Graham Healy t/as Hunter Glass Toronto v Santarelli
[2007] NSWWCCPD 188
•3 September 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Graham Healy t/as Hunter Glass Toronto v Santarelli [2007] NSWWCCPD 188
APPELLANT: Graham Healy t/as Hunter Glass Toronto
RESPONDENT: Aldo Santarelli
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC18309-06
DATE OF ARBITRATOR’S DECISION: 19 March 2007
DATE OF APPEAL DECISION: 3 September 2007
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; reasons.
PRESIDENTIAL MEMBER: Acting President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: Moray & Agnew
Respondent: Monaco Solicitors
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 19 March 2007 is revoked and the following orders made:
“1. The Respondent Employer is to pay weekly compensation to the Applicant Worker under section 40 of the Workers Compensation Act 1987, in the amounts of $971.20 per week from 19 December 2005 to 16 April 2006; $586.20 per week from 17 April 2006 to 30 September 2006; $597.10 per week from 1 October 2006 to 31 March 2007; $608.70 per week from 1 April 2007 to date and continuing, as adjusted.
2. The Respondent Employer is to pay the Applicant Worker’s hospital, medical and related expenses under section 60 of the 1987 Act.
3. Assessment of the Applicant Worker’s permanent impairment is referred to the Registrar for referral to an Approved Medical Specialist.”
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 11 April 2007 Graham Healy trading as Hunter Glass Toronto (‘the Appellant Employer/ Hunter Glass’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 March 2007.
The Respondent to the Appeal is Aldo Santarelli (‘the Respondent Worker/ Mr Santarelli’).
Mr Santarelli was born on 16 October 1966. He has a dependant spouse and two dependant children. He left school after attaining his school certificate in year 10. He then worked as a tool setter and a machinist, and then owned and operated a bakery. He taught martial arts until 1997 when he sustained a back injury at Australia’s Wonderland while on a roller coaster, receiving compensation for that injury. His evidence was that his back pain from this injury resolved by the middle of 2000 when he returned to the workforce as a security guard with Armorguard, after passing a physical examination.
He continued to work as a security guard until June 2004 when he started full-time employment as a glazier with Hunter Glass. As a glazier he was in charge of four other workers but his duties also required him to regularly engage in heavy physical work involving lifting and fitting windows, assembling window frames, fitting doors and commercial shop-front fittings of glass windows and doors. Mr Santarelli worked substantial overtime. As a result his average weekly earnings were $1,292.00, a figure not disputed by the Appellant Employer (T6.6).
In the course of his employment on 6 August 2005, Mr Santarelli was standing on a four-foot ladder applying silicone around a glass door. As he stepped off the ladder he missed a rung and fell backwards crashing into a brick wall. As a result, he fractured a rib on his right side, injured his back and right ankle.
Mr Santarelli stopped work and went home. He returned to work the following day, but was not able to complete work that day because of pain from his injuries. On 10 August 2005 he attended his General Practitioner, Dr Grantham, who prescribed analgesics and provided a WorkCover medical certificate for three weeks off work. Dr Grantham also referred Mr Santarelli for an x-ray, physiotherapy and acupuncture.
On 25 August 2005, Mr Santarelli submitted a workers compensation claim form. Hunter Glass’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), accepted the claim and commenced weekly payments of $747.00 and issued a physiotherapy management plan.
The Respondent worker resumed work on 1 September 2005 doing light duties but receiving his pre-injury level of earnings. He ceased working on 9 November 2005 due to increasing pain, taking leave without pay. QBE resumed payments of weekly compensation at $747.00 per week. He was referred by QBE for examination by Dr Smith, orthopaedic surgeon, on 25 November 2005.
In a letter dated 6 December 2005, QBE denied liability on the ground that Mr Santarelli’s injury was not related to his employment. That opinion was said to be based on the report of Dr Smith of 25 November 2005 “where he believes that employment is not a substantial contributing factor and that you are fit for pre-injury duties”. Weekly compensation was paid until 18 December 2005.
On 20 December 2006, an Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 6 August 2005 to date and continuing at the rate of $1952.00 per week, lump sum compensation and medical expenses.
