Jubian v South Western Sydney Area Pathology Service

[2005] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Jubian v South Western Sydney Area Pathology Service [2005] NSWWCCPD 22

APPELLANT:  Doris Jubian

RESPONDENT:  South Western Sydney Area Pathology Service

INSURER:Treasury Managed Fund, managed by GIO General Limited

FILE NUMBER:  WCC10129-2003

DATE OF ARBITRATOR’S DECISION:          13 February 2004

DATE OF APPEAL DECISION:  4 April 2005

SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; and maternity leave.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President.

HEARING:1 April 2005

REPRESENTATION:  Appellant:     Turks Legal

Respondent:  H K Husseini & Co., Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 13 February 2004, is revoked and the following decision is made in its place:

a) South Western Sydney Area Pathology Service is to pay Doris Jubian $292.50 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 April 2005 and continuing.

b)   South Western Sydney Area Pathology Service is to pay the costs of the appeal as agreed or assessed.

THE APPEAL

1. South Western Sydney Area Pathology Service has appealed against the following decision by a Commission Arbitrator in favour of Doris Jubian:

   “1.That the Respondent (South Western Sydney Area Pathology Service) pay to the Applicant (Doris Jubian) pursuant to section 40 of the Workers Compensation Act, 1987 (‘the 1987 Act’):

   ·from 1 December, 2002 to 31 March 2003 the sum of $363.30

   ·from 1 April, 2003 to 30 September, 2003 the sum of $369.50

   ·from 1 October, 2003 to date the sum of $367.90 per week

   and otherwise in accordance with the Act.

   2.That the Respondent pay the Applicant’s reasonable medical expenses pursuant to section 60 of the Workers Compensation Act, 1987 in respect of the shoulder injuries sustained on 13 December, 1999 and 27 July, 2000 on presentation of accounts and/or receipts.

   3.        That the Respondent pay the Applicant’s costs as agreed or assessed.”

2. Ms Jubian was employed by South Western Sydney Area Pathology Service as a Technical Officer from 23 April 1994 until 27 April 2002, when her employment was terminated.  She suffered an injury to her neck, shoulders and wrists and in January 2000 made a claim on her employer for weekly benefits and medical expenses.  Some medical expenses and weekly payments were made until 1 December 2002, when liability for the claim was denied. 

1. The Arbitrator found that:

   ·     Ms Jubian suffered a work related injury to her right and left shoulders on 13 December 1999 and 28 July 2000. 

   ·     The injury to her wrist, diagnosed as carpel tunnel syndrome, was found not to be work related. 

   ·     Her employment with South Western Sydney Area Pathology Service was a substantial contributing factor to her injury.

   ·     She was partially incapacitated for work as a result of her injuries from 31 July 2000 and continuing.

   ·     Her probable weekly earnings, but for the injury, were $878.00 per week.

   ·     The average weekly amount that she could earn in suitable employment from time to time was the award rate for a Grade 1 Clerk, ie. $439.60.

   ·     Her entitlements to weekly benefits should not be reduced due to the fact that she took maternity leave during the period of partial incapacity.

   ·     She is entitled to reasonable medical expenses in relation to the work related injury.

1. The Arbitrator did not make any award in relation to Ms Jubian’s claim for an amount of $630 for physiotherapy.

1. Leave to appeal is granted.

1. The Employer has appealed against the Arbitrator’s decision on the grounds that the Arbitrator erred in:

   ·The determination of Ms Jubian’s ability to earn: by adopting the award rate of pay applicable to a Grade One Clerk ($439.60 per week) rather than the average weekly earnings of a Grade One Clerk of $664 per week,

   ·Failing to reduce Ms Jubian’s weekly benefits for the period that she was on maternity leave, and

   ·Failing to determine the issue of whether the claimed physiotherapy expenses of $630 were reasonable.

2. The grounds of appeal relating to maternity leave and section 60 expenses were discontinued.

1. At the hearing of the appeal on 1 April 2004, Ms Jubian conceded that the Arbitrator had erred in determining her entitlement to compensation pursuant to section 40 of the 1987 Act, thus:

   a) Determining the section 40(2) (b) of the 1987 Act amount, by reference solely to an award rate of pay, and

   b)    Making an award for a dependant child when there was no evidence to support such finding.

2. I agree with this submission and find that the Arbitrator has so erred.

1. I note that the parties have agreed that the employer waives any right to refund, or other recovery, in respect of payments made to date.

DECISION

1. The decision of the Arbitrator, dated 13 February 2004, is revoked and the following decision is made in its place:

   a) South Western Sydney Area Pathology Service is to pay Doris Jubian $292.50 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 April 2005 and continuing.

   b)    South Western Sydney Area Pathology Service is to pay the costs of the appeal as agreed or assessed.

Dr Gabriel Fleming

Deputy President  

4 April 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE