Moore-McQuillan v Workcover/Vero

3 There were also repeated attempts by the applicant to seek to resurrect certain issues that have been foreclosed by prior appeal processes or relevant statutory provisions and to ventilate other matters of contention between himself and the respondent not pertinent to the issues arising in this case. I do not propose, in these reasons, to recapitulate those matters, because they are irrelevant for present purposes. Most of them relate to contentions concerning the proper calculation of notional weekly earnings at various points in time.

4 The issues before me fall to be disposed of in accordance with the specific processes and procedures mandated by the Workers Rehabilitation and Compensation Act 1986 ("the Act"), it not being open to the applicant to seek to retraverse aspects other than in accordance with relevant statutory provisions.

5 The present proceedings were initiated by notices of dispute filed by the applicant on 26 March 1997. These raised a series of complaints as to the manner in which he had been dealt with by the claims agent for WorkCover Corporation, none of which are presently before me. On 10 April 1997 the then solicitors for the respondent sought declarations from Gilchrist DP to the effect that the relevant notice of dispute did not relate to any reviewable decision.

6 When the proceedings came before the learned Deputy President on 14 August 1997, he made an order ("the Gilchrist order"), the substance of which was expressed as follows:-

1. THAT pursuant to section 88DA of the Act the scope of proceedings be enlarged to include the determination of the following questions that are not presently at issue in these proceedings.

A. Whether the applicant has any and if so what outstanding entitlement to weekly payments of income maintenance for the period from 1 January 1993 to 31 October 1995. In determining this issue the applicant acknowledges the following:-

i. His average weekly earnings for the relevant period amount to a figure of the order of $160,000.00.

ii. The wages that he received for work performed by him during the relevant period is comprised of the amount stipulated in the column titled "gross" in the document prepared by the respondent which is annexed to this order.

iii. After deduction of the amounts received as referred to in subparagraph ii. hereof and after further reduction to reflect the fact that the applicant's entitlement has reduced to 80%, the applicant acknowledges that the overall amount of income maintenance that he was entitled to for the relevant period is a figure of the order of $110,000.00. He nevertheless asserts that he has not received this amount.

iv. Thus the main issue in dispute between the parties concerns the amount of payments of income maintenance that the worker has actually received for the relevant period.

B. Whether the respondent was entitled to invoke Section 36(1)(f) of the Act to discontinue the applicant's weekly payments of income maintenance in accordance with its letter to the applicant of 18 July 1997 as attached.

C. Whether the applicant is entitled to compensation in respect of the medical and travel expenses incurred by him as per the schedule which he is to provide.

D. Whether the applicant is entitled to compensation in respect of the compensable disabilities allegedly sustained by him on the various dates set out in the attached letter from the respondent to the applicant dated 18 July 1997 and titled "Schedule of rejected claims".

2. THAT the issue referred to in paragraph A hereof is to be listed for hearing to commence at 10 am on Wednesday, 3 SEPTEMBER 1997.

3. THAT the issues referred to in paragraphs B, C and D thereof are to be listed for hearing to commence at 9.30 am on Friday, 17 October 1997, with 20 October 1997 reserved."

7 It is to be observed the above order was expressed to have been made by consent. The schedule annexed to it, inter alia, contained a column of figures titled "GROSS". This set out details of what the applicant conceded had actually been earned by him during certain specific weeks, which details were not disputed by the respondent.

8 In the course of the hearing before me the applicant sought to deny his consent to the order in question on several occasions. However, that order was never impugned and remains a matter of record. It is not open to the applicant to now seek to deny his consent long after the event, or to be heard to deny his admission of what were his earnings on the dates referred to in the schedule. In any event, when, in the course of this trial, the applicant called for certain schedules of earnings data from the fraud investigation files of the respondent it was found that such data was very nearly identical to that shown in the annexure to the order.

9 Moreover, the point must be made that, if the applicant did not consent to the order, then the very provisions of it that found the jurisdiction of the Tribunal to hear and determine the present matter would have been invalid. (See s 88DA of the Act.)

10 I pause at this point to record that, as at the date of the Gilchrist order, there had been a considerable litigation prelude to what was then in contention.

11 The applicant had originally lodged a claim for compensation pursuant to the Act in relation to an assertion by him that, on 9 September 1990, in the course of his employment, he had slipped whilst descending some steps and injured his left knee. That claim was rejected by WorkCover on 28 March 1991 on the ground that any disabilities suffered by the applicant did not arise out of or in the course of his employment.

12 Following an application by the applicant for a review of the determination, the matter came before Review Officer Lovering who, having heard oral evidence, made a determination dated 27 August 1991 setting aside that made by WorkCover. She substituted for it a determination that the applicant had suffered a compensable disability on 9 September 1990 and had been partially incapacitated since that date. She left it to the parties to agree the appropriate quantum of income maintenance.

13 The parties were unable to agree that quantum, with the consequence that the matter came before Review Officer Pope in August and September 1995 to resolve the issue. In the meantime the respondent had made a unilateral determination dated 11 October 1991 fixing Average Weekly Earnings at an amount of $765.88 per week. That was followed by a determination dated 1 June 1993 of notional weekly earnings of $788.99 from 10 September 1992, a determination dated 9 December 1993 of notional weekly earnings of $797.66 from 10 September 1993 and a determination dated 1 May 1995 of notional weekly earnings of $808.03 as from 9 September 1994. Income maintenance payments were initially computed and made by reference to those figures.

14 The application dealt with by Review Officer Pope was actually for review of the determination of 11 October 1991. It was grossly out of time under the Act, but, for reasons expressed by her, she granted an extension of time.

15 The hearing before Review Officer Pope extended over some three days. On the evidence before her she determined the applicant's notional weekly earnings at $1024.19, as at date of injury. It is to be noted that no issue arose as to the potential application of any specific award rates to the applicant's employment. The employment involved mixed duties, in relation to which an aggregation of actual income streams was arrived at and then averaged over the relevant period, as set out in the reasons published by the Review Officer.

16 After a further very substantial delay, the applicant lodged separate appeals against the determinations of the Review Officers above referred to and sought extensions of time to prosecute them. When they came before Parsons DPJ in May 1997 ([1997] SAWCAT 41) the applicant withdrew the appeal against the Lovering determination. He was granted leave to appeal against the Pope determination.

17 At that time it was the assertion of the applicant that, although Review Officer Pope had, in her calculations, taken into account his remuneration in relation both to his activities as a diving instructor and also shop assistant duties, she had omitted to include a third notional component equivalent to rent and associated expenses, having regard to free accommodation made available to him as part of the arrangement with his employer. I shall refer to this as "the accommodation component".

18 The learned Deputy President noted that the accommodation component had never been raised as an issue at the hearing before Review Officer Pope. She also concluded that there had been nothing before the Review Officer that should have alerted the latter to such an issue. Parsons DPJ was of the opinion that, as this aspect was never part of the applicant's case at first instance, he was bound by his conduct of the proceedings at that time. She considered that it was not open to him to raise the matter on appeal for the first time, years after the event. She dismissed the appeal and confirmed the determination.

19 The applicant then lodged a fresh appeal against the determination of Review Officer Lovering on 6 May 1997, four days after the decision of Parsons DPJ to which I have referred. This sought to raise precisely the same issue as that with which she had just dealt. On 6 November 1998, she refused an extension of time within which to prosecute the new appeal ([1998] SAWCAT 32).

20 The appellant applied to a single judge of the Supreme Court for leave to appeal against that decision. On 27 November 1998 Millhouse J. refused leave. The applicant then made application to the Full Court of the Supreme Court for leave to appeal against the decision of Millhouse J. That application was made on 10 December 1998, but the applicant took no steps to prosecute it until late 2000. The Full Court ultimately refused leave.

21 I regress, in point of time, to the order of Gilchrist DP dated 14 August 1997. The issues identified in that order duly came on for hearing before Thompson DP later that year. On 19 January 1998 he published three separate reasons for decision ([1998] SAWCT 1, [1998] SAWCT 2, [1998] SAWCT 3). These respectively dealt with three distinct aspects of matters in contention, as referred to in the order of Gilchrist DP. That which is relevant to the issues now before me is the judgment JD 1/1998.

22 For reasons expressed in that decision the learned Deputy President concluded that, on the balance of probabilities, the respondent was not indebted to the applicant, as claimed. He thereupon dismissed the applicant's claim.

23 In the course of his reasons, he recorded that up to five sets of documents had been prepared by the respondent, each purporting to be an accurate statement of the applicant's entitlements and the payments made to him in respect of the closed period extending from 1 January 1993 to 31 October 1995. Regrettably, he said, obvious discrepancies in the documents did "little to inspire my confidence in their accuracy". He commented that, at the end of the day, the state of the material placed before him, and the obvious discrepancies between various versions "casts a pall of uncertainty over this whole exercise".

24 In the course of his reasons the learned Deputy President dealt with a number of specific issues and concluded that he was "unable to say with confidence what [was] the true position of the parties" for the relevant period. His ultimate decision reflected that uncertainty.

25 The applicant appealed against that decision to the Full Bench of the Tribunal, which published its decision on 5 August 1998 ([1998] SAWCT 50).

26 Having agreed with Thompson DP that what was essentially involved was a matter of basic accounting and that the degree of inaccuracy in successive sets of documentation produced by the respondent was beyond comprehension and constituted a sorry tale of events, the Full Bench held that the learned Deputy President ought not to have adopted the approach illustrated by his reasons. He should have so exercised his powers as to ensure that the respondent produced accurate statements based upon a proper examination of its records. The Full Bench concluded that the trial had miscarried. It allowed the appeal, set aside the order of dismissal, and remitted the matter for rehearing.

27 The record reveals that the proceedings were relisted before the Full Bench on 10 September 1998, at which time it directed that "Independent auditors conduct a search of WorkCover records concerning the financial records of the appellant". This order is, with respect, not entirely definitive as to its ultimate intention. However, for the purposes of these proceedings, WorkCover retained the witness Coulter to audit its records.

28 Following the above forays to the Full Bench, various other proceedings were conducted on this file between October 1998 and September 2001, but they are not germane to the issues presently before me. I will not rehearse the detail of them.

29 Seemingly, no steps were taken to activate the rehearing ordered by the Full Tribunal until some time in 2001. The matter then came before Cawthorne DPJ on various directions hearings.

30 On 16 July 2001 he recorded that proper discovery had not been made by either party, as previously ordered. He directed compliance by 17 August 2001.

31 When the matter again came before Cawthorne DPJ on 5 September 2001 outstanding issues as to discovery had still not been resolved. He therefore ordered that CAO Willson examine various parties on oath and report as to his investigations concerning what discoverable documents existed.

32 CAO Willson reported in writing on 9 October 2001. It is fair to say that, whilst the report identified various documents, the process of discovery still remained incomplete. In summary, the CAO reported "In my opinion both parties have failed to discharge their respective duties to make proper discovery in this matter. Both parties remain in default."

33 On 16 October 2001 Cawthorne DPJ directed both parties to make further and better discovery by 14 November 2001. It appears that this elicited discovery of some further material.

34 The rehearing proceeded on various dates in February, April and May 2001. On 23 March 2002 Cawthorne DPJ published reasons for decision (Moore-McQuillan v WorkCover Corporation/Royal and SunAlliance Workers Compensation (SA) Ltd (Wolf Air and Dive Shop) [2002] SAWCT 29) In effect he concluded that the applicant's claim was essentially one for enforcement of orders or determinations of the Tribunal, the former Review Panel or WorkCover and that the Tribunal did not possess jurisdiction to enforce its orders in respect of the payment of money (Arnott's Biscuits Ltd v Anderson [2001] SAWCT 49). He therefore dismissed the claim without expressing any final conclusions as to the matters in contention between the parties.

35 The applicant thereupon filed an appeal to the Full Bench of the Tribunal against the order of dismissal. The Full Bench stated a case to the Full Court of the Supreme Court as to the jurisdictional question involved. On 6 March 2003 the Full Court held that the proceedings were not properly characterised as a claim to enforce an order for the payment of money; and that the dispute between the parties was properly justiciable by the Tribunal (Moore-McQuillan v WorkCover Corporation [2003] SASC 73).

36 The matter again came before the Full Bench of the Tribunal. On 17 June 2003 the Full Bench allowed the appeal for the purpose of setting aside the order of dismissal made by Cawthorne DPJ ([2003] SAWCT 64). It directed that the dispute the subject of the appeal be referred to a single member of the Tribunal to conduct a hearing of that dispute and to determine what, if any, payments of compensation by way of income maintenance that are due and payable are outstanding to the worker. The proceedings constituting the dispute were assigned to me by the President.

37 When the matter came before me for directions, it rapidly became apparent that the applicant, inter alia, sought to question the original determinations of Review Officers Lovering and Pope. Specifically, he signalled an intention to contend that the calculations should have been based on the rates prescribed under the Retail Industry Award and the relevant award for a Scuba Diving Instructor, in conformity with the provisions of s 4(7) of the Act. He also wished to argue that they ought to have taken into account a benefit of $120 per week in respect of accommodation made available to him as what was said to have been a term of his employment ("the accommodation component").

38 I intimated to him that it was not within my power to reopen the determinations in question within the ambit of these proceedings; and that, whilst the determinations stood, I would be bound to adopt and apply them and all subsequent determinations based on them that had not otherwise been challenged in accordance with the Act.

39 That intimation precipitated lodgement of fresh appeals against the original determinations of the two Review Officers, for the purpose of attempting to reopen them in relation to the above issues. These came before McCusker DPJ on 22 July 2003. For detailed reasons expressed by him (Moore-McQuillan v WorkCover Corporation (Wolf Air and Dive Shop) [2003] SAWCT 1), he refused an extension of time for prosecuting the appeals and dismissed them. In essence, he did so on the bases that:-

1. The applicant had not pointed to any cogent material to demonstrate that the average weekly earnings determined by Review Officer Pope in 1995 were less than the weekly wage to which the worker was then entitled under a relevant award or industrial agreement (s 4(7) of the Act); and

2. The accommodation component issue had previously been the subject of appeal proceedings and the appellant was not entitled to re-open and re-argue an already adjudicated issue.

40 The applicant applied to a single judge of the Supreme Court for leave to appeal against that decision. On 22 August 2003 Perry J dismissed the application.

41 That dismissal prompted an application by the applicant to the Full Court of the Supreme Court, in which he renewed his application for leave to appeal. In response to that application the Full Court, having briefly recited the relevant background, had this to say:-

"The decision by the Tribunal indicates that it was satisfied that the appeal had no reasonable prospect of success; that Mr Moore-McQuillan had had earlier opportunities to raise the complaints that he was now making, and that to allow these complaints to be raised so late in the piece [sic] would be manifestly unfair to the respondent.

This Court has power to grant leave to appeal only if the proposed appeal raises a question of law, and would not grant leave to appeal if the appeal appears to have no reasonable prospect of success. It is important to bear in mind that the decision under appeal is a decision to refuse to grant an extension of time.

We can find no indication of an error of law in the Tribunal's refusal to grant an extension of time. The Tribunal has clearly considered the appropriate issues and principles. We can find no indication of an error by the Tribunal in its approach to the question of whether the time within which to appeal should be extended.

That was the view of the judge of this Court who refused leave to appeal from the decision of the Tribunal.

Because we are of the opinion that an appeal against the decision of the Tribunal to refuse to extend time within which to appeal has no reasonable prospects of success, our view is that leave to appeal should be refused."

42 It is against the foregoing background that the proceedings came on for trial, commencing on 10 November 2003. That trial extended over many hearing days.

43 Having regard to the nature of the issue arising for decision and the background history outlined above, I directed that the respondent be dux litis. Whilst the applicant clearly bears the overall onus of proving that he has been underpaid, as alleged, the respondent was singularly in a position to produce evidence of what relevant determinations have been published, what payments have been made to the applicant and how those payments have been computed.

44 Accordingly, Mr Downs, of counsel for the respondent led evidence as to these matters and his witnesses were cross-examined by the applicant. For his part, the applicant called various witnesses who had had an involvement in the administration of his claim and he himself gave evidence.

45 As Thompson DP pointed out as long ago as 1998, on the face of it, one would have thought that the resolution of the dispute between the parties ought to be a simple mathematical exercise - involving, on the one hand, a fairly straightforward computation of income maintenance entitlements based on the relevant determinations and, on the other, a comparison of those entitlements with the payments actually made. Alas, such an assessment proved to be quite naive, for a variety of reasons.

46 First, the review of entitlements was bedevilled by a series of arguments as to their proper computation and persistent attempts by the applicant to continue to raise issues that had already been foreclosed by the appeal processes above recited. It was also complicated by a series of disputes as to matters of detail, illustrations of which were:-

1. Whether the values utilised by WorkCover concerning the quantum and impact of amounts earned by the applicant from time to time were correct;

2. How the figures ought to be marshalled, bearing in mind that some income maintenance cheques had been returned by the applicant or, in one case, drawn but not issued; and

3. A need to recast figures originally determined by WorkCover, to give effect to the Pope determination made long after the original commencement of income maintenance payments.

47 Second, for reasons not readily apparent, the respondent had produced a series of statements and schedules over time that purported to be accurate extracts from its records, but were inconsistent with one another in various respects and, on examination, found to contain patent errors or inaccuracies. (Some of these problems are adverted to by Thompson DP in JD 1/1998). Moreover, a series of issues arose as to how returned cheques should be taken into account; how reimbursement of the cost of the uniform required to be purchased by the appellant by Weslo Holdings (his subsequent employer) ought to be brought into the reckoning; whether calculations of so-called "back pay" following the Pope decision were accurate; whether interest entitlements had been computed in accordance with s 47 of the Act and duly paid; and whether the respondent had correctly adjusted all overpayments and underpayments.

48 The foregoing summation of issues is not intended to be fully definitive, but it is adequate to illustrate some of the matters that had to be addressed. The overt antipathy between the parties exacerbated the difficulties of resolution of a number of the matters involved.

49 In the presentation of its case the respondent called, as its principal witness, a Mr Robert Coulter. He was in the witness box for very lengthy periods of time and subjected to a long, aggressive and repetitious cross-examination by the applicant. It is desirable that I record my conclusions concerning this witness at the outset. For the sake of brevity I will simply refer to him as "Coulter".

50 This witness has had a lengthy involvement in the insurance and compensation related areas. He is an associate of the Insurance Institute and an accredited senior auditor in the Occupational Health and Safety environment. He was employed for some 20 years in the insurance industry and became involved in the workers compensation insurance area, as an employee of SGIC, in 1982. He was appointed by it as a claims supervisor and, when later employed by WorkCover, audited the claims agency operations. He was well versed in WorkCover operations aspects.

51 Coulter ceased employment with WorkCover in July 2000 and was thereafter employed as a manager-supervisor and claims agent by Allianz. Since then he has been self-employed as a consultant in relation to self insurance and claims aspects, as well as in the field of occupational health and safety issues. He has no formal accountancy qualifications.

52 On or about 4 July 2003 Coulter was engaged by WorkCover as a consultant auditor, to assist in resolving the issues that had arisen concerning the construction of a proper and accurate reconciliation of figures in relation to the present claim. He was supplied with what were said to be all relevant documentary records held by the then current claims agent handling the applicant's claims and was also given computer access to the relevant electronic WorkCover financial records. His assigned task was to produce detailed and accurate financial schedules showing entitlements and payments pertinent to these proceedings, based on the respondent's computer and documentary records.

53 Although Coulter was subjected to sustained and, at times, somewhat vitriolic attack by the applicant, I considered him to be a creditworthy, objective witness who went about his task in a competent and efficient manner, given a need, on several occasions, to adjust his initial figures to reflect certain issues that emerged as the trial proceeded.

54 True it is that, as the applicant declaimed on many occasions, Coulter is not a qualified accountant or a trained auditor, in the traditional corporate finance sense. Nevertheless he is highly experienced in workers compensation administration, is familiar with the WorkCover operations processes and was well qualified by experience to perform the task assigned to him.

55 Plainly, that task was not a simple one, given the apparent state of the respondent's records and the previous imperfect attempts by others to reconstruct the effect of historical records. However, for the most part, I consider his work to have been meticulous and accurate.

56 In the preparatory stages of these proceedings my associate and I independently embarked upon a detailed analysis of all of the considerable documentation earlier filed in these proceedings (including a variety of schedules and statements earlier generated by or on behalf of the respondent and later materials produced by Coulter).

57 It proved possible, by this means, to cross check and verify the consistency of a great deal of the relevant data and supporting documentation and also to identify what apparent inconsistencies or problems arose. The outcomes of that exercise were, during the course of the hearing, put to Coulter and both parties for comment and input. That process ultimately facilitated the resolution of a series of issues and clearly defined the avenues that needed to be explored from time to time in the resolution of the applicant's claim. I must publicly acknowledge the first-class work carried out by my associate Eva Dimopoulos in assisting me in that regard.

58 In the course of his work Coulter produced successive editions of a spreadsheet of the nature of that which comprises exhibit WC1. Certain of these were generated by him during the trial, to reflect issues that I raised, having regard to the course of the proceedings. The final version that incorporates all matters to which specific attention was drawn comprises exhibit WC 8A.

59 Because it displays a very detailed record analysis, that spreadsheet presents as a somewhat complex and daunting document that may not readily be assimilated by the uninitiated. However, having regard to my assessment of Coulter as a witness and my own cross checking of all the material on file, I consider the final, edited version of it (exhibit WC 8A) to be a useful and generally accurate source document. I say "generally accurate" not as implying any mathematical or source inaccuracies, but, rather, as indicating that the treatment of certain figures was, in the final analysis, either a question of law or interpretation of the effect of the evidence.

60 In his spreadsheet, Coulter, quite properly from his perspective, dissected out separate payments to the Australian Taxation Office, by way of PAYE deductions, from those made to the applicant personally. Given a need to pay careful regard to the effect of certain cheque cancellations and adjustments related to weeks in which, by virtue of separate earnings, the applicant was entitled to either no or only reduced entitlements, I have been able to produce a somewhat simplified form of summary of entitlements and payments - to which I will return in due course.

61 However, before I do so, it is necessary that I separately deal with a number of points related to the detail in the "Coulter" spreadsheet. It will suffice, for the moment, to say that the spreadsheet has been constructed on an historical basis showing entitlements actually determined from time to time and actual payments based on them and made at specific times, whereas my summary has been prepared on the basis of a reconstruction, indicating entitlements based on the Pope determination as against all payments actually made (set out on a consolidated basis), showing the effect on a week by week basis.

62 In examining the spreadsheet these matters attract particular comment -

63 As stated, the tax deduction elements are shown separately. In practice, those deductions were remitted to the Australian Taxation Office monthly by electronic funds transfer. That is why several have the same "Cheque No" reference, one that is different from the reference to the cheque number for the amount sent to the applicant. Because nothing turns on this dissection for present purposes I have, in my summary, lumped the tax element with its associated entitlement payment in each instance.

64 Each cheque is related to the period stipulated in the "Period Start" and "Period End" columns. Coulter has traced all payments through to the related "Cheque No" and then verified the date on which the cheque was drawn or electronic funds transfer generated and the date on which each cheque was either presented for payment or cancelled. The "Cheque Status" column indicates whether specific cheques were presented ("P") or cancelled ("C").

65 In the course of his cross-examination of Coulter the applicant made the point that Coulter's schedules simply accept the accuracy of the data supplied to him by WorkCover as to the payments made and that there could be errors in that data. Whilst that is a theoretical possibility it must be said that the figures have now been subjected to exhaustive scrutiny and checked against bank reconciliation records. There is nothing in them that suggests omission of relevant payment data. Certainly the applicant has not demonstrated any error or omission that is of significance for present purposes.

66 The figures shown in the seventh column headed "Amount" represent the actual amounts remitted by the respondent either to the applicant or to the Australian Taxation Office, as the case may be. For each of the relevant periods the total of both types of relevant payment is shown in the column "Initial Payment", to indicate actual payments made prior to the Pope determination.

67 There have been some discrepancies over time in figures said to relate to the applicant's earnings, on a week by week basis, during the closed period in question. For example, although some figures have been consistently shown for particular periods, in other instances this is not so. The spreadsheet contains three columns bearing upon such figures.

68 That titled "Earnings-ex DP Gilchrist Order" sets out figures that have been taken from the schedule annexed to the consent order of 14 August 1997.

69 That titled "Judge't Justice Perry" shows a series of figures referred to in documentation placed before Justice Perry on the hearing of an appeal to him against convictions of the appellant for obtaining payments or benefits by dishonest means.

70 The column headed "Weslo Holdings-Earnings" contains figures extracted by Coulter from what was said to have been an incomplete series of earnings records located by him in the respondent's file documentation supplied by the claims agent, the provenance of which is unknown.

71 Both Coulter and I have adopted the figures set out in the annexure to the consent order, as these were, at the time, plainly accepted by both parties as the basis on which the proceedings ought to go forward. Moreover, as I have earlier pointed out, they are, in any event, essentially in accord with the fraud investigation file data. (There is at least one difference.)

72 In this regard I should mention that, in the course of his cross examination of Coulter, the applicant appeared, at one point, to propound the concept that the total of his earnings over time should be deducted from the total of his notional weekly earnings, to obtain a bottom-line result in the Schedule of Payments produced by Coulter.

73 Such contention is, of course, patently untenable. For the purposes of entitlement calculations each week stands alone. Actual earnings for a specific week are only pertinent to that week, in the manner envisaged by s 35 of the Act.

74 The 11th to 14th columns collectively set out the entitlement calculations made by Coulter. The first of these columns shows the pre Pope notional weekly earnings rates actually determined by WorkCover, upon which the rates of payment shown in the seventh column and the totals in the column "Initial Payment" were based. The other three columns contain ante-dated calculations based on the Pope determination and the determinations projected forward from it. The mathematics applied by Coulter in that regard are plainly correct.

75 It will be noted that the spreadsheet contains a succession of columns headed "Back Pay 1" through to "Back Pay 8" respectively.

76 As I understand Coulter's evidence, these relate to eight separate amounts paid by WorkCover to the applicant to correct perceived deficiencies in payment, on a retrospective basis.

77 In essence, "Back Pay 8" reflects the adjustments necessary to give effect to the Pope determination, in so far as all previous payments had fallen short of those that ought to have been made, given such determination.

79 "Back Pay 1" relates to a period commencing on 4 February 1993 and ending on 3 March 1993. Several cheques were returned by the applicant for that period because of earnings received by him. It was subsequently determined by the case manager that the applicant nevertheless had a residual entitlement at the rate of $214.95 per week. This was paid to him on 2 April 1993.

80 "Back Pay 2" relates to a payment made on 2 June 1993 for a period said to have ended on 26 May 1993. It reflected an economic adjustment of the notional weekly earnings figure by the respondent by determination dated 1 June 1993, which applied as from 10 September 1992.

81 "Back Pay 3" concerns a payment made on 10 December 1993. It also relates to an economic adjustment, determined on 9 December 1993. It was operative retrospectively from 9 September 1993.

82 "Back Pay 4" constituted an adjustment, paid on 21 December 1994, for the period from 15 to 21 December 1994, that appears to arise from an earlier declared earnings situation (tr 305). This was a returned cheque situation and the adjustment was in respect of residual benefits payable after allowance for declared earnings during the period 11 to 14 November 1994.

83 "Back Pay 5", paid on 28 July 1995, also arose from a late annual economic adjustment determination issued on 1 May 1995, but operative from 10 September 1994.

84 "Back Pay 6", paid on 23 June 1995, arose from adjustments to the amount of benefit paid, after taking into account relevant declared earnings. It was a situation similar to that of Back Pay 4.

85 "Back Pay 7" is something of a misnomer. A cheque for $646.42, drawn on 21 September 1995, was cancelled and replaced by a cheque for $331.84, issued on 28 June 1995, for the purpose of adjusting an overpayment of $314.58 referred to in exhibit W10. That exhibit indicates that the overpayment was in respect of the period from "29/3/95 to 20/9/83", but there is no explanation of how the sum of $314.58 was arrived at. However, I infer from exhibit W10 that it followed some discussion between the applicant and the witness Mark Sorre concerning income earned. There is no indication that the applicant demurred at the reduction made at the time. The payment of $331.84 was, technically, a late payment rather than a back pay. It has been taken into account as an amount received by the applicant as against his total entitlements. (See also evidence of Coulter at tr 306 on this topic, which I accept.)

86 I here pause to comment that the applicant contended that, because the respondent was unable to produce any record to explain precisely how the above sum of $314.58 had been arrived at, then this placed in question the validity of the overall Coulter exercise. Whilst I agree that the precise basis of computation of the last mentioned figure does remain unexplained, the applicant's contention overlooks what is the key consideration for present purposes.

87 In approaching the present claim, it matters not whether the case manager's mathematics were correct at the time. There is no doubt that, rightly or wrongly, the respondent actually paid the applicant $331.84. To the extent that this may have been erroneous it is simply reflected in the final computation of amounts actually paid, by way of contrast with total entitlements for the whole period in question. Any error involved is automatically taken care of when total payments actually made over the closed period are compared with total entitlements for the same period.

88 Although early versions of the spreadsheet indicated the amounts of some income payments made, Coulter testified that his investigations revealed that interest due on some amounts had never been paid, while, over the whole closed period, the basis of interest calculation had not been consistent. In the course of his evidence I requested Coulter to produce revised editions of the spreadsheet showing all amounts of interest properly payable on the evidence, applying a consistent method of calculation, utilising software developed by WorkCover for the purpose. That software, I was told, was now generally employed by it in all cases.

89 I comment that this appears to be based on the adoption of a compound interest approach, the statutory warrant for which is, in my view, difficult to perceive. However, I was not invited, in these proceedings, to probe that issue, as calculations made on that basis, if incorrect, clearly favour the applicant.

90 Coulter acceded to my request. The final result ultimately found expression within exhibit WC 8 that was later adjusted to take account of an interest addition that had not earlier been made.

91 The interest calculations appear to be accurate, employing the WorkCover software.

92 In the simplified, consolidated schedule produced by the Tribunal, as attached to these reasons, it will be seen that I have, first, independently calculated entitlements for the whole closed period derived from the Pope determination and annual economic adjustments to the base figures struck in it. I have then extracted weekly deficits or surpluses, having regard to the benefits that were actually paid from week to week by way of income maintenance - ignoring subsequent retrospective back pays and interest payments.

93 These totals have then been carried forward into the associated adjustment sheet, in which:-

1. All Backpay amounts have been brought to credit;

2. Credit has been allowed to the applicant for repayments ordered by the Magistrates Court ($3091) and actually made by him; and

3. All interest credits correctly computed and all actual payments made have been brought to account.

94 Both the detail of the schedule and the calculations in the adjustment sheet have been independently constructed, given that the interest figures have been accepted as shown in the final edition of the Coulter spreadsheet. All materials placed before the Tribunal at various stages have been scrutinised in the process and regard had to the whole of the evidence. In the result the net figures arrived at are consistent with those ultimately produced by Coulter. I am satisfied that they are accurate. At the end of the day they indicate that, in respect of the closed period, the applicant has actually been overpaid in the sum of $589.95.

95 In so concluding there are a number of specific aspects that merit separate mention.

96 First, it is to be noted that, although Back Pay 8 (the major adjustment following the Pope determination) was but part of a larger sum, extending back to the date of injury, I am satisfied that the spreadsheet figure is an accurate apportionment of the total as between the closed period and that preceding it. Coulter's dissection constitutes a patently correct reconciliation over the total period in question.

97 Second, in the construction of the final figures, effect has been given to the express finding of Thompson DP in JD 1/1998 concerning the payment by the applicant for a uniform. The learned Deputy President pointed out that the applicant earned a total of $708 in respect of the period from 10 to 17 March 1993. He had to purchase his own uniform for part-time security work, due to the shortness of time in taking up that work. It was found as a fact that an express agreement had been arrived at with WorkCover at the time that earnings in the period in question should be treated as "nil" to offset the cost concerned. No one sought to challenge the finding in question and its propriety was not in issue during the present trial.

98 Third, during the course of the trial the applicant reiterated the contention that he originally advanced before Thompson DP, although, at times, he seemed to alter his focus and arguments somewhat (cf. tr 553). This concerned the taking into account of the return by him of a series of cheques in respect of periods in which he had been able to earn income. Each of these cheques had been made out for amount that calculated the benefit at an amount representing 80 per cent of notional weekly earnings. The applicant asserted that what he described as the "true value" of each cheque was really 100 per cent of notional weekly earnings and that, accordingly, that figure should be shown as zero in both the "Initial Payment" and the "Actual NWE Rate" columns for the relevant serial lines in exhibit WC 8A. In so doing he was plainly confusing computation rate figures with actual payment entitlement amounts.

99 Thompson DP rejected the initial argument, as he understood it, in JD 1/1998 and illustrated the error inherent in it. That rejection was plainly warranted on the argument as presented.

100 In the annexed schedule I set out the correct mathematical approach. This reflects no payment at all in situations where a cheque was returned or cancelled and no entitlement, except where the Pope based figures warrant one, having regard to the quantum of earnings during the period in question.

101 As a matter of basic logic, the true situation is arrived at by calculating the total correct entitlements of the applicant over the period on a week by week basis and then subtracting from them all monies actually received by him. This has been done by me. In the periods in question, which all had to be considered on a week by week basis having regard to any earnings in respect of the week in question, the question was - What income maintenance entitlement did the applicant have (if any), given his earnings in that week, on the footing that, because the cheque had been returned, he had been paid nothing for that week?

102 It seems to me that much of the confusion that has arisen as to this aspect of the case in relation to exhibit WC 8A has been a product of the manner in which the "Coulter" schedule has been constructed, with all columns totalled at the bottom of it (see, for example, tr 547 - 553). The simpler analysis set out in my annexed schedule renders the true position much clearer to follow.

103 A fourth point to be noted is that it is undoubtedly the case that the witness Mark Sorre, who was the applicant's case officer for a short period of time from about August 1995 to July 1996, muddied the waters somewhat when, in October 1995, he computed the figures for Backpay 8. I pause to comment that I found this witness impressive and refreshingly frank.

104 He conceded that he fell into error in computing Back Pay 8 by overlooking the earlier payments comprising Back Pay 2 and Back Pay 3. This led to double payment of some amounts. The applicant put it to Sorre that this had the effect of placing the ultimate validity of the "Coulter" schedule in question and distorting the end results shown in it. I do not accept that it did. The effect of the double payments is clearly shown in exhibit WC 8A and properly taken into account. They are also reflected in my separate calculations. At the end of the day the questions to be posed and answered are:-

1. What were the entitlements for the closed period?

2. What payments were actually made in respect of that period, however they may have been computed?

3. Is there a discrepancy between the two after due allowance is also made for interest payable and actually paid?

105 The same reasoning is applicable to a further contention advanced by the applicant. He quite correctly pointed to the fact that, at one stage, at least one of his case managers obviously computed weekly entitlements and made payments to him in a manner that was in discord with the relevant statutory provisions. He demonstrated this by reference to the material in exhibit WC 2 and sought to argue that this somehow invalidated Coulter's calculations, because those calculations had had regard to the impugned material.

106 The applicant could not seem to appreciate that Coulter merely relied on the material in question in substantiation of his determinations of what amounts had actually been paid at given points in time and how they had been arrived at. The fact that specific amounts may have been erroneously calculated is automatically taken account of when the total of all amounts paid in fact is compared with total entitlements properly calculated in accordance with the statute, for the same period.

107 There were two further issues ventilated during the course of the trial.

108 During his examination of the witness Matthew Ginn (who was his case manager from May 1994 to June 1995) the applicant attempted to demonstrate the existence of manifest errors or omissions in the construct of the "Coulter" schedule, as ultimately produced in the form of exhibit WC 8A, particularly as to the Back Pay 5 and Back Pay 6 entries.

109 In my opinion this attempt was unsuccessful, both for the reasons illustrated by Mr Downs in his cross examination of the witness and because, in large measure, the applicant was seeking to extract concessions from Ginn about a document that he had not previously seen and with which he was unfamiliar; and also as to subject matter of which he did not, in the main, have either relevant direct knowledge, nor any present clear memory.

110 Moreover, the points sought to be made were only of peripheral interest for present purposes. They omitted recognition of the fact that, as I have already stressed, the real issues in this matter are what were the income maintenance entitlements of the applicant and what was actually paid on account of them. There is no doubt that the Backpay 5 and 6 payments were in fact made. Whether they were correctly arrived at, at the time, is not the real issue. They simply need to be taken into the reckoning, as payments actually made, in the final analysis.

111 Further, the continual contentions of the applicant that the various cancelled cheques had not been accounted for at their "real" value simply disclosed a clear error in logic on the part of the applicant, as elsewhere discussed in these reasons.

112 An additional point sought to be propounded by the applicant in the course of the trial was that, notwithstanding the basis of the determination of his initial entitlement quantum by the Pope determination of 13 October 1995, WorkCover was nevertheless bound, on each s 39 adjustment, in effect to reassess the rate of compensation ab initio, by reference to relevant absolute award figures stemming from two separate awards said to be applicable, having regard to hours previously worked.

113 Quite apart from the fact that such a contention misconceives the essential basis of the Pope determination, it also reflects a misconception of the proper application of s 39.

114 As the former aspect, it is to be noted that, in her reasons for determination, Review Officer Pope was well aware of the range of duties performed by the applicant and, on the basis of the not entirely satisfactory evidence before her, arrived at the best assessment possible of the relevant level of income attributable to the work performed. At that juncture, award rates, now claimed to be applicable, were not in issue. It is difficult to fault the approach adopted by the Review Officer, given the material placed before her.

115 As to the latter, it must be noted at the outset that the focus of s 39 is on periodic adjustments of income maintenance payments, so as to reflect economic considerations.

116 The section, as it stood for most of the relevant time, required an annual review of rates of compensation and stipulated that:-

(a) for the first and second years of incapacity -shall operate from the expiration of those years and shall be based on changes -

(i) in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's disability arose; or

(ii) if the worker applies, according to the regulations, for the adjustments to be made on the basis of changes in rates of remuneration payable to workers engaged in the kind of employment from which the worker's disability arose and furnishes satisfactory evidence of such changes - in those rates of remuneration;

(b) for a subsequent year of incapacity - shall operate from a date fixed by the Corporation and shall be based on changes in the average minimum award rate since an adjustment was last made under this section."

117 Those provisions were amended with effect from 17 August 1995, so as to read as under:-

(i) changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's disability arose; or

(ii) if the worker applies, in accordance with the regulations, for the adjustment to be made on the basis of changes in rates of remuneration prescribed by an award or enterprise agreement payable to a group of workers of which the worker was a member at the time of the occurrence of the disability - changes in those rates of remuneration........."

118 I understand the applicant to contend that the practical effect of ss (2)(a)(ii) as expressed from time to time was to require WorkCover to review rates of compensation ab initio at the end of each annual period and the fixation of an amount equivalent to the then prevailing absolute award rates for the work in question, where such rates are applicable to it.

119 In my view, that argument is invalid. Quite apart from the fact that there has never been a determination that any specific award rates were applicable to the applicant's engagement nor any proper evidentiary basis for such a conclusion, the section does not direct attention to absolute award rates in any event. This is not surprising in view of the fact that an employee may, for example, have been in receipt of rates of salary in excess of award rates.

120 The section is directing its attention to a requirement to make global annual adjustments in recognition of overall movements in relevant wage rates applicable either to workers generally or to workers engaged in the kind of employment from which the worker's disability arose.

121 It is to be noted that "if the worker applies", in accordance with the regulations, for the adjustment to be made on the basis of changes in rates of remuneration referred to in the successive versions of the subsection as they stood from time to time, then adjustments must be made so as to reflect "changes" in those rates over the relevant period. The provisions do not mandate fresh, ab initio, weekly benefit calculations each year.

122 The regulations originally provided that an application by a worker pursuant to s 39(2)(a)(ii) had to be made by an application using a form approved by the Corporation. That was amended in 1999 to actually prescribe the form of application in the regulations themselves.

123 It is at once apparent that, until August 1995, absent a relevant application by a worker, adjustments after the second year of incapacity were actually to be based on statistical movements in the average minimum award rate. Thereafter, absent a relevant application by a worker, it seems to have been left to the discretion of WorkCover to adopt either changes in the rates of remuneration payable to workers generally or to workers engaged in the kind of employment from which the worker's disability arose, whichever appeared to be the most appropriate in the circumstances.

124 The evidence indicates that, in practice, WorkCover has normally arrived at annual adjustments based upon appropriate indicator statistics published by the Australian Bureau of Statistics, apropos movements in average minimum award rates or general wage rates, as the various forms of the statute permitted from time to time. It did so in the instant case.

125 The short answer to the applicant's contention is that there is no evidence that, in respect of the period to which the present proceedings relate, he ever made any relevant application in accordance with the regulations, so as to enliven either form of ss (2)(a)(ii). Moreover, having regard to the hybrid nature of the applicant's employment duties, it is not possible to discern a relevant group of workers of which the applicant was a member. The various duties were said to be encompassed by more than one generic area and it is impossible to see how a single adjustment rate could have been arrived at and applied to what was, in the first instance, a composite, single assessment of notional weekly earnings.

126 Perhaps more importantly, as Mr Downs submitted, the death knell of the argument now advanced by the applicant is that the s 39 adjustments in respect of the relevant period were duly determined by WorkCover and never challenged by the applicant in accordance with the Act. It is not now open to him, at this late stage, to seek to argue their invalidity within the aegis of what is a claim that WorkCover has not, as a matter of fact, paid to him the full amount of the income maintenance payments to which he was entitled pursuant to determinations issued under the Act. He cannot, in the course of the present proceedings, seek, collaterally, to attack determinations made by WorkCover in a manner not authorised by the statute.

127 In the foregoing circumstances, the applicant has not discharged his onus of establishing that there has been any underpayment in respect of the relevant closed period. On the contrary, the evidence unequivocally demonstrates that he was actually overpaid.

128 I therefore determine that his application was properly rejected by the respondent.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

The serials marked * represent weeks in respect of which cheques drawn by WorkCover were returned/cancelled.

The serials marked # represent weeks in respect of which Magistrate Court proceedings were undertaken and the applicant made repayment of compensation.

The serials marked & represent weeks in respect of which earnings of $208 and $500 (respectively) have been excised - according to JD1 and Thompson J accepting that the applicant "would be credited with nil earnings as he used his wages to buy the uniform".

Any amounts of earnings shown in brackets represent that portion of the earnings shown not declared at the time.

Adjustment to Weekly Entitlements/Payments for Period 31/12/1992 to 25/10/1995

Initial Underpayment to Worker (excluding interest)

NOTE: The Back Pay 8 amount of $33,162.05 is representative of what WorkCover paid the applicant in respect of the relevant period - it includes the inaccurate treatment of crediting the applicant $178.29 for the week ending 08/03/95.