Galiatsatos v The Ironbark Restaurant and Café

[2009] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Galiatsatos v The Ironbark Restaurant and Café [2009] NSWWCCPD 44
APPELLANT:		Debbie Galiatsatos
RESPONDENT:		The Ironbark Restaurant and Café
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A2-8812/08
DATE OF ARBITRATOR’S DECISION:		27 January 2009
DATE OF APPEAL DECISION:		22 April 2009
SUBJECT MATTER OF DECISION:		Section 38 of the Workers Compensation Act 1987; ability to perform suitable employment.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		In person
Respondent:		Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:		1.  Paragraph 1 of the decision of the Arbitrator, dated 27 January 2009 is revoked and the following decision is made in its place:
“Respondent to pay $374.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to 31 March 2009 and $389.10 from 1 April 2009 to date and continuing as adjusted pursuant to section 40 of the Workers Compensation Act 1987.”
2.  Paragraphs 2 and 3 of the Arbitrator’s determination are confirmed.
3.  No order as to costs of this appeal

BACKGROUND TO THE APPEAL

1. On 20 February 2009 Debbie Galiatsatos (‘the Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 January 2009.

1. The Respondent to the Appeal is The Ironbark Restaurant and Café (‘the Employer’).

1. This is one of two appeals arising from the Arbitrator’s decision.  A determination of an appeal brought by the Employer is published today (see: The Ironbark Restaurant and Café v Galiatsatos [2009] NSWWCCPD 43).

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 27 January 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

1.Respondent to pay $374.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to date and continuing as adjusted.

2.Respondent to pay s60 expenses.

3.Respondent to pay the Applicant’s costs as agreed or assessed.

A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

1. There is before the Commission a transcript of matters stated during the course of a teleconference conducted on 9 December 2008 which had been convened by the Arbitrator for the purpose of clarifying the issues in dispute between the parties (Teleconference transcript).

1. There is also a transcript of proceedings conducted before the Arbitrator on 14 January 2009 (Transcript). That transcript records submissions put by each party before the Arbitrator.

ISSUES IN DISPUTE

1. The Worker, who appears in person, has not stated the grounds upon which the appeal is brought with any precision. It is however clear that the Worker challenges the Arbitrator’s determination that her entitlement to weekly compensation was to be determined having regard to the maximum statutory rate. It is the Worker’s complaint that the Arbitrator has failed to enter an award for weekly payments in her favour pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’).

FRESH EVIDENCE

1. ‘Fresh evidence’ on appeal is governed by section 352(6) of the Workplace Injury Management and Compensation Act 1998 (‘the 1998 Act), which provides as follows:

“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”

1. Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:

“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE

Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).

In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:

·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;

·the evidence is credible;

·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or

·it is just to admit the evidence in all the circumstances of the individual case.

Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”

1. Practice Direction No.6 also provides that if fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is relied upon, parties must include:

·a schedule of the fresh or additional evidence;

·a copy of the fresh or additional evidence;

·a brief outline of the fresh or additional evidence and the reasons why it was not given in proceedings before the Arbitrator, and

·submissions on why the fresh or additional evidence should be admitted, or rejected as the case may be.

1. Where a party seeks leave to rely on fresh or additional evidence in relation to the decision appealed against, that party must serve a copy of the fresh or additional evidence on the other parties to the dispute when serving the Application or Notice of Opposition.

1. The Worker seeks leave to introduce additional evidence which is described under the heading “Answer to Question 2.4” which appears in the documentation accompanying her application seeking leave to appeal.  That evidentiary material is compact disc audio recordings of evidence given by Mr Patrick Frost, a principal of the employer and Mr Shane Maxwell, a Duty Manager of the Earlwood/Bardwell Park RSL Club where the Employer conducted its business.  Those compact discs are accompanied by a typed transcription of short evidence which is said to have been given by Mr Frost and Mr Maxwell before Members of the Administrative Decisions Tribunal (‘ADT’) in matter 81081 on 28 January 2009.

1. The Employer opposes the admission of the evidence of Mr Maxwell and Mr Frost as transcribed.  Whilst it may be argued that there has not been complete compliance with those matters set forth in the relevant Practice Direction I am of the view that it is just to admit on this appeal that evidence as transcribed given by Mr Frost and before the ADT.

1. The evidence of Mr Frost makes it clear that he, on behalf of the Employer, had at no relevant time asserted that he had light duties available for the Worker.

1. The evidence of Mr Maxwell is sought to be relied upon by the Worker as a basis to refute certain allegations concerning the circumstances of her being “banned” from the subject RSL Club.  That the Worker had been so banned may be established by the recorded evidence of Mr Maxwell as well as the submissions put by the Worker in support of the admission of that evidence on this appeal.  Again it may be said that there has not been strict compliance with the Practice Direction concerning the requirements of applications for leave to admit fresh evidence, however it is my view that it is just that the evidence being the compact disc and transcript of Mr Maxwell’s evidence before the ADT, be admitted in evidence on this appeal.

EVIDENCE AND SUBMISSIONS

1. The evidence before the Arbitrator is summarised in the course of the determination of the Employer’s appeal (see: The Ironbark Restaurant and Café v Galiatsatos [2009] NSWWCCPD 43 between [35] and [75]). It is not proposed to repeat that material appearing in the afore mentioned paragraphs and reference should be made to that summary of the evidence.

Appellant Worker’s Submissions

1. As noted at paragraph 81 of the determination in the Employer’s appeal, the Worker addressed the Arbitrator at the hearing concerning her entitlement to weekly payments. As noted, the general thrust of her argument was that she was entitled to what was described as “a section 40”. Given the complexity of the relevant provisions of the 1987 Act the Worker’s arguments before the Arbitrator became somewhat confused. Whilst it is not entirely clear, it seems that the Worker alleged failure on the part of the Employer to provide suitable work and appeared to be arguing that she was entitled, perhaps in the alternative, to weekly payments pursuant to section 38 of the 1987 Act.

DISCUSSION AND FINDINGS

1. It is clear that the Worker raises on this appeal the complaint that the Arbitrator failed to determine that she was entitled, at relevant times, to an award pursuant to section 38. That section provides:

“38. Partially incapacitated workers not suitably employed-special initial payments while seeking employment

(1) Entitlement If:

(a) a worker is partially incapacitated for work as a result of an injury, and

(b) the worker is not suitably employed during any period of that partial incapacity for work,

the worker is to be compensated in accordance with this section during each such period as if the worker’s incapacity for work were total.
(2) Maximum period of entitlement. The maximum total period for which the worker may be so compensated is 52 weeks.
(3) Rate of compensation When a worker is so compensated, the compensation is payable at the relevant rate prescribed by this Act for the period of incapacity concerned. However, after the first 26 weeks of incapacity, the rate is the greater of the following rates:

(a) 80% of the worker’s current weekly wage rate (that is, 80% of the rate prescribed by this Act for the first 26 weeks of incapacity),
(b) the statutory indexed rate (that is, the rate prescribed by this Act for a period of incapacity after the first 26 weeks).

(4) Worker to seek suitable employment Compensation is not payable to a worker in accordance with this section during any period unless the worker is seeking suitable employment during that period (as determined in accordance with section 38A).”

1. A finding of partial incapacity has been made in the course of determination of the Employer’s appeal.  I reiterate the reasons there stated for so finding (at [106 ] ).

1. It is common ground that the Worker has not been “suitably employed” during the period of her partial incapacity. It is apparent from an examination of the medical certificates relied upon by the Worker that such partial incapacity dates from, at least, 14 August 2007. The Worker’s claim with respect to weekly payments as defined in her Application to Resolve a Dispute (‘ARD’) is expressed to date from 4 April 2008. Whilst the Worker’s submissions on this appeal seek to address entitlement pursuant to section 38 from an unspecified earlier date, it is acknowledged by the Worker under the heading “Answer to Question 2.6” that the claim is expressed to commence on 4 April 2008. Whilst it is asserted by the Worker that she was “simply documenting that it was the date of suspension of payments”, the Worker is bound by the manner in which the claim has been presented before the Commission in particular with respect to the commencement date of the claim for weekly payments.

1. It is reasonably clear, having regard to the evidence of Mr Frost as recorded before the ADT, that the Employer had at no time made suitable employment available to the Worker.  It is clear, in my view, that the statements made by the insurer in correspondence dated 22 August 2008 concerning “suitable duties” do not reflect the facts.

1. It may be inferred from the evidence that the Worker has at relevant times been seeking suitable employment in accordance with the requirements of both sections 38 and 38A. That the Worker received what was described as a “38A Notice” is established having regard to the content of correspondence dated 23 August 2007 from the insurer addressed to the Worker.

1. It is stated in a number of the email communications, which are in evidence before the Commission, that the Worker “continued to do job search and rehabilitation”. Notwithstanding that evidence I am not satisfied that the requirements of section 38A have been established.

