Irene Maria & Emmanuel Kasstrissios trading as Vaucluse Ocean Food v Putrus
[2006] NSWWCCPD 301
•8 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Irene Maria & Emmanuel Kastrissios t/as Vaucluse Ocean Food v Putrus [2006] NSWWCCPD 301
APPELLANT: Irene Maria & Emmanuel Kastrissios t/as Vaucluse Ocean Food
RESPONDENT: Ayad Salim Putrus
INSURER:Employers Mutual Indemnity
FILE NUMBER: WCC 8500-04
DATE OF ARBITRATOR’S DECISION: 1 November 2005
DATE OF APPEAL DECISION: 8 November 2006
SUBJECT MATTER OF DECISION: Section 38 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Edwards Michael Moroney Lawyers
Respondent: Sanford Legal
ORDERS MADE ON APPEAL: 1. Paragraph 3 of the Arbitrator’s Decision dated 1 November 2005 is revoked and the following order is substituted:
“3.That Irene Maria & Emmanuel Kastrissios t/as Vaucluse Ocean Food pay Ayad Salim Putrus weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$275.00 per week from 21 January 2004 to 30 June 2004;
(b)$200.00 per week from 1 July 2004 to 31 December 2004;
(c)$150.00 per week from 1 January 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”
2.Paragraphs 1, 2 and 4 of the Certificate of Determination of 1 November 2005 are confirmed.
3.No order is made as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 28 November 2005 Irene Maria & Emmanuel Kastrissios t/as Vaucluse Ocean Food (‘Vaucluse Ocean Food’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 November 2005.
The Respondent to the Appeal is Ayad Salim Putrus (‘Mr Putrus’) who was born on 17 September 1969 and is 37 years of age. At the time of the arbitration hearing Mr Putrus was single with no dependents.
Mr Putrus commenced employment with Vaucluse Ocean Food on or about 14 April 2003 as a shop assistant and kitchen hand. On 21 October 2003 whilst carrying two 20 litre drums of hot cooking oil, he slipped on a wet mat and was injured. The hot oil burned his right forearm and he alleges he also injured his back.
After attending a medical centre, Mr Putrus was off work until 1 November 2003 when he returned to selected duties with Vaucluse Ocean Food. On 21 January 2004 he resigned his employment citing his work injuries as the cause.
On 2 April 2004 Mr Putrus commenced employment as a taxi driver, work he was still doing at the time of the arbitration hearing.
Compensation was paid for all periods up to 21 January 2004. Proceedings were commenced in the Commission on 31 May 2004 and an arbitration hearing took place on 20 September 2005. Vaucluse Ocean Food have appealed from the decision handed down by the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 1 November 2005 records the Arbitrator’s orders as follows:
“1.I order the Respondent pay the Applicant’s [sic] in respect of S66 entitlements - 6%- WPI - $7,500.00.
2.I enter an award in favour of the Respondent in respect of S60 claim for medical and related expenses.
3.I order the Respondent pay the Applicant in respect of his weekly entitlement claim as follows:
i)28/1/04 [sic 21/1/04] - 31/3/04 - $500.00 per week.
ii)1/4/04 - 30/6/04 - $275.00 per week.
iii)1/7/04 - 31/12/04 - $200.00 per week.
iv)1/1/05 to date and continuing - $150.00 per week.
4.I order the Respondent pay the Applicant’s costs, to be assessed if not agreed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are that the Arbitrator erred in:
§finding that Mr Putrus injured his back as a result of the incident on 21 October 2003 and failing to give any or any adequate reasons for that finding;
§finding that Mr Putrus was entitled to an award pursuant to section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’);
§finding that Mr Putrus’ incapacity results in part from the injury to his right arm when such finding is contrary to the Medical Assessment Certificate, and
§the findings of Mr Putrus’ ability to earn and failing to give any or any adequate reasons for those findings.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Vaucluse Ocean Food initially suggested that an oral hearing may be appropriate as a transcript of the oral evidence was not available. It was suggested that this was the appropriate course if the oral evidence were considered essential to the determination of the review. A transcript of the proceedings was sent to both parties on 6 December 2005 and on 25 September 2006 I issued a Direction calling for further submissions in order that I may consider the need for a formal hearing. On 3 October 2006, in response to a request from Vaucluse Ocean Food a copy of the transcript was sent to them.
I have now received further submissions from Vaucluse Ocean Food and further submissions in reply from Mr Putrus. Both parties now consider that the appeal can proceed to be determined on the papers.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, 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
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.
As the appeal involves an award of compensation, backdated to January 2004, it clearly satisfies the monetary threshold and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
PRELIMINARY
At the Teleconference on 20 August 2004, the Arbitrator referred the matter for assessment of whole person impairment in relation to the right upper extremity and lumbar thoracic spine to Dr F P Blake, orthopaedic surgeon. Dr Blake issued a Medical Assessment Certificate assessing 6% whole person impairment for the lumbar spine and nil whole person impairment for the right upper extremity.
The Arbitrator also referred the matter for whole person impairment resulting from the burns to Dr Hunter J H Fry, general surgeon specializing in plastic and reconstructive surgery. Dr Fry issued a Medical Assessment Certificate assessing nil whole person impairment in relation to the skin and right upper extremity.
At the request of the Arbitrator the parties agreed on the issues in dispute. The Arbitrator set these out in paragraph 8 of his decision and include:
§did Mr Putrus suffer any orthopaedic injury as a result of the incident at work;
§does Mr Putrus suffer any incapacity from any work injury and if so to what extent, and
§what is Mr Putrus’ current ability to earn.
At paragraphs 25.1 and 25.3 the Arbitrator made the following findings:
“I accept the Applicant sustained work injuries to his low back and right arm at or below the elbow. Dr Blake found 6% whole person impairment in respect of the lumbar spine and 0% WPI re right upper extremity. Those findings are binding on me.
As to the wage loss claim, I accept that his low back and right arm injuries affected the Applicant’s capacity for work. In particular, I accept Dr Douglas’ fair assessment of the Applicant and the restrictions as to his work capacity. These were consistent with the Applicant’s statement and oral testimony.”
EVIDENCE AND SUBMISSIONS
Injury to the Back
Vaucluse Ocean Food submit that the Arbitrator erred in finding that Mr Putrus injured his back at the same time as he suffered a burn injury to his right arm. In support of this submission it is pointed out that on the workers compensation claim form dated 12 November 2003 there is no mention of injury to the back. It is further submitted that although Mr Putrus attended medical practitioners frequently in relation to the right arm injury, there is no complaint regarding his back until some weeks after the accident. It is further pointed out the medical certificates issued by Mr Putrus’ general practitioner referred only to the right arm injury until 26 March 2004, when the back was included on a medical certificate for the first time. It was on 26 March 2004 when Mr Putrus was involved in a motor vehicle accident where he injured his back. Vaucluse Ocean Food submit that an inference can therefore be drawn that the back was not of clinical significance until Mr Putrus began making complaints to doctors for medico-legal purposes.
It is further submitted by Vaucluse Ocean Food that although the Arbitrator is bound by the findings of the Medical Assessment Certificate as to the degree of the impairment, Mr Putrus had not discharged the onus of showing that such impairment resulted from the injury whilst employed by Vaucluse Ocean Food. In support of this submission it is pointed out that the Approved Medical Specialist had a history of immediate back pain after the injury on 21 October 2003 and that Mr Putrus did not provide a history of the further back injury resulting from the motor vehicle accident on 26 March 2004. Vaucluse Ocean Food submit that the Arbitrator should have referred the matter back to the Approved Medical Specialist for further assessment in order to receive the history of the motor vehicle accident and although this submission was made at the arbitration hearing, no reference is made to it by the Arbitrator in his decision.
Mr Putrus submits in response that one of the central issues at the arbitration hearing was whether he suffered an injury to his back as well as his right arm on 21 October 2003 and that the Arbitrator interrogated him on this issue. Mr Putrus further submits that he was cross-examined both about the motor vehicle accident and that he had deliberately withheld this information from the Approved Medical Specialist. Mr Putrus submits that the Arbitrator, being alive to these issues, correctly determined these matters on the weight of the evidence which consisted of Mr Putrus’ oral evidence and the documentary material.
