Shokralla v State Transit Authority of New South Wales
[2006] NSWWCCPD 294
•6 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Shokralla v State Transit Authority of New South Wales [2006] NSWWCCPD 294
APPELLANT: Mary Shokralla
RESPONDENT: State Transit Authority of New South Wales
INSURER:State Transit Authority of New South Wales
FILE NUMBER: WCC518-05
DATE OF ARBITRATOR’S DECISION: 15 March 2006
DATE OF APPEAL DECISION: 6 November 2006
SUBJECT MATTER OF DECISION: Adequacy of reasons; video evidence.
PRESIDENTIAL MEMBER: Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION: Appellant: Steve Masselos & Co
Respondent: Sparke Helmore Solicitors
ORDERS MADE ON APPEAL: 1. Paragraph 1 of the Arbitrator’s Decision dated 15 March 2006 is revoked and the following order is substituted:
“1.That State Transit Authority of New South Wales pay Mary Shokralla weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$310.90 per week from 10 June 2003 to 30 September 2003;
(b)$317.20 per week from 1 October 2003 to 31 March 2004;
(c)$323.00 per week from 1 April 2004 to 30 September 2004;
(d)$328.90 per week from 1 October 2004 to 31 March 2005;
(e)$334.10 per week from 1 April 2005 to 30 September 2005;
(f)$340.90 per week from 1 October 2005 to 31 March 2006;
(g)$347.90 per week from 1 April 2006 to 30 September 2006;
(h)$354.40 per week from 1 October 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”
2. Paragraphs 2 and 3 of the Certificate of Determination of 15 March 2006 are confirmed.
3. State Transit Authority of New South Wales is to pay Mary Shokralla’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 7 April 2006 Mary Shokralla (‘Mrs Shokralla’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 March 2006.
The Respondent to the Appeal is State Transit Authority of New South Wales (‘State Transit’).
Mrs Shokralla was born on 28 July 1965 and is 41 years of age. She is married and her husband is in full-time employment. Mrs Shokralla claims two dependent children, Edward (born 14 March 1988) and Sarah (born 19 January 1995).
Mrs Shokralla was born in Egypt and came to Australia at the age of 18 months. She commenced employment with State Transit as a bus driver in 1989.
In November 1990 Mrs Shokralla injured her right ankle at work. She again injured her right ankle at work in October 1991 and July 1992 and in July 1994 injured her right ankle on the way home from work. In 1994 proceedings were commenced in the then Compensation Court which resulted in a Consent Award of lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’), based on 16% loss of use of the right leg below the knee.
In December 1998 Mrs Shokralla injured both arms, both hands and her neck as a result of the repetitive nature of her work as a bus driver. There was a recurrence of the right arm injury whilst driving buses in April 1999 and again in August 1999.
In February 2000 Mrs Shokralla suffered an injury to her right arm and left hand whilst driving buses and in March 2000 suffered injury to the right wrist whilst driving buses. In 2001 proceedings were commenced in the then Compensation Court which resulted in consent lump sum compensation pursuant to sections 66 and 67 of the 1987 Act based on 10% permanent loss of use of the right arm at or above the elbow and 5% permanent loss of use of the left arm at or above the elbow.
In February 2002 Mrs Shokralla alleges she injured her lower back due to the continuous sitting whilst driving a bus in an unadjustable seat or alternatively her work as a bus operator for 14 years aggravated, accelerated or exacerbated an underlying degenerative disease process of her lower back. In March 2002 and again in June 2003 Mrs Shokralla alleges injury to her lower back and left leg due to prolonged sitting whilst driving a bus. She stopped work on 10 June 2003 and on 30 October 2003 she was medically retired from State Transit and remained unemployed until 26 January 2004. Since 27 January 2004 she has worked in different jobs, earning less than she did whilst employed by State Transit. No weekly compensation benefits have been paid to Mrs Shokralla since 10 June 2003.
