Ice Design Pty Ltd v Bazdanis
[2006] NSWWCCPD 290
•1 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Ice Design Pty Ltd v Bazdanis [2006] NSWWCCPD 290
APPELLANT: Ice Design Pty Ltd
RESPONDENT: Olga Bazdanis
INSURER:QBE Workers’ Compensation (NSW) Ltd
FILE NUMBER: WCC6310-05
DATE OF ARBITRATOR’S DECISION: 16 December 2005
DATE OF APPEAL DECISION: 1 November 2006
SUBJECT MATTER OF DECISION: Arbitrator’s refusal to admit late evidence; application of section 38A of the Workers Compensation Act 1987; adequacy of reasons; error of fact
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy, Solicitors
Respondent: Teakle Ormsby George, Solicitors
ORDERS MADE ON APPEAL: Clause 3 of the Arbitrator’s decision dated 16 December 2005 is revoked, and the issue of Ms Bazdanis’ entitlement to weekly compensation under section 40 of the Workers Compensation Act 1987 for the period from 24 December 2005 is remitted to the Arbitrator for redetermination. The Arbitrator’s decision is otherwise confirmed.
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 12 January 2006, Ice Design Pty Ltd sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against a decision of an arbitrator dated 16 December 2005. The Respondent to the appeal is Olga Bazdanis. Ice Design’s workers compensation insurer is QBE Workers’ Compensation (NSW) Ltd (‘QBE’).
Ms Bazdanis was born on 28 April 1962 and is aged 44. She is married with one dependant child who is aged 4. In about 1996/1997, Ms Bazdanis commenced employment as a retail sales assistant with Ice Design, mainly working at their shop at Westfields Shopping Centre at Liverpool. On 5 July 2001, at a time when she was the manager of the shop, she and her co-workers were attacked by a group of youths. In the course of the assault, Ms Bazdanis injured her back and right knee. She notified Ice Design of her injury and made a claim for workers compensation on the same day.
Following the incident, Ms Bazdanis continued to work for about three weeks before consulting her general practitioner, Dr M Hamad, who issued her with WorkCover certificates stating that she was unfit to work. It was at this time that Ms Bazdanis discovered she was pregnant. This delayed further investigation of the injuries to her back and right leg. Her child was born prematurely on 24 February 2002. On 11 October 2002, Ms Bazdanis had arthroscopic surgery for a partial lateral menisectomy and meniscal cyst.
Initially, QBE accepted liability and paid Ms Bazdanis weekly compensation. However, by letter dated 12 October 2004, QBE denied further liability on the ground that her injury “has not caused you any incapacity for work” based on medical opinion that she was fit for her pre-injury duties. QBE ceased paying weekly compensation from 24 November 2004.
On 2 May 2005, the Commission registered Ms Bazdanis’ ‘Application to Resolve a Dispute’ in respect of her claim for (1) weekly compensation, (2) medical, hospital or related expenses, and (3) compensation for permanent impairment and pain and suffering. Ice Design’s ‘Reply’ was filed on 23 May 2005.
On 11 July 2005, the Arbitrator conducted a teleconference with the parties following which she referred Ms Bazdanis to an Approved Medical Specialist (‘AMS’), Dr Arthur Wong, Occupational Physician, for assessment of permanent impairment. Dr Wong examined Ms Bazdanis on 30 August 2005 and his Medical Assessment Certificate (‘MAC’) was issued on 10 September 2005. Dr Wong stated:
“Ms Bazdanis suffered from multiple soft tissue injuries as a result of the above mentioned workplace incident. In addition she has sustained a tear of the anterior horn of the lateral meniscus of the right knee, patellofemoral pain syndrome affecting the right knee and soft tissue injury to her lumbar spine. X-ray of the lumbar spine taken 10 months after the incident showed minor degenerative changes at L3/4 and L4/5 levels. She subsequently underwent arthroscopic partial meniscectomy. Ms Bazdanis later developed chronic pain in her lower back and right knee. She also complained of loss of sensation to light touch over the distribution area of the superficial peroneal nerve. There is evidence to suggest that as a result of her injury, Ms Bazdanis favours her right leg by preferentially weight-bearing on her left leg.”
The AMS assessed the permanent impairment of Ms Bazdanis’ back at 5% and of her right leg at or above the knee at 10% with no contribution from any existing injury.
On 2 November 2005, the Arbitrator conducted a further teleconference with the parties and, on 24 November 2005, conciliation having proved unsuccessful, she conducted an arbitration hearing. On 16 December 2005, the Arbitrator made her determination in the terms set out below.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 16 December 2005, records the Arbitrator’s orders as follows:
“1. The Respondent pay the Applicant pursuant to s 40(5) for the period 23/11/04 to 23/12/04, the maximum statutory rate applicable at the time, that is $328.90.
2. The Respondent pay the Applicant pursuant to s 38 from 24/12/04 to 23/12/05.
3. The Respondent pay the Applicant from 24/12/05, weekly benefits [sic] $186.60 per week in accordance with the provisions of s 40 Workers Compensation Act 1987.
4. The Respondent pay the Applicant pursuant to s 67, $7,500.
5. The Respondent pay the Applicant treatment expenses in accordance with the provisions of s 60 of the Workers Compensation Act 1987.
6. The Respondent to pay costs as agreed or assessed.”
In her Statement of Reasons for Decision, the Arbitrator found that in respect of the period from 23 November 2004 to 24 December 2004, when section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) applied, Ms Bazdanis had a capacity to work six hours a week as a shop assistant. Applying the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Services (1997) 14 NSWCCR 527 (‘Mitchell’), the Arbitrator found (1) the weekly amount Ms Bazdanis would be able to earn but for the injury was $600, based on comparable wage information provided by the worker and uncontested by the employer, (2) the weekly amount Ms Bazdanis would be able to earn in suitable employment was $95.46 per week, calculated on the basis of six hours a week at $15.91 per hour (the Shop Employees (State) Award casual rate), (3) the difference between $600 and $95.46 is $504.54 per week, (4) in the circumstances there was no reason to exercise the section 40(1) discretion, (5) the award of $504.54 per week was subject to the applicable statutory rate for the period.
The Arbitrator found that after 24 December 2004, Ice Design did not offer Ms Bazdanis suitable duties. During the period up to early 2005, Ms Bazdanis had been looking for suitable work but has not done so since. The Arbitrator found Ms Bazdanis’ employment was terminated because QBE denied liability on her claim. Therefore, from 24 December 2004, Ms Bazdanis became entitled to weekly compensation pursuant to section 38 of the 1987 Act for a period of 52 weeks. From 24 December 2005, she has been entitled to weekly compensation pursuant to section 40. The Arbitrator found Ms Bazdanis was capable of part-time or casual sedentary work either in clerical work or as a beautician for about 30 hours a week. Applying the Mitchell steps once again, the Arbitrator found (1) the weekly amount Ms Bazdanis would be able to earn but for the injury was $600, (2) the weekly amount Ms Bazdanis would be able to earn in suitable employment was $413.40 per week, calculated on the basis of 30 hours a week at $13.78 per hour (the Clerical and Administrative Employees (State) Award Grade 1 part-time rate), (3) the difference between $600 and $413.40 is $186.60 per week, (4) in the circumstances there was no reason to exercise the section 40(1) discretion, (5) the award was therefore $186.60 per week.
The Arbitrator also found the medical and related expenses incurred by Ms Bazdanis as a result of treatment were reasonably necessary to re-build and maintain her thigh strength. With respect to the claim for compensation for pain and suffering pursuant to section 67 of the 1987 Act, the Arbitrator found the injury “does not fall into a category approaching a significant or extreme injury”. She found Ms Bazdanis had other unrelated life stressors during the relevant period, and that Dr Samuel Sorrenti, her treating Orthopaedic Surgeon, and Dr M Hamad, her general practitioner, were of the view that “with the re-instatement of her strengthening program, any further deterioration could be controlled if not improved”. For these reasons, the Arbitrator awarded Ms Bazdanis 15% of the most extreme case, being $7,500.
ISSUES IN DISPUTE
The grounds of appeal identified by Ice Design are that the Arbitrator (1) erred by “rejecting documents produced in answer to a Direction for Production issued by the Appellant on the Respondent’s treating doctors, Dr Sorrenti and Dr Hamad”, (2) erred by failing to give adequate or proper reasons for doing so, (3) as a result of failing to admit these documents, erred in her findings as to extent of incapacity related to the injury, capacity for work, and entitlement to weekly compensation, (4) thereby erred by entering an award of weekly compensation in favour of Ms Bazdanis, (5) erred by entering an award of weekly compensation in favour of Ms Bazdanis pursuant to section 38 of the 1987 Act, and (6) erred by failing to give adequate or proper reasons for doing so. Ice Design’s submissions and those made on behalf of Ms Bazdanis are discussed below.
ON THE PAPERS REVIEW
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.”
Having had regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can 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.
Neither party sought to adduce fresh evidence.
LEAVE
Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. With regard to section 352(2), I am satisfied that the compensation at issue exceeds $5,000 and constitutes at least 20% of the amount awarded in the decision appealed against. I therefore grant leave to appeal.
SUBMISSIONS, DISCUSSION AND FINDINGS
Rejection of Documents
Ice Design’s first ground of appeal is that the Arbitrator erred by “rejecting documents produced in answer to a Direction for Production issued by the Appellant on the Respondent’s treating doctors, Dr Sorrenti and Dr Hamad”.
I note that in Ice Design’s ‘Reply’ filed on 23 May 2005, it foreshadowed its intention to use clinical notes from Drs Sorrenti and Hamad obtained under Directions for Production yet to be served. Directions for Production were subsequently issued by the Commission and, having received documents in response from Drs Hamad and Sorrenti, the Commission ordered access for these documents to Ms Bazdanis’ solicitors from 18 to 24 June 2005 and to Ice Design from 25 June 2005 to 1 July 2005.
Then at the teleconference on 11 July 2005, the Arbitrator gave a direction allowing Ice Design further access to these documents for a further period of seven days from 13 to 19 July 2005. The Arbitrator also directed Ms Bazdanis to submit to assessment of permanent impairment by an AMS. With regard, in particular, to Ice Design and any documents admitted into proceedings from the Directions to Produce Documents process to be sent to the AMS, the Arbitrator stated, “Respondent to access within 7 days and provide reports of Dr Sorrenti and Dr Hamad”. No such reports were received from Ice Design and, on 1 August 2005, the Commission notified the parties that a medical examination had been arranged with an AMS, Dr Wong, on 30 August 2005.
Clearly, it was open to Ice Design to make an ‘Application to Admit Late Documents’ in respect of those documents at that time. Ice Design did not do so. Rule 40 of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) requires, relevantly, that any evidence that has not been lodged with the ‘Reply’ and on which the respondent wishes to rely, must be “served on all other parties and lodged as soon as practicable after the evidence becomes available” (Rule 40(2)(b)). The Commission may, in the case of a document produced as required by a Direction for Production, allow the respondent to introduce evidence of that information (Rule 40(5)).
The President of the Commission, Justice Sheahan, issued the Commission’s Practice Direction No 9, ‘Lodgment of Late Documents’, on 6 April 2004. The Practice Direction recites the relevant 2003 Rules and emphasises the requirement for a party to seek leave to lodge late documents by making application on the Commission’s approved form.
Ice Design never lodged any application to admit the material produced by Drs Sorrenti and Hamad on an approved form. This was notwithstanding a later teleconference conducted by the Arbitrator on 2 November 2005. Instead, at the arbitration hearing on 24 November 2005, Counsel for Ice Design sought leave from the Arbitrator to rely on this material. The Arbitrator then sought oral submissions from the parties on this issue (transcript page 3). Counsel for Ice Design did not explain why no application to admit these documents as late documents had previously been made. He noted that the documents had been foreshadowed in the ‘Reply’, that both parties had access to the documents produced, and submitted that there would be no real prejudice to the applicant by their admission, especially in view of the fact that the applicant sought to rely on other reports from Drs Sorrenti and Hamad.
In response to a question from the Arbitrator as to whether the clinical notes of Dr Hamad were contemporaneous to all the issues, Counsel responded that they were and that they also dealt with an earlier knee complaint: “As I said before, it’s unfortunate that they [the clinical notes] weren’t around to be referred to the AMS” (transcript page 4). This was clearly incorrect, as the history of these proceedings set out above shows – the clinical notes could have been provided to the AMS had Ice Design sought to do so in accordance with the Arbitrator’s direction on 11 July 2005.
Counsel for Ms Bazdanis objected to the application for leave to admit the documents. He said he had not seen the documents until that day, that the documents should have gone to the AMS, and that Ms Bazdanis would be prejudiced by their admission because, had the applicant seen the document from Dr Sorrenti earlier, a further report would have been sought from Dr Sorrenti asking him to comment on the earlier report. Counsel said the earlier condition might not be significant: “it is prejudicing the applicant without her doctors to have the opportunity to properly consider it” (transcript page 5).
Practice Direction No 9 requires that in determining an application for leave to lodge late documents, an Arbitrator should take into consideration the parties’ submissions, the effect, if any, on the timely resolution of the dispute, the extent of any prejudice to the other party, the requirements of the 1998 Act and the 2003 Rules, and the objectives of the Commission. I note that the objectives of the Commission set out in section 367 of the 1998 Act include the provision of a fair and cost effective system for the timely resolution of disputes.
The Arbitrator stated (transcript page 5):
“In this instance, the applicant has persuaded me that they will be prejudiced in relation to these very late documents and, secondly, insufficient reason as to why they’re late has been provided. So the documents submitted for admission are not allowed.”
In addition to its Counsel’s submissions to the Arbitrator, Ice Design submits in the appeal that since the documents were those of Ms Bazdanis’ treating doctors, it was reasonable to expect that her lawyers would be aware of their contents and would not be taken by surprise, and that the documents, being contemporaneous records of prior right knee injuries, were relevant to obtaining a full and accurate history of her condition, and therefore to the issues in dispute.
Ms Bazdanis’ solicitors note that no explanation for the delay in serving the documents in issue has been given. They submit the Arbitrator considered the relevant matters in exercising her discretion not to admit the documents and gave sufficient reasons for doing so. Ms Bazdanis’ solicitors note that in his report dated 27 August 2002, Dr Sorrenti stated that Ms Bazdanis “did have some minor problems with her knee in the past [sic] all work related injuries which always recovered”. To have admitted his report dated 15 April 1997 without the opportunity for the applicant to obtain Dr Sorrenti’s further opinion as to the significance of the 1997 injury, would have caused the applicant significant and irreparable prejudice.
In my view, the Arbitrator’s oral reasons for her determination of Ice Design’s application for leave were, in the circumstances, sufficiently clear. It was necessary for her to make an immediate determination of that application, she heard submissions from the parties that canvassed the relevant considerations, and made a determination accepting Ms Bazdanis’ Counsel’s submissions. I am not satisfied that the Arbitrator made any error in so doing. Clearly, Ice Design was the victim of its own lack of diligence in presenting its case at the appropriate time and in the appropriate way. I therefore reject Ice Design’s first and second grounds of appeal in relation to the rejection of documents. I also reject Ice Design’s third and fourth grounds of appeal which follows from my rejection of the first two grounds.
The Application of Section 38A of the 1987 Act
Ice Design’s fifth and sixth grounds of appeal are, respectively, that the Arbitrator erred by entering an award of weekly compensation in favour of Ms Bazdanis pursuant to section 38 of the 1987 Act, and by failing to give adequate or proper reasons for doing so. The Arbitrator found Ms Bazdanis had been seeking suitable work during the period from 24 December 2004 “up to early 2005”, but had not been job seeking since that time. Ice Design submits the section 38 award should be limited to this period. Thereafter, an assessment of Ms Bazdanis’ entitlement to weekly compensation pursuant to section 40 would need to be undertaken. Ice Design submits the Arbitrator’s analysis of the evidence and her findings “are brief to say the least”, and there is no analysis of sections 38 or 38A, or discussion of the evidence in support of her findings in this regard. In particular, the Arbitrator failed to deal adequately with the medical evidence which raised the issue of her failing to continue her rehabilitation and physiotherapy program and thereby mitigate further loss, and with the evidence suggesting she did not wish to return to work because of her young child.
Ms Bazdanis’ solicitors submit the section 38A(2)(d) obligation to “take reasonable steps to obtain suitable employment from some other person” is not a continuing obligation in the sense that the worker must be looking for suitable employment throughout the entire period: Puzyrewski v Zumtobel Staff (Aust) Pty Ltd (2002) 23 NSWCCR 327, at 336 (per Armitage J).
I note that in her undated statement (but described in her ‘Application to Resolve a Dispute’ as dated 18 April 2005), Ms Bazdanis outlined her attempts at a return to limited light duty work in late 2003 and again in 2004. In October 2004, QBE informed her that liability was declined for further ongoing physiotherapy and gym. In December 2004, Dr Hamad again gave her a certificate for light duty work, but when she asked Ice Designs for such work it refused. In a later statement dated 7 November 2005, Ms Bazdanis said:
“When I did return to work in late 2003 my mother was looking after my daughter. I live with my parents. There was no problem with me going to work due to my daughter.”
Ms Bazdanis provided further information about the physiotherapy she had and her attempted return to work in 2004. After the six to eight weeks of retail work (three hours a day on two days a week) with Ice Design, she developed “aches and pains” and went back to see Dr Sorrenti:
“He advised me to stop working and to do physio. I kept doing physio and did exercise at the gym. He didn’t want me to return to work as I was doing physio.
When the physio stopped in mid 2004 my right knee became weaker.
After my weekly compensation ceased I rang up the Respondent and spoke to Kerry McFarlane who is the Human Relations Manager. I was told they couldn’t take me back because weekly compensation had stopped.
I haven’t been back to Dr Sorrenti for some time because I can’t afford any physio. I go to see Dr Hamad. I am doing exercises at home and I also use a Swiss ball and do step exercises.
I did apply for some jobs after my weekly compensation ceased. I applied at Portmans for part-time work which was not available. I also applied at Jay Jays and at Sportsgirl also for part-time jobs but again unsuccessfully. I applied for these jobs in early 2005. Unfortunately no-one wants to employ me part-time. I don’t believe I could do more than 3 hours a day. I also applied for work in beauty salons. Again they wanted me fulltime in jobs where I had to sit down. I can’t do fulltime work in a beauty salon as I can’t sit down for 8 hours.
I can’t do work in a clothing business as I can’t stand for more than 15 minutes.
My daughter went to pre-school in early 2005 for 2 days a week from 9.00am to 3.00pm. This stopped because she wasn’t happy. However she went back a month ago on five occasions for at least an hour and she was fine at that time. She is now on the waiting list to go to preschool 4 days a week. I can work fulltime even if my daughter finishes preschool at 3.00pm as my mother can pick her up.I don’t think I can work more than 3 or 4 hours per day. Furthermore I doubt that I can do more than 2 or 3 days a week. While I was doing physio my leg was improving.”
Ms Bazdanis did not give oral evidence at the arbitration hearing. I note Ice Design did not wish to cross-examine her.
The Arbitrator found (Statement of Reasons, page 8):
“I am satisfied that after the 24/12/04, the employer did not offer suitable duties. I find that during the period up to early 2005, the Applicant had been job seeking for suitable work but has not since that period. I find that the Applicant’s employment was terminated because the insurer had denied liability for her claim. For these reasons, I find that from the 24/12/04 the Applicant became entitled to s 38 benefits. This entitlement ends after a 52 week period on the 24/12/05.”
In my view, it is reasonably clear from the Arbitrator’s discussion that she was addressing the requirements of section 38A(2). Section 38A(2) states:
“The worker is not to be regarded as seeking suitable employment unless:
(a) the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(b) the worker has supplied the employer (or the insurer who is liable to indemnify the employer) with a medical certificate with respect to the worker’s partial incapacity for work, being a medical certificate that is in or to the effect of a form approved by the Authority, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in determining what is suitable employment for the worker, and
(c) the worker has requested the employer (or such an insurer) to provide suitable employment or it is apparent from the circumstances that the worker is ready, willing and able to accept an offer of suitable employment from the employer, and
(d) the worker is taking reasonable steps to obtain suitable employment from some other person.
Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects.”
At paragraph 20, the Arbitrator had also referred to a medical certificate issued by Dr Hamad to the effect that Ms Bazdanis was “fit for suitable duties from 3/12/04 to 3/1/05 with restrictions of 3 days per week, 2 hours per day, lifting up to 5 kg and to alternate between sitting and standing every 20 minutes and no climbing stairs”. Thus, although the Arbitrator was not as clear in addressing the requirements of section 38A(2) as she should have been, it is reasonably clear that she considered the requirements of section 38A(2) to have been met, having referred to relevant evidence to support such a finding. In my view, her statement of reasons was sufficient to satisfy the requirements for a Statement of Reasons prescribed by Rule 73 of the 2003 Rules and, in any event, there is nothing to indicate that she failed to exercise her duty “to fairly and lawfully determine the application” (Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6, at paragraph 48). I therefore reject the fifth and sixth grounds of appeal.
Entitlement to Weekly Compensation under Section 40 of the 1987 Act
However, it would appear the Arbitrator did make an error of fact in relation to Ms Bazdanis’ capacity for work for the purpose of determining her entitlement to weekly compensation under section 40 of the 1987 Act. At page 8 of her Statement of Reasons, the Arbitrator said:
“On current incapacity, I find that the Applicant is now capable of part time or casual sedentary work either in clerical work or as a beautician for about 30 hours per week. I base this on the Applicant’s statement that she is capable of 4 hours per day, 3 days a week as a shop assistant or beautician balanced against her proven ability to work full hours in clerical work when working at Marrickville (recognising that travel to and from there was difficult). She was able to maintain 38 hours a week for 6-8 weeks working a cash register and putting stock away in a job at Westfield Liverpool. Both parties in their submissions found common ground in respect to her potential to manage 30 hours of weeks [sic] within her restrictions. Dr Hamad suggested that sedentary duties were most appropriate for the Applicant now.”
The error of fact is founded in the Arbitrator’s reference to Ms Bazdanis’ “proven ability to work full hours in clerical work when working at Marrickville”, and her maintaining “38 hours a week for 6-8 weeks working a cash register and putting stock away in a job at Westfield Liverpool”. A review of Ms Bazdanis’ statements shows that when she went back to work at the Head Office of Ice Design at Marrickville doing office and computer work, this was for three hours on one day a week, and the six weeks at Ice Design’s shop at Westfield Liverpool operating the cash register and putting away stock, was for three hours a day on two days a week (undated statement, page 4, read in conjunction with statement of 7 November 2005, pages 2 to 3).
With regard to the parties’ submissions to the Arbitrator at the arbitration hearing, I note Counsel for Ice Design submitted that Ms Bazdanis “would certainly be fit to work 30 hours per week in [sic] whether it be a sedentary role or her pre-injury duties” (transcript page 11). Counsel for Ms Bazdanis submitted (transcript page 20) that, based on her evidence, she would be able to work a maximum of 12 hours per week. He submitted she could not do the sales assistant work because it involves bending, squatting, lifting and stairs. However, he acknowledged she might be able to do clerical work and “possibly she could do 30 hours at that”.
In my view, the Arbitrator’s finding as to Ms Bazdanis’ capacity for work, while in accord with the parties’ submissions, does not accord with the evidence to which the Arbitrator referred in support of her finding. She thereby made an error of fact of some significance in the course of her fact finding process in determining Ms Bazdanis’ capacity for work and entitlement to weekly compensation for the period from 24 December 2005 under section 40. That part of her decision must therefore be revoked and the matter remitted to the Arbitrator for redetermination.
DECISION
Clause 3 of the Arbitrator’s decision dated 16 December 2005 is revoked, and the issue of Ms Bazdanis’ entitlement to weekly compensation under section 40 of the Workers Compensation Act 1987 for the period from 24 December 2005 is remitted to the Arbitrator for redetermination. The Arbitrator’s decision is otherwise confirmed.
COSTS
There is no order as to the costs of this appeal.
Robin Handley
Acting Deputy President
1 November 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.
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