Nohra v Sydney Plastering and Construction Pty Ltd
[2009] NSWWCCPD 48
•7 May 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Reported Decision: Nohra v Sydney Plastering & Construction Pty Ltd (2009) 7 DDCR 449 | |||||
| CITATION: | Nohra v Sydney Plastering and Construction Pty Ltd [2009] NSWWCCPD 48 | ||||
| APPELLANT: | Fadi Nohra | ||||
| RESPONDENT: | Sydney Plastering and Construction Pty Ltd | ||||
| INSURER: | GIO General Ltd | ||||
| FILE NUMBER: | A1-6884/08 | ||||
| ARBITRATOR: | Ms C D’Souza | ||||
| DATE OF ARBITRATOR’S DECISION: | 23 February 2009 | ||||
| DATE OF APPEAL DECISION: | 7 May 2009 | ||||
| SUBJECT MATTER OF DECISION: | Section 40(2)(b) of the Workers Compensation Act 1987; proper method to adopt when applicant worker is a working director of the respondent employer; discussion of the principles in Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227; (1983) 151 CLR 584 and in Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20 and Pira Pty Limited t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Firths | |||
| Respondent: | Hicksons | ||||
| ORDERS MADE ON APPEAL: | Paragraphs one, three, four and five of the Arbitrator’s determination of 23 February 2009 are confirmed. Paragraph two of the Arbitrator’s determination of 23 February 2009 is revoked and the question of the applicant worker’s entitlement to weekly compensation from 6 December 2005 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. | ||||
| The respondent employer is to pay the appellant worker’s costs of the appeal. | |||||
INTRODUCTION
This appeal concerns the proper method to adopt in the calculation of post-injury earnings, or ability to earn, in circumstances where the worker is a director of the respondent employer and has returned to part-time employment with the respondent after his injury.
BACKGROUND
Mr Nohra was born in Lebanon in 1972 and came to Australia in about 1995. After his arrival he worked in the cement rendering industry as an employee for a period and then commenced his own business, Sydney Plastering and Construction Pty Ltd (‘the respondent’) in about 1999. He was and is a director and employee of that company.
On 3 July 2001, Mr Nohra injured his right knee when he jumped from scaffolding to the ground in the course of his employment. As a result of his injury he was off work until early 2002 when he returned but performed only selected light duties. Over time, he also developed pain in his left knee, which, it is accepted, resulted from the trauma to his right knee.
On 18 June 2003, Mr Nohra settled a claim for lump sum compensation in respect of 7% loss of efficient use of each leg at or above the knee. At that time Mr Nohra remained in receipt of voluntary weekly compensation on the basis that he was only fit to perform supervisory duties for approximately 20 hours per week.
By letter dated 20 October 2005, GIO General Ltd (‘GIO’), the respondent’s workers compensation insurer, declined liability for continuing weekly compensation on the basis that Mr Nohra was capable of earning $1,083.00 per week as a full-time supervisor of “Solid Plasterers” and, as his pre-injury earnings were alleged to be only $510.10 per week, he had no entitlement to compensation.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 3 September 2008, Mr Nohra sought weekly compensation in the sum of $1,107.00 per week from 3 July 2001 to date and continuing together with additional lump sum compensation as a result of the deterioration of his knees.
At the conciliation and arbitration hearing on 2 December 2008, Mr Nohra abandoned his claim for additional lump sum compensation and amended his claim for weekly compensation to claim $1,107.00 per week from 3 July 2001 to 3 January 2002 under section 36 of the Workers Compensation Act 1987 (‘the 1987 Act’), and $647.00 per week (being the difference between his current earnings with the respondent of $460.00 per week and his pre-injury earnings of $1,107.00 per week) from 6 December 2005 to date and continuing under section 40 of the 1987 Act, or the maximum statutory rate for a worker with three dependant children.
The respondent disputed that Mr Nohra’s probable earnings but for his injury were $1,107.00 per week and disputed the quantum of his claim under section 40, arguing that he was fit to work supervisory duties on a full-time basis and that the sum of $460.00 per week did not fairly represent his ability to earn.
The matter could not be resolved at conciliation and was determined at arbitration. The parties called no oral evidence and the matter proceeded with lengthy submissions from counsel for each side. In an Amended Certificate of Determination issued on 23 February 2009, the Commission recorded the Arbitrator’s orders as follows:
“The Commission determines:
1. That the Respondent pay the Applicant weekly compensation at the rate of $885.66 from 3 July 2001 to 3 January 2002 under section 36 of the Workers Compensation Act 1987, with credit to the Respondent for payments made during that period.
2. That the Respondent pay the Applicant weekly compensation at the rate of $24.00 from 6 December 2005 to date and continuing under section 40 of the Workers Compensation Act 1987.
3. That the Applicant discontinued his claims for compensation pursuant to sections 60, 66 and 67 of the 1987 Act.
4. That the requirement under the Rules to lodge a notice of discontinuance is dispensed with.
5. That the Respondent pay the Applicant’s costs as agreed or assessed.”
By an appeal filed on 25 February 2009, Mr Nohra seeks leave to appeal the Arbitrator’s determination so far as it relates to the award of weekly compensation in the sum of $24.00 per week from 6 December 2005 to date and continuing.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the 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.
THE EVIDENCE
Lay Evidence
Mr Nohra’s evidence is set out in two statements, the first dated 12 November 2006 and the second being undated but which has a notation at the foot suggesting that it was typed on 24 April 2008. His evidence in his first statement is to the following effect:
(a)since arriving in Australia in about 1995 he has always undertaken cement rendering work, initially as an employee and then in his own business (with the respondent) which he commenced in 1998 or 1999;
(b)prior to his accident he was drawing a sum of $1,107.00 gross per week from the business, but the compensation paid to him by the GIO calculated his earnings by averaging his income over the twelve months prior to his accident;
(c)after returning to work in early 2002, he undertook light duties, which involved supervising work;
(d)as a result of his right knee injury, he developed problems in his left knee. He also developed back pain as a result of the way he walked, his back pain is no longer a problem;
(e)on 18 June 2003, he received lump sum compensation in respect of 7% permanent loss of efficient use of each leg at or above the knee. Since that time his condition has deteriorated and he has undergone further investigation including surgery to his left knee on 15 August 2005;
(f)he does not believe he is fit to undertake all of the tasks required of a cement renderer, such as lifting and carrying, twisting while carrying loads, working down low, kneeling, squatting, climbing up and down scaffolding and all the other tasks inherent in the job. He believes that he is doing his best “working four hours per day on average mainly doing supervising work” (Mr Nohra’s statement, 12 November 2006, paragraph 10);
(g)as a result of his inability to undertake his pre-injury duties and hours, he was drawing only $400.00 per week from the business;
(h)whilst the business was probably making a similar profit to that which it was pre-injury, his drawings were lower and he has had to employ additional workers to undertake physical aspects of the work. He approached the Department of Immigration to obtain working visas for employees. He currently employs four workers, plus his wife and himself, and
(i)but for his injury, he believed that he could take on significantly more work and earn significantly more profit.
In his April 2008 statement, Mr Nohra made the following points:
(a)since returning to work following his accident he has only been able to undertake supervising duties and has not been able to engage in any hands on physical tasks in the day to day running of the business. His involvement has been very limited;
(b)due to his physical condition he has not been able to carry out the work required of him to ensure the successful operation of the business and that has compelled him to enter into an employment agreement to obtain assistance so that his business can continue to operate;
(c)though Dr Soliman (Mr Nohra’s general practitioner) certified him fit for work for eight hours per day five days per week in February 2004, that never materialised;
(d)from October 2005 he has not worked more than five hours a day five days a week;
(e)he reported his concerns and problems in relation to working eight hour days to Dr Soliman at the time. In particular, he experienced a great deal of pain in both of his ankles and heels, which he believed to be from the altered gait following surgery to his knee;
(f)he has employed his wife at various times to undertake administrative duties;
(g)since December 2005 he has drawn approximately $460.00 gross per week from the business for his “living expenses” (Mr Nohra’s statement, 24 April 2008, paragraph 10), and
(h)his condition continues to trouble him in daily life and severely limits the activities that he can undertake.
Documentary Evidence and Correspondence
Included in the evidence is a document headed “Agreement” dated 25 March 2001, which purports to evidence a contract of employment between Mr Nohra and the respondent commencing on 1 April 2001 at the wage rate of $1,107.00 per week. The agreement noted that Mr Nohra was the director of the respondent company and that he was “responsible for all matters belonging to Sydney Plastering and Construction P/L”.
By letter dated 10 October 2002, Mr Nohra, acting as director of the respondent, wrote to the GIO advising that he had returned to work on 7 January 2002 in a part time position as a supervisor working five days per week four hours daily. The respondent paid him $250.00 per week until 28 August 2002 and $303.00 per week from 29 August 2002.
In a similar letter written by Mr Nohra to the GIO on 4 March 2003, he confirmed that he was “filling a part time position as a supervisor, working five days a week and doing four hours daily”. His duties included “guiding and supervising the workers as well as performing some light duties”. His gross weekly income from 3 February 2003 was $858.00, made up by $363.30 from the GIO and the balance ($494.70 per week) from the respondent.
On 20 July 2004, Mr Nohra forwarded a facsimile to Mikele Sarnelli (presumably at the GIO) advising that his current wage was $859.00 per week, made up by $459.10 from the GIO and, presumably, the balance ($399.90 per week) from the respondent.
In a letter dated 30 June 2005, Mr Nohra wrote:
“I was doing a part-time four hrs/day job as a supervisor as well as performing some light duties consisting of helping the workers onsite and doing some cleaning. I started feeling that the pain in my knee and in my heel region is increasing when I am helping the workers and doing light activities on site so I [sic] suggested to do only the supervising job and to try to rest as much as possible on site and hire someone else to perform the duties that I am no longer able to perform because of the pain that I suffer from.
I am now happy with 8 hrs/day as a supervisor. That explains why the payment amount of $399.90/week has not changed.”
On 7 March 2007, Mr Nohra wrote to his solicitor advising that the respondent’s records from 1999 until April 2004 had been stolen. He allegedly enclosed a copy of a police report dealing with that matter though the police report is not in evidence. As a result of the theft, he started recording all company records on computer. He enclosed offers of employment for three employees, Mr Harb, Mr Ayoub and Mr Mohamed.
Mr Nohra has also produced certain records that purported to be a record of payments made by the respondent to him over the last few years. They reveal that from July 2005 the respondent paid him $880.00 per week but in the 40th week of the 2006 financial year, that rate decreased to $520.00 per week. From July 2006 the rate was $500.00 per week which rate continued until the 27th week of the 2007 financial year when it decreased to the current figure of $460.00 per week.
Medical Evidence
An MRI scan of the right knee on 16 August 2001 revealed a tear of the medial meniscus and a scan of the left knee revealed similar pathology in that knee on 27 January 2002.
Mr Nohra relies on two reports from Dr Giblin, orthopaedic surgeon, dated 31 January 2002 and 29 January 2003. In his first report, Dr Giblin took a history of the accident and confirmed that Mr Nohra “ultimately returned to his job as a supervisor doing restricted duties”, which he has continued to do. At that time Mr Nohra had three tradesmen under his direction, but he was unable to return to his normal pre-injury duties. In Dr Giblin’s opinion, Mr Nohra was permanently unfit for his pre-injury job and permanently unfit for any work environment requiring prolonged periods of kneeling and squatting, pivoting and twisting, or prolonged periods of standing or walking, but was fit for a sedentary work environment and fit for work as a supervisor. Dr Giblin placed no restriction on the hours Mr Nohra could work.
In his second report, Dr Giblin noted that Mr Nohra was working four hours a day doing supervising duties. He continued to have difficulty negotiating stairs, had no strength in his legs when getting up from a seated position and was unable to perform any outside maintenance at his home. Mr Giblin’s restrictions were identical with those set out in his previous report. He again made no comment about the hours over which Mr Nohra would be able to perform his supervisory duties.
A bone scan on 23 May 2005 suggested a stress fracture in the left medial tibial plateau and probable early stress changes in the medial right tibial plateau. It added that there was bilateral achilles enthesopathy, moderate on the right and mild on the left. There was also increased uptake around the anterolateral aspect of the left ankle.
Due to his increasing symptoms, Mr Nohra underwent a partial medial meniscectomy on his left knee at the hands of Dr Nagamori on 15 August 2005.
On 4 November 2005, Dr Soliman reported to the GIO that in his opinion Mr Nohra’s ankle problems “may be due to his gait and that he would benefit from physiotherapy and further investigations”. Mr David Elvish, independent physiotherapy consultant, reported on 20 December 2005 that due to the four-year gap between the onset of the ankle symptoms and the work related knee injury, Mr Nohra’s ankle pain was not directly related to the work injury.
Dr Soliman reported on 13 June 2006 that his last medical certificate certified Mr Nohra for six hours per day five days per week with a lifting capacity up to 15 kilograms doing only supervisory duties.
Dr Patrick examined Mr Nohra for medicolegal purposes on 15 June 2006 and reported on 18 September 2006. He recorded that Mr Nohra had six full-time employees and prior to his injury he worked an average of eight to ten hours per day, but was currently working “on average – just about four hours per day”. Since the settlement in June 2003, Mr Nohra’s symptoms in his knees had worsened. After the August 2005 surgery, Mr Nohra tried returning to work for six hours per day, but had difficulty. He also had difficulty finding staff. Overall he felt that surgery had not resulted in a lot of improvement in his situation.
On the question of incapacity, Dr Patrick concluded:
“He does continue with significant ongoing permanent partial work incapacity as a result of his work-related injuries, and is permanently incapacitated for physical work involving significant squatting/kneeling, or working down low for considerable periods. He is working part-time hours now – approximately four hours per day – and doing mainly supervisory work.”
Dr Panjratan, orthopaedic surgeon, examined Mr Nohra at the request of the GIO on 2 November 2006. The doctor recorded that when Mr Nohra initially returned to work in 2002, he was only working two hours a day as a supervisor, but managed to increase his hours to three to four a day but not beyond that. At the time of the examination in November 2006, Mr Nohra said he continued to work three to four hours a day as a supervisor. At the time of his injury he performed a substantial amount of the physical work himself although he had two employees.
Under “Present Complaints”, Dr Panjratan recorded that Mr Nohra said his left knee was reasonable if he did not perform any work. However, if he negotiated stairs or ladders his left knee became painful. His left knee had not improved since the surgery in August 2005. He had the same problems in his right knee. Mr Nohra also complained of pain in both heels, which had not improved over the past couple of years. He also had pain on the dorsum of his left foot which had been present for the previous six to seven months. He has hired somebody to look after his garden and mow the lawn. Dr Panjratan concluded that Mr Nohra’s work was very heavy and that with his knee problems he would have difficulty ascending and descending stairs.
An Approved Medical Specialist (‘AMS’), Dr Breit, examined Mr Nohra on 21 March 2007 for the purpose of assessing the claim for additional lump sum compensation and to express an opinion on Mr Nohra’s capacity for work. In a Medical Assessment Certificate (‘MAC’) issued on 26 March 2007, Dr Breit recorded Mr Nohra’s “Present Symptoms” to be:
“There is pain over the medial aspect occurring mainly in the afternoons and evenings. There is intermittent swelling and clicking. The knee feels as if it goes out sometimes when he is walking. It gives way but he does not fall and there is no locking. He has some pain if he has to negotiate a lot of stairs and this can lead to swelling. He will also have some night pain if he has been very busy during the day. He is unable to squat or kneel.”
Dr Breit noted that Mr Nohra had his own company and that he did supervisory work for three to four hours a day. Mr Nohra had no hobbies and generally did not do housework or gardening.
Dr Breit found Mr Nohra’s gait to be normal and, therefore, to postulate that his heel pain was due to an abnormal gait “did not hold up”. The doctor felt that the achilles enthesopathy was relatively common, particularly so in the presence of Hagelund’s deformity which was a constitutional phenomenon. He concluded that the heel pain was unrelated to the 2001 injury and that there was no “aggravational [sic] component”. Dr Breit added:
“This gentleman complains of quite an extraordinary level of disability with respect to work even working in a supervisory capacity, which does not correlate with the clinical and investigative findings.”
In short, Dr Breit contended that there was “very little evidence of significant pathology” at his examination. Dr Breit did not agree that Mr Nohra was only fit for work four hours a day.
Dr Breit stated that there was no evidence of articular surface damage, but there was evidence of malalignment of the knee that leads to overloading of the medial compartments and a persistence of symptoms. Whilst the doctor felt that Mr Nohra’s complaints were disproportionate, he assessed him to have an incapacity in that he was unfit for lifting above fifteen kilograms, prolonged walking, standing, or negotiating stairs. However, he felt that Mr Nohra was fit for those duties for normal hours. Dr Breit assessed Mr Nohra to have a 7% loss of efficient use of each leg at or above the knee, as per the settlement in June 2003.
Mr Nohra appealed against Dr Breit’s assessments and in a determination dated 8 August 2007, a Medical Appeal Panel confirmed Dr Breit’s assessments.
Dr Soliman reported on 3 April 2008 that Mr Nohra had complained of pain in both ankles and heels on 29 October 2005. He diagnosed bilateral plantar fasciitis. He said that in January 2006 Mr Nohra was experiencing severe problems with his ankles and heel pain and that he had treated Mr Nohra for knee and heel pain since that time. In his opinion the heel and ankle pain was due to Mr Nohra’s altered gait and that “led to his inability to perform his pre-injury work duties”.
Vocational Assessment Reports
The respondent also relies on several reports from the Vocational Capacity Centre. The first is a Vocational Assessment Report prepared by Mr Defina, clinical psychologist, on 26 November 2004. He recorded that Mr Nohra completed some WorkCover safety courses in 2002 and that his computer skills were said to be “so so”. Mr Nohra could operate MYOB and auto CAD software and was a two-finger typist. Mr Nohra’s work history was restricted to working as a sales representative with Nestle in Beirut between 1993 until he left to come to Australia in about December 1995. In 1997 he started work as a cement renderer as an employee and then started his own company in about 1998. His company was very busy and he had five employees – four renderers and his wife. At the time of his accident he was self-employed as a renderer working eight hours per day, five to seven days per week. After his accident he returned to work in January 2002 working four to five hours per day, five days per week. He has remained self-employed on restricted hours and duties since that time.
Mr Nohra reported that he would generally rise at 6am and go to work where he would remain until 11 or 12 midday. He generally had lunch with his workers and would then return home, shower, rest, and spend time with his children. When asked about his vocational plans, Mr Nohra said that he wanted to continue with his current work and that he had applied to the Department of Immigration for permission to bring in a number of workers from overseas. Good cement renderers were hard to find, as it was not taught at TAFE. He said that he was paying one of his workers $330.00 per day, but that worker was still not happy. Mr Nohra said that he would lose his business if his employees left and that he planned to sponsor overseas workers for four years, paying them a salary of $40,000.00 per year.
Mr Nohra presented to the assessment in a friendly manner and displayed good social skills. Whilst he spoke English with a heavy accent, he was clearly understood, though an interpreter was used to clarify particular points. The pain behaviour was not a feature of the assessment and Mr Nohra made no unsolicitored complaints of pain.
Mr Defina administered several tests. The results placed Mr Nohra in the lowest 10% of the population for reading recognition, indicating that his ability to recognise and pronounce words was well below the average range though his ability to pick up meaning from reading in context in order to identify the main message of work related documents was high. The assessment data suggested that Mr Nohra has skills that should be adequate for the demands of elementary to intermediate administrative tasks. Mr Nohra’s ability to read for detail and to comprehend information presented in a number of formats was high. He “self rated” his abilities with regard to communication and literacy in English as above average. His verbal reasoning score was also above average as was his ability to do basic arithmetical calculation. He considered that his exposure to and ability to use current forms of technology were above average.
Assessment of Mr Nohra’s vocational interests indicated that they relate to work involving sales, influencing others, and changing opinions; and in organisation and control in jobs associated with office work at all levels. Those interests were more likely to be satisfied in a business management role than by work as a cement renderer. Mr Defina felt that the most suitable option was for Mr Nohra to pursue his proposed training and development of his business in a managerial capacity.
Mr Verhagen, physiotherapist, conducted a Functional Capacity Evaluation on 15 and 16 December 2004. He recorded that when Mr Nohra returned to work in January 2002, he worked approximately five hours per day five days per week helping to prepare walls, tape up windows, and do measuring and quoting for new jobs. He has essentially continued that role though he now has five other cement renderers and a number of subcontractors, as required. When asked to comment on his suitability for future work, Mr Nohra said that he would be capable of continuing in his present supervisory role if he is able to ensure a good supply of employees. Mr Verhagen conducted an extensive assessment of Mr Nohra’s physical capacity and found his presentation to be consistent. Pain behaviour and pain reporting were not significant features of the assessment. In terms of Mr Nohra’s current duties, he assisted with washing down walls and scraping and cleaning, taping up windows, driving to worksites to measure and quote. In conclusion, Mr Verhagan felt that the worker was able to continue as a supervisor and manager of the respondent company, but was not fit for tasks requiring prolonged standing, constant walking, crouching or kneeling. If Mr Nohra were to seek alternative employment he would be suitable for a range of positions in the sedentary, semi sedentary and light work categories on a full-time basis.
Mr Defina and Mr Verhagan co-authored a Job Match Report on 28 January 2005 in which they assessed Mr Nohra to be suitable for employment in several different occupations, including Supervisor - Solid Plasterers, and Sales Representative - Builders’ and Plumbers’ Supplies.
In a concluding report prepared by Mr Verhagan on 31 January 2005, it was noted:
“In terms of his interests, his current and potential employment is likely to prove more satisfying to him than his pre-injury cement rendering duties. He has had experience and training in marketing prior to his arrival in Australia and, since the injury, he has developed supervisory skill. His most suitable option would appear to be to pursue his proposed training and development of his business in a managerial capacity. It was noted that he has concerns about the probable impact upon his business if he were to lose his current employees. He has, however, developed a course of action that should safeguard his business. Unfortunately, he requires approval by the Department of Immigration before he can enact his plan.”
The assessment of his psychological adjustment to pain yielded below average scores for all scales (depression, anxiety and somatisation). The data suggested that Mr Nohra was coping quite well with his pain and had, in that respect, made a good adjustment to his injury.
THE ARBITRATOR’S REASONS
In a Statement of Reasons (‘Reasons’) delivered on 23 February 2009, the Arbitrator made the following findings:
(a)Mr Nohra’s average weekly earnings immediately before his injury were $1,107.00 per week. As he was not working under an award, the appropriate rate of pay in the first 26 weeks of his incapacity was $885.66 (being 80% of his average weekly earnings) and that rate was payable for the period 3 July 2001 to 3 January 2002, with credit to the respondent in respect of payments already made in that period (Reasons, [37] and [38]);
(b)Mr Nohra was earning $460.00 per week for his work of 20 hours per week as a supervisor (Reasons, at [42]);
(c)on the basis of the evidence from Dr Breit and in the Vocational Assessment Report, she found Mr Nohra capable of working “full hours but not full duties as a supervisor, at the rate specified in that report of $1,083.00” (Reasons, at [56]);
(d)as director of the respondent, Mr Nohra was in a position to choose whether he worked full-time or part time (Reasons, at [62]);
(e)Mr Nohra is capable of earning in suitable employment $1083.00 per week and the reduction in his ability to earn was $24.00 (Reasons, at [63]), and
(f)there were no reasons to reduce that amount in the exercise of her discretion.
ISSUES IN DISPUTE
The issues in dispute in the appeal concern:
(a)the Arbitrator’s determination of Mr Nohra’s ability to earn under section 40 of the 1987 Act;
(b)the Arbitrator’s findings as to what constitutes suitable employment under section 43A of the 1987 Act; and
(c)the Arbitrator’s finding that Mr Nohra can perform the duties of a supervisor on the open labour market by reference to his current employment.
SUBMISSIONS
It is submitted on behalf of Mr Nohra that:
(a)the Arbitrator made no findings adverse to Mr Nohra’s credit. He gave evidence that he cannot work in a full-time capacity, given his injuries and disabilities. As such, the Arbitrator made a finding directly against Mr Nohra’s evidence as to whether he could work full-time as a supervisor. The Arbitrator did not expose why the work of a supervisor is available and obtainable on the open labour market;
(b)the appropriate amount under section 40(2)(b) is prima facie the worker’s actual earnings unless it is established that those earnings are not a proper test (Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR(NSW) 20 (‘Aitkin’); Pira Pty Limited t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 (‘Tucker’));
(c)there is no evidence that Mr Nohra has deliberately taken lower paid work. His evidence is that the supervisory work he is undertaking for 20 hours per week is all he is capable of undertaking;
(d)the Arbitrator has not had due regard to the matters in section 43A of the 1987 Act in determining suitable employment and it is patently unreasonable to expect a worker employed by his own company to leave that employment to look for supervisory work outside that company;
(e)Mr Nohra is currently paid $460.00 per week for 20 hours work which equates to $23.00 per hour. If he were to work 38 hours per week at $23.00 per hour that would total $874.00 per week and would entitle him to an award of $233.00 per week. There is no reason why the Commission would not accept the figures currently being paid to Mr Nohra as being appropriate actual earnings;
(f)the Arbitrator erred in applying section 43A(4) and had no regard to the fact that Mr Nohra is suitably employed by his own company;
(g)the Arbitrator drew an adverse inference with respect to Mr Nohra’s evidence in relation to his capacity for employment, but accepted that he was a witness of truth. The Arbitrator accepted that he has problems with both knees and problems with both heels and ankles;
(h)the Arbitrator failed to give any, or any proper, regard to the opinion of the treating medical practitioners;
(i)the Arbitrator failed to have regard, or proper regard, to the evidence Mr Nohra gave that he would be unable to do the supervisory job on a building site for eight hours per day and was having difficulty even undertaking four hours work per day with severe pain in his knees and ankles;
(j)the job of a supervisor on a building site involves considerable prolonged walking on uneven surfaces, going up and down stairs on several occasions, climbing scaffolds, jumping off scaffolds, kneeling and squatting. These duties are inconsistent with the opinion of Dr Breit;
(k)the Arbitrator failed to give any proper consideration to the fact that Mr Nohra has in the past made a number of attempts to increase his hours but experienced an increase in pain and problems;
(l)the Arbitrator erred in finding Mr Nohra to have a capacity of a full-time supervisor following the three months off work after his operation. A finding of total incapacity should have been made during that period;
(m)it is to Mr Nohra’s credit that he continues to work despite his significant ongoing restrictions and disabilities, and
(n)the matter should be remitted to a different Arbitrator to properly determine Mr Nohra’s ability to earn under section 40 with regard to suitable employment under section 43A given the unchallenged evidence.
It is submitted on behalf of the respondent that:
(a)Mr Nohra is a director, owner and an employee of the respondent company;
(b)Directions for Production were served on Mr Nohra and the respondent requiring production of pay records, records of account, payslips, business profit and loss statements and other documents that would demonstrate the amount paid by the respondent to Mr Nohra for the period 30 June 2000 to date. Though the Directions for Production were served on 8 October 2008 and required production to the Commission by 29 October 2008, no documents were produced until the day of the arbitration on 2 December 2008. The documents produced did not include any payslips, payment records, bank account statements or any objective record of any payments made to Mr Nohra or income of the company;
(c)Dr Patrick did not provide an opinion on Mr Nohra’s capacity for work, but merely recorded the hours he was working and the nature of his duties;
(d)Dr Soliman stated in his report of 3 April 2008 that Mr Nohra could not perform his pre-injury duties because of ankle and heel problems. Those problems form no part of the current claim and were not pleaded in the application. Dr Giblin stated in his report of 31 January 2002 that Mr Nohra was fit for work as a supervisor whilst observing sensible restrictions regarding kneeling, prolonged standing and walking;
(e)Dr Breit assessed Mr Nohra to be fit for full-time work with restrictions. Dr Breit agreed with Dr Panjratan’s findings that there was very little abnormality in either knee;
(f)the Arbitrator considered all the evidence and reached an objective finding which was open to her and which should be confirmed;
(g)Mr Nohra’s actual earnings are not a proper test of his ability to earn and not consistent with his value or worth as an employee, owner, and director of the respondent. The sum of $460.00 is not referrable to any award or hourly rate and bears no correlation to Mr Nohra’s alleged pre-injury earnings;
(h)as employee, owner and director of the respondent, Mr Nohra’s duties encompass more than the duties of a supervisor of “Solid Plasterers”;
(i)reliance is placed on Novello v Zinc Corporation Ltd (1988) 14 NSWLR 25; (1988) 4 NSWCCR 138 (‘Novello’) and Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227; (1983) 151 CLR 584 (‘Schubert’);
(j)Mr Nohra failed to answer the Directions for Production on both himself and the respondent which would have allowed a consideration of the respondent’s profits as an indication of what Mr Nohra was receiving from his role as employee, owner and director;
(k)reliance is placed on the decision of JC Ludowici and Son Ltd v Cutri (1992) 26 NSWLR 580 (‘Cutri’). The Arbitrator has correctly applied the “notional sum” referred to by Kirby P (as his Honour then was) at 592 in Cutri;
(l)Mr Nohra’s duties as employee, owner and director of the respondent are not limited to the alleged rate of 20 hours per week;
(m)an inference must be drawn in accordance with Jones v Dunkel (1959) 101 CLR 289 that the information not produced would not have advanced Mr Nohra’s position. This submission is also made with respect to actual earnings at the time of injury;
(n)the weight of the evidence on medical capacity directly correlated with the Arbitrator’s ultimate finding on ability to earn. The payment of $460.00 to Mr Nohra by himself as financial controller of the respondent is not evidence of the true worth of his work for the company and accordingly was not, prima facie, the best evidence in determining ability to earn under section 40(2)(b);
(o)the Arbitrator’s approach to step 2 in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’) (assessing ability to earn under section 40(2)(b) of the 1987 Act) is supported by J & H Timbers v Nelson (1972) 126 CLR 625 (‘Nelson’) at 631, namely, she determined what Mr Nohra’s labour would have been worth in wages if he had been employed by another to do the work;
(p)there is no way to determine what hours Mr Nohra performs on a day-to-day basis and judicial regard would more likely accept that as a supervisor, owner and director, he would work as needed. It is difficult to imagine Mr Nohra, as supervisor, owner and director of a company, ceasing what he was doing the minute he completed four hours of work. Further, his duties as supervisor, owner and director would not be limited to work on the work-site, but would also include time spent planning jobs, making phone calls, accounting, payroll, ordering equipment, materials, and several behind the scenes tasks not confined to the work-site or captured in an hourly rate or by a distinct period of time, such as the 20 hours per week allegedly worked by Mr Nohra;
(q)the Arbitrator preferred and accepted Mr Nohra’s evidence as to actual pre-injury earnings and preferred the independent assessment of Dr Breit and found Mr Nohra fit for full-time supervisory work, and
(r)the value of a supervisor on the open labour market was accepted to be $1,083.00 per week. Mr Nohra is also rewarded for his labour by receiving proceeds of what is understood to be a profitable business. The Arbitrator’s award should therefore be confirmed.
DISCUSSION AND FINDINGS
There is no challenge to the Arbitrator’s assessment of probable earnings but for the injury (step 1 in Mitchell) and the finding of probable earnings of $1,107.00 per week is therefore confirmed for the reasons given by the Arbitrator.
Mr Nohra challenges the Arbitrator’s approach to step 2 in Mitchell. She assessed Mr Nohra to be fit for full-time supervisory duties and to be capable of earning $1,083.00 per week in that capacity. Mr Nohra argues that his actual earnings (under section 40(2)(b)) are the amount the respondent is paying him, namely, $460.00 per week.
It is correct, as Mr Nohra submits, that where a worker is employed his or her earnings in that employment are prima facie evidence of ability to earn (Aitkin). That is not, however, the end of the analysis. The Court of Appeal considered and applied Aitkin in Tucker, where Beazley JA said (at 31 and 32):
“In Aitkin, Jordan CJ held that the test to be applied in determining the rate of compensation to be awarded under section 11 for partial incapacity was, prima facie, the person’s actual earnings unless it is proved that the worker’s actual earnings are not a proper test, because there is some reason unconnected with the worker’s earning power which makes them lower than they should be.
Jordan CJ stated at 22 that this will occur where a worker is ‘deliberately taking lower paid work than he could reasonably be expected to get, or is idling...or if his actual earnings are compulsorily reduced by something unconnected with his injury or general earning power’. These are instances, or examples, only and do not represent an exhaustive list of the circumstances in which it will be inappropriate to apply the ‘prima facie’ test.
It is clear, not only from the statement of Jordan CJ but also from the manner in which this Court applied the test in Ludowici, that as a first step, one has to approach the matter on a prima facie basis and only move from that basis if the evidence establishes that the actual earnings are not, in the circumstances of the case, a proper test.”
The reference to Ludowici is a reference to Cutri (cited at [56(k)] above). In that case, Kirby P (as his Honour then was) held (at 593):
“Where the worker is earning, the average weekly amount produced thereby is normally to be taken as the paragraph (b) component of the equation. It is only otherwise where the decision maker concludes that the worker is able to earn more than that sum in some suitable employment. Then, but only then, is a notional sum taken into account.”
Whether the sum of $460.00 per week is the proper measure of Mr Nohra’s earning capacity depends on a careful assessment of all the evidence. There are two main issues to consider: first, is Mr Nohra fit for full-time supervisory duties as a cement renderer, and, second, is the figure of $460.00 per week the proper measure of the value of his labour as a working director.
In respect of the first issue, Mr Nohra’s argument is that the restrictions Dr Breit has placed on him – no prolonged standing, walking or negotiating stairs, squatting or kneeling – are inconsistent with the duties of a supervisor on a building site because such a position involves prolonged walking on uneven surfaces, going up and down stairs, climbing scaffolds, jumping off scaffolds, kneeling and squatting. The difficulty with this submission is that it does not accord with Mr Nohra’s evidence about his post-injury activities. The only description of Mr Nohra’s “supervisory duties” is in Mr Verhagen’s report of December 2004 where he recorded that, at that time, Mr Nohra assisted with washing down walls, scraping and cleaning, taping-up windows, and driving to work-sites to measure and quote. Of these activities, only the last task could be described as “supervisory”. It is inconceivable that Mr Nohra does not engage in other activities on behalf of the respondent.
The Job Match Report described a “Supervisor – Solid Plasterers” as a person who supervises and co-ordinates the activities of Solid Plasterers (cement renderers in the case of Mr Nohra’s employees). His tasks can include: determining work requirements and allocating duties; conferring with managers to co-ordinate activities with other organisational units; maintain attendance records and rosters; explain and enforce safety regulations; oversee the work of the unit and suggest improvements and changes; and conferring with workers to resolve grievances. It may also include the tasks of a Solid Plasterer. Mr Nohra is unfit to perform all the tasks of a Solid Plasterer (a renderer) but he is fit to perform the other supervisory tasks listed in the Job Match Report. Whether he can perform those tasks full-time is another matter. Several of the tasks of a supervisor can only be performed at work-sites and, presumably, would require Mr Nohra to stand or walk for prolonged periods. The medical evidence is unanimous that Mr Nohra is unfit for work involving prolonged standing or walking. It follows that I accept, notwithstanding the unsatisfactory state of the evidence, that Mr Nohra would have difficulty working full-time as a supervisor in the rendering industry because of his inability to stand or walk for prolonged periods and I do not agree with the Arbitrator’s finding on this issue.
Nevertheless, that does not mean that Mr Nohra is only fit to work for only 20 hours per week in appropriate selected duties. The only evidence in support of Mr Nohra’s assertion that he is restricted to that extent is Dr Soliman, who has not explained why Mr Nohra should work such restricted hours. Whilst some propositions may be so axiomatic that they need no explanation (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]-[89]), the absence of an explanation as to why Mr Nohra is restricted to suitable duties for only 20 hours per week significantly reduces the persuasive value of that evidence. Dr Patrick did not provide an opinion on how many hours of suitable duties Mr Nohra is fit to perform, but merely noted that he was working “approximately four hours per day”. Dr Giblin did not address the issue.
Mr Verhagen did not address the issue of whether Mr Nohra could perform full-time suitable employment as a supervisor with the respondent, but concluded that if he were to seek alternate employment he would be suitable for a range of positions in the “sedentary, semi-sedentary and light work categories on a full-time basis”. He therefore does not provide support for the Arbitrator’s conclusion.
After taking a detailed history, reviewing the medical evidence, and conducting a thorough examination, Dr Breit expressly disagreed with the recommendation that Mr Nohra only do supervisory work for four hours per day, and he declared him to be fit for restricted duties for normal hours. His restrictions have been assumed by the Arbitrator to be compatible with full-time work as a supervisor in a cement rendering business. For the reasons set out above, that is not correct.
However, having reviewed the evidence, I am comfortably satisfied that Mr Nohra is fit for full-time sedentary or light duties, provided it does not involve prolonged standing or walking. Those duties will include some supervisory activities, but also the many administrative and managerial activities one would expect a managing director to perform to ensure the successful operation of a company like the respondent. This does not, however, mean that the figure of $1,083.00 per week is the correct figure under section 40(2)(b) of the 1987 Act. That figure is the figure for full-time supervisory work as a renderer; work Mr Nohra is not fit to perform. What is required is evidence of how much time Mr Nohra spends engaged in all activities for his business and a calculation of the value of that time according to the principles in Schubert and Nelson, which are discussed below.
In respect of the second issue (whether $460.00 per week is the proper measure of the value of Mr Nohra’s labour), Mr Nohra’s evidence is of limited assistance and raises more questions than it answers. In his first statement, he referred to working “approximately 3-4 days”, mainly supervising, on his initial return to work in 2002. After referring to the deterioration in his condition in 2005, weakness in both thighs, difficulty squatting, the requirement to take medication, and the reduction in his ability to work, he concluded that he was “working on average only 4 hours per day and mostly supervising”. He did not say when he started or finished work or why he had to stop after four hours, if that was the case. He believed he was doing his very best working four hours per day “on average mainly doing supervising work”. I infer that he worked more than four hours on some days. He did not say he received a wage from the respondent, but that he was “drawing only $400.00 per week from the business” which was as a result of his inability to undertake his pre-injury duties and hours. He added that the business was probably making a similar profit to that which it made pre-injury, but his “drawings” were lower and he had to employ additional workers to undertake the physical aspects of the work.
In his second statement, Mr Nohra said that from October 2005 he had not worked more than five hours a day five days per week and he experienced a great deal of pain in both his ankles and heels. Again, he did not give his starting and finishing times and said nothing about his managerial, administrative, or organising activities for the respondent. He said that he had been “drawing approximately $460 gross per week from the business” for his own “living expenses”.
Overall, the assertion that Mr Nohra’s labour is worth only $460.00 per week to the respondent is, on the state of the evidence presented at the arbitration, “inherently extremely unlikely” (Campbell JA (Ipp JA and Sackville AJA agreeing) at [41] in Dunleavy v Peak [2009] NSWCA 72) and, for the following reasons, I do not accept it is the “proper test” of Mr Nohra’s earnings or earning capacity (Tucker at 32C and Novello at 153C). Notwithstanding his injury and his alleged inability to perform sedentary duties full-time, his business has expanded. He has not given satisfactory evidence as to his starting and finishing times or the nature of all the activities he performs, including administrative and managerial activities. He made no mention of whether he performs any work on behalf of the respondent from his home, such as making or receiving phone calls or paper work. Given that the respondent’s office is at his home, it is highly likely that he does. There is no evidence of the time he spent dealing with the Department of Immigration seeking working visas, or engaged in similar off site activities of a managerial and supervisory nature. If his evidence is to be accepted, the company runs itself with his part-time supervision for four hours per day. His unexplained failure to properly answer the Directions for Production served on him and on the respondent is unsatisfactory and it is open to infer that the documents not produced do not advance his case. Whether any such inference should be drawn is a matter for the next Arbitrator, after considering any additional evidence tendered and submissions made.
The approach to be adopted in calculating the value of Mr Nohra’s labour to his business is discussed in Nelson and Schubert. These authorities make it clear that more than one approach is open to the calculation of post-injury earnings under section 40(2)(b) of the 1987 Act when a worker is working for his or her own business. However, because of the way the parties presented and argued the case, the Arbitrator did not apply any of the approaches sanctioned by Schubert and Nelson, but merely found Mr Nohra fit for full-time work as a supervisor and, based on the figures in the Job Match Report, found the “rate specified” (Reasons, paragraph 56) for that position to be $1,083.00 per week. To determine the correct figure, which may well be of the order of $1,083.00 per week, it is necessary to conduct the analysis required by the authorities.
The first method requires a determination of the net remuneration being received by the worker for his or her labour. This is done by examining the business accounts and making all proper allowances for overhead expenses, cost of materials and other labour, maintenance and depreciation of plant, return on capital invested and the like (Glass JA (Reynolds JA agreeing) at 230G in Schubert in the Court of Appeal, citing Gibbs J at 652 and Windeyer J at 643 in Nelson). This approach cannot be used on review in the present matter because Mr Nohra has not complied with the Direction for Production served on the respondent and has not produced the respondent’s business accounts.
The second method requires a calculation of the worth of the worker’s labour to the business, but without reference to the business accounts. This method has three possible approaches. First, a determination may be made of the cost to the business of employing someone to do the reduced work the worker is performing (Glass JA (Reynolds JA agreeing) in Schubert at 231A). In the alternative, it may be determined by reducing from the cost of employing someone whose work capacity is unimpaired the cost of supplementing the reduced efforts of the applicant so as to produce for the business the services of one fully capable worker (Glass JA in Schubert at 231, citing Barwick CJ in Nelson at 631-632). The third method is to “determine what his work would have been worth in wages if he had been employed by another to do the work” (per Barwick CJ in Nelson at 631).
The High Court endorsed these approaches when it unanimously dismissed the employer’s appeal in Schubert, and added (at 587-588) that:
“As Glass and Mahony JJA pointed out in the Court of Appeal, there is no single way in which actual or potential earnings of such a former worker must be determined. The circumstances of the particular case will indicate what way or ways are open and what evidence is relevant for that purpose and it is undesirable to confine the Commission within the strict limits of artificial rules laid down in advance by an appellate court. Thus, there may well be cases in which the actual earnings of a business either represent the actual or potential earnings of a former worker during a period of partial incapacity. Where, for example, a business consists essentially of the provision of personal services by the former worker (e.g. a business of a sole plumber or casual gardener) and no significant investment of capital is involved, the actual net earnings of the business might properly be seen as representing the actual ‘reward for (the) labour’ of the former worker (see J. & H. Timbers Pty. Ltd. v. Nelson (1972) 126 CLR, at p 652) during a period of partial incapacity. In such a case, if the former worker is carrying on business solely on his own account, the net earnings of the business might properly be seen as representing the ‘amount he is earning’ in a business; if he is carrying on business in partnership or as an employee of a family company, the net earnings might properly be seen as representing the ‘amount he ... is able to earn’ either in employment or in a business.”
Whilst it is clear that there is “no single way” in which actual or potential earnings of a self-employed worker must be determined, whichever approach is adopted, it is not appropriate to ignore altogether the worker’s labour (physical and mental) in the business. The difficulty in the present case is that, given the unsatisfactory state of the evidence, it is not possible to apply any of the alternative methods discussed in the authorities. I am unable to determine if Mr Nohra’s case has been deliberately presented in a manner designed to conceal relevant information, or if relevant information has been omitted through inadvertence. As the matter must be re-determined, I express no concluded view about that but merely observe that the situation must be remedied before the case can be determined.
I do not accept that the Arbitrator erred in her application of section 43A(4) of the 1987 Act. Mr Nohra’s submission assumes that his evidence – that he “earns $460.00 per week for 20 hours work” – must be accepted. That is not correct. First, Mr Nohra is fit for full-time sedentary or light duties. Whether such duties are available with the respondent is yet to be determined. Second, the argument that Mr Nohra’s “earnings” are only $460.00 per week is based on Mr Nohra’s evidence and a print out from the respondent. Mr Nohra describes the money he receives from the company as “drawings”, not as wages. The suggestion that this amount fairly represents the value of his labour to the respondent is “inherently extremely unlikely” and the Commission is not bound to accept it and I do not accept it. It takes no account of his knowledge, experience, effort and capacity as the managing director and supervisor of the respondent, all of which have a significant impact on the respondent’s profitability and the assessment of the value of Mr Nohra’s labour.
OTHER MATTERS
The submission that the Arbitrator accepted that Mr Nohra’s heel and ankle symptoms have resulted from his knee injury is incorrect. The Arbitrator referred to the heel and ankle symptoms (at paragraphs 7, 46, 49 and 50 of her Reasons), but made no finding as to the cause of that problem. The respondent has merely noted that the ankle and heel problems form no part of the claim and have not been pleaded in the Application. The respondent’s submission is correct. If Mr Nohra wishes to claim that his heel and ankle symptoms have resulted from his knee injuries, that should be pleaded in the Application. As both sides have obtained evidence on this issue and addressed on it, it is difficult to see how that amendment could cause any prejudice to the respondent. I also note Dr Breit’s evidence on this issue.
The Arbitrator referred to Mr Nohra having undergone surgery to his left knee in March 2006 (Reasons, paragraph 51). I have been unable to find any reference in the medical evidence to Mr Nohra undergoing surgery at that time. Dr Nagamori operated on Mr Nohra’s left knee on 15 August 2005. Dr Panjratan and Dr Patrick both took histories of that surgery but make no mention of any surgery in 2006. Dr Panjratan expressly noted that since Mr Nohra was not satisfied with the result of the left knee surgery, he did not want surgery on his right knee. Mr Nohra has made a submission that he is entitled to an award for total incapacity for the period following his surgery. That may well be correct, but the submissions do not refer to the date of the surgery. This will need to be clarified at the second arbitration.
Practitioners are again reminded that arbitrations are not a practice run to see how things turn out with the expectation that, if the result is unfavourable, cases can then be properly argued on appeal to a Presidential member. Cases should be properly prepared and presented at the arbitration. That did not happen in this matter and, as a result, the matter must be re-determined at a second arbitration.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), the Arbitrator’s determination that Mr Nohra’s probable earnings under section 40(2)(a) of the 1987 Act are $1,107.00 per week is confirmed. However, Mr Nohra’s fitness for employment and his ability to earn must be re-determined. Because of the unsatisfactory state of the evidence, I am not able to re-determine those issues and the case will be remitted to a different Arbitrator for that purpose.
Though the future conduct of this matter is a matter for the parties and the Arbitrator who conducts the re-determination, at the least, Mr Nohra should be given an opportunity to properly respond to the Directions for Production served on him and on the respondent and to supplement his evidence. In addition, it may well be appropriate that leave be given for Mr Nohra to be cross-examined at the second arbitration.
DECISION
Paragraphs one, three, four and five of the Arbitrator’s determination of 23 February 2009 are confirmed.
Paragraph two of the Arbitrator’s determination of 23 February 2009 is revoked and the question of the applicant worker’s entitlement to weekly compensation from 6 December 2005 to date and continuing is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal.
Bill Roche
Deputy President
7 May 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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