On 14 January 2005 proceedings were commenced in the Commission seeking lump sum compensation, medical expenses and weekly benefits relying on the different injuries referred to above, together with nature and conditions of work between 1989 to 30 October 2003 causing injury to the left and right arms, left and right hands, neck, back, right ankle and left leg.
An arbitration hearing took place on 27 January 2006 and Mrs Shokralla has appealed from the decision handed down by the Arbitrator.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 15 March 2006 records the Arbitrator’s orders as follows:
“1.Application in respect to the weekly benefits claim is dismissed.
2.By consent of parties:
i)Respondent to pay Applicant’s S66 claim in the sum of $9,250.
ii)Respondent to pay applicant’s S60 medical expenses claim on production of accounts, receipts or HIC charge up to $2,500 to date.
3.Respondent to pay Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are the Arbitrator erred:
“1.in finding that the worker was not incapacitated when such finding was against the evidence and the weight of the evidence; and
2.in failing to give any or any adequate reasons.”
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Neither party objects to the matter being dealt with on the papers, however, State Transit reserves the right to add to, or amend their submissions once a transcript of the arbitration hearing becomes available. A copy of the transcript was sent to both parties on 24 April 2006 and no further submissions have been received from State Transit.
Having regard to Practice Directions Numbers 1 and 6 and the documents that are before me, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
As the appeal involves a claim for continuing weekly compensation, backdated to October 2003, clearly it satisfies the monetary threshold and accordingly I grant leave to appeal.
FRESH EVIDENCE
Neither party seeks leave to introduce fresh evidence.
PRELIMINARY
Prior to the arbitration hearing, the matter was referred to Dr Bhattacharyya, Approved Medical Specialist, to assess the lumbar spine and left lower extremity. On 28 June 2005 a Medical Assessment Certificate was issued as a result of the examination by Dr Bhattacharyya. The doctor assessed 5% impairment of the lumbar spine and nil permanent loss of the left leg as a result of the general nature and conditions of work between 1989 and the end of 2001. The doctor also assessed 5% whole person impairment in respect of injuries to the lumbar spine on 25 February 2002, 11 March 2002 and 9 June 2003.
In paragraph 24 of the decision the Arbitrator found as follows:
“(1)That the Applicant suffered the relevant injuries (as per the Application) during the course of her employment with the respondent.
(2)That the Applicant’s employment as a bus driver with the Respondent was a substantially contributing factor to the relevant injuries.”
State Transit have not appealed these findings of the Arbitrator.
At paragraph 26 of the decision the Arbitrator made this statement:
“I now return to the central issue to be determined: whether or not the Applicant has suffered partial incapacity for work which entitles her to claim weekly benefits calculated in accordance with s40.”
At paragraph 43 of the decision the Arbitrator made the following finding in response to the ‘central issue’:
“I am satisfied, based on all the evidence, that there is no partial incapacity for work from 31.10.2003 to date on the part of the Applicant resulting from the relevant injuries. The Applicant has accordingly not met the threshold requirement set out in s33, 1987 Act. For the same reasons, I am of the opinion that there is no period after 31.10.2003 of partial incapacity for work by the Applicant entitling the Applicant to weekly payments of compensation calculated in accordance with s40, 1987 Act.”
EVIDENCE AND SUBMISSIONS
Mrs Shokralla submits that the finding of the Arbitrator that she is not partially incapacitated for work after 31 October 2003 is against the evidence and the weight of the evidence. In support of this submission it is submitted that the Arbitrator based his determination almost entirely on his own impression of surveillance reports and film exposed of Mrs Shokralla between August 2003 and February 2004. It is further submitted that the Arbitrator rejected the opinions expressed by Mrs Shokralla’s treating and qualified doctors and the Approved Medical Specialist on the basis that they had not seen the surveillance material.
State Transit submit in reply that a review is not a hearing de novo and that the Presidential Member should not interfere with the Arbitrator’s decision unless it can be demonstrated that the Arbitrator made some legal, factual or discretionary error. It is further submitted by State Transit that the Arbitrator had the benefit of seeing Mrs Shokralla and viewing the video evidence tendered and as such was in the best position to assess her credit and make relevant findings where there was any conflict between Mrs Shokralla’s complaints of disability and incapacity and what was revealed in the video evidence.
Medical Evidence
Dr James Vote, orthopaedic surgeon, saw Mrs Shokralla on 23 November 1994 and in a medical report dated 13 December 1994 provides an opinion in relation to the right ankle injury. Having regard to the date of the medical report it is of little or no assistance. Dr Stuckey, orthopaedic surgeon, examined Mrs Shokralla at the request of her solicitors on 8 November 2000 in respect of the injury to the right and left arms and again is of little assistance having regard to the time that has lapsed since the medical examination. I note the doctor was of the opinion that Mrs Shokralla had bilateral carpal tunnel syndrome related to her employment with State Transit.
Dr Wallace, orthopaedic surgeon, examined Mrs Shokralla at the request of her solicitors on 14 March 2002 and was of the opinion she suffered bilateral carpal tunnel syndrome as a result of the nature and conditions of her employment with State Transit. The doctor was of the opinion that she will be unfit to continue her full pre-injury duties as a bus driver in the long term due to the bilateral wrist and hand disability.
Dr J M Ellis examined Mrs Shokralla at the request of her solicitors in October 2003. The doctor examined her principally in relation to her back condition and diagnosed L3-4, L4-5 and L5-S1 low grade diffuse annular disc bulging related to her employment as a bus driver. The doctor also noted her bilateral carpal tunnel syndrome and was of the opinion that Mrs Shokralla was permanently unfit to return to bus driving, but fit for selected clerical work.
Dr El Gamal, Mrs Shokralla’s general practitioner, has provided a short report dated 24 October 2003 where he comments on the findings of a neurologist (Dr Pryor) and states that Mrs Shokralla is unfit to return to her pre-injury duties long term. Dr John Garvan, orthopaedic surgeon, saw Mrs Shokralla on a number of occasions on referral from her general practitioner. In a report dated 13 August 2003, Dr Garvan comments on examination of Mrs Shokralla carried out on 8 August 2003. The doctor noted straight leg raising on the left side to 80 degrees associated with pain about the left buttock. He was of the opinion that her symptoms are consistent with a left L4/5 disc protrusion and referred her to Dr Pryor, consultant neurologist. In a report dated 23 September 2003, Dr Pryor noted on examination that there was pain on the left at straight leg raising of 80 degrees and concluded:
“…that she has degenerative disease of her lumbosacral spine causing low back pain and left sided sciatica. It has significant implications for her employment and will require judgment in choosing the best management for her.”
Dr F J Harvey examined Mrs Shokralla on 12 April 2001 and again on 29 April 2002 at the request of State Transit. The examinations were in relation to the injury to her arms and the doctor was of the opinion that Mrs Shokralla suffers bilateral carpal tunnel syndrome, 20% constitutional and 80% aggravated by employment as a bus driver. Dr Harvey felt that Mrs Shokralla was fit to continue with her normal work.
Dr Kim Edwards, surgeon, examined Mrs Shokralla on 1 March 2001 and again on 16 May 2002 at the request of State Transit in relation to her arms. The doctor was of the opinion that Mrs Shokralla suffers bilateral carpal tunnel syndrome that is not work related and was fit for her usual employment. Dr Edwards examined Mrs Shokralla again on 25 March 2004 and noted on examination straight leg raising to 90 degrees on both sides and forward flexion to 90 degrees. The doctor was of the opinion that the carpal tunnel symptoms have settled on both sides and that she has no work-related disability affecting her back and any back complaints are constitutional. The doctor felt that Mrs Shokralla was fit for driving buses both part-time and full-time. Dr Edwards examined Mrs Shokralla again on 17 February 2005 and again noted straight leg raising of 90 degrees on both sides and forward flexion to reach the floor. The doctor was of the opinion that Mrs Shokralla was fit to work as a taxi driver and bus driver and noted that she states that she is “not restricted in any way at all”. Although the doctor has noted this comment from Mrs Shokralla, he also has noted in the body of his medical report that:
“She said sitting for a prolonged period can cause slight discomfort but this is not a problem as she can get up and around driving a cab. She said she does not carry anything.”
State Transit arranged for Mrs Shokralla to be examined by Dr David Macauley, consultant physician, on 20 June 2003. The doctor noted on examination that Mrs Shokralla was able to bend forward to reach just above her ankles and straight leg raising was 70 degrees bilaterally with some tenderness over the left buttock. The doctor was of the opinion that the carpal tunnel syndrome was constitutional and not work related and in any event there was no evidence of any continuation of the condition. The doctor was of the opinion that Mrs Shokralla has a musculo-ligamentous strain of her lumbar spine or an aggravation of pre-existing degenerative changes that are constitutional in nature and related to her obesity and poor physical fitness. The doctor felt that she was not fit to resume her pre-injury duties. Dr Macauley re-examined Mrs Shokralla on 26 March 2004 and noted 80 degrees straight leg raising on both sides. The doctor felt the bilateral carpal tunnel symptoms had resolved as had the musculo-ligamentous strain of her lumbar spine and that she was fit to undertake any duties for which she has education and training. Mrs Shokralla was again examined by Dr Macauley on 16 February 2005 where he noted straight leg raising of 90 degrees bilaterally. The doctor again was of the opinion that the carpal tunnel syndrome has resolved and that musculo-ligamentous strains of her lumbar spine was the cause of her back pain and that she was fit to undertake her pre-injury duties.
Dr Bhattacharyya, Approved Medical Specialist, examined Mrs Shokralla on 23 May 2005. He had the benefit of a number of the medical reports referred to above, including those of Dr Ellis, Dr Macauley and Dr Edwards. In addition to the assessed losses referred to above (paragraph 20), Dr Bhattacharyya was of the opinion that Mrs Shokralla was not fit to work 70 hours per week at present as a full-time bus driver as this is likely to aggravate her back. The doctor stated:
“She has been driving a taxi since January 2005. This she does two to four days per week, depending on how she feels on that particular day. She works between 6 am and 1 pm/12 noon. She takes 10 minutes off after every couple of hours to do stretching of her back. I think she is managing this job and I feel she is capable of continuing with the job of a taxi driver three to four days per week working a maximum of five to six hours per day.”
As the Arbitrator correctly stated in his decision, the statement on incapacity by the Approved Medical Specialist is not conclusively presumed to be correct.
In what appears to have been a thorough examination of Mrs Shokralla, Dr Bhattacharyya found her straight leg raising was negative, but noted on examination of her lumbar spine, there was muscle spasm. The doctor also noted on further examination:
“…there was wasting of 1 centimetre in the left calf at about 5” below the lower pole of the patella as compared to the right side. There was also 1 centimetre of wasting of the left thigh at about 4” above the patella as compared to the right side.”
Dr Edwards in his report of 25 March 2004 noted there was no wasting and Dr Macauley in his report of 26 March 2004 notes no wasting in the lower limbs. Dr Pryor noted no wasting in the legs, however he felt the EMG finding provides objective evidence in support of Mrs Shokralla’s description of pain and sensory disturbance related to the L5/S1 nerve root territory on the left. Dr Ellis, on what also appears to have been a thorough examination noted:
“The right thigh is 1 cm greater in circumference than the left and the right calf is ½ cm greater than the left.”
Video Evidence
At paragraphs 34 and 35 of the decision the Arbitrator stated:
“The Applicant’s medical specialists and GP have not been shown the above surveillance reports and tapes as seen and commented upon by Drs Macauley and Edwards. However, the Applicant’s written submission relies on the following medical opinions expressed by Dr Ellis, Dr El Gamal (GP), Dr Vote, Dr Wallace and Dr Stuckey in their respective reports dated 21.10.2003, 13.10.2003, 13.12.1994, 25.5.2002 and 13.11.2000 (which are summarized at pages 1-2 of the Applicant’s written submissions). All of these predate the more recent medical reports of Dr Macauley (16.2.2005) and Dr Edwards (25.3.2004) [sic 2005]which I prefer as they have seen the surveillance material and express firm opinions based on a comprehensive review of the Applicant’s condition in light of that material.
The AMS, Dr Bhattacharyya in his MAC, although referring to Drs Macauley and Ewards as seeing the video surveillance material, did not himself see that material.”
Video was exposed of Mrs Shokralla and State Transit placed in evidence video tape taken over a period between 2 August 2003 and 16 February 2004. In addition there were four reports from Arrow Insurance Adjusting outlining the results of the surveillance and I note they refer to a total of 78 minutes of video over the entire period. State Transit provided copy tapes of the video to Dr Macauley and Dr Edwards who have both written reports after viewing the video. These additional medical reports were before the Arbitrator and I note that he also watched the video.
After viewing the video Dr Macauley was of the opinion that it did not demonstrate a lady with any obvious restriction of movement in either her back or leg. Dr Edwards was of the view that the video did not show any evidence of disability or discomfort related to Mrs Shokralla’s back or either upper limb. The Arbitrator after viewing the video recorded the following in paragraph 29 of the decision:
“First Video Tape – 29.10.2003: “Applicant moves freely and bends right arm – picks up leaves on ground, moves arms ok, walks ok, overweight (significantly), gets out of small car easily, bends down under garage door – no problems, sits down in car – no problems, drives car ok, drives bus no. 73 ok – no distress, no difficulties in driving bus, carries heavy bag ok, gets into and drives large car – Land cruiser ok.”
Second Video tape – “walks well and easily, short job to bus – no difficulty, easily drives bus – no problems.””
On viewing the video I do not disagree with the notation made by the Arbitrator, however it was my impression that Mrs Shokralla bent only slightly under the garage door.
Mrs Shokralla viewed the video and provided a supplementary statement in response. The Arbitrator made this comment about the statement at paragraph 33 of the decision:
“The further written statement of the Applicant of 3.3.2005 makes various comments on the surveillance reports and videos but does not, in my opinion, undermine that material in its detail and thrust.”
Mrs Shokralla in her supplementary statement pointed out that the split shifts driving the buses that are shown in the video are very different because they involve only two hours driving in the morning and two hours driving in the afternoon. She states that the work with State Transit involved shifts between 9 and 10 hours with a 50 minute break after 5 hours driving. She further points out that her current work as a taxi driver allows her more freedom to stop, move and continue as necessary. Finally, she points out that the part-time bus driving which is a large part of the video material was work that she had told her solicitor about.
DISCUSSION AND FINDINGS
As Deputy President Fleming stated in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73 (‘Knight’):
“An Arbitrator’s decision should not be disturbed unless, on review, it contains an error of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6).
The error must be such that, but for it, a different decision would have been made (Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
The errors alleged by the Appellant are largely matters of discretionary judgment by the Arbitrator, on the basis of her view of the evidence before her. As with any exercise of discretion by an administrative decision maker, this discretion must be exercised lawfully and fairly, taking into account the scope of the discretion and the objects of purpose for which it is conferred. To succeed on the grounds of appeal the Appellant must demonstrate that the Arbitrator has failed to exercise her discretion fairly and lawfully….
Interference with an Arbitrator’s discretionary judgment as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is such a case. The Arbitrator has not, in her reasons, given a fair or accurate account of the evidence that was before her.”
In my opinion the Arbitrator’s ultimate finding that Mrs Shokralla was not partially incapacitated for work from 31 October 2003 was manifestly against the weight of the evidence. To adopt the terminology used by Deputy President Fleming in Knight, the Arbitrator has not in his reasons given a fair or accurate account of the evidence that was before him.
The Arbitrator in his decision makes no reference to either Dr Garvan or Dr Pryor. Both were treating doctors and considered that Mrs Shokralla had significant problems with her back and Dr Pryor, in particular, noted significant implications for her employment.
In my view the Arbitrator placed too great a significance on the video material which on my viewing was consistent with her presentation to the various doctors and her post-injury employment. The one exception may be where she informed Dr Ellis that her family pushed the trolley when shopping. At around the same time as Dr Ellis recorded this, surveillance was undertaken showing Mrs Shokralla wheeling a trolley in the supermarket.
In his decision, which I have quoted above in paragraph 36, the Arbitrator concluded that he preferred the most recent opinions of Dr Edwards and Dr Macauley because they had seen the video film and expressed firm opinions in light of that evidence, whilst Dr Bhattacharyya did not see that material. Having seen the video evidence I am not satisfied that there is any inconsistency between the activities shown on film and the examination undertaken by Dr Bhattacharyya or the history provided to him by Mrs Shokralla. I am further of the opinion that the Arbitrator placed too little weight on the thorough examination carried out by Dr Bhattacharyya which highlighted muscle spasm and wasting of the left leg.
The Arbitrator in his decision, quoted above in paragraph 39, gives too little weight to the supplementary statement of Mrs Shokralla who makes the point that the activities shown in the video tape are very different to her pre-injury employment where she worked 9 to 10 hour shifts with a 50 minute break after 5 hours. I agree with the submission of Mrs Shokralla that the Arbitrator based his determination almost entirely on his own impression of the surveillance reports and film, as he made this comment at paragraph 36 of the decision:
“I observed, myself, the Applicant walking, standing, sitting and moving without difficulty or restrictions in and around the Commission’s premises at the day of the hearing.”
Mrs Shokralla submits that it is inappropriate for the Arbitrator to draw an inference about incapacity from lay observations and that it is an error of law and a denial of natural justice and procedural fairness to rely on out of court observations in reaching a determination of the facts in issue without advising the parties of the intention to do so and giving them an opportunity to address on what inferences may properly be drawn from such observation. Mrs Shokralla refers to Kappos v State Transit Authority (1995) 11 NSWCCR 386 where Sheller JA said:
“For my part, I think great care must be taken by judges in assessing what weight, if any, is to be given to their observations about witnesses outside the witness box. Those observations may turn out to be very misleading. Generally it is desirable, if the judge regards the observations as relevant, that the parties be apprised of the precise nature of the observations and the use the judge has in mind to make of them.”
The Arbitrator having erred it is necessary that his decision be revoked. Having made this finding I do not need to consider the further grounds of appeal.
A Presidential Member, where possible, should determine the matter fully unless there is some reason for the matter to be remitted to an Arbitrator for re-determination. The reason for remitting the matter includes factual or legal reasons, however, in this instance there was no oral evidence presented at the arbitration hearing. The matter was determined on the papers after submissions by the parties. I have the transcript of those submissions, wages and medical material together with a copy of the video evidence and as such am in a position to determine Mrs Shokralla’s entitlement to weekly compensation pursuant to section 40 of the 1987 Act.
Notwithstanding the error in relation to incapacity I am of the opinion that the Arbitrator’s conclusions of fact with respect to the issue of injury are well founded and should stand.
Incapacity
Both parties prepared written submissions which were supplemented by oral submissions at the arbitration hearing. Although the Arbitrator in his decision made a finding of no partial incapacity for work after 31 October 2003, the parties based their submissions on a detailed Wages Schedule prepared and filed by State Transit on 23 January 2006, which commenced from 10 June 2003. I note that Mrs Shokralla in her written submissions submitted that she has been partially incapacitated for work since 10 June 2003. Accordingly having regard to the evidence, including the medical reports of the various doctors, I find that Mrs Shokralla has been partially incapacitated for work from 10 June 2003.
Section 40 entitlement
The Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527 (‘Mitchell’) held that section 40 of the 1987 Act requires the Tribunal to undertake a five step process.
The five steps in assessing entitlement pursuant to section 40 of the 1987 Act are as follows:
(1)Determination of the weekly amount the worker would probably have been earning if uninjured;
(2)Determination of the amount that the worker is earning or would be able to earn (subject to subsection 40(3) and section 43A);
(3)Subtraction of the figure in (2) from the figure in (1);
(4)Exercise of the discretion contained in subsection (1) of section 40; and
(5)Make an award in the amount arrived at by step (4).
Probable Earnings
At the arbitration hearing agreement was reached between the parties on the probable earnings but for injury. I accept these figures and in accordance with Step (1) determine the probable earnings are:
§10 June 03 to 30 June 03 $905.22
§1 July 03 to 30 June 04 $964.43
§1 July 04 to date $1,004.41
The Amount the Worker is earning or would be able to earn
Mrs Shokralla has worked at a number of jobs since 27 January 2004. Set out below are the gross weekly earnings from those various jobs:
A. 27/1/2004 to 27/2/2004 $488.23
During this period Mrs Shokralla worked casually driving buses. She states that she stopped this work as she was concerned it would aggravate her condition. The earnings for this period were agreed by the parties.
B. 1/3/2004 to 9/3/2004 $571.66
Mrs Shokralla worked as a casual bus driver, but for a different employer. The parties did not agree on the gross weekly amount, State Transit submitting the sum of $644.74. I find the amount is $571.66 which I have arrived at by calculating the daily rate from the group certificate and multiplying this figure by 7.
C. 19/3/2004 to 26/3/2004 $65.00
This was again a short period of casual bus driving and I note the parties’ agreement on the earnings.
D. 13/4/2004 to 11/5/2004 $292.00
During this period Mrs Shokralla worked as a merchandiser and the parties have agreed on the earnings.
E. 25/5/2004 to 30/6/2004 $494.40
During this period the parties have reached agreement on Mrs Shokralla’s earnings as a casual pharmacy assistant.
F. 1/7/2004 to 13/1/2005 $385.40
Again during this period Mrs Shokralla continued working as a casual pharmacy assistant. The Wage Schedule prepared by State Transit suggests the parties do not agree on the actual earnings, however at the arbitration hearing the transcript records counsel for Mrs Shokralla agreeing on the earnings.
G. 10/2/2005 to 31/3/2005 $535.46
Mrs Shokralla commenced working as a taxi driver in this period and although the Wage Schedule records disagreement, I note from the transcript the parties’ agreement on this period.
H. 1/4/2005 to 30/9/2005 $387.30
The parties have agreed on the earnings as a taxi driver in this period. At the time of the arbitration hearing Mrs Shokralla continued to work as a taxi driver.
In my opinion Mrs Shokralla’s more recent earnings as a taxi driver are a better indication of her ability to earn. I do not regard the higher earnings as a casual bus driver as a true indication of her ability to earn because of her statement to Dr Bhattacharyya that she was concerned the bus driving was aggravating her back condition. The work as a casual pharmacy assistant was work that Mrs Shokralla was able to do, but stopped in January 2005 as there was no further work available.
For the first 7 weeks of taxi driving Mrs Shokralla averaged $535.46 per week. When she was examined by Dr Macauley on 16 February 2005 she had been driving taxis for one week and told the doctor she was working full-time, commencing at 6.00 a.m. and finishing at 3.00 p.m. This would appear to explain the higher earnings as a taxi driver in this period. Although she had no complaints at the time she saw Dr Macauley, she told Dr Bhattacharyya in May 2005 that she was driving 2 to 4 days per week between 6.00 a.m. to 1.00 p.m. and that there were times when she had to get out of the taxi and stretch due to the pain in her left leg. As I stated in paragraph 33 above, Dr Bhattacharyya was of the opinion that Mrs Shokralla continues to be fit for driving taxis 3 to 4 days per week, working a maximum of 5 to 6 hours per day. I prefer the evidence of Dr Bhattacharyya on the issue of Mrs Shokralla’s ability to earn, not only because of his thorough medical examination, but because the doctor had access to the medical reports of Dr Macauley, Dr Edwards and Dr Ellis and had more recent information on Mrs Shokralla’s attempts at work.
During submissions at the arbitration hearing it was submitted by Mrs Shokralla’s counsel that her actual earnings were representative of her ability to earn unless it can be shown that there is deliberate underutilization of her earning capacity. I agree with this submission as on the authority of Aitken v Goodyear Tyre & Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20 a worker’s actual earnings are prima facie evidence of his or her ability to earn unless it is established that those earnings are not a true test. There was no evidence that Mrs Shokralla was deliberately taking lower paid work than could reasonably be expected and accordingly I find that the amounts in A to H above represent her ability to earn at those times. For the reasons stated above I find that the sum of $387.30 represents Mrs Shokralla’s ability to earn at all other times.
Accordingly at Step (3) I find the difference between the sums calculated at Steps (1) and (2) to be:
$517.9210 June 2003 to 30 June 2003
$577.131 July 2003 to 26 January 2004
$476.2027 January 2004 to 27 February 2004
$577.1328 February 2004 to 29 February 2004
$392.771 March 2004 to 9 March 2004
$577.1310 March 2004 to 18 March 2004
$899.4319 March 2004 to 26 March 2004
$577.1327 March 2004 to 12 April 2004
$672.4313 April 2004 to 11 May 2004
$577.1312 May 2004 to 24 May 2004
$470.0325 May 2004 to 30 June 2004
$619.011 July 2004 to 13 January 2005
$617.1114 January 2005 to 9 February 2005
$468.9510 February 2005 to 31 March 2005
$617.111 April 2005 to date
Section 40 Discretion
Having found the amount at step (3), sub-section (1) of section 40 of the 1987 Act requires the Tribunal to consider whether there are reasons for the exercise of the discretion to reduce that amount. In Australian Wire Industries v Nicholson (1985) 1 NSWCCR 50 the NSW Court of Appeal held that at this stage all facts had to be examined and this included such matters as “…retirement, other supervening illnesses or injuries, the personal employment history of the worker, and so on.”
During submissions counsel for State Transit indicated to the Arbitrator that he had no submissions to make on the section 40 discretion. Having read the transcript, medical reports and other material before the Arbitrator I can see no reason for the exercise of the discretion in this matter.
Dependents
In the Application to Resolve a Dispute Mrs Shokralla claimed two dependent children. She did not give oral evidence at the arbitration hearing but in her statement said “I am married and have two dependent children”. From the documentary material it appears that Mrs Shokralla’s husband works full-time for Qantas and has done so for a number of years. At the arbitration hearing Mrs Shokralla’s counsel submitted that her statement is sufficient to found her claim for dependents. Counsel for State Transit submitted in reply that dependency is a question of fact and Mrs Shokralla had not discharged her onus.
I agree with the submission of State Transit that dependency is a question of fact (Campbell v Department of Community Services (2000) 19 NSWCCR 336) and that Mrs Shokralla has not made out a case for claiming dependents. There was no evidence of the financial or household arrangements of Mr and Mrs Shokralla.
At Step (5) the difference per week in all periods is greater than the statutory maximum for a worker with no dependents. Accordingly I intend to enter an award at the maximum rate from 10 June 2003 to date pursuant to section 40 of the 1987 Act.
DECISION
For the reasons referred to above, I revoke paragraph 1 of the Arbitrator’s decision dated 15 March 2006 and the following decision is made in its place:
“1.That State Transit Authority of New South Wales pay Mary Shokralla weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$310.90 per week from 10 June 2003 to 30 September 2003;
(b)$317.20 per week from 1 October 2003 to 31 March 2004;
(c)$323.00 per week from 1 April 2004 to 30 September 2004;
(d)$328.90 per week from 1 October 2004 to 31 March 2005;
(e)$334.10 per week from 1 April 2005 to 30 September 2005;
(f)$340.90 per week from 1 October 2005 to 31 March 2006;
(g)$347.90 per week from 1 April 2006 to 30 September 2006;
(h)$354.40 per week from 1 October 2006 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.Paragraphs 2 and 3 of the Certificate of Determination of 15 March 2006 are confirmed.”
COSTS
State Transit Authority of New South Wales is to pay Mary Shokralla’s costs of the appeal.
Julian Martin
Acting Deputy President
6 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JULIAN MARTIN, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0