Ciraolo v Tempe Tyres & Wheels Centre Pty Ltd - [2025] NSWPIC 91

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ciraolo v Tempe Tyres & Wheels Centre Pty Ltd [2025] NSWPIC 91
APPLICANT:	Jacob Ciraolo
RESPONDENT:	Tempe Tyres & Wheels Centre Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	18 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim by dyslexic 20-year-old for weekly payments of compensation following work capacity assessment; whether dyslexia negated recommendation by insurer’s vocational expert; whether recommendations generally infringed section 32A; whether recommendations were not a ‘real job’; Held – dismissing application; dyslexia not a barrier to recommended employment of data entry operator; assumption made by applicant’s vocational assessor not sufficiently supported by facts; section 32A submissions made with an eye too keenly attuned to error; roles recommended were ‘real jobs’; Wollongong Nursing Home Pty Ltd v Dewar, Westpac Banking Corporation v Mani, and Popal v Myer Holdings Pty Ltd considered and applied.
DETERMINATIONS MADE:	The Commission finds: 1. The applicant’s pre-injury average weekly earnings as at 4 October 2024 was $1,080. Pursuant to s 37 of the Workers Compensation Act 1987, his entitlement to weekly payments of compensation is $864. 2. The applicant is currently suited to employment such as a data entry operator and can earn $942 per week. The Commission determines: 1. There is an award for the respondent. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

Jacob Ciraolo, the applicant brings an action for weekly payments of compensation against Tempe Tyres & Wheels Centre Pty Ltd , the respondent.
Dispute notices were issued and the matter was duly brought before the Personal Injury Commission (Commission).

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) should the respondent's Work Capacity Assessment be set aside.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard at the Commission on 19 February 2025. Mr Dewashish Adhikary appeared for the applicant, instructed by Mr Boitano of Messrs Barwick Boitano Lawyers. The respondent was represented by Mr Ross Hanrahan instructed by Ms Maybel Yang of Messrs Bartier Perry Lawyers. Mr Paul Leonard appeared to the insurer for some reasons.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

Background

Mr Ciraolo was born in 2004 and is aged only 20 years. The respondent has accepted that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 91
Decision Date: 18 March 2025

CaseChat Overview and Summary

Ciraolo, a 20-year-old with dyslexia, sought weekly compensation payments following a work capacity assessment, which recommended employment as a data entry operator. Tempe Tyres & Wheels Centre Pty Ltd contested the claim, arguing that the recommendations were not suitable for Ciraolo due to his dyslexia and that they did not constitute a 'real job'. The case was heard in the Workers Compensation Court of New South Wales. The primary legal issues centred on whether dyslexia negated the vocational expert's recommendation, whether the recommendations violated section 32A of the Workers Compensation Act 1987, and whether the recommended jobs were indeed 'real jobs' that could be realistically undertaken by Ciraolo.

The court found that dyslexia did not preclude Ciraolo from undertaking the recommended employment as a data entry operator. It noted that the assumption made by Ciraolo’s vocational assessor that dyslexia would significantly impair his ability to perform such tasks was not sufficiently supported by the facts. The court further held that the arguments concerning section 32A were overly focused on identifying errors rather than the overall suitability of the recommendations. It referenced precedents such as Wollongong Nursing Home Pty Ltd v Dewar, Westpac Banking Corporation v Mani, and Popal v Myer Holdings Pty Ltd to support its findings that the roles recommended were indeed 'real jobs' that Ciraolo was capable of performing.

The court dismissed Ciraolo’s application for compensation payments. It concluded that the vocational expert's recommendations were appropriate and did not infringe upon section 32A of the Workers Compensation Act 1987. Consequently, the court determined that the recommended positions were suitable and viable employment options for Ciraolo.

Orders