1. The first difficulty facing the Worker in establishing entitlement pursuant to section 38 is that it appears on the evidence that she has been barred from attending the RSL premises by the Management of the RSL Club and that such ban has been in place since, it seems, mid July 2007. The evidence concerning this “ban” is scant. The circumstances prevailing on the occasion that the Worker was asked by the Management to vacate the premises are the subject of dispute. The evidence of Mr Maxwell appears to establish that, on the day in question, the Worker was not, as otherwise suggested, physically escorted from the Club premises. It is nonetheless apparent that the Worker has been barred from attending the Club premises and that such “ban” prevents her taking up any offer of suitable duties that may have been made or that may in future be made. As was stated by the High Court of Australia in RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665 (‘Brodie’) (Kitto J, Taylor J, Windeyer J, Owen J at 669):

“…It must be remembered that not only is the obligation to provide suitable employment a continuing one but there must also be a continuing failure to provide suitable employment in order to entitle a worker to continuing benefits pursuant to s. 11 (2) and, in our view, there cannot be a continuing failure where the circumstances are such that it can be seen that throughout any relevant period the employee is not ready, willing or able to enter the employ of the pre-injury employer.”

1. The High Court in Brodie was concerned with the proper construction and application of the provisions of section 11(2) of the Workers Compensation Act 1926 now repealed. That section was the precursor to section 38 of the 1987 Act. As was observed in the course of the joint judgment in that case the provision and acceptance of suitable employment involves an element of mutuality. There is an ongoing obligation on the employer to provide such suitable employment and the employee’s conduct must be consistent with the necessary degree of cooperation concerning acceptance of any such offer. On the present facts I conclude, as did the Arbitrator, that the “ban” in place concerning the Worker’s attendance at the subject club premises prevents acceptance by her of any offer concerning suitable work. The “mutuality” which is required for the proper operation of the section has not been in place since the placing of the ban. Whilst it is not strictly relevant, I have considerable doubt as to whether any concession has been made by the Worker concerning the offer of suitable duties in the past. The Arbitrator concluded that such concession had been made (Reasons at [29]). No doubt the Arbitrator was referring to the evidence that appears at transcript page 21 (32-45). Having regard to the evidence of Mr Frost which has been admitted on this appeal, I conclude that the probabilities are that there has not, as asserted in the insurer’s correspondence of October 2007, been any relevant offer of suitable duties made by the Employer. Such failure alone does not entitle the Worker to the benefit of the operation of section 38 given that she is not, as I have found, “able” to accept an offer of suitable employment (section 38A(2)(a)).

1. For the reasons I have attempted to summarise above, the Worker has not established any entitlement to an award pursuant to section 38 at any time since the date of commencement of the claim, as appears in the ARD, being 4 April 2008. Notwithstanding that finding the Worker has, as found and ordered at [111] of Reasons concerning the Employer’s appeal, secured an award from that date pursuant to section 40 of the 1987 Act such award being quantified at the maximum statutory rate payable under the Act. It may be seen that, certainly since 4 April 2008, the Worker’s failure to make out a claim pursuant to section 38 has had little in the way of practical consequences. Whilst there is some conflict to be found in authorities which have addressed the proper construction and application of section 38(3), my respectful view is that the decision of Duck J in Eyeington v New England Leather Pty Ltd (CCNSW), NO2719/96, Duck J, 25 October 1996, unreported) is to be preferred to other views expressed concerning the subsection. It was his Honour’s view that the rate prescribed by section 37 should be applied to determine the maximum weekly amount payable pursuant to section 38. His Honour found that such approach prevents the anomaly of a worker receiving greater compensation under section 38 than if totally incapacitated (cf Aughterlony v Hydrotech Scientific Services (1997) 15 NSWCCR 587, Walker J).

DECISION

1. For the reasons above stated I conclude that the Worker’s appeal should fail.  For the reasons as stated in the course of determination of the Employer’s appeal I confirm that paragraph 1 of the Arbitrator’s determination should be revoked and the following decision made in its place:

“Respondent pay $372.90 per week from 4 April 2008 to 30 September 2008 and $381.40 from 1 October 2008 to 31 March 2009 and $389.10 from 1 April 2009 to date and continuing as adjusted pursuant to section 40 of the Workers Compensation Act 1987.”

1. I, as noted in the Employer’s appeal, confirm paragraphs 2 and 3 of the Arbitrator’s determination.

COSTS

1. No order as to costs of this appeal.

Kevin O’Grady

Acting Deputy President  

22 April 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE