occur, it did not occur on the day the worker alleged. No error of the kind discussed in Fox v Percy or Whiteley Muir was demonstrated. For these reasons the appeal was unsuccessful. ([72]-[74])