Sonter v Librix Pty Ltd (No 2)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sonter v Librix Pty Ltd (No 2) [2010] NSWWCCPD 50
APPELLANT:		Alan Leslie Sonter
RESPONDENT:		Librix Pty Ltd
INSURER:		Cambridge Integrated Services Australia Limited
FILE NUMBER:		A1-3966/09
ARBITRATOR:	Mr G Rooney
DATE OF ARBITRATOR’S DECISION:		12 January 2010
DATE OF APPEAL DECISION:		13 May 2010
SUBJECT MATTER OF DECISION:		Brain injury; section 40 of the Workers Compensation Act 1987; partial incapacity; probable earnings; ability to earn
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Stacks/Goudkamp Pty Limited
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		1.       Paragraph four of the Arbitrator’s determination of 12 January 2010 is revoked and the following order made in its place:
“4. The respondent is to pay the applicant weekly compensation under section 40 of the Workers Compensation Act 1987 in the following amounts:
(a)     6 May 2006 – 5 May 2007           $325.37 (b)    6 May 2007 – 5 May 2008           $335.13 (c)     6 May 2008 – 5 May 2009           $345.19 (d)    6 May 2009 – 15 July 2009          $355.54” 2.       Paragraph five of the Arbitrator’s determination of 12 January 2010 is amended to delete “2008” and insert “2009” and to delete “2168-05” and insert “21291/05”.  All other orders are confirmed.

BACKGROUND

1.The appellant worker, Alan Sonter, sustained a traumatic brain injury as a result of a serious assault in the course of his employment on 10 July 2002.  At that time, Mr Sonter was the working director of the respondent employer, Librix Pty Ltd (‘Librix’). 

2.Librix conducted two businesses, one a cleaning business and the other a property maintenance business.  Mr Sonter did some administrative work in the cleaning business, but his son did most of the physical work.  Mr Sonter also worked in the property maintenance business, mowing lawns and performing general property maintenance.

3.As a result of the assault, Mr Sonter was diagnosed with a right temporal and frontal lobe haemorrhage, a right-sided extradural haematoma, and fractures of the right temporal bone and lateral wall of the right orbit.  The injury has caused cognitive and emotional changes and, as a result, Mr Sonter has experienced difficulty with initiating and completing tasks.

4.He completed a claim form on 15 October 2002.  I assume that the insurer disputed the claim from the outset, though there is no documentation to that effect.

5.On 15 December 2005, solicitors acting for Mr Sonter filed an Application to Resolve a Dispute (matter number 21291/05) with the Commission.  Mr Sonter sought weekly compensation, medical and hospital expenses, and lump sum compensation in respect of a 23 per cent whole person impairment as a result of traumatic brain damage.

6.The respondent disputed liability and the Commission listed the matter for conciliation and arbitration on 23 March 2006.  The Arbitrator adjourned the matter until 4 May 2006, when it was resolved by consent.  The Commission issued a Certificate of Determination – Consent Orders on 5 May 2006 in the following terms: