Goktas v Goodyear Australia Pty Ltd

[2006] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Goktas v Goodyear Australia Pty Ltd [2006] NSWWCCPD 17

APPELLANT:  Saffet Goktas

RESPONDENT:  Goodyear Australia Pty Ltd

INSURER:Allianz Australia Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 11909-03

DATE OF ARBITRATOR’S DECISION:          12 November 2004

DATE OF APPEAL DECISION:  9 February 2006

SUBJECT MATTER OF DECISION:                Weight accorded to the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Steve Masselos & Co, Solicitors

Respondent: Hicksons Lawyers

ORDERS MADE ON APPEAL:  Clauses 1, 3 and 4 of the decision of the Arbitrator dated 12 November 2004 are confirmed.

Clause 2 of the decision of the Arbitrator dated 12 November 2004 is revoked and

(1)   in substitution as to part, there is an award in favour of Goodyear Australia Pty Ltd in respect of Mr Goktas’ claim for weekly compensation from 31 January 1991 to 23 August 2000, and

(2)   as to the other part, Mr Goktas’ entitlement to weekly compensation for the period 24 August 2000 to date and continuing is remitted to the Arbitrator for determination.

The Respondent, Goodyear Australia Pty Ltd, is to pay the Appellant, Mr Goktas’ costs in this appeal.

BACKGROUND TO THE APPEAL

1. On 10 December 2004, Saffet Goktas sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 12 November 2004. The Respondent to the Appeal is Goodyear Australia Pty Ltd (‘Goodyear’). Goodyear’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’).

1. 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.

1. 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, in the course of his employment with Aussie Table Hire, a stacked box fell onto Mr Goktas’ left shoulder injuring his shoulder and neck. He claimed compensation in respect of this injury in the District Court of NSW, where, on 27 February 2003, an arbitrator made an award in his favour.

1. On 7 July 2003, Mr Goktas lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of his claim against Goodyear for (1) weekly compensation from 31 January 1991 to date and continuing, (2) medical expenses, and (3) compensation for permanent impairment and pain and suffering. Goodyear’s ‘Reply’ was received on 25 August 2003. On 1 October 2003, the Arbitrator conducted a teleconference with the parties, at which it was agreed, and confirmed in the Arbitrator’s Directions, that the Application would be amended to seek compensation only in respect of Mr Goktas’ back and left leg at or above the knee. On 5 February 2004, the Arbitrator conducted a second teleconference with the parties, following which she referred Mr Goktas to an Approved Medical Specialist, Dr Ian Meakin, for assessment. On 17 May 2004, the Commission issued Dr Meakin’s Medical Assessment Certificate (‘MAC’). Dr Meakin assessed a 15% permanent impairment of Mr Goktas’ back arising from his employment with Goodyear, but a nil % permanent impairment of his left leg at or above the knee.

1. On 25 June 2004, the Arbitrator conducted a third teleconference with the parties at which the MAC was discussed at some length and, on 2 September 2004, a further teleconference. Finally, on 3 November 2004, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, at the conclusion of which she gave her decision and the reasons for her decision orally.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 12 November 2004, records the Arbitrator’s orders as follows:

“1. Pursuant to s66 of the Workers Compensation Act 1987 and the MAC [Medical Assessment Certificate] issued by the Commission the respondent is to pay the applicant the sum of $8,707.50 in respect of 15% permanent impairment of the back.
2. There is an award for the respondent in respect of the claim for weekly payments.
3. The respondent is to pay the applicant’s reasonable s60 expenses upon production of receipts and/or accounts.
4. The respondent is to pay the applicant’s costs as agreed or assessed.”

1. In the Statement of Reasons for her decision given orally at the end of the arbitration hearing, the Arbitrator noted that Mr Goktas said he had not worked at all between 1991 and 1999 when he started working for Aussie Table Hire. She was critical of the lack of any further explanation by Mr Goktas other than that he was looking for work during this period. For example, there was no explanation of what work he tried to obtain and what difficulties he experienced. The Arbitrator noted that although the Approved Medical Specialist, Dr Ian Meakin, recorded that Mr Goktas told him that during this period “he worked in various jobs particularly around the Haymarket area and was intermittently on unemployment benefits” (MAC issued on 17 May 2004), this was possibly an error, and was not consistent with Mr Goktas’ oral evidence at the hearing. The Arbitrator was critical of “the huge gaps in the material available to me today” (transcript page 44) and the lack of information available to her. As a result, she said (transcript page 44 to 45):

“I have no information before me at all that supports the applicant’s assertion that he was incapacitated for work as a result of injuries to his back whilst working at Goodyear ...

... it is not believable to me that someone who is incapacitated for work, they say, as a result of the injuries at work for five years does absolutely nothing. I’d say a reasonable person would at least have some records of a doctor around about that time. If he’s so incapacitated for work that he can’t work at all, which is what he’s saying to me, I’d say that he would have been under the care of a doctor, who should have provided some information about capacity or incapacity for work. There should have been some information in support, but there is absolutely nothing...

... I do not accept to the requisite standard that the information supports a claim of total or partial incapacity which has resulted from the applicant’s work with the respondent in these proceedings. ... So I enter today an award for the respondent in respect of the claim for weekly compensation.”

1. The Arbitrator also had discussions with the parties and made orders with regard to compensation for permanent impairment, medical expenses and costs.

ISSUE IN DISPUTE

1. The issue in dispute in the appeal is whether Mr Goktas was entitled to receive payments of weekly compensation from 31 January 1991 to date and continuing. Mr Goktas’ solicitors submit the Arbitrator made errors in her treatment of and the weight she accorded to the evidence and the findings of fact she derived from the evidence. The parties’ submissions on these matters are discussed more fully below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) states:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. I have had regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties. Mr Goktas’ solicitors object to a determination ‘on the papers’ and submit that an oral hearing “may be of assistance to the Presidential Member”. Goodyear submits the matter can be dealt with ‘on the papers’ without a formal hearing. Having considered these submissions, and having reviewed the documentary evidence, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. Section 352(4) states that “[a]n appeal can only be made within 28 days after the making of the decision appealed against.” Rule 77(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) provides that a decision is made when the Commission issues the Certificate of Determination.

1. In Mr Goktas’ case, the decision was made on 12 November 2004, when the Certificate of Determination was issued. The appeal therefore had to be lodged by 10 December 2004 - within 28 days after the date of the decision. Mr Goktas’ application was first received by the Commission on 10 December 2004 – within 28 days. However, on 14 December 2004, a delegate of the Registrar of the Commission rejected Mr Goktas’ application because his solicitors had failed to attach the proposed new evidence which they sought leave to introduce. Mr Goktas’ solicitors responded by letter dated 16 December 2004, attaching the proposed new evidence. This was received on 20 December 2004. By letter dated 21 December 2004, the delegate again rejected the application, for failure to make submissions as to why the Commission should accept the application filed outside time, to which the delegate had referred in his letter dated 14 December 2004. Mr Goktas’ solicitors responded by letter dated 23 December 2004 attaching the requisite submissions.

1. Rule 77(8) provides that a Presidential Member may extend the time for making an appeal where the Appellant demonstrates that exceptional circumstances exist, and that they would suffer a substantial injustice if the right of appeal were lost. The onus of proving exceptional circumstances rests with the Appellant.

1. The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. A leading case is Gallo v Dawson (1990) 93 ALR 479 where Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in Commission proceedings: see, for example, Howell v Stringvale Pty Ltd [2004] NSW WCC PD 22, and Alexandru v State Rail Authority of NSW [2004] NSW WCC PD 54.

1. Mr Goktas’ solicitors submit that the failure to attach the additional evidence and submissions is a matter of procedure and not of substance, especially in view of the fact that the original application was filed within time. Here the extension of time sought is minimal in comparison to the prejudice that would be suffered by Mr Goktas and the denial of procedural fairness that would ensue if an extension of time is not granted. Moreover, Goodyear will suffer no disadvantage if an extension of time is granted. I note Goodyear has not commented on these submissions.

1. In my view, having regard to the history of the proceedings, the relatively minor procedural defects, the conduct of the parties, and the consequence of denying Mr Goktas the opportunity of pursuing his appeal, an extension of time should be granted, and I therefore grant an extension of time for the filing of his application until 23 December 2004.

1. With regard to section 352(2), Mr Goktas’ solicitors state the amount of compensation at issue is at least $30,000 and more than 20% of the amount awarded in the decision appealed against. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

FRESH EVIDENCE

1. Fresh evidence on appeal is governed by section 352(6) of 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:

“New Evidence

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

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No 6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and
     -submissions why the new evidence should be admitted.”

1. Mr Goktas’ solicitors seek leave to introduce new evidence comprising the clinical notes of Mr Goktas’ general practitioner, Dr Y Bulbulia, for the period 20 July 1987 to 31 August 1993. The solicitors contend that the clinical notes show that Mr Goktas made complaints of low back pain to Dr Bulbulia both while employed by Goodyear and after he ceased that employment. This evidence was not provided to the Arbitrator because it was not considered likely to assist her, being more than 10 years old. However, given that the lack of such evidence proved to be pivotal in her decision:

“it would be a grave injustice to the worker to have lost his case on the basis of a factual finding which the new evidence shows was not correct ... simply because of an oversight (or lack of appreciation for their relevance) on the part of his legal advisers ... The gravity of a situation in which a worker loses his case on the basis of a factual finding which is patently incorrect cannot be overstated.”

1. Goodyear submits that leave to introduce the new evidence should not be granted. The relevant clinical notes were produced to the Commission on 29 July 2003, pursuant to a Direction for Production issued at the request of Mr Goktas’ solicitors. During the course of the arbitration hearing, counsel for Goodyear specifically enquired as to whether counsel for Mr Goktas intended to rely on evidence from Dr Bulbulia other than the certificate dated 14 August 1990, and counsel for Mr Goktas responded that he did not intend to do so. The Arbitrator also expressed her concern about the lack of relevant evidence with regard to the period between 14 August 1990 and 1995. Again, counsel for Mr Goktas did not seek to rely on Dr Bulbulia’s notes.

1. Goodyear also submits the notes do not constitute new evidence. They were available to Mr Goktas’ legal advisers, and his solicitors have provided no satisfactory explanation for their failure to rely on these notes previously. Since the notes do not suggest Mr Goktas was incapacitated at the time of his retrenchment or that he had ongoing back pain after that time, Mr Goktas’ legal advisers may have made a forensic decision not to tender the notes.

1. There is no question that Dr Bulbulia’s clinical notes were produced to the Commission on 29 July 2003 pursuant to a Direction for Production issued at the request of Mr Goktas’ solicitors. By Certificate of Service dated 29 September 2003, Goodyear notified service of a medical certificate issued by Dr Bulbulia, dated 14 August 1990, on Mr Goktas’ solicitors. I have examined the transcript of the arbitration hearing, and note that counsel for Goodyear asked whether counsel for Mr Goktas sought to rely on any documentation from Dr Bulbulia, to which counsel for Mr Goktas responded “I don’t think so” (transcript page 7). Also, the Arbitrator clearly expressed her concern about the lack of relevant evidence about Mr Goktas’ capacity for work between 1991, when he was retrenched, and 1999, when he started working casually for Aussie Table Hire, especially in relation to the period 1991 to 1996 (for example, transcript pages 36 and 39).

1. Since Mr Goktas’ claim for weekly compensation was in respect of the period from 31 January 1991 to date and continuing, it should have been obvious that evidence to establish incapacity would be required, especially in view of the fact that Mr Goktas was working full-time at the time of his retrenchment on 31 January 1991. I do not find Mr Goktas’ solicitors’ explanation for not placing Dr Bulbulia’s clinical notes before the Arbitrator to be convincing. I have examined Dr Bulbulia’s notes. There is reference to back pain in the period before Mr Bulbulia’s retrenchment. In respect of the period after 31 January 1991, there is a note referring to low back pain becoming worse on 4 April 1992, a note of “no further back pain” on 17 June 1992, and a note of "back pain" and "digesic" on 31 August 1993, when Mr Goktas last saw Dr Bulbulia. There is nothing to indicate how the back pain affected Mr Goktas’ capacity for work at the time of his retrenchment or afterwards. In conclusion, I am not satisfied that to not allow this evidence would cause Mr Goktas a substantial injustice, and I therefore refuse leave to introduce it.

SUBMISSIONS

1. Mr Goktas’ solicitors submit the Arbitrator failed to give any or sufficient weight to her own findings under sections 60 and 66 that recognise the fact of the injury arising out of Mr Goktas’ employment and that the injury resulted in a 15% permanent impairment of his back. It should be inferred that such impairment has affected Mr Goktas until the present and would impact on his capacity for work. His claim is in respect of partial incapacity for work. The Arbitrator has failed to give due weight to Mr Goktas’ evidence of incapacity, and has given undue weight to the lack of corroborating evidence. There is also some evidence of his attending his doctor in relation to back pain, both from Dr Bulbulia, in respect of the period to 31 August 1993, and from Mr Goktas’ current general practitioner, Dr T Cimenbicer, who, in a report dated 18 February 2003, refers to Mr Goktas’s past history as involving “chronic mechanical back pain”. Moreover, the Arbitrator has failed to give any or sufficient reasons for not accepting the evidence of Dr JM Ellis, Orthopaedic Surgeon, and Dr P Endrey-Walder, Surgeon, and, by inference Dr Meakin in relation to incapacity.

1. Goodyear submits that while the Arbitrator was obliged to consider Dr Meakin’s opinion and certificate, she was not bound by reason of the certificate to find for Mr Goktas on the issue of incapacity. The weight she gave the certificate and opinion must be considered in the context of all the evidence. The Arbitrator was not obliged to accept the uncorroborated evidence of Mr Goktas. There were inconsistencies between his oral evidence and some of the medical histories, and Mr Goktas failed to provide information about his attempts to earn an income by making deliveries for courier companies with a van he purchased in early 2004. There was also a significant gap in the medical evidence after his retrenchment in 1991. Goodyear submits it is clear from her reasons that the Arbitrator had read all the evidence and considered the parties’ submissions, and her reasons clearly expose the basis of her findings and conclusions.

EVIDENCE, DISCUSSION AND FINDINGS

1. Mr Goktas gave oral evidence that when he commenced work for Aussie Table Hire on 9 April 1999 it was for eight hours per week. He said he had not done any paid work since he was retrenched on 31 January 1991. He tried to get work – going to factories and filling out application forms - but no-one would give him a job (transcript page 9). In cross-examination, Mr Goktas said he purchased a van in early 2004 to try to get light delivery work. He did this for about two months – working about 30 hours a week – but he was too slow and the company for whom he was doing work did not want to use him any more. He said he could drive the van, but “[w]hen I am in a pain some time I can’t get up ... I just sit there” (transcript page 14). He would have to take some painkillers and wait for them to relieve the pain so that he could get mobile again (transcript page 22).

1. Mr Goktas agreed that he worked full-time – for 55 to 60 hours a week, including overtime - until he was retrenched by Goodyear, but said the pain in his neck and particularly his lower back was getting worse and worse. He never refused overtime because he had debts to pay. He was being treated by the factory nurse and was given lighter work (transcript page 19).

1. Neither Mr Goktas’ written statement of 2 July 2003 nor his amended statement of 9 October 2003 stated specifically that he was unable to undertake full-time employment during the 1990s because of his injury. There is just a general statement, without reference to a point in time, that the injury to his back and left leg has stopped him working full-time.

1. From what Mr Goktas’ counsel said during the arbitration hearing (transcript page 21), it appears that Mr Goktas’ claim is for partial incapacity from 31 January 1991 until the time he obtained employment with Aussie Table Hire on 9 April 1999, and then from the time of his injury while working at Aussie Table Hire on 20 August 2000 to date and continuing. His counsel suggested Mr Goktas was capable of working about 20 hours a week.

1. Turning to the medical evidence referrable to the 1990s, I have already referred to Dr Bulbulia’s medical certificate dated 14 August 1990 with regard to Mr Goktas being unfit for work on the day after injuring his back. The next available medical report in the ensuing period is that of Dr A Koefler, Orthopaedic Surgeon, dated 17 September 1996, for Mr Goktas’ general practitioner (Dr A Capa). Dr A Koefler comments:

“This man’s history of intermittent back pain is not specific ...

The CT scan demonstrates minor changes at L4/5 and L5/6. I do not believe that this man has a significant disc problem.”

I note the clinical notes of Dr Capa for this period: on 30 November 1996, 29 January 1997 and 30 April 1997 he records Mr Goktas complaining of back pain. I also note the report by Dr R Parkington, Orthopaedic Surgeon, undertaken for the insurer, dated 19 March 1997. Dr Parkington said Mr Goktas told him he was “not in pain at the moment. His discomfort varies and settles with massage. He has occasional left low back pain.” It was on the basis of this report that Goodyear’s insurer declined a claim for workers compensation made by Mr Goktas on 12 December 1996.

1. In my view, the evidence supports a finding that Mr Goktas continued to suffer intermittent back pain after his retrenchment by Goodyear in 1991. What is not clear is whether Mr Goktas was, as a consequence, partially incapacitated for work. After Goodyear retrenched him, Mr Goktas said he looked for work without success. At the time he was retrenched, he was working full-time - working 55 to 60 hours a week, and his back pain was getting worse. However, there is no evidence, apart from Mr Goktas’ non-specific statements made in 2003, that Mr Goktas was unable to undertake full-time work in the ensuing period before he commenced casual part-time employment with Aussie Table Hire on 9 August 1999. The only reference to his capacity for work during this period is that of Dr Parkington, who said Mr Goktas was “fit for normal unskilled manual labouring work”. I am therefore not satisfied that the evidence supports a finding that Mr Goktas was partially incapacitated for work during this period, and he is not therefore entitled to weekly compensation for this period.

1. With regard to the period after Mr Goktas ceased work for Aussie Table Hire after the accident on 20 August 2000, the picture is less clear. On 27 February 2002, the District Court arbitrator found the injury to Mr Goktas’ left shoulder had resulted in his having a reduced earning capacity and, as part of a larger award, awarded Mr Goktas compensation in respect of future loss of earning capacity of $62,713 (comprising 24 years at $100 per week less 15%). In a report dated 21 February 2002 (following an earlier report dated 27 July 2001), Dr P Endrey-Walder, Surgeon, said Mr Goktas was permanently unable to cope with menial, labouring work but should be able to cope with some light to moderate duty process work with restrictions on lifting and preferably allowing him to sit or stand. In a report dated 16 April 2003 (following an earlier report dated 25 April 2002), Dr JM Ellis, Orthopaedic Surgeon, said Mr Goktas was unfit for strenuous use of his back permanently and his future work capacity is very much reduced. Dr PJ Burke, in a report dated 15 September 2003, found Mr Goktas fit for only light manual tasks. Dr S Potter, Rheumatologist, in a report dated 26 September 2003, found Mr Goktas fit for work avoiding vigorous lifting, carrying and bending.

1. On the basis of the above evidence, in my view there is sufficient evidence to be satisfied that Mr Goktas has been partially incapacitated for work since 24 August 2000. From that date, medical evidence became available as to his condition indicating that, apart from the new injury to his left shoulder, he had a partial incapacity for work attributable to his injury while working for Goodyear. Before that date, there is insufficient evidence to support a finding of partial incapacity. Mr Goktas gave evidence of his having tried to work as a courier in 2004 for a period of two months. He found 30 hours a week too demanding, but his counsel suggested that 20 hours a week might be within his capacity. Moreover, most of the medical evidence indicates that Mr Goktas is capable of light work.

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Goktas must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSW WCC PD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. Where the weight accorded to the evidence by the Arbitrator is challenged, Deputy President Fleming’s comment in Knight v Eyles Nominees Pty Ltd [2004] NSW WCC PD 73 at paragraph 40 should be borne in mind:

“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious that the discretion has so miscarried that it has not been exercised fairly and lawfully.”

1. In Mr Goktas’ case, I am satisfied that the Arbitrator’s judgement as to the weight of evidence has miscarried in relation to the period from 24 August 2000 and she has thereby made an error of law. Her award in favour of Goodyear with respect to Mr Goktas’ claim for weekly payments must therefore be revoked, although there must be an award for Goodyear in respect of the period from 31 January 1991 to 23 August 2000. In view of the lack of evidence as to Mr Goktas’ probable earnings had he not suffered the injury and as to the amount he would be able to earn in suitable employment after the injury, the appropriate decision is for me to remit the determination of Mr Goktas’ entitlement to weekly compensation in respect of the period from 24 August 2000 to date and continuing to the Arbitrator. She can then address the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 in determining an award under section 40 of the Workers Compensation Act 1987.

DECISION

1. Clauses 1, 3 and 4 of the decision of the Arbitrator dated 12 November 2004 are confirmed.

1. Clause 2 of the decision of the Arbitrator dated 12 November 2004 is revoked and (1) in substitution as to part, there is an award in favour of Goodyear Australia Pty Ltd in respect of Mr Goktas’ claim for weekly compensation from 31 January 1991 to 23 August 2000, and (2) as to the other part, Mr Goktas’ entitlement to weekly compensation for the period 24 August 2000 to date and continuing is remitted to the Arbitrator for determination.

COSTS

1. The Respondent, Goodyear Australia Pty Ltd, is to pay the Appellant, Mr Goktas’ costs in this appeal.

Robin Handley

Acting Deputy President  

9 February 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE