Raghavadev v Moonlight Mushrooms Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Raghavadev v Moonlight Mushrooms Pty Ltd [2010] NSWWCCPD 120
APPELLANT:		Sasibhooshanan Nair Raghavadev
RESPONDENT:		Moonlight Mushrooms Pty Ltd
INSURER:		Cambridge Integrated Services Australia Pty Ltd
FILE NUMBER:		A1-1504/10
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		9 June 2010
DATE OF APPEAL HEARING:	12 November 2010
DATE OF APPEAL DECISION:		16 November 2010
SUBJECT MATTER OF DECISION:		Calculation of probable earnings but for injury; exercise of the discretion in s 40(1) of the Workers Compensation Act 1987 where worker’s right to work in Australia ceased
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		Oral
REPRESENTATION:		Appellant:		Mr P Stockley, instructed by Ron Kramer Associates
Respondent:		Mr F Doak, instructed by Bartier Perry
ORDERS MADE ON APPEAL:		Paragraph 1 of the Arbitrator’s orders in the determination on 9 June 2009 is revoked and the following order made in its place: “1. The respondent employer is to pay the applicant worker weekly compensation in the sum of $175 per week under s 40 of the Workers Compensation Act 1987 from 17 August 2009 to date and continuing.” Paragraphs 1 and 2 of the Arbitrator’s findings and paragraph 2 of her orders in the determination of 9 June 2009 are confirmed.
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200 plus GST.

INTRODUCTION

1. This appeal concerns the Arbitrator’s finding of probable earnings but for injury and the exercise of the discretion in s 40(1) of the Workers Compensation Act 1987 (the 1987 Act) in circumstances where, after the injury, the worker ceased to be entitled to work in Australia and returned to live in his country of birth, India.

BACKGROUND

1. The appellant worker, Mr Raghavadev, was born in India in 1949. He worked in that country as an electricity linesman for the State Electricity Board for about 21 years. He came to Australia in February 2005 in the hope of obtaining permanent residency and with the intention of bringing his family here.

2. In June 2005, Mr Raghavadev started to work as a labourer on the respondent employer’s mushroom farm. His duties required him to regularly lift and carry heavy weights. On 5 November 2006, he injured his back whilst lifting mushroom boxes. He reported the injury, but initially remained at work. The insurer accepted liability for his claim.

3. After various periods off work, Mr Raghavadev resumed work on restricted duties for 20 hours per week. Whilst on those duties, the respondent employer terminated his employment on 4 February 2009.

4. On 15 July 2009, Mr Raghavadev’s solicitors advised the insurer that Mr Raghavadev’s entitlement to work in Australia had ended and that he wished to return permanently to India. The solicitors requested the insurer to continue to make voluntary compensation payments to Mr Raghavadev whilst he was overseas. In a s 74 notice issued on 17 November 2009, the insurer disputed liability.

5. Mr Raghavadev filed an Application to Resolve a Dispute…