Amidy v Rw Miller & Co Pty Ltd [1992] NSWCC 1; (1992) 8 NSWCCR 212 (1 April 1992)

[1992] NSWCC 1; (1992) 8 NSWCCR 212 (30322/91)

AMIDY v. RW MILLER & CO PTY LTD

Compensation Court of New South Wales: O'Meally J

COMPENSATION COURT RULES 1990, PART 9, RULE 6 - COMPENSATION COURT RULES 1990, PART 9, RULE 2

WORKERS COMPENSATION ACT 1987, SECTION 40

PARTIAL INCAPACITY - AMOUNT OF COMPENSATION

WAGES SCHEDULE

COURSE OF EVIDENCE AND ADDRESSES - DISCRETION OF COURT - AMENDMENTS AFTER CONSIDERABLE PROGRESSION OF TRIAL - ORIGINATING PROCESS

PRACTICE - COMPENSATION COURT (NSW) - DISCRETION OF COURT - WAGES SCHEDULE

A.J. KATZMANN appeared for the applicant.

B.A. ODLING appeared for the respondent.

O'MEALLY J: Phillip Graham Amidy seeks weekly compensation for incapacity resulting from injury sustained in the course of his employment by the respondent and lump sums under section 66 and section 67 of the Workers Compensation Act 1987.

The applicant was employed by the respondent as a plant-operator at its Mount Thorley mine. Plant-operating is work which imposes forces and stresses upon various parts of the body, but, so far as relevant to this case, forces and stresses were imposed as a matter of daily occurrence upon the applicant's left arm.

He was required to drive and operate dozers, graders, scrapers and front-end loaders. In each of these operations, forceful and sometimes repetitive use of his left arm was required.

It is not disputed that on the dates and in the circumstances specified in paragraph five of the application, he suffered injury to his left shoulder, nor is it disputed that those events resulted in an injury to the rotator cuff which may or may not have been torn. Be that as it may, I am satisfied that, as a result of injury to his left shoulder, the applicant is not fit to work as he did prior to sustaining the last of his injuries. He has been able to carry out the ordinary incidents of his employment as a plant operator, but overtime, he says, is beyond him. This is because he does work which involves constant and forceful use of his shoulder. The work produces increased pain and discomfort so that he does not feel the working of overtime appropriate.

By his application, the applicant claimed weekly compensation in the sum of $150 from 14 February 1988, except for certain periods of total incapacity. Those periods have been agreed upon. [HIS HONOUR RECITED THE PERIODS - ED] The applicant has been paid compensation for these periods of total incapacity.

The matter currently in dispute is the extent to which the applicant's injury financially disadvantages him. It has been accepted by the respondent that the applicant is unable to work some overtime, but it is not accepted that his incapacity restricts him in the way he claims. That is to say, it is in dispute that his weekly loss is as he asserts.

Part 9, rule 6 of the Compensation Court Rules 1990 provides as follows:

ÿ6.ÿIn any application where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period, the following provisions shall, unless the Court otherwise orders, have effect.

(1) The applicant shall file and serve on each other party not later than 21 days before the hearing date, a schedule containing full particulars of such earnings during such period.

(2) If any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service, file and serve a schedule containing its allegations of such earnings.

(3) A matter not so disputed shall be deemed to be admitted.

In compliance with that rule the applicant filed and served a schedule on 7 November 1991. It contained figures said to be the applicant's comparable wages and actual wages and indicated a loss in the periods covered by the schedule extending from 14 February 1988 until the day before its filing. The amounts varied, but they were as low as $65 weekly and as high as $242 weekly. The respondent failed to file a schedule in answer to that of the applicant either within seven days or at all so that, by the application of rule 6(3), the applicant's wages schedule has evidentiary effect.

The amounts in respect of the initial period and in respect of some of 1991 exceed the maximum amounts of compensation which the Statute entitles an injured worker to receive.

At the conclusion of the evidence and after I had commenced hearing submissions, an adjournment was sought and granted to enable the parties to discuss some aspects of the case. These related, so I was informed, to the payments of weekly compensation. Nothing transpired as a result of the discussions and when the matter was again called on, Mr Odling, who appears for the respondent, sought to tender, against the objection of counsel for the applicant, a wages schedule on behalf of the respondent. Its tender was rejected.

Thereupon the applicant sought to amend paragraph 11(a) of the application so as to claim amounts greater than those currently claimed, that is to say amounts up to the maximum amounts of weekly compensation recoverable under the Statute. This amendment was opposed by Mr Odling and I was informed that he was unable to meet the case which would be made if the amendment were allowed. Accordingly the application to amend was refused.

It is argued for the applicant that, notwithstanding the amount claimed in paragraph 11(a) of the application, I should give effect to the schedule and make an award in accordance with the differences which it discloses. In my view, this is not an appropriate course to follow.

It is correct to say that the Compensation Court is not a court of strict pleading. However, it is a court of record and the record includes the application for determination and the answer.

When the case was called on for hearing, it became apparent that the issues to be determined were not those recited in the answer. In response to my question, I was informed by counsel for the respondent that the issues were the extent to which the applicant was financially disadvantaged as a result of his injury and also, though it had not previously been mentioned, the amount to which he was entitled under section 66 of the Act.

A party is entitled to know the case it has to meet before the evidence begins; how much more is the same party entitled to know the case before the evidence concludes. It is unfortunate that the case was not, apparently, prepared in all its aspects before it was called on, but issues have been raised and set and it is they that I am required to determine. These issues are set by the application and the answer.

The presentation of the applicant's case is assisted by the schedule which, in the event has, by the application of Part 9, rule 6, been given evidentiary effect, but that, in my view, does not entitle the applicant to compensation at rates greater than those claimed. His claim is contained in the application and by the operation of Part 9, rule 2 is limited by the particulars it contains.

The matter may be conveniently summarised by setting out below a schedule showing the maximum amounts payable during the periods recited, the applicant's claim and the amounts disclosed in the schedule:

PERIOD MAXIMUM CLAIM SCHEDULE

From 14 February 1988

to 31 March 1988 $232.40 $150 $221

From 1 April 1988

to 30 June 1988 $235.50 $150 $221

From 1 July 1988

to 30 September 1988 $235.50 $150 $112

From 1 October 1988

to 31 March 1989 $240.60 $150 $112

From 1 April 1989

to 30 June 1989 $246.40 $150 $112

From 1 July 1989

to 30 September 1989 $246.40 $150 $65

From 1 October 1989

to 31 March 1990 $255.50 $150 $65

From 1 April 1990

to 30 June 1990 $261.00 $150 $65

From 1 July 1990

to 30 September 1990 $261.00 $150 $242

From 1 October 1990

to 31 March 1991

From 1 April 1991

to 30 September 1991 $276.00 $150 $242

From 1 October 1991

to 31 January 1992 $278.60 $150 $242

From 1 February 1992

to 31 March 1992 $334.30 $150 $242

From 1 April 1992

and continuing $344.30 $150 $242

In my view the applicant is entitled to an award at the rates of either $150 per week, $112 per week or $65 per week, whichever is the lowest of the differences disclosed in the schedule, but to the upper limit of $150, that being the weekly amount claimed in the application.

[His Honour considered the applicant's claim under section 66 - Ed]

The findings I make are these:

(1) On the dates and in the circumstances specified in paragraph five of the application for determination, the applicant suffered injury in the course of his employment by the respondent, namely injury to the rotator cuff of his left shoulder.

(2) As a result thereof the applicant was totally and partially incapacitated for work for various periods and paid compensation in respect of, or wages during, such incapacity until 12 February 1988 and has, since at least 13 February 1988, been partially incapacitated for work save for 11 May 1988 and for the periods 2 June 1988 to 17 August 1988, 22 August 1988 to 11 September 1988, 2 October 1988 to 18 March 1989, 19 August 1989 to 25 August 1989, 3 December 1989 to 11 December 1989, 16 July 1990 to 31 August 1990, 8 November 1990 to 16 November 1990 and 1 March 1991 to 6 March 1991 during which periods he was totally incapacitated for work and in respect of which he was paid compensation.

(3) The amounts which the applicant would probably have earned had he remained uninjured in the respondent's employ are as set forth in the first column of the schedule filed pursuant to Part 9, rule 6.

(4) The amounts which the applicant has actually earned since 14 February 1988 are the amounts set forth in the second column of the said schedule.

(5) At all material times there have been dependent upon the applicant for support his two children.

There will be an award for the applicant for $150 per week from 14 February 1988 to 30 June 1988, and for $112 per week from 1 July 1988 to 30 June 1989, and for $65 per week from 1 July 1989 to 30 June 1990, and for $150 per week from 1 July 1990 to date and continuing, save for the periods 2 June 1988 to 17 August 1988, 22 August 1988 to 11 September 1988, 2 October 1988 to 18 March 1989, 19 August 1989 to 25 August 1989, 3 December 1989 to 11 December 1989, 16 July 1990 to 31 August 1990, 8 November 1990 to 16 November 1990, and 1 March 1991 to 6 March 1991.

There will be an award for the applicant for $6,934 in respect of a 10 per cent loss of use of his left arm at or above the elbow.

On the sum ordered to be paid under section 66 the respondent will pay interest at the rate of 10 per cent per annum from 25 June 1990. The respondent will pay interest at the rate of eight per cent per annum on the arrears of weekly compensation.

The respondent will pay the applicant's medical and hospital expenses and costs in accordance with Part 29 of the Rules. Costs will include two qualifying fees and an advice on evidence for counsel. I also certify a special conference.

Solicitors for the applicant: Geoffrey Edwards & Co.

Solicitors for the respondent: Sparke Helmore & Withycombe