1. The actual earnings in employment for the relevant period.

3. The actual entitlements to weekly payments (this is a case where Section 35(1)(b) will operate).

4. An accurate statement of weekly income maintenance payments actually made.

5. The difference between the worker's actual entitlement to weekly payments and the actual amount paid to the worker in the relevant period.

6. The amounts if any that were paid to the worker as the result of an increase in the worker's notional weekly earnings figure (which occurred as the result of a Review Panel decision in October 1995).

7. The quantum of any additional payments made upon the recalculation of the worker's entitlement.

At least three sets of documents were prepared by the Corporation. The first was used in the pre-judicial determination proceedings.

The second was tendered on the first day of the hearing before me on Wednesday 3 September 1997. Three quarters of the way through that hearing counsel for WorkCover conceded that that document was not accurate and could not be accurate.

The third document was a Position Statement which became Exhibit R1 on 2 October 1997 which was said to be the considered view of the Corporation as representing an accurate transcription of accurate computer records. There may have been an additional two sets of figures prepared before (1) above - which were represented to be accurate - which representation was withdrawn from all documents other than (3) i.e. R.1 above - making no less than 5 sets of documents in all - each of which in its turn was asserted to be accurate and from each of which (except the last) the Corporation withdrew its imprimatur.

The arithmetical differences in these documents led to the unfortunate result that the worker has adopted the view that the compensating authority does not know what it is doing, or does not know what it has done, or has embarked upon a systematic process of creative accounting, at worst used to justify pursuing him in criminal proceedings for fraud, or at best to obfuscate the issue so that no decision could be made. The matter was exacerbated by the Corporation or Compensating Authority being in breach of an order made by me 3 September 1997 to supply an accurate set of documents to the worker by 5.00 p.m. 24 September 1997. The final set was not supplied on time.

I mention these matters to set out the background against which the Judicial Determination took place. It is not part of my function to make a finding or even pass an opinion upon the propriety of the actions of either party during this long running saga. I do say however that the discrepancies in the three sets of documents that I have seen (and perhaps in the two that preceded those three) make it very difficult for me to understand what payments have been made to the worker and do little to inspire any confidence in their accuracy. I cannot but sympathise with or at least understand the worker's sense of irritation with the Corporation.

The document supplied on 2 October was called a `Position Statement' It is proffered as an extract from the business records of the compensating authority. As such it is admissible pursuant to Sections 45a and 45c of the Evidence Act. No objection was taken by the worker to tendering the document. Indeed this matter could only proceed on the basis that the document is accepted as accurately reproducing the original records of the compensating authority.

The weight that ought to be accorded to the document, bearing in mind that it is significantly different from two previous documents used in the Tribunal, is a matter for conjecture. It is one I will address at a later stage. The document is constructed as follows:-

The Statement consists of 4 sets of tables Annexures A, B, C and D setting out payments. Annexure E contains details of one particular cheque.

Annexure A: is the basic document. It contains details of the worker's entitlements and payments 7/1/93 to 25/10/95.

It has seven columns dealing with each pay period. The significance is explained in a memorandum at the front thereof.

The worker was invited to address each individually amount in each of seven columns for the period 7 January 1993 to 25 October 1995. This required the worker and the Tribunal to examine over one thousand entries.

There are however a number of problems apparent in the documentation. That is illustrated thus:-

1. The `wages earned' figure is asserted as follows:-

(a) Pre Judicial Determination document: $23,002.00

(a) Pre Judicial Determination document $150,833,79

(a) Pre Judicial Determination document $104,440.65

5. Total shortfall (before payment was made to make up the underpayment):-

The discrepancy in the totals all of which are said to be faithful transcriptions of the Corporation's computer files and each in its turn asserted to be correct, casts a pall of uncertainty over this whole exercise.

Having examined every pay period from 7 January 1993 to 23 October 1995 the worker's case can be divided into three groups.

1. In some weeks the worker returned the weekly maintenance cheque to the Corporation unbanked. `Nil compensation' was credited as paid to the worker for that week. That correctly states the factual position:

This situation occasionally arose because at some payment dates the worker earned more in the previous 2 or 3 weeks in employment than the compensation to which he was entitled. The refund to the Corporation was a reverse application of Section 35(1)(b)(ii). This occurred on 24 occasions.

The unchallenged evidence of the worker which I accept, was that when this occurred the cheques sent to him for weekly payments, were returned to the Corporation on the instructions of an officer of the Corporation.

9 March, 23 March, 30 March, 14 December, 21 December and 28 December.

4 January, 15 February, 22 February, 22 March, 29 March, 19 April, 26 April, 3 May, 17 May, 14 June, 21 June, 17 July, 23 August, 27 September.

There were 24 separate cheques. The cheques were for varying amounts.

The worker submitted - and I trust that I have accurately understood the submission - that on each of these 24 occasions the physical amount of the cheque was a figure that was calculated on the Section 35(1)(b)(ii) entitlement rate i.e. 80% of the difference between the notional weekly earnings and the actual earnings. However the worker was at pains to point out that the true value of the cheque was really 100% of notional weekly earnings. Hence in a calculation of the amount `underpaid by the Corporation' for that week, there should appear a figure equal to 20% of the notional weekly earnings. In other words the `true value' of the cheque was always 20% greater than the amount of the cheque.

I reject this argument. On the 24 occasions when cheques were returned, the Position Statement accurately shows both that no payment was made, and the amount that was due to the worker pursuant to Section 35 was 80% of the notional weekly earnings less actual earnings. This exercise for example has been correctly carried out for 17 February 1993. I use that date as an example.

(Note: Col. 6 `Arrears' is part of a running total.)

I do not think there is any substance in the complaint that the `true value' of the cheque either to WorkCover or to the worker was more than the face value of the cheque.

The second group of complaints are 6 in number. They are:-

1. On 2 June 1993 there is an entry for `back pay and interest' $215.62. This has been credited by WorkCover as a payment made by itself. However from the $215.62, a total of $125.70 was not legitimately so credited (interest flows from Section 47 not from Section 35) and $118.02 was back pay attributable to the pre-7 January 1993 period. The figure of $215.62 should be reduced by $125.70. I understand from Counsel that the Corporation does not dissent from this.

2. On 10 March 1993 to 17 March 1993 a total of $708.00 is nominated as earnings. The worker tells me and I accept as a fact that during that period he commenced work as a security guard - I think at WorkCover's behest. He should have been provided with a uniform but he was not provided with it. He had to purchase his own uniform because of the shortness of time available to take up the job. He was told by an officer of WorkCover and I accept his word, that he would be credited with nil earnings as he used his wages to buy the uniform. In spite of repeated requests the figure was never adjusted even though the uniform cost nearly $750.00. There is no evidence to controvert the worker's assertions. I accept them. The amount credited to his total wages should be reduced by $708.00 - and the amount owing by the Corporation should be increased by $708.00.

3. 8/12/93 interest of 0.93 has been wrongly credited as a payment of Section 35 weekly payments by the Corporation. That is an error of law. 0.93 should be deducted from amounts paid by the Corporation.

4. In the weeks 17 August 1994, 21 August 1994 and 31 August 1994 on the Corporation's own figures the amount subsequently `made up', was short $36.40 per week each week making a total shortfall of $115.20. I reject the submission made by the worker that it follows that the worker was wrongly deprived of this amount. The total of the make up payments will reflect any individual short payments.

5. 14/9/94: The worker says that he did not receive a payment as alleged of $638.13. Annexure D to the Position Paper sets out all of the weekly payments made by the Corporation from 13 September 1990 to 16 July 1997. At p.14 no payment appears for 15 September 1994. No explanation was forthcoming from the Corporation. I accept the worker's evidence that no payment was received. The Corporation's credit should be reduced by $638.13.

6. On 26 July 1995 there is an entry of `$2,585.68 back pay for the period of 20 July 1995 to 16 August 1995'. The worker submits although he received that money, the four payments of $646.42 were not received as alleged in column 4 in the statement for the weeks ending 26 July 1995, 2 August 1995, 9 August 1995 and 16 August 1995. I am told by counsel for the Corporation that the reason for any inaccuracy was that at this period the responsibility for weekly payments was `out sourced'. The Corporation conceded that the payments to the worker have been double counted.

If Annexure D (individual weekly payments) is examined at p.19 the following appears:-

1. The last weekly payment to the worker was in respect of the pay period ending 12 July 1995 in the sum of $646.42.'

2. Between 12 July 1995 and 23 August 1995 the only payments made were $2,585.66 on 24 July 1995 and on 28 July 1995 making a total of $2,585.166.

as alleged in Annexure A were made: Had they been made they would have appeared in Annexure D.

The appearance of these amounts in Annexure A as `compensation paid' is an error.

The net result is that over the period 19 July 1995 to 23 August 1995 inclusive, the worker was entitled to receive $4,679.80 in weekly payments. He in fact received $2,780.10 - an underpayment of $1,899.54. The total received by the worker must be adjusted down by this amount.

This calculation is arrived at by fixing the amounts which the worker should have received pursuant to Section 35(1)(b)(ii) and deducting therefrom the amounts that the worker did receive. At the same time the amounts that are alleged to have been paid on the four dates mentioned from 26 July to 23 August 1995 should be struck out from the total of payments made to the worker.

The amounts wrongly brought to the credit of the Corporation in this group of complaints are:-

3. The third group of complaints relates to the treatment by the Corporation of various overpayments.

(a) In case where there has been overpayment i.e. the Section 35 rate was in fact less than the amount of the cheque it appears that the amount of the reconciliation in Annexure A in the `amount due weekly column' appears as a minus figure. This is translated in all cases but one into the `make up cheque column' which is verified by the figures from Annexure C as being deducted from the running total owing.

In the cases where the deduction has not been made e.g. 8.3.95 $178.79 and 5.4.95 $638.13 these figures are carried through into the `total amount owing' and operates as an overpayment.

(b) The worker was really seeking an explanation of the document more than anything else - an explanation to which he is entitled. The one mistake is the entry for 1 February 1995 when $635.89 was overpaid but $638.00 was debited to the amount owing and this is an over debit of $2.24.

4. The worker complains or points to a fundamental inconsistency in the Corporation's document by going to Annexure B (which contains the calculations of entitlements and payments from 5 September 1990 to 30 December 1992). The Corporation asserts that in this period $40,662.05 was actually paid (before adjustments) by way of income maintenance. To that should be added $29,330.91 as an adjustment, and $36,211.00 in back pay. This asserts that $106,204.26 has been paid in that period. Yet, in the very same document the Corporation asserts that the worker's entitlement was $112,298.02 a shortfall of $6,094.02. This is on the face of the same documentation.

I was informed by Mr. Cole for the Corporation that the sole purpose of Schedule B was to demonstrate that in the adjustment of back pay $62,492.96 (see p.7 of Schedule C), of that, $29,330.91 was attributable to the period prior to 30 December 1992. That was the sole purpose of producing Annexure B. The worker replied to that proposition with, what I thought was telling force that the Corporation cannot have it both ways. If the document is said to be accurate with regard to one figure, it must be taken to be accurate in regard to all of the figures. After all, the figures come from the Corporation's own computer records. That is to say the documents cannot be selectively accurate.

I refused to enlarge the dispute pursuant to Section 88D(A) to deal with this last matter - there being no consent from the Respondent.

At the end of the day I must say that I am left in a state of confusion about the figures supplied by the Corporation because:-

1. There are significant differences in the critical totals.

2. The amount paid by WorkCover has been overstated by $3,372.46.

3. There is the curious discrepancy in Schedule B.

4. Schedule A is clearly wrong to the extent of $3,372.46.

I am unable to say with any confidence what the true position of the parties for the period January 1993 to October 1995.

I am not persuaded by the worker's own submission that a group of payments on the `value' of the returned of cheques is made out. - This constitutes the bulk of his claim.

On the other hand I reject the Corporation's proposition that there has been an overpayment of $7,649.27. Even on the calculations I have done with the aid of submissions, on the most favourable view of the Corporation case the overpayment should not be more that $4,276.81: I am not persuaded that this figure is accurate. I am not persuaded that there has been any overpayment - but because I reject the worker's main contention on the `true value' of the returned cheques - which is really the basis of his claim of underpayment I reject his claim. That is to say that the worker would have to succeed on the `true value of the cheque' argument to have any hope of demonstrating that he has been underpaid.

It is disappointing to find errors of thousands of dollars in what is the Corporation's third and perhaps fifth attempt to produce correct figures.

Having stated my real concerns about the accuracy of the material before me the only finding open on the evidence is that on the balance of probabilities the Corporation is not indebted to the worker for income maintenance for the period under consideration - nor am I persuaded that the worker has been overpaid by the Corporation.

2. To the extent that the Corporation makes a claim for overpayment of Section 35 Compensation it is dismissed.

3. The Corporation is to pay the worker's cost and disbursements - included is the latter being accounts of the worker's investigating accountants W.W. Remeljej and Associates rendered in respect of professional accounting advice given to the worker regarding the Corporations documentation - including fees thrown away occasioned by the Corporations failure to supply documents within the time limited by this Tribunals orders.

Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.