As Deputy President Byron said in John Robinson t/as Robinson’s Pharmacy v King [2005] NSWWCCPD 39 (‘Robinson’):
“The weight and relevance of the evidence is a matter in the discretion of the Arbitrator, upon due consideration of that evidence. In circumstances where it can be demonstrated that the Arbitrator has failed to exercise his discretion fairly and lawfully, the decision may be overturned. The circumstances in which this occurs are where the Arbitrator has acted upon a wrong principle, allowed irrelevant considerations to influence his decision, made a material mistake as to facts or has failed to take into account relevant and material considerations, (House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520 and Re National Roads and Motorists Association Ltd [2003] FCAFC 206).”
I can see no error in the Arbitrator’s decision on the finding of injury to the back. Having considered the evidence in this matter, including the transcript of the proceedings, I am of the opinion that it was open to the Arbitrator to make the finding that he did.
The workers compensation claim form does not record injury to the back, however when cross-examined about this (transcript page 28) Mr Putrus stated that the employer filled out the claim form which he was asked to sign. Mr Putrus went on to state that he told his employer about hurting his back and the employer refused to write that down saying that if Mr Putrus wanted to stay in his job, he had to sign the claim form. It was not suggested to Mr Putrus in cross-examination that this was not correct, nor was any evidence called by Vaucluse Ocean Food to contradict this assertion.
The clinical notes of Mr Putrus’ general practitioner, Dr Patel, were in evidence. On looking at those notes the first entry regarding back pain appears to be 10 November 2003, 3 weeks after the injury. When cross-examined about this (transcript page 29) Mr Putrus stated:
“I mentioned the pain of my back to Dr Patel and to the other doctor at the beginning and just because also that the pain in my arm was more, it was worse, it was more hurting and I was feeling lot of heat in my arm and I thought at the beginning that this backache might disappear with the time so I was more concerned about the pain in my arm first.”
On reading the Medical Assessment Certificate it is clear that Mr Putrus provided a history of pain in his back on the day of the accident. This is not inconsistent with his evidence referred to above. It is also clear that he did not tell the Approved Medical Specialist about the motor vehicle accident that happened on 26 March 2004. When asked about this in cross-examination Mr Putrus at first stated that he was not asked about his back by the Approved Medical Specialist (transcript 30.43). Mr Putrus on further cross-examination stated that he did not remember, but “told him [Dr Blake] everything that happened”.
When asked about the back pain before and after the motor vehicle accident Mr Putrus’ evidence was not altogether clear. In response to the Arbitrator (transcript page 19.16) Mr Putrus stated that the pain was always in his back before the motor vehicle accident. In response to questions from Counsel for Vaucluse Ocean Food, Mr Putrus stated that maybe there was an increase in back pain after the accident (transcript 29.40). Mr Putrus submitted at the arbitration hearing and again in his written submissions in Opposition to Appeal that he had undergone radiological investigation of his lumbo-sacral spine on 22 March 2004 and again on 24 March 2004, being only a matter of days before the motor vehicle accident. He further submitted that he was examined by Dr John Douglas, orthopaedic surgeon, at the request of Vaucluse Ocean Food on 9 March 2004, 17 days before the motor vehicle accident. It was submitted at the arbitration hearing that on comparing Dr Douglas’ examination to that of the Approved Medical Specialist there is not a great deal of difference and it was on this basis that the Arbitrator did not refer the matter back to Dr Blake with the further history of the motor vehicle accident.
On reading the transcript (page 40.20) it is apparent that the Arbitrator considered the question of referring the matter back to Dr Blake, but was satisfied that it was not necessary because Dr Blake in his Medical Assessment Certificate specifically referred to the examination results of Dr Douglas and concluded that examination would provide the same whole person impairment that he certified when considering the Work Cover Guidelines.
Vaucluse Ocean Food submit that the Arbitrator failed to give any or any adequate reasons for the finding of injury to the back. The Arbitrator did not make any reference in his decision of the submission by Vaucluse Ocean Food that the matter be referred back to Dr Blake. However, I am satisfied on the material before the Arbitrator that his decision not to refer the matter back was correct. Although his Reasons for Decision were brief and there was the omission referred to above, I am satisfied, to use the words of Deputy President Byron, “in the context of the evidence provided and the submissions made, it is my view that they would adequately convey to the parties who are acquainted with the circumstances of this matter, the basis upon which the Arbitrator came to his decision.” (Camden Council v Hancock [2005] NSWWCCPD 6) (‘Hancock’).
Incapacity
At paragraph 18 of the decision the Arbitrator summarized Mr Putrus’ claim for weekly benefits of compensation:
“On 21 January 2004 the Applicant resigned his employment allegedly due to his injuries. He claims weekly entitlements under S36 of the 1987 Act [total incapacity] up to 1 April 2004 when he commenced work as a taxi driver. Thereafter he claims the difference between comparables and actuals.”
The Arbitrator made the following finding at paragraph 25.4 of his decision:
“I find the Respondent failed to provide suitable light duties and that the applicant’s resignation from work and inability to work from 21 January 2004 (date of resignation) until 1 April 2004 was reasonable.”
Vaucluse Ocean Food submit that Mr Putrus did not discharge the onus of establishing an entitlement to weekly benefits of compensation pursuant to section 38 of the 1987 Act. Mr Putrus submits in reply that his entitlement was made out in response to questions from the Arbitrator and as there was no cross-examination by Vaucluse Ocean Food on the issue, this implies an acceptance on their part that Mr Putrus was not fit for his former duties as at the date of his resignation.
At the arbitration hearing the Arbitrator asked Mr Putrus why he gave up work at Vaucluse Ocean Food in January 2004. Mr Putrus answered that pressure was put on him to work full time by Vaucluse Ocean Food and that after working one-week full time “…as a result of my increasing-increased pain, I couldn’t stand it and I stopped one week after”. Mr Putrus then explained that he was asked to do cooking, which was heavier work and he couldn’t manage it.
In his particulars of claim made to Vaucluse Ocean Foods on 19 March 2004, Mr Putrus claims weekly benefits of compensation pursuant to section 40 of the 1987 Act from 21 October 2003 to 1 November 2003 and from 23 January 2004 [sic 21 January 2004] to date and continuing. The Application to Resolve a Dispute claims compensation for the same periods, but mentions no section of the legislation.
In his statement dated 16 September 2004 Mr Putrus states that he resigned from his employment on 21 January 2004 because of the injuries sustained on 7 October 2003 [21 October 2003]. He then states:
“During the period from 21 January 2004 to 1 April 2004 I could not work because of my injuries referred to above. I did not receive any form of income during this period.”
A medical certificate from Dr Patel, dated 17 January 2004, certified Mr Putrus fit for suitable duties full time with no cooking from 20 January 2004 to 30 January 2004. The next medical certificate from Dr Patel is dated 26 March 2004 and certifies Mr Putrus fit for suitable duties from 26 March 2004 to 2 April 2004. I have not sighted any medical certificates for the period between 30 January 2004 and 26 March 2004, however the clinical notes of Dr Patel have a handwritten entry on 21 February 2004 that appears to have the words ‘light duties’. Mr Putrus was however examined by Dr Matalani, consultant occupational physician, on 3 March 2004 at the request of his solicitor and this doctor certified Mr Putrus fit for suitable duties.
The finding of the Arbitrator which I have quoted above in paragraph 34 is not clear. Although the Arbitrator refers to a failure by Vaucluse Ocean Foods to provide suitable light duties, he then refers to Mr Putrus’ inability to work from 21 January 2004 which is consistent with Mr Putrus’ statement of 16 September 2004 and the Arbitrator’s summary of the claim for weekly payments of compensation (see paragraph 33 above).
I find that the Arbitrator has failed to provide adequate reasons that are “capable of conveying adequately to the parties, the basis upon which the Arbitrator came to his decision” (Hancock). Having found an error of law it is necessary that the decision of the Arbitrator be revoked. As such I do not need to consider the further grounds of appeal.
A Presidential Member, where possible, should determine the matter fully unless there is some reason for the matter to be remitted to an Arbitrator for re-determination. I have a transcript of the proceedings, all the documentary material including the medical evidence and the submissions of the parties both at the arbitration hearing and on appeal. Further I am of the opinion that the Arbitrator’s conclusions of fact with respect to the injury to the back are well founded and should stand. As such I am of the view that it is preferable that I revoke paragraph 3 of the Certificate of Determination dated 1 November 2005 and substitute a new decision in its place (Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344).
DISCUSSION AND FINDINGS
Although Mr Putrus’ statement dated 16 September 2004 is to the effect that he could not work in the period 21 January 2004 to 1 April 2004 because of his injury, there is no medical evidence to support this. In fact all of the medical evidence states that Mr Putrus was fit for light work or suitable duties in this period. As stated above both Dr Patel and Dr Matalani were of this opinion. Dr Rea, plastic surgeon, who saw Mr Putrus on 1 March 2004 at the request of his solicitors was of the opinion that he was fit for suitable duties.
Dr Stapleton, plastic surgeon, who saw Mr Putrus on 9 March 2004 at the request of Vaucluse Ocean Food was of the opinion that Mr Putrus could return to his pre-injury duties as an assistant cook, however the doctor noted he was not qualified to comment on the back injury. Dr Douglas, orthopaedic surgeon, who I referred to above as having seen Mr Putrus on 9 March 2004 at the request of Vaucluse Ocean Food, was of the opinion that he was fit for sedentary work with restrictions on lifting and bending.
Accordingly I find that Mr Putrus has been partially incapacitated for work since 21 January 2004 as a result of the injury to his back.
Section 40 Entitlement
The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process.
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:
(1)Determination of the weekly amount the worker would probably have been earning if uninjured;
(2)Determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
(3)Subtraction of the figure in (2) from the figure in (1);
(4)Exercise of the discretion contained in subsection (1) of section 40; and
(5)Make an award in the amount arrived at by step (4).
Probable Earnings
At the arbitration hearing it was agreed between the parties that the probable earnings but for injury were $500 per week. Accordingly at Step (1) I find that Mr Putrus’ probable earnings but for injury are $500 per week at all material times.
The Amount the Worker is earning or would be able to earn
Since 2 April 2004 Mr Putrus has been working as a taxi driver. His tax return for the financial year ending 30 June 2004 was in evidence at the arbitration hearing. This showed a total business income for the period 2 April 2004 to 30 June 2004 of $8,978. When divided by 12 weeks the amount is $748.16. Mr Putrus’ evidence was that out of this amount he had to pay $50 per week fuel, $20 per week washing of the taxi and $475 per week hire of the taxi. When these expenses, totaling $545 per week, are deducted from the business income, the taxable sum is $203.16 per week.
The tax return ending 30 June 2004 sets out expenses of $6,430 and when divided by 12 weeks is $535.83. This leaves a taxable income of $212.33 ($748.16 less $535.83).
Mr Putrus in his statement dated 16 September 2004 said that his approximate weekly earnings, after expenses, were $225 per week for the period 2 April 2004 to 30 June 2004. The Arbitrator asked Mr Putrus to provide evidence that the daily hire rate for the taxi was $95 and this evidence was provided on 27 September 2005 and is before me.
At the arbitration hearing the Arbitrator asked Counsel for Vaucluse Ocean Food to seek instructions on whether the figure of $225 per week was agreed. In response it was submitted that the amount was not agreed because it is a cash business. It was further submitted by Vaucluse Ocean Food that if Mr Putrus’ earnings as a taxi driver were in fact $200 or $300 per week, that is not an accurate reflection of his ability to earn. The difficulty with this submission is that Vaucluse Ocean Food arranged for Mr Putrus to undergo vocational assessment on 4 August 2004. The summary of this assessment, set out in a report dated 19 August 2004, states that Mr Putrus is best to continue in his current occupation as a taxi driver. An attempt was made in this report to estimate the earnings of a taxi driver but concluded “to try to calculate an hourly rate of pay then, would only be guessing”.
The Arbitrator found (paragraph 25.6 of the decision) that the sum of $225 per week reasonably reflects Mr Putrus’ earning capacity in the period 2 April 2004 to 30 June 2004 and having regard to the evidence before me I agree with this finding.
At the arbitration hearing Mr Putrus was asked questions by both the Arbitrator and Counsel for Vaucluse Ocean Food about the number of hours he drove the taxi. At page 23.55 of the transcript Mr Putrus stated he drove the taxi at the beginning 4 to 5 hours a day. He has been working 5 days a week whilst driving the taxi. Accordingly doing the best I can I find that at all material times the hourly rate is $10 after expenses ($225 per week divided by 4.5 hours per day).
In a wage schedule filed by Mr Putrus dated 27 September 2004 he states that his actual earnings increased from $225 per week to $300 per week from 30 June 2004. There are no financial records to substantiate this, however during cross-examination at the arbitration hearing Mr Putrus stated that he asked his doctor to increase his hours because he was not making enough money. Initially they were increased to 6 hours, then 8 hours, but with the proviso that from the 8 hours he would work only the busy times. He was unsure when the increase in hours took place, but at one stage did mention after Christmas [2004](transcript page 23).
The Arbitrator found that in the period 3 June 2004 to 31 December 2004 Mr Putrus’ earnings were $300 per week and again having regard to the evidence I agree with this finding (30 hours per week x $10 per hour).
At paragraphs 25.8 and 25.9 the Arbitrator made this finding:
“From 1 January 2005, I find that the Applicant’s work capacity was capable of being extended by reason of gradual improvement, as opined by Dr Douglas. Dr Rea considered he would be fit for driving. The Applicant’s oral evidence indicates a need to take breaks and Dr Blake AMS took a history to that effect. I consider that the Applicant has a capacity for extended work activity as his evidence indicated, so that when he felt he was not earning enough money he increased his hours. Indeed he stated that on occasions he has worked an 8-hour shift.
Taking all this into account, I find that since 1 January 2005 the Applicant was capable of earning net of payments a weekly amount of $350.00, which fairly demonstrates his residual work capacity.”
Having regard to all of the evidence I again agree with this finding of the Arbitrator being 35 hours per week at $10 per hour.
This leaves the period 21 January 2004 to 1 April 2004 where Mr Putrus says he could not work and as such is not ‘ready, willing and able’ so as to satisfy the requirements of section 38 of the 1987 Act. I also note that no claim was made pursuant to this section by Mr Putrus either prior to, or at the arbitration hearing. I find Mr Putrus’ ability to earn is $225 per week. I do so having regard to the medical restrictions on Mr Putrus at the time and the vocational assessment report of Maurine Edwards, who although of the opinion Mr Putrus was best to continue as a taxi driver, stated that if his circumstances were to change, he would be suited to do similar work to his pre-injury occupation, but where he can avoid cooking. This would include work as a shop assistant in a fast food outlet or café. Having regard to the totality of the evidence, I am of the opinion that Mr Putrus would have been capable of working 15 to 20 hours per week. I have also taken into account the agreed probable earnings of $500 per week where Mr Putrus was employed as a shop assistant and kitchen hand.
The amount at Step (3) after subtracting the figure at Step (2) from Step (1) is:
§$275.00 per week 21 January 2004 to 30 June 2004
§$200.00 per week 1 July 2004 to 31 December 2004
§$150.00 per week 1 January 2005 to date
Section 40 Discretion
Having found the amount at step (3), sub-section (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. In Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 the Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
Having read the transcript, medical reports and other material before the Arbitrator I can see no reason for the exercise of the discretion in this matter. I have had regard to the motor vehicle accident on 26 March 2004 where Mr Putrus reported to Dr Patel that he had pain in his neck, lower back and both legs. Dr Patel noted ‘whiplash neck injury and lumbar back injury’. At the arbitration hearing Mr Putrus said that as a result of the motor vehicle accident there was maybe an increase in pain in his low back and at other times said the pain was the same after the motor vehicle accident. Accordingly I do not propose to take this into account in the exercise of my discretion.
At Step (5) the amount is as follows:
§$275.00 per week 21 January 2004 to 30 June 2004
§$200.00 per week 1 July 2004 to 31 December 2004
§$150.00 per week 1 January 2005 to date
DECISION
For the reasons referred to above, I revoke paragraph 3 of the Arbitrator’s decision dated 1 November 2005 and the following decision is made in its place:
“3.That Irene Maria & Emmanuel Kastrissios t/as Vaucluse Ocean Food pay Ayad Salim Putrus weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$275.00 per week from 21 January 2004 to 30 June 2004;
(b)$200.00 per week from 1 July 2004 to 31 December 2004;
(c)$150.00 per week from 1 January 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”
Paragraphs 1, 2 and 4 of the Certificate of Determination dated 1 November 2005 are confirmed.
COSTS
No order is made as to costs of the appeal.
Julian Martin
Acting Deputy President
8 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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