Goktas v Goodyear Australia Pty Ltd - [2007] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Goktas v Goodyear Australia Pty Ltd [2007] NSWWCCPD 1
APPELLANT: Saffet Goktas
RESPONDENT: Goodyear Australia Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC11909-03
DATE OF ARBITRATOR’S DECISION:          7 June 2006
DATE OF APPEAL DECISION:  2 January 2007
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; calculation of probable earnings but for injury; exercise of discretion, and effect of subsequent injury.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Steve Masselos & Co
Respondent:   Hicksons Lawyers

ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 7 June 2006 is revoked and the following orders made:

“Award for the Appellant Worker under section 40 of the Workers Compensation Act 1987 as follows:
24 August 2000 to 31 December 2000
$130.00 per week;
1 January 2001 to 31 December 2001 $137.00 per week;
1 January 2002 to 31 December 2002 $143.00 per week;
1 January 2003 to 31 December 2003 $150.00 per week;
1 January 2004 to 31 December 2004 $157.00 per week;
1 January 2005 to 31 December 2005 $164.00 per week;
1 January 2006 to 31 December 2006
$171.00 per week, and
1 January 2007 to date and continuing
$178.00 per week
The Respondent Employer is to pay the Appellant Worker’s costs, if any, of the second Arbitration.”
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 4 July 2006 Saffet Goktas (‘the Appellant Worker/Mr Goktas’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 June 2006.

The Respondent to the Appeal is Goodyear Australia Pty Limited (‘the Respondent Employer/Goodyear’).

This matter has a long and unsatisfactory history that has led to two Arbitration hearings and two appeals to the Presidential members of the Commission. Acting Deputy President Handley determined the first appeal on 9 February 2006 (Goktas v Goodyear Australia Pty Lty [2006] NSWWCCPD 17) (‘the first appeal’). In the course of that decision Handley ADP set out the history of the matter up to that time in paragraphs [2] to [5] as follows:

“2. Mr Goktas was born on 1 March 1962 and is aged 43. He was employed by Goodyear as a millman from 9 March 1987 to 31 January 1991, when he was retrenched. On 13 August 1990, he injured his back and neck when lifting heavy skips of rubber. His then general practitioner, Dr Y Bulbulia, issued him with a certificate stating that he was unfit for work on 14 August 1990, and he notified Goodyear of the injury on 15 August 1990.
3. On 9 April 1999, Mr Goktas commenced casual employment with B V Property Holdings Pty Ltd (trading as ‘Aussie Table Hire’). On 20 August 2000, [‘the August 2000 injury’] in the course of his employment with Aussie Table Hire, a stacked box fell onto Mr Goktas’ left shoulder…

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: [2007] NSWWCCPD 1
Decision Date: 2 January 2007

CaseChat Overview and Summary

Saffet Goktas (the appellant) sought leave to appeal a decision of the Workers Compensation Commission (the Commission) against a decision of an arbitrator, dated 7 June 2006. The appellant sought compensation for weekly payments under section 40 of the Workers Compensation Act 1987 (NSW) (the Act). The respondent (Goodyear Australia Pty Ltd) opposed the appeal. The appeal was heard on the papers. The appellant submitted that the arbitrator erred in declining to determine probable earnings but for injury merely because limited evidence was available of those earnings. The appellant also submitted that the arbitrator erred in determining the appellant’s ability to earn under section 40(2)(b) of the Act to be $500.00 per week and in failing to give reasons for assessing the appellant’s ability to earn to be $500.00 per week. The respondent submitted that the arbitrator was correct in dismissing the claim for weekly payments. The respondent submitted that the appellant’s injuries in August 2000 were such that they restricted his ability to work in the open labour market. The respondent submitted that the appellant’s capacity to earn $500.00 per week was not excessive and that the arbitrator was not in error in finding that the appellant had an ability to earn $500.00 per week. The arbitrator had found that there was no satisfactory evidence about what the appellant would have been earning but for injury and that she was unable to make a finding in this regard. The appellant submitted that the arbitrator was wrong to conclude that the appellant’s ability to earn was $500.00 per week. The appellant submitted that the arbitrator failed to take into account that he provided his own vehicle and that the earnings were not earnings as a ‘worker’. The appellant submitted that the arbitrator failed to have due regard to the matters referred to in section 43A of the Act. The respondent submitted that the arbitrator was not in error in finding that the appellant had an ability to earn $500.00 per week. The respondent submitted that the appellant’s figures amounted to fresh evidence which was not before the arbitrator. The respondent submitted that it was open to the arbitrator to find that the appellant was capable of earning $500.00 per week as he had shown a capacity to earn $600.00 per week for 30 hours per week. The respondent submitted that it was not necessary for the arbitrator to give detailed reasons in respect of the evidence she accepted or rejected when assessing the appellant’s ability to earn. The respondent submitted that the arbitrator did not err in her application of the Mitchell analysis as there was no evidence of probable earnings. The respondent submitted that though the appellant has a partial incapacity, it is only minor. The decision of the arbitrator was revoked. It was found that the arbitrator was in error in not making the appropriate section 40 calculations. The arbitrator failed to perform her function according to law. The error required that the whole of the arbitrator’s determination be revoked and the appellant’s entitlement to compensation under section 40 be redetermined. The redetermination was done by the Deputy President. The weekly amount that the appellant would probably have been earning if uninjured was calculated. The weekly amount that the appellant was earning, or would be able to earn in some suitable employment, from time to time after the injury was also calculated. The mathematical difference between the two calculations was determined. The amount of compensation as appears “proper in the circumstances of the case” was also determined. The amount of compensation was reduced in the exercise of the discretion. The arbitrator’s decision was revoked. An award in favour of the appellant was made under section 40 of the Act. The respondent employer was ordered to pay the appellant’s costs, if any, of the second arbitration. No order was made as to costs of the appeal.

Orders