Mansour v Bankstown Trotting & Recreational Club

[2005] NSWWCCPD 155

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mansour v Bankstown Trotting & Recreational Club [2005] NSWWCCPD 155

APPELLANT:  Assad Mansour

RESPONDENT:  Bankstown Trotting Recreational Club Ltd

INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd

FILE NUMBER:  WCC 8442-04

DATE OF ARBITRATOR’S DECISION:          19 October 2004

DATE OF APPEAL DECISION:  15 December 2005

SUBJECT MATTER OF DECISION:                Incapacity for work, suitable employment, correction of obvious error

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Frisina Lawyers

Respondent: Nevill & Edwards, Solicitors

ORDERS MADE ON APPEAL:  1. Paragraph 1 of the decision of the Arbitrator dated 19 October 2004 is revoked and the following paragraph is substituted:

“1. That the Respondent, Bankstown Trotting Recreational Club Ltd:

(a) pay the Applicant, Mr Mansour, the sum of $150 gross per week from 7 January 2004 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987; and

(b) pay the Applicant, Mr Mansour’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.”

2. The decision of the Arbitrator is otherwise confirmed.

3. The Respondent, Bankstown Trotting Recreational Club Ltd, is to pay the Appellant, Mr Mansour’s costs associated with that part of the appeal relating to section 60 expenses, as agreed or assessed. However, no order is made as to the other costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 10 November 2004, Assad Mansour sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 19 October 2004. The Respondent to the appeal is Bankstown Trotting Recreational Club Ltd (‘the Club’).

1. Mr Mansour was born in Iraq on 19 February 1962 and is aged 43. He migrated to Australia in May 1989 and is married with three dependent children. He worked as a bar attendant for the Club from about August 1996. Mr Mansour claims three specific back injuries: (1) on 5 December 1998, while lifting a table; (2) on 18 October 2000, while receiving a delivery of boxes of spirits and liquors; and (3) on 9 February 2002, when he slipped on a wet floor. He was ‘off work’ for about six months and then resumed on light duties until ceasing work on 1 July 2003. He has not worked since.

1. On 27 February 2002, Mr Mansour made a claim for workers compensation. While liability was initially accepted, on 7 January 2004, the insurer, Employers Mutual Indemnity (Workers Compensation) Ltd (‘EMI’), declined any further liability.

1. On 28 May 2004, the Commission registered Mr Mansour’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation of $633.50 per week from 7 January 2004 to date and continuing, and for medical, hospital and related expenses. The specified injuries were those dated (1) 5 December 1998, (2) 18 October 2000 and (3) 9 February 2002, referred to above, together with (4) back strain between 5 December 1998 and 9 March 2002, caused by the nature and conditions of his work for the Club. The Club’s ‘Reply’ was received on 11 June 2004.

1. On 14 September 2004, the Arbitrator conducted a teleconference with the parties. On 6 October 2004, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. At the conclusion of the hearing, she reserved her decision and, on 19 October 2004, issued her determination, set out below.

THE DECISION UNDER REVIEW

1. The Certificate of Determination, dated 19 October 2004, records the Arbitrator’s orders as follows:

“1. That the Respondent pay to the Applicant the sum of $150 gross per week from 7 January 2004 to date and continuing pursuant to section 40 of the 1987 Act.
2. That the Respondent pay the Applicant’s costs as agreed or assessed.
3. This claim is to be treated as separate for costs purposes in accordance with Schedule 6 Clause 2(2)(c).”

1. In her ‘Statement of Reasons for Decision’, the Arbitrator identified the steps prescribed by the NSW Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) in the application of section 40 of the Workers Compensation Act 1987 (’the 1987 Act’), and addressed those steps in her findings. She found Mr Mansour to be fit for sedentary and semi-sedentary activities with no heavy lifting over 10 kgs, but not fit for his pre-injury employment. She found that Mr Mansour’s probable weekly earnings but for the injury would be $650 gross per week. In terms of suitable employment, she found Mr Mansour to be “highly skilled and well-trained in various aspects of the hospitality industry”, and that “his command of English is excellent” although he lacks confidence in this regard. She found the positions of Cashier, Gaming (Vending Machine/Poker Machine) Attendant, or Room Service (Supervisor) Attendant to be within his physical capabilities and restrictions, and that Mr Mansour had agreed he could do those jobs although he said he would need to start off working 3 hours a day and build up to full hours. The Arbitrator said:

“I do not accept that he is unable to work full time as the restrictions placed on him by Dr Giblin in particular, but also Dr Lee, only relate to physical restrictions and not the number of hours he could work. I find that those jobs identified are suitable and that the Applicant could earn $500 gross per week in such suitable employment.”

1. The Arbitrator considered the submission made by Mr Mansour’s solicitor that she should exercise the discretion in section 40(1) to reduce the figure of $500 per week to take account of the vicissitudes of employment, and that realistically Mr Mansour could only earn $350 per week. However, she declined to exercise the discretion because Mr Mansour is highly skilled and experienced in the hospitality industry, is well presented and articulate, and is seeking suitable employment in the industry for which he is trained and has experience.

1. The Arbitrator summarised the resolution of the issues as follows: first, Mr Mansour injured his back, left ribs and left hip in the course of or arising out of his employment with the Club on 5 December 1998, 18 October 2000 and 9 February 2002; second, his employment with the Club was a substantial contributing factor to the injury; and, third, he has been partially incapacitated for work from 7 January 2004 to date and continuing, and entitled to an award of $150 per week pursuant to section 40 of the 1987 Act.

ISSUES IN DISPUTE

1. There is no dispute that Mr Mansour suffered an injury arising out of or in the course of his employment. The issues in dispute identified by the Arbitrator were (1) whether Mr Mansour is either partially or totally incapacitated for work as a result of his injury and, if so, in respect of what period(s), (2) if he is incapacitated for work, what is the amount he would probably have been earning in the same or comparable employment but for the injury, and (3) what is the average weekly amount he is earning or would be able to earn in some suitable employment after the injury. In the appeal, Mr Mansour’s solicitor submits  the Arbitrator erred in terms of the weight she accorded to the evidence and in her findings of fact. The Arbitrator also failed to make a decision in relation to Mr Mansour’s claim for medical, hospital and related expenses. The parties’ submissions on these issues are discussed more fully below.

ON THE PAPERS REVIEW

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

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

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. 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), the amount of compensation at issue is, according to Mr Mansour’s solicitor, at least $20,353.00 and represents more than 20% of the amount in dispute. I am therefore satisfied that the section 352 threshold has been met, and I grant leave to appeal.

EVIDENCE

1. Mr Mansour provided statements dated 1 August 2003 and 11 May 2004, and gave oral evidence at the arbitration hearing. In his statement dated 1 August 2003, Mr Mansour described his training and employment history, most significantly in the tourism and hospitality industry. He described the three incidents in which he injured his back while working for the Club: on 5 December 1998, 18 October 2000 and 9 February 2002. He said shortly after the third accident, he was ‘off work’ for six months, returning to work on light duties until 1 July 2003. Since then, his general practitioner, Dr Lee, has given him medical certificates certifying he is totally unfit for work. In Mr Mansour’s two written statements, he described the ongoing pain he experiences and the restrictions it imposes on his daily activities.

1. In his oral evidence at the arbitration hearing, Mr Mansour said when he went back to work for the Club on light duties, he was given a bar attendant’s job which involved standing and which he could not handle. However, he could have worked as a cashier or a gaming attendant provided he did not have to stand or sit for more than 15 to 30 minutes at a time. Mr Mansour said he thought he could do these jobs for three to four hours a day. He agreed with the Arbitrator that he was guessing at the number of hours he could work, but based this on his experience as a bar attendant in the period prior to when he ceased work on 1 July 2003 although he acknowledged this involved standing. He hoped to gradually increase the number of hours he could work.

1. The principal medical reports relied on by Mr Mansour included:

• A report from his general practitioner, Dr Ton K Lee, dated 10 March 2004. Dr Lee stated Mr Mansour “would not be fit for strenuous physical work. He is fit for sedentary work when he feels comfortable and pain free, and is ready to resume rehabilitation for work”.

• Medical certificates issued by Dr Lee dated 27 January 2004, 29 March 2004 and 22 June 2004. In these certificates, Dr Lee said Mr Mansour was unfit for work. The three certificates cover the period 1 January 2004 to 30 September 2004.

• Reports from Dr Peter Giblin, Orthopaedic Surgeon, dated 20 November 2002, 24 January 2003, 7 February 2003 and 12 June 2003. In his report of 20 November 2002, Dr Giblin said of Mr Mansour:

“He remains fit for a sedentary work environment but should be seen to be permanently restricted, unable to use his low back in heavy labouring duties and unable to use his left arm at or above shoulder height in a heavy, repetitious or impact fashion.

These physical restrictions will apply indefinitely and in parrallel to his domestic, occupational and recreational activities ...

Some degree of vocational rehabilitation will assist him to remain in full-time restricted duties.”

• Reports from Mr Mansour’s treating Orthopaedic Surgeon, Dr Grahame Mahony, dated 13 June 2002, 22 July 2002, 1 October 2002, 9 July 2003, 11 August 2003 and 20 November 2003. In Dr Mahony’s report dated 13 June 2002, he said Mr Mansour was unfit for work, an opinion he maintained in his report dated 22 July 2002. In his report dated 1 October 2002, Dr Mahony said Mr Mansour was “fit for work not involving significant bending or lifting six hours weekly”. Dr Mahony did not comment on Mr Mansour’s fitness for work in his reports dated 9 July 2003 and 11 August 2003 but, in his report dated 20 November 2003, again said Mr Mansour was unfit for work.

• The Medical Assessment Certificate issued by the Approved Medical Specialist, Dr John Beer, Orthopaedic Surgeon, on 12 March 2004. Dr Beer assessed Mr Mansour as having a 5% permanent impairment in respect of his lumbar spine, a 5% permanent impairment in respect of his left upper extremity and a 2% permanent impairment in respect of his left lower extremity, resulting in a combined whole person impairment of 11%. Dr Beer said: “There was a degree of exaggeration present with the limitation of movement of the shoulder and hip joint movements and back.” Dr Beer commented that he attached “more disability as a result of his injuries at work than Dr O’Neill but agree that there is an element of anxiety and apprehension present”.

1. The principal medical reports relied on by the Club included:

• A report of Dr Frank Machart, Orthopaedic Surgeon, dated 28 May 2003. Dr Machart said in his opinion Mr Mansour could return to full-time work but should not lift articles heavier than 10 kgs.

• A report of Dr John O’Neill, Consultant Neurologist, dated 30 September 2003. Dr O’Neill sated:

“In short, whilst I cannot exclude the possibility that Mr Mansour might be prone to some degree of intermittent mechanical left lower back pain, I think there is a significant psychosomatic component to presentation [sic] and, from a physical viewpoint, I suspect he would be fit to return to his previous type of work without restriction.”

• A report of Dr Richard D’A Cowdery, Surgeon, dated 14 October 2003. Dr Cowdery stated:

“At this stage, the claimant should not be involved in heavy work that involves lifting heavy articles of more than 10 kgs.

Neither should he be involved in work that involves overhead activity, particularly using his left upper limb.”

1. The Club also sought to rely on:

• A Job and Salary Match Section 40 Assessment, dated 30 July 2004, prepared by Maurine Edwards, Rehabilitation Consultant. Ms Edwards stated Mr Mansour should be suitable for the following occupations so that his physical restrictions and needs can be accommodated: cashier, vending machine attendant, bar attendant, room service attendant (supervisor), and receptionist. The full-time gross weekly salary for both a cashier and a vending machine attendant (specialisation: poker machine attendant) was $510.80.

• A Functional Capacity Evaluation Summary Report, dated 28 July 2004, prepared by Inez Farag, Occupational Physiotherapist. Ms Farag stated:

“Mr Mansour’s performance at this assessment was uncooperative and inconsistent. He self-limited his performance in the majority of test items with clear inconsistent signs in his physical performance level. This prevented accurate determination of his work capacity ... Mr Mansour has the capacity to undertake a range of work that falls within the sedentary, semi-sedentary work categories and with handling up to the observed levels at this assessment ... In suitable employment there is no restriction on Mr Mansour’s capacity to work full-time hours, although he may need to initially commence work on a part-time basis to gradually develop his physical tolerances.”

• A Vocational Assessment Summary Report, dated 28 July 2004, prepared by Maurine Edwards, Rehabilitation Counsellor/Registered Psychologist. Ms Edwards said Mr Mansour was “well trained and has sound experience in hospitality, in both hotel and club settings”. He expressed some resentment that the Club had not allocated him a position as a cashier or gaming attendant following the injury. In terms of future plans, his preference is to operate a cafe that he would manage, with other staff and his wife to do the hands on work. Alternatively, he would set up a cleaning business that, again, he would manage, while employing staff to do the hands on work. His preference if required to seek full-time work would be as a cashier or gaming attendant in the hospitality industry.

SUBMISSIONS, DISCUSSION AND FINDINGS

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

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

Incapacity for Work

1. Mr Mansour’s solicitor submits the Arbitrator erred in finding Mr Mansour is partially rather than totally incapacitated for work. His solicitor submits the Arbitrator misunderstood or misinterpreted Dr TK Lee’s evidence as to Mr Mansour’s capacity for work, and that Dr Lee’s opinion was that Mr Mansour was and remains totally unfit for work. Moreover, the Arbitrator should not have preferred the opinion of Dr Giblin to that of Mr Mansour’s treating Orthopaedic Specialist, Dr Mahony, who considered Mr Mansour unfit for work.

1. Mr Mansour’s solicitor also submits the Arbitrator failed to take into account Mr Mansour’s evidence that he had previously attempted to return to work on light duties but was unable to continue performing those duties beyond 1 July 2003.  The Arbitrator, who accepted the views expressed by the Approved Medical Specialist, Dr Beer, should also have taken into account the degree of permanent impairment found by Dr Beer when considering Mr Mansour’s capacity for employment.

1. Alternatively, if Mr Mansour is found to have a partial incapacity, his solicitor submits the degree of his incapacity is more severe than that found by the Arbitrator. The Arbitrator should have taken into account the opinions expressed by Dr Lee and Dr Mahony, and Dr Beer’s assessment of Mr Mansour’s permanent impairment, and found Mr Mansour would not be capable of working full-time in alternate employment.

1. The Club submits there was ample evidence before the Arbitrator on which to reach her conclusions. The assertion that Mr Mansour is totally incapacitated for work is absurd and not supported by the evidence. Indeed, Mr Mansour expressly conceded in giving evidence that he would be able to work three to four hours a day as a cashier and/or poker machine attendant. The Arbitrator explained her reasons for not accepting Dr Lee’s opinion. Dr Lee had certified Mr Mansour fit for duties of a type found suitable by the Arbitrator, in respect of the period prior to July 2003, and there was no convincing explanation as to why Dr Lee subsequently changed his certification. Mr Mansour’s complaint regarding the duties he was given by the Club prior to July 2003, was in relation to duties as a barman and not as a cashier or poker machine attendant. In any event, the opinion expressed by Dr Lee in his report dated 10 March 2004 is so ambiguous as to make it impossible to identify what his opinion of Mr Mansour’s fitness for work was.

1. The Club submits there is no basis for suggesting the Arbitrator did not take into account Dr Beer’s assessment of permanent impairment. The Arbitrator referred to this in her overview of the evidence (at paragraph 17(vii) of her Statement of Reasons). The level of impairment found was relatively modest and not inconsistent with a capacity to perform light work with a 10 kg lifting limit on a full-time basis.

1. In my view, the preponderance of the medical evidence, excepting that of Dr Mahony and the medical certificates issued by Dr Lee (although Dr Lee’s report dated 10 March 2004, suggests Mr Mansour is fit for sedentary work), and Mr Mansour’s oral evidence at the arbitration hearing that he would be able to work three to four hours a day as a cashier or gaming attendant, supports a finding that Mr Mansour is partially incapacitated for work, and I am not persuaded that the Arbitrator made any error in so finding. I note that when Mr Mansour returned to work on light duties in the period prior to 1 July 2003, he was working as a bar attendant and consequently, I assume, had to stand for longish periods, thereby causing him pain. Performing such work is not therefore reflective of sedentary or semi-sedentary work suited to the restrictions and limitations arising from Mr Mansour’s condition.

1. I note the Arbitrator did not accept the qualification in Dr Lee’s report of 10 March 2004 that Mr Mansour would be fit for sedentary work “when he feels comfortable and pain free”, and did not accept Dr Mahony’s opinion that Mr Mansour was unfit for work, because these opinions did “not take account of the exaggeration of the Applicant’s symptoms observed by Dr Beer and the Vocational Assessors”. Again, in my view, the comments in the reports suggesting Mr Mansour is prone to exaggerating his symptoms are sufficient to support the Arbitrator’s finding in this regard.

1. With regard to whether Mr Mansour would be capable of working full-time in suitable employment, again the preponderance of medical evidence suggests that he would. The Arbitrator noted the restrictions placed on him by Dr Giblin, and also Dr Lee, are of a physical nature and do not seek to limit the number of hours he might work. Bearing in mind Mr Mansour’s proneness to exaggeration but also recognising the understandable anxiety that he may associate with a return to the workforce, in my view it was reasonable for the Arbitrator to conclude that Mr Mansour is capable of full-time work in suitable employment. I note the opinion expressed by the Occupational Physiotherapist, Inez Farag, that “he may need to initially commence work on a part-time basis to gradually develop his physical tolerances”, but in the absence of other similar opinions, and bearing in mind the evidence of exaggeration and anxiety (see for example the comment made by Andrew Leaver, Physiotherapy Consultant, in his report dated 20 June 2003, noted by Dr Beer), I am satisfied that there is no basis on which I should interfere with the Arbitrator’s finding that Mr Mansour is capable of working full-time in suitable employment.

Suitable Employment

1. Mr Mansour’s solicitor submits the Arbitrator did not give sufficient consideration to the definition of ‘suitable employment’ in section 43A of the 1987 Act, and to Dr Lee’s medical certificates dated 27 January 2004, 29 March 2004 and 22 June 2004, certifying Mr Mansour unfit to work from 1 January 2004 to 30 September 2004. The Arbitrator also failed to take into account Maurine Edwards’ vocational assessment report dated 30 July 2004, and therefore did not properly consider the ‘suitable employment’ Mr Mansour is capable of performing (section 43A(1)(b)). Moreover, the Arbitrator failed to take into account the opinion expressed by Mr Mansour’s Occupational Physiotherapist, Inez Farag, that he may need to commence work on a part-time basis.

1. The Club submits the Arbitrator took into account Mr Mansour’s solicitor’s submissions on these issues but rejected them (paragraph 39 of her Statement of Reasons). With regard to section 43A(1)(d) of the 1987 Act, the Club submits the Arbitrator paid close regard to the matters referred to, including Mr Mansour’s past employment experience, and gave reasons for not accepting Dr Lee’s certificates.

1. I note the Arbitrator had proper regard to the steps prescribed by the NSW Court of Appeal in Mitchell. In relation to step 2 and ‘suitable employment’, she referred to section 43A and to a number of relevant factors to be taken into consideration in Mr Mansour’s case in considering what constitutes suitable employment (Statement of Reasons paragraphs 34 to 35). The Arbitrator referred to the Vocational Assessment Summary Report prepared by Maurine Edwards and the positions identified in her report as being suitable, and also to Mr Mansour’s oral evidence at the arbitration hearing in this regard (Statement of Reasons paragraphs 36). I have already commented in paragraph 28 above, on Ms Farag’s opinion that Mr Mansour may need to recommence work on a part-time basis. Thus, I am not persuaded the Arbitrator made any error in relation to step 2.

1. Mr Mansour’s solicitor submits the Arbitrator misinterpreted the views expressed by Dr Giblin and Dr Lee about Mr Mansour’s capacity for work, which are inconsistent with the Arbitrator’s findings as to the positions for which Mr Mansour is fit. The Club submits Mr Mansour’s solicitor’s contention that he is not fit for positions defined as ‘sedentary’ is purely semantic and ignores the parlance commonly used in medical reports to distinguish light to moderate duties from those involving significant physical activity. By reason of his past work experience, Mr Mansour was familiar with the demands of the jobs identified in the vocational assessment reports. The Arbitrator, while accepting there were limitations on the type of work Mr Mansour could do, did not accept he was limited in the number of hours he could work. Furthermore, the Arbitrator was under no obligation to accept the suggestion that a graduated return to work would be desirable.

1. I agree with the Club’s submission. There is, in my view, nothing to indicate the Arbitrator misinterpreted the views expressed by Dr Giblin and Dr Lee about Mr Mansour’s capacity for work, although I agree neither doctor refers to “semi-sedentary” activities. The Arbitrator does, however, refer to a restriction on lifting by Mr Mansour, and in view of the Arbitrator’s specific reference to the positions of cashier, gaming attendant or room service (supervisor) attendant, the Arbitrator’s finding is sufficiently clear and, in my view, is generally in accord with the views expressed by Dr Giblin and Dr Lee. I do not consider anything turns on the Arbitrator’s use of the terms ‘sedentary’ and ‘semi-sedentary’. The Arbitrator’s reference to specific positions identified as suitable and to Mr Mansour’s “physical capabilities and restrictions” is sufficient to dispel any possibility of misunderstanding.

Probable Earnings but for Injury

1. Mr Mansour’s solicitor submits that the Arbitrator’s statement that the parties had agreed Mr Mansour’s probable earnings but for the injury were $650 gross per week was incorrect. It was agreed that his pre-injury earnings were $650 per week. It was not possible to determine his probable earnings but for the injury because the Club did not provide up to date details of the earnings of comparable employees. His solicitor submits the Arbitrator should have found Mr Mansour’s probable earnings but for the injury to be at least $680 per week. However, if it is accepted that Mr Mansour has only a partial incapacity for work then, bearing in mind the restrictions to which he is subject, his solicitor submits he is capable of earning no more than $300 per week in suitable alternative employment and should have received an award of at least $380 per week.

1. The Club submits that the matter proceeded on the assumption that the figure of $650 per week had been agreed for the purposes of section 40(2)(a), and no submission was put to the Arbitrator that she should make a finding as to some other figure.

1. I note the Job and Salary Match Section 40 Assessment states that the full-time gross weekly salary for the positions of cashier and vending machine attendant (specialisation: poker machine attendant) was $510.80. These were positions Mr Mansour thought he could handle, albeit for more limited hours than those found by the Arbitrator, and that the Vocational Assessment Summary Report implicitly considered suitable on a full-time basis. At the arbitration hearing, the Club’s counsel submitted that $500 - $510 gross weekly was an appropriate figure reflecting Mr Mansour’s ability to earn (arbitration hearing transcript page 25). There is no indication in the transcript of the arbitration hearing that Mr Mansour’s counsel made any submission to the Arbitrator on Mr Mansour’s probable earnings but for the injury. However, Mr Mansour’s solicitor is correct in asserting that the figure of $650 per week agreed by the parties was in respect of Mr Mansour’s pre-injury earnings (Mr Mansour’s solicitor’s letter dated 29 September 2004), which the Arbitrator also confirmed at the beginning of the arbitration hearing (transcript page 2).

1. I note Mr Mansour ceased work on 1 July 2003, 15 months before the arbitration hearing, suggesting that wage rates are unlikely to have changed significantly in such a period, and that the Arbitrator used the figure of $500 gross per week, rather than $510.80, as that for Mr Mansour’s probable weekly earnings post-injury (Mitchell step 2). The difference at Mitchell step 3, had the Arbitrator found probable earnings but for the injury as $680 gross weekly, as suggested by Mr Mansour’s solicitor, rather than $650, and post-injury earnings of $510, is $170 rather than the $150 that the Arbitrator determined. In the absence of any indication that Mr Mansour’s counsel made submissions on this particular issue to the Arbitrator at the hearing, it was not, in my view, unreasonable for the Arbitrator to make the determination that she did, and I am not persuaded that there is any justification for my interfering with her determination on this issue.

Medical Expenses – Correction of Obvious Error?

1. Finally, Mr Mansour’s solicitor submits the Arbitrator failed to consider or make a decision in relation to Mr Mansour’s claim for expenses under section 60 of the 1987 Act. The Club submits this was an oversight and concedes the Arbitrator should have made such an order, the Club having admitted injury and paid compensation in respect of permanent loss. However, the Club submits this was a matter that could have been rectified by Mr Mansour’s solicitor making an application to the Registrar of the Commission for the correction of “an obvious error” pursuant to section 294(3) of the 1998 Act.

1. Section 294(3) states: 

“If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error”.

1. The Commission’s Practice Direction No. 4 explains what constitutes an ‘obvious error’:

“The ‘obvious error’ referred to in section 294 means a factual error that is apparent on the face of the document. It may be an error that conflicts with the actual decision or assessment that was made or an obvious mis-statement of that decision or assessment. It does not relate to the basis upon which the substantive decision or assessment was made, nor to the substance of any such decision or assessment.” 

1. In my view, the Arbitrator’s error in failing to make a determination in respect of that part of Mr Mansour’s application relating to section 60 expenses was not just a ‘factual error’. Rather it went to the substance of his application. Notwithstanding that the Club had admitted injury and paid compensation in respect of permanent loss, and that a determination on section 60 expenses would usually follow from an arbitrator’s finding that the effects of any work-related injury were continuing, nevertheless, in my view, this is still a matter of substance that cannot be corrected utilising an application under section 294(3).

1. Thus, there being no dispute that the Arbitrator should have made a determination on this issue, it is appropriate that I make an award in favour of Mr Mansour for the payment of medical expenses pursuant to section 60, and amend the Arbitrator’s Certificate of Determination accordingly.

DECISION

1. Paragraph 1 of the decision of the Arbitrator dated 19 October 2004 is revoked and the following paragraph is substituted:

“1. That the Respondent, Bankstown Trotting Recreational Club Ltd:

(a) pay the Applicant, Mr Mansour, the sum of $150 gross per week from 7 January 2004 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987; and
(b) pay the Applicant, Mr Mansour’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.”

1. The decision of the Arbitrator is otherwise confirmed.

COSTS

1. The Respondent, Bankstown Trotting Recreational Club Ltd, is to pay the Appellant, Mr Mansour’s costs associated with that part of the appeal relating to section 60 expenses, as agreed or assessed. However, no order is made as to the other costs of this appeal.

Robin Handley

Acting Deputy President  

15 December 2005

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

ASSOCIATE