The Appellant Employer filed its Reply on 12 January 2007. The issue argued before and determined by the Arbitrator was whether Mr Santarelli continued to be incapacitated after 8 September 2005 (T2.42).
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 9 March 2007 when it could not be resolved and proceeded to arbitration hearing. In a reserved decision the Arbitrator found in favour of Mr Santarelli on all issues and made an award in his favour for weekly compensation and section 60 expenses under the Workers Compensation Act 1987 (‘the 1987 Act’).
The Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. The whole of the compensation claimed is in issue on appeal and the threshold in section 352(2)(b) of the 1998 Act is satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 19 March 2007, records the Arbitrator’s orders as follows:
“1. Respondent pay weekly compensation to the Applicant pursuant to section 40 of the 1987 Act, [in] the sum of $992 per week from 19 December 2005 to date and continuing in accordance with the 1987 Act.
2. Respondent pay the Applicant’s medical expenses pursuant to section 60 of the 1987 Act upon production of accounts or receipts.
3.I note that assessment of the Applicant’s permanent impairment is to be referred by the Registrar to an Accredited Medical Specialist for assessment of the body parts claimed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)his finding on incapacity (‘incapacity’), and
(b)his calculation of Mr Santarelli’s entitlement under section 40 of the 1987 Act (‘section 40 calculations’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS and FINDINGS
Incapacity
The Appellant Employer submits that the Arbitrator’s finding that the Respondent Worker is partially incapacitated and has a post-injury capacity to earn $300.00 per week is in error because:
a)there was inadequate evidence upon which to base his findings of the nature and extent of compensable incapacity (‘evidence of incapacity’);
b)the Respondent Worker’s expert evidence failed to properly address the question of continuing incapacity (‘evidence of incapacity’);
c)the Arbitrator found that the applicant has suffered from psychological injury and this has materially contributed to his incapacity. Psychological injury was not pleaded in the Application which was limited to physical injuries to the back, right leg and ankle (‘psychological injury’);
d)Dr Mahony’s report dated 1 December 2006 was based on his examination of the Respondent Worker on 13 February 2006. The report made no reference to the ongoing nature of compensable incapacity (‘Dr Mahony’s evidence’);
e)the extent of any assessed incapacity is inconsistent with the opinion of Mr Stambouliah, report dated 12 October 2006 (‘assessed incapacity and Mr Stambouliah’s evidence ’), and
f)the Arbitrator failed to adequately articulate the grounds upon which the evidence tendered by the Respondent Worker was preferred over the evidence tendered by the Appellant Employer (‘reasons’).
The Respondent Worker submits:
a)at paragraph 39 of his Statement of Reasons for Decision dated 19 March 2007 (“Reasons”) the Arbitrator found Mr Santarelli to be “a truthful witness in his oral evidence”;
b)all medical reports relied on by the Respondent Worker addressed the issue of continuing incapacity for work;
c)there is no deficiency in the pleading. The Respondent Worker sustained injury to his back, right leg and right ankle. The manner in which the physical injuries affected the worker was discussed in the report by Mr Stambouliah, which was served upon the Appellant Employer. The Appellant Employer had the opportunity to respond to the report and did not object to the report being before the Arbitrator. In any event, paragraph 54 of the Arbitrator’s Reasons do not support the assertion that the Arbitrator found the psychological injury materially contributed to the Respondent Worker’s incapacity;
d)Dr Mahony did express a view as to the Respondent Worker’s incapacity at the time of his last examination, which was on 28 July 2006 not 13 February 2006;
e)Mr Stambouliah stated that the Respondent Worker “could conceivably earn $228.15 per week gross for 15 hours per week as a School Crossing Supervisor”. The Arbitrator found that Mr Santarelli could earn $300.00 per week. There is therefore no basis for the suggestion that the Arbitrator made an error in his findings, and
f)the Arbitrator has given reasons for his preference of the report of Dr Dubossarsky over the views of Dr Smith and Dr Miniter.
I do not accept the Appellant Employer’s arguments. The Arbitrator’s findings commenced with a clear acceptance of Mr Santarelli as a witness of truth (Reasons, paragraph 39 and 40) and a rejection of the Appellant Employer’s argument that Mr Santarelli was motivated to stop work in November 2005 by a desire to “further improve on his winnings from his earlier Court case by getting an award or settlement out of this case” (Reasons, paragraph 41). He went on to base his finding of partial incapacity on the following:
a) a rejection of the Appellant Employer’s medical evidence that Mr Santarelli has no incapacity (Reasons, paragraph 40);
b) a rejection of Mr Santarelli’s claim of total unfitness (Reasons, paragraphs 41 and 58);
c) a rejection of Dr Grantham’s assertion of total unfitness in his medical certificates of 23 October 2006 and 15 January 2007 (Reasons, paragraph 46);
d) his acceptance of Dr Dubossarsky’s opinion as being “reasoned and balanced” (Reasons, paragraph 46) and consistent with the radiological evidence (Reasons, paragraph 53);
e) his rejection of Dr Mahony’s opinion that Mr Santarelli was unfit for work because he had not explained the basis for his conclusion, though he did accept the doctor’s opinion that there was an aggravation of pre-existing changes in the lumbar spine (Reasons, paragraph 48);
f) a finding that the radiological evidence, compared with the 1998 evidence, supported “a finding of aggravation of a degenerative back” (Reasons, paragraph 49);
g) an acceptance of Mr Stambouliah’s evidence on the existence of a chronic adjustment disorder and anxiety symptoms, but the Arbitrator did not accept that that condition had caused Mr Santarelli to be totally unfit (Reasons, paragraph 54);
h) his finding on the totality of the medical evidence (supported primarily by the Respondent Worker’s medical evidence, which he preferred to the Appellant Employer’s experts) that Mr Santarelli was partially incapacitated for work during the period of the claim (Reasons, paragraph 56);
i) a finding that Mr Santarelli “could probably find some work with his partial incapacity” (Reasons, paragraph 62);
j) his satisfaction that there was “a component of psychological symptomatology in this man’s ability to return to work” therefore some allowance should be made for that cause (Reasons, paragraph 63);
k) his finding that probable earnings but for injury (section 40(2)(a) of the 1987 Act) were $1,292.00 per week and that Mr Santarelli “would be able to earn during the period of the claim to date, $300 per week in suitable employment, as submitted by the Applicant” (emphasis added) (Reasons, paragraph 66) which left a “nett loss of $992 per week” (Reasons, paragraph 67), and
l) his finding that there was no good reason for reducing Mr Santarelli’s entitlement in the exercise of his discretion under section 40(1) of the 1987 Act (Reasons, paragraphs 65 and 68).
The above findings were all soundly reasoned and well supported by the evidence.
Evidence of Incapacity
It is difficult to see the basis for the Appellant’s submission that there is inadequate evidence of incapacity, as it is clear from a review of the reports tendered by the Respondent Worker that incapacity was addressed and noted by the Arbitrator accordingly. The report of Dr Dubossarsky, dated 20 July 2006, addressed incapacity at page five where he discussed the nature of the work Mr Santarelli performed leading up to the work injury, and also the restrictions he now faces as a result of the injury. Under ‘conclusion’, Dr Dubossarsky stated:
“With regards to his work capacity he was working as a glazier. This involved climbing ladders and other demanding physical activity. I note that most of the work he has done to date has been of a manual type. At the moment I do not think he would be able to do such work in view of the back pain and the associated restrictions. As mentioned, he has difficulty and limitations with lifting, carrying and bending in particular. I believe he is not currently suitable for doing manual work. As a result, I do not think that he would be able to return to work as a glazier in the medium term. He should have a restriction of lifting of 5 kilograms at any one time, should not carry objects heavier than this and should not do any repetitive lifting. I believe that he may be able to tolerate working in light clerical duties which involve no manual work however he would need to be retrained to do such work. However I note that he can tolerate sitting only for brief periods up to 20 minutes and even with like [sic, light] clerical work accommodation would have to be given for rests and breaks.”
This evidence clearly addressed the issue of Mr Santarelli’s continuing incapacity, was accepted by the Arbitrator and was more than adequate to support his conclusions.
Psychological Injury
The Arbitrator did not find that Mr Santarelli sustained a psychological injury as such, as is alleged by the Appellant Employer. At paragraph 63 of his Reasons the Arbitrator stated that he was satisfied that there was a component of psychological symptomatology in Mr Santarelli’s “ability to return to work” therefore some allowance should be made for his incapacity due to that cause. This finding was based on the evidence of Mr Stambouliah, consultant psychologist, who conducted an Occupational and Psychological Assessment under section 40 of the 1987 Act of Mr Santarelli on 27 September 2006 (report 12 October 2006). This assessment involved a wide-ranging evaluation of Mr Santarelli and included psychometric and vocational testing. It also included a ‘job match’ section where Mr Stambouliah concluded that, “given Mr Santarelli’s current physical restrictions as outlined in his specialist’s reports and WorkCover medical certificate, and the results of this current Section 40 Assessment, it could be suggested that Mr Santarelli might be capable of carrying out” the job of a school crossing supervisor at the pay of $228.15 per week.”
Under ‘opinion and recommendations’ Mr Stambouliah stated that the Respondent Worker presented with a significant Chronic Adjustment Disorder with Depression and Anxiety symptoms associated with his chronic pain condition and the functional sequelae of the accident of 6 August 2005. As a result he felt that Mr Santarelli would not be fit to resume his substantive pre-injury duties.
It is correct that no psychological injury was alleged in the Application. However, the Arbitrator’s finding of partial incapacity was not based on a finding of a psychological injury but on the acceptance of Dr Dubossarsky’s opinion referred to above. The fact that Mr Santarelli also suffered psychological symptoms in the form of anxiety and depression as a result of his physical injuries was a relevant matter for the Arbitrator to take into account in assessing ability to earn under section 40(2)(b). That is what he did and he was not in error in doing so. Had it been determined that Mr Santarelli sustained no physical injury and the Arbitrator found in his favour on the basis of an alleged psychological condition that had not been pleaded, that would have been an entirely different matter and may potentially have involved a breach of the rules of procedural fairness (see Boral Besser Masonry Ltd v Jabarkill (1999) 19 NSWCCR 227). That is not the situation in the present matter. Mr Santarelli’s claim was always presented as an orthopaedic injury. As a result of his orthopaedic injuries he has developed secondary psychological symptoms as set out in Mr Stambouliah’s report. That report was attached to the Application, which was served on the Appellant Employer or its insurer. No objection was taken to it at the arbitration. The psychological symptoms (stress and anxiety) were also particularised in a letter from the Respondent Worker’s solicitor to QBE dated 5 September 2006. In these circumstances it was appropriate for the Arbitrator to have regard to the report.
Further, the Commission is not a court (Orellana-Fuentes v Standard Knitting Mill Pty Ltd (2003) 57 NSWLR 282) and is not bound by strict pleadings. Applicants are required to file all of their evidence with the Application to Resolve a Dispute. In the present matter the Appellant Employer was given early notice by letter dated 5 September 2006 that Mr Santarelli experienced stress and anxiety as a result of his work accident and was given every opportunity to consider the contents of Mr Stambouliah’s report, but chose to do nothing about it.
Finally, Mr Stambouliah’s opinion as to Mr Santarelli’s fitness for work was based on Mr Santarelli’s “current physical restrictions” (emphasis added) and the results of the section 40 assessment. Whilst Mr Stambouliah added that Mr Santarelli was not psychologically fit to resume his pre-injury duties, that opinion added nothing to Dr Dubossarsky’s opinion, which the Arbitrator accepted, that Mr Santarelli was physically unfit for his pre-injury work. Therefore, I do not believe the Arbitrator was in error in considering Mr Stambouliah’s evidence. His opinion about Mr Santarelli’s depression and anxiety was of limited, if any, relevance to the final outcome. In any event, I do not accept that the Appellant Employer suffered any procedural unfairness in circumstances where it had been on notice for many months of the content of Mr Stambouliah’s report and chose not to call any evidence on that issue. The Arbitrator did not find a separate psychological injury but merely noted the evidence that dealt with one of the consequences of Mr Santarelli’s physical injuries. The Arbitrator’s Reasons disclose no error on this issue.
Dr Mahony’s Evidence
The Appellant Employer’s submissions on this issue are factually incorrect. First, Dr Mahony’s last examination of Mr Santarelli was on 28 July 2006, not on 13 February 2006 as has been submitted. Second, at that stage (28 July 2006) Dr Mahony considered Mr Santarelli to be “unfit for work” (report 1 December 2006, page four). Third, the Arbitrator stated that he could not use this conclusion because he felt the doctor had not explained the basis for his opinion (Reasons, paragraphs 48 and 56). Whilst I doubt that the Arbitrator was correct on this issue, the Respondent Worker has not challenged this finding. Therefore, as the Arbitrator placed no weight on Dr Mahony’s opinion on incapacity, the Appellant Employer’s challenge is totally misconceived.
Assessed Incapacity and Mr Stambouliah’s Evidence
The Appellant Employer’s submissions do not explain the basis of his complaint on this issue. The Arbitrator assessed Mr Santarelli to have an ability to earn of $300.00 per week. Mr Stambouliah assessed Mr Santarelli to have an ability to earn $228.15 per week as a school-crossing supervisor. One submission that might have been made is that the Arbitrator should have found Mr Santarelli to have an ability to earn $228.15 per week rather than the $300.00 per week. I do not believe the Arbitrator was in error for the reason advanced by the Appellant Employer. If there was an error it was an error in favour of the Appellant Employer and Mr Santarelli has not challenged the Arbitrator’s decision.
Reasons
The Arbitrator carefully considered all of the evidence and gave detailed reasons in support of his conclusions. His reasons for preferring Mr Santarelli’s evidence, and the evidence of his experts, to that tendered on behalf of the Appellant Employer were stated in clear terms:
a) he accepted Mr Santarelli as a truthful witness and his evidence that he had recovered from his 1997 injury and that he continued to have symptoms as a result of his 2005 injury (Reasons, paragraph 39 and 40);
b) Dr Smith’s summary dismissal of any evidence suggestive of even an aggravation of pre-existing changes in Mr Santarelli’s back was contrary to the radiological findings of possible nerve root impingement (Reasons, paragraph 51);
c) Dr Miniter’s opinion was inconsistent with Mr Santarelli’s medical evidence, particularly Dr Dubossarsky and the radiological evidence (Reasons, paragraph 52);
d) he preferred Dr Dubossarsky’s opinion because it was “reasoned and balanced” (Reasons, paragraph 46);
e) he preferred the consistency of the opinion of Dr Dubossarsky with the radiological evidence, with support for an aggravation of pre-existing changes in the lumbar spine observed by Dr Mahony (Reasons, paragraph 53), and
f) he preferred Mr Santarelli’s medical evidence to the “consistently negative and dismissive opinions of the Respondent’s experts” (Reasons, paragraph 56).
The failure to provide adequate reasons constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. It is clear that Arbitrators have a statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Part 15 Rule 15.6 of the Workers Compensation Commission Rules 2006 (‘the Rules’); Absolon v NSW TAFE [1999] NSWCA 311).
Relevantly, Rule 15.6 provides:
“(1) A statement of the Commission’s reasons referred to in section 294(2) of the 1998 Act is to include:
(a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and
(b) the Commission’s understanding of the applicable law, and
(c)the reasoning processes that lead the Commission to the conclusions it made.
(2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission’s view of the case made by each of them.”
To succeed in having the decision set aside on this ground the Appellant Employer must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator has failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311; ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21).
In the present matter the Arbitrator clearly stated his reasons for preferring the Respondent Worker’s evidence. I am satisfied that the Arbitrator’s reasons were not only adequate but were comprehensive. They clearly demonstrated the basis on which he reached his conclusions and that he fairly and lawfully determined the matter. I reject this ground of appeal.
Section 40 Calculations
The Appellant Employer submits that the Arbitrator incorrectly applied section 40 of the 1987 Act. At paragraph 66 of his Reasons the Arbitrator found Mr Santarelli’s probable earnings to be $1,292.00 per week and his ability to earn to be $300.00 per week. However, at paragraph 69 under ‘summary’ the Arbitrator stated Mr Santarelli’s ability to earn to be $992.00 (bullet point five). He then concluded at bullet point six “the Applicant is therefore entitled to weekly payments for the period of partial incapacity for work from 19 December 2005 of $992.”
The Appellant Employer submits that the correct finding for Mr Santarelli’s ability to earn is $992.00 per week as set out in the ‘summary’ in paragraph 69 of the Reasons and, therefore, the correct award should be $300.00 per week. I do not accept this argument. At the arbitration counsel for Mr Santarelli handed to the Arbitrator a hand written document headed “Findings”. Included in that document were draft orders based on Mr Santarelli’s case that he was totally incapacitated. If that argument was not accepted it was submitted, both in that document and orally (T31.40), that Mr Santarelli was able to earn $300.00 per week. In his findings at paragraph 66 the Arbitrator found Mr Santarelli’s ability to earn to be $300.00 per week “as submitted by the Applicant” (emphasis added). In my opinion it is clear beyond doubt that the Arbitrator intended to find and did find Mr Santarelli’s ability to earn to be $300.00 per week and that the figure of $992.00 appearing in bullet point five of paragraph 69 was an error and should have been $300.00. This is also confirmed when one considers the Certificate of Determination which provides for weekly compensation in the sum of $992.00 per week ($1,292.00 less $300.00). I therefore reject the Appellant Employer’s argument that the award should be $300.00 per week.
Next, it is argued that the award made ($992.00 per week) exceeds the statutory maximum payable as at 19 December 2005 for a worker with a dependent spouse and two dependent children, submitted to be $574.50 per week. The Respondent Worker concedes that this part of the decision and Certificate of Determination discloses an error and should be revoked. He submits that, consistent with the Arbitrator’s findings, the following orders should be made under section 40 of the 1987 Act:
a) $971.00 [sic] per week from 19 December 2005 to 16 April 2006;
b) $583.30 per week from 17 April 2006 to 30 September 2006, and
c) $597.10 per week from 1 October 2006 to date and continuing.
The Respondent Worker’s submissions as to the appropriate orders are substantially correct. Though Mr Santarelli is only partially incapacitated, his loss was found to be $992.00 per week. An award of weekly compensation under section 40 of the 1987 Act must not exceed the weekly payment “that would be payable to the worker if it were a period of total incapacity for work” (section 40(5) of the 1987 Act). For the first 26 weeks of incapacity a totally incapacitated worker is entitled to receive his current weekly wage rate (the award rate applicable for his or her job). In this case Mr Santarelli’s current weekly wage rate was agreed to be $971.20 per week (T5.26).
Therefore, Mr Santarelli’s entitlement under section 40 is $971.20 per week from 19 December 2005 until 16 April 2006. The date of 16 April 2006 is the correct date for the cessation of weekly compensation at the current weekly wage rate because that is when Mr Santarelli’s “first 26 weeks of incapacity” ceased (see section 34 of the 1987 Act and submissions at T31.9). For the period after 16 April 2006 the correct compensation is the statutory maximum for a worker with a dependent spouse and two dependent children. As at 17 April 2006 that amount was $590.60. Mr Santarelli is entitled to have that amount adjusted under the legislation because of the operation of section 40(6), which provides for weekly payment of compensation to a partially incapacitated worker to be adjusted because of the operation of Division 6 of the 1987 Act “if it appears proper in the circumstances of the case”. In the present case it is proper that the award be adjusted because of the Arbitrator’s finding that Mr Santarelli’s loss is $992.00 per week, a figure well in excess of the statutory maximum.
DECISION
The Arbitrator’s determination dated 19 March 2007 is revoked and the following orders made:
“1.The Respondent Employer is to pay weekly compensation to the Applicant Worker under section 40 of the Workers Compensation Act 1987, in the amounts of $971.20 per week from 19 December 2005 to 16 April 2006; $586.20 per week from 17 April 2006 to 30 September 2006; $597.10 per week from 1 October 2006 to 31 March 2007; $608.70 per week from 1 April 2007 to date and continuing, as adjusted.
2.The Respondent Employer is to pay the Applicant Worker’s hospital, medical and related expenses under section 60 of the 1987 Act.
3.Assessment of the Applicant Worker’s permanent impairment is referred to the Registrar for referral to an Approved Medical Specialist.”
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting President
3 September 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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