Sonter v Librix Pty Ltd (No 2)
[2010] NSWWCCPD 50
•13 May 2010
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:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 75(1) of the Workers Compensation CommissionRules 2003, the determination of the Commission in this matter is as follows:
1. Award in favour of the Respondent in respect of the Applicant’s claim for payments of weekly compensation.
2. That the Respondent pay the Applicant’s medical expenses under section 60 of the Workers Compensation Act 1987 up to a maximum amount of $10,960.00 on production of accounts or receipts. Award in favour of the Respondent in respect of all amounts in excess of $10,960.00 and in respect of all medical and hospital expenses incurred after 3 May 2006.
3. That the Respondent pay the Applicant’s costs as agreed or assessed, and for this purpose I certify these proceedings as complex.
4. That the parties file a section 66A Agreement with respect to sections 66/67 of the Workers Compensation Act 1987 with the Registry within 14 days or those proceedings will be dismissed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following: The Respondent will pay the Applicant $35,000.00 in respect of a 23 per cent whole person impairment, and $25,000.00 in respect of pain and suffering under section 67. It is noted the Applicant has no other section 66 or section 67 entitlements.”
7.Without legal representation, on 30 May 2007 Mr Sonter filed an appeal against the Consent Orders. Acting Deputy President Moore determined that appeal on 11 October 2006, when she confirmed the Consent Orders (Sonter v Librix Pty Limited [2006] NSWWCCPD 269).
8.Still unrepresented, Mr Sonter filed a second Application to Resolve a Dispute on 22 May 2009, in which he sought weekly compensation from 10 July 2002 until 15 July 2008, hospital and medical expenses of $18,000, and lump sum compensation in respect of a 23 per cent whole person impairment as a result of his brain injury.
9.At a teleconference on 26 June 2009, Arbitrator Rooney asked Mr Sonter if he was “prepared to go and try and see a lawyer?” (T12.33). Mr Sonter replied, “I don’t feel that I’ve been assisted at all by the lawyers” (T12.37).
10.The Commission listed the matter for conciliation and arbitration on 21 August 2009. On that occasion, Mr Sonter did not have legal representation, but Ms Nicole Lucas, a health support worker from the Brain Injury Association, attended with him as a support person. Mr Flett, barrister, appeared for the respondent. The Arbitrator again asked Mr Sonter if he wished to retain a lawyer and added, “You know, you can get a lawyer if you wish?” (T2.32). Mr Sonter replied, “I realise that, I’ve had lawyers in the past, and I’m not happy with the way things have gone” (T2.35).
11.The matter was resolved in principle but, to allow time for Mr Sonter to consider the settlement, and to allow the respondent time to reduce the terms to writing, the Arbitrator listed the matter for teleconference on 1 September 2009.
12.At the teleconference on 1 September 2009, the Arbitrator noted that settlement negotiations had broken down. Mr Sonter requested that the Arbitrator list the matter for hearing. The Arbitrator informed Mr Sonter that the documents filed in support of the Application were not sufficient for him to proceed with the matter (T13.11) and that he could discontinue (T11.45). Mr Sonter elected to have the matter listed for arbitration (T15.1), adding that he understood the risks quite well (T15.7). The Arbitrator strongly advised Mr Sonter to get a lawyer and confirmed that advice to Ms Lucas (T15.30). The Arbitrator then listed the matter for arbitration on 30 October 2009, noting that Mr Sonter had “plenty of time” to “get anything together” in the form of late documents (T18.49).
13.At the arbitration on 30 October 2009, Mr Sonter was again unrepresented, though Ms Lucas again attended the hearing with him. Mr Odling, barrister, appeared for the respondent. Mr Sonter sought leave to tender a report from Flint Forensics Pty Ltd, dated 29 October 2009, setting out an analysis of certain financial records from June 1999 until July 2008. The Arbitrator admitted that document without objection.
14.The Arbitrator divided the claim into the following areas of dispute:
(a)the claim for 23 per cent whole person impairment to the brain and the claim for $25,000 for pain and suffering with respect to the injury to the brain on 10 July 2002;
(b)the claim for section 60 medical expenses with respect to the injury to the brain on 10 July 2002;
(c)the claim for weekly compensation from 10 July 2002 up to the date of the Consent Orders made in the first Application on 5 May 2006; and
(d)the claim for weekly compensation from “6 May 2006 to 15 July 2008”.
15.Librix has conceded that the date of 15 July 2008 in paragraph [14(d)] above was incorrect and should have been 15 July 2009, the date on which Mr Sonter turned 66.
16.The Arbitrator then invited counsel for the respondent to make submissions on the first part of the claim. When counsel completed his submissions, the Arbitrator invited Mr Sonter to make submissions on that issue. The Arbitrator repeated that process for the second and third points. Counsel for the respondent made submissions in respect of the fourth point. However, Mr Sonter was unable to complete his submissions and left the room. When he returned, he appeared to the Arbitrator to be in a distressed state and the arbitration could not continue. An ambulance took Mr Sonter to hospital.
17.The Arbitrator determined that it was not “in the party’s interest to reconvene the conciliation and arbitration conference” (Statement of Reasons (‘Reasons’) at [20]) and he issued the following direction on 17 November 2009:
“1.Leave is granted to the Applicant to file and serve on the Workers Compensation Commission on or before 4.00pm on the 30th November 2009 any final submissions that the applicant wishes to make with respect to his claims for medical expenses, lump sum compensation and weekly benefits the subject of his Application to Resolve a Dispute registered the 22nd May 2009.
2.Leave is granted to the respondent to respond to any further written submissions served by the applicant on the commission within the period referred to above and within 14 days of the receipt by the respondent of those submissions. The respondent is to advise the commission if it chooses not to add to its verbal submissions given at the arbitration hearing on the 30th October 2009.”
18.Mr Sonter filed further submissions in 28 separate documents up to the end of December 2009. The Arbitrator treated those documents as part of Mr Sonter’s “general submissions” (Reasons at [22]).
19.The Arbitrator briefly reviewed the events at the arbitration on 30 October 2009 and restated that he did not believe it was in the worker’s interests, or in the interests of justice, that the worker be invited or compelled to return to the Commission to complete his oral submissions (Reasons at [41]).
20.He then dealt with the four issues he identified as being in dispute. In respect of the only issue in dispute on appeal, the claim for weekly compensation from 6 May 2006 until 15 July 2008 [sic, 2009], the Arbitrator determined that, “at the most”, Mr Sonter would only have been working for 30 per cent of the time prior to his injury (Reasons at [70]). Accepting that the award wage for a cleaning and building contractor was $489.00 per week, he assessed Mr Sonter’s probable earnings but for his injury to be $147.00 per week, that is, 30 per cent of $489.00. This calculation assumed that the only work performed by Mr Sonter before his injury was part-time clerical and administrative work answering the phone, doing occasional maintenance, and assisting his son.
21.The Arbitrator assessed Mr Sonter’s ability to earn from May 2006 doing minimal administrative work to be $15.00 per week (Reasons at [90]), that is, approximately 10 per cent of $147.00. Deducting $15.00 from $147.00 gave a difference of $132.00. The Arbitrator saw no reason to reduce that amount in the exercise of his discretion, and he awarded Mr Sonter compensation for partial incapacity in the sum of $132.00 per week from 6 May 2006 until 15 July 2008.
22.The Commission issued a Certificate of Determination on 12 January 2010 setting out the Arbitrator’s formal orders as follows:
“1. The applicant’s claim for lump sum compensation in an amount of 23% whole person impairment is struck out on the basis that the claim is a nullity.
2. The applicant’s claim for medical expenses with respect to the injury dated 10 July 2002 is struck out on the basis that the claim is a nullity.
3. The applicant’s claim for weekly benefits from 10 July 2002 to 5 May 2006 is struck out on the basis that the claim is a nullity.
4. The respondent is to pay the applicant weekly benefits pursuant to section 40 of the Workers Compensation Act 1987 in an amount of $132.00 from the 6 May 2006 to the 15 July 2008.
5. The respondent is to pay the applicants cost with respect to the weekly benefits claim for the period 6 May 2006 to 15 July 2008 as agreed or assessed. The applicant is not entitled to any legal professional costs as he was not legally represented. The respondent is not liable for any costs in relation to the applicants claims for lump-sum compensation, pain and suffering, medical expenses, weekly benefits from the date of the injury up until the 5 May 2006 or any costs relating to matters dealing with issues arising from the prior application number 2168-05 [sic, 21291/05].”
23.At some stage, Mr Sonter instructed Stacks/Goudkamp to act on his behalf. In an appeal filed by those solicitors on 9 February 2010, Mr Sonter sought leave to challenge paragraph 4 in the Certificate of Determination dated 12 January 2010. He has not challenged any other orders.
LEAVE TO APPEAL
Monetary Threshold
24.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’).
25.It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
26.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
27.I grant leave to appeal.
ON THE PAPERS
28.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.”
29.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions 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.
ISSUES IN DISPUTE
30.The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) only awarding weekly compensation until 15 July 2008, instead of 15 July
2009, the date on which Mr Sonter turned 66, and
(b) finding that, but for his injury, Mr Sonter would only have been earning 30
per cent of a full week’s employment.
FRESH EVIDENCE
31.‘Fresh evidence’ on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
32.Mr Sonter seeks leave to rely on the following fresh evidence on appeal:
(a)a statement from him dated 9 February 2010, and
(b)a “cheque register” of invoice payments from Raine & Horne to Librix Property Services between 1 March 2001 and 6 May 2003.
33.In support of the application to rely on the above fresh evidence, it is submitted on behalf of Mr Sonter that:
(a)the evidence could not have been produced in the proceedings at the arbitration;
(b)Mr Sonter relied on invoices that he submitted before the Arbitrator, but which the Arbitrator did not take into account. It is only because the Arbitrator failed to consider the invoices that the fresh evidence is needed;
(c)the evidence is from Raine & Horne’s database and is credible;
(d)there is a high degree of probability that there would have been a different decision if the evidence had been available at the arbitration;
(e)Mr Sonter was unable to continue his oral submissions at the arbitration because he was in an extremely distressed state and was taken to hospital by ambulance;
(f)Mr Sonter has a brain injury which does not allow him to analyse a great deal of information without giving it proper consideration;
(g)Mr Sonter’s email of 10 November 2009 addressed to the Registrar set out that he was performing property maintenance duties as a working director and hands-on manager for Librix in July 2002, and
(h)it is just to admit the evidence in all the circumstances of the case, bearing in mind the nature of Mr Sonter’s injury and that he was unrepresented at the arbitration.
34.The respondent opposes the introduction of the fresh evidence. It is submitted on behalf of the respondent that:
(a)the matter was listed for teleconference on 26 June 2009, conciliation/arbitration on 21 August 2009, teleconference on 1 September 2009, and conciliation/arbitration on 30 October 2009. During the course of the proceedings, the Arbitrator recommended on numerous occasions that Mr Sonter obtain legal representation, but he declined to do so, saying that he did not feel he had been assisted at all by the lawyers (T12.30 on 26 June 2009);
(b)the Arbitrator gave Mr Sonter ample opportunities to submit any further evidence he proposed to rely on throughout the course of the proceedings. He told Mr Sonter on a number of occasions that he was concerned about the paucity of his evidence (T17.40 on 21 August 2009), and gave leave in his Direction of 28 September 2009 for Mr Sonter to file an Application to Admit Late Documents on or before 20 October 2009;
(c)the Arbitrator allowed Mr Sonter to tender additional evidence (the report from Flint Forensics Pty Limited dated 29 October 2009 and a report from Dr Lethlean dated 26 March 2006) at the arbitration on 30 October 2009;
(d)Mr Sonter made multiple further submissions to the Arbitrator after 30 October 2009;
(e)the fresh evidence could have been produced throughout the lengthy proceedings before the Arbitrator;
(f)the respondent has not had the opportunity to test the fresh evidence;
(g)the fresh evidence does not establish the number of hours or average hours worked by Mr Sonter on a weekly basis, and
(h)it is prejudicial to the respondent for the fresh evidence to be admitted at this stage of the proceedings.
35.The Court of Appeal considered the introduction of fresh evidence or additional evidence on appeal in Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634 (‘Haider’) where Basten JA referred to Akins v National Australia Bank (1994) 34 NSWLR 155 (‘Akins’) and other authorities. In Akins, Clarke JA (Sheller JA and Powell JA agreeing) stated at 160 that three conditions need to be met before “fresh evidence” can be admitted:
“These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.”
36.However, in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116 Heydon JA stated at [15]:
“Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?”
37.In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters, the Commission must also keep in mind its statutory duty to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (section 354(3) of the 1998 Act).
38.In the present case, I am not satisfied that, with reasonable diligence, the evidence now sought to be tendered could not have been obtained and tendered before the Arbitrator. However, the present case is exceptional. Mr Sonter was not only unrepresented at the arbitration, he suffers from documented brain damage and, as a result, has a substantially reduced capacity to consider, prepare and present the evidence necessary to advance his case. The fresh evidence is clearly relevant to the issues in dispute, and provides some evidence that the Arbitrator determined probable earnings but for the injury on the wrong basis.
39.Whilst the respondent has submitted that it will be prejudiced if the fresh evidence is admitted, it has not identified any specific prejudice. I do not regard the additional evidence to be particularly controversial. The documents from Raine & Horne are business records from its “cheque register”. The information in Mr Sonter’s further statement is consistent with the information he set out in his email to the Registrar on 10 November 2009, which was before the Arbitrator in any event as part of Mr Sonter’s additional submission after the arbitration.
40.Given the unique circumstances in which the present application to rely on fresh evidence is made, I believe it is in the interests of justice that the evidence be admitted, and that is the course I propose to adopt.
THE EVIDENCE
Mr Sonter’s evidence
41.Mr Sonter’s evidence is set out in statements dated 22 July 2003, 15 June 2004, 9 March 2006 and 9 February 2010. He is a married man who formed the respondent company with his wife in the 1970s. Mr Sonter was also a partner with his wife in a business called Harmony Art Supplies.
42.The respondent operated two businesses, one a carpet-cleaning business, trading as Lady Rene Carpet Cleaners, and the other a property maintenance business. His son, Andrew, performed the cleaning duties in the carpet-cleaning business, whilst Mr Sonter’s involvement in that business merely involved taking phone calls, organising advertising, organising repairs to equipment and as a “back-up” to his son for larger jobs. In the property maintenance business, Mr Sonter performed lawn-mowing work under a contract the respondent had with Raine & Horne.
43.After the assault on 10 July 2002, Mr Sonter was admitted to hospital for several days. In his 2003 statement, Mr Sonter described his main problem as depression, a problem he had experienced prior to the assault.
44.Mr Sonter attempted to return to his property maintenance and gardening work for Raine & Horne shortly before Christmas 2002. He found he could physically do the work, which included picking up rubbish and using a ride-on lawnmower, but he was lethargic. Two of the respondent’s contracts, one at the Trade Centre at Penrith and one at Erskine Park shopping centre, were terminated, but Mr Sonter continued to work at Mt Pleasant shopping centre for six hours per week. Before the assault, he had been doing “20 or 30 hours a week”.
45.Mr Sonter transferred the carpet-cleaning business to his son and his son’s de facto wife in 2002.
46.In early 2003, Mr Sonter’s superannuation fund purchased three houses at Kandos, and he repaired and renovated those houses with the assistance of his brother and his brother-in-law. He found that he could not do anything on his own. He was at the properties for about three days per week, but could not do a full day’s work, and found that he would start things but would not complete them. He sold two of the properties at the end of 2003. After their sale, Mr Sonter helped in Harmony Art Supplies by doing “some fit-out on the premises”.
47.After his injury, Mr Sonter found that his “main problem with handyman work” was that he could not make decisions “about how to do the work”, and it took him much longer than it had previously taken him.
48.In his March 2006 statement, Mr Sonter said that he was not doing any maintenance work. His activities were looking after his personal affairs and using a computer. He found that he could not concentrate on performing tasks, and that his main problem was in “prioritising things”. He found that, if he started something, he could not remember where he was in relation to it.
49.In respect of his income at the time of the assault, Mr Sonter claimed in the email he wrote to the Registrar on 10 November 2009 (one of the many submissions made by Mr Sonter after the arbitration hearing on 30 October 2009) that his “earning[s]” at the time of the assault were “in excess of $700 per week”. He said that he derived that amount “by the fact that in July 2002, Andrew Sonter, PAYG employee of Librix Pty Ltd, was being paid a gross weekly wage of $700.00 per week as well the statutory 9 per cent superannuation payment to AMP” (emphasis included in original).
50.Mr Sonter had been working for the respondent for 26 years prior to the assault, and was proficient in all aspects of the business, including being hands-on with cleaning and property maintenance duties. As a working director and hands-on manager of the respondent, his weekly “earnings” in July 2002 were considerably more than the $700.00 that was paid to his son Andrew. He asserted that the tax returns for the respondent, together with the bank deposit books and cheque books which were delivered to the Commission on 6 November 2002 (presumably, 6 November 2009), verified that the respondent paid him $700.00 per week in July 2002.
51.Mr Sonter relies heavily on the “cheque register” from Raine & Horne. This document lists payments made by Raine & Horne to the respondent for lawn maintenance between 1 March 2001 and 6 May 2003. The respondent submitted that this document demonstrates a gross income up to July 2002 of “about $700 per week”.
Financial records
52.At the arbitration, Mr Sonter tendered a document from Flint Forensics Pty Ltd headed “Expert Witness Report Workers Compensation Claim Mr Alan Sonter ats QBE Workers Compensation” dated 29 October 2009, prepared by Bruce Flint, chartered accountant. Mr Flint had access to Mr Sonter’s tax returns for the financial years from 1999 up to and including 2008, financial reports for the Sonter Family Trust for the financial years from 1999 up to and including 2003, financial reports for the A & M Sonter partnership for the financial years from 1999 up to and including 2008, and income tax returns for the A & M Sonter partnership from the financial years ending June 1999 up to and including June 2008.
53.Mr Flint stated that, though Mr Sonter worked in the business activities of the Sonter Family Trust full time, he “did not have any earnings pre or post-injury”, and did not generate any earnings from the “art and craft retailing” business conducted through the A & M Sonter partnership. Mr Flint was asked to assume that the gross weekly award for a “cleaning and building contractor” was $489.00, presumably as at July 2002. He also assumed that Mr Sonter worked full time in the “Cleaning and Building Contractor Business pre-injury”, but did not work in the “art and craft retailing” business conducted through the A & M Sonter partnership. Mr Sonter’s wife generated all earnings in the art and craft business. Mr Flint also assumed that, though Mr Sonter worked full time in the Sonter Family Trust, he did not draw a salary or receive other remuneration, either during the pre-injury period or from the date of the claim up to 15 July 2009. It was also assumed that Mr Sonter had not worked in the “Cleaning and Building Business” from the date of injury.
54.Annexure 1 to Mr Flint’s report included a summary of the earnings and expenditure for both the partnership and the respondent from 1999 until the respondent ceased operating at the end of June 2003. It also included a summary of the financial records for the partnership up to the financial year ending 2008.
55.In respect of the financial year ending June 2002, the partnership returned “total gross earnings” of $366,444 and “net earnings before adjustments” of $41,970. Based on Mr Flint’s report, these earnings were solely due to the efforts of Mrs Sonter. The partnership returned “net earnings before adjustments” of $24,134 for the financial year ending June 2004, but returned losses for each of the subsequent financial years considered. However, the partnership paid wages of $51,040 in 2005, $52,548 in 2006, $41,167 in 2007, and $36,101 in 2008.
56.In the financial year ending June 2002, the respondent received “total gross earnings” of $152,762. After deductions, which included $17,970 for advertising, $26,524 for motor vehicle expenses, and $41,549 for wages, the respondent’s “net earnings before adjustments” were $19,801. That figure was adjusted down by $30,000 to allow for “capital profit on sale of fixed assets” to give a net loss of $10,199.
57.The respondent has attached to its reply the following additional financial records:
(a)Mr Sonter’s tax return for the financial year June 2001, which revealed a taxable income of $25,428;
(b)the tax return for the Sonter Family Trust for the financial year ending June 2003, which revealed a net income of $2,258 after a deduction of $16,304 for wages, and
(c)tax return for the partnership for the financial year ending June 2003, which revealed a net income of $100,298, or $94,964 after adjustment for an $8,170 loss on a rental property.
Medical evidence
58.Mr Sonter has been a patient at the Blue Mountains Family Practice at Blaxland since the mid-1990s. His main doctor at that practice has been Dr Phillip Ryan. Dr Ryan reported to Tower Australia Limited on 22 September 2004 that he treated Mr Sonter for “borderline depression” in July 1997 and for “clinical depression” in April 2001. Dr Ryan’s clinical notes dated 4 April 2001 referred to a diagnosis of “depressive anxiety disorder”, for which he prescribed Cipramil. Dr Ryan continued to prescribe Cipramil up to and including 2 April 2002. The doctor’s handwritten notes on that date record a discussion about Mr Sonter coming off Cipramil, and that he advised him to do so slowly.
59.After the assault, Dr Ryan noted the physical injuries sustained by Mr Sonter, and referred, on 3 August 2002, to “worsening depression”. He certified Mr Sonter unfit for work from 10 July 2002 until 9 October 2002, and thereafter fit for suitable duties for four hours per day, five days per week. Though there were no physical restrictions certified by Dr Ryan, he noted that Mr Sonter needed “clear directions for work”. Dr Ryan maintained these restrictions up to and including his certificate dated 22 March 2005, the last WorkCover certificate in evidence.
60.Dr Ryan recorded, in December 2002, that Mr Sonter did not seem to be able to work alone because of an “inability to process thoughts and organise his day on an executive level”. In January 2003, the doctor recorded Mr Sonter to be experiencing “impulsivity and anxiety + +”. On 15 May 2004, Mr Sonter presented as “less depressed and clinically improved”.
61.Under “Prognosis”, Dr Ryan concluded:
“Mr Sonter has significant ongoing mental health issues with amotivation and poor organisation skills. His impulsivity and reactivity has significantly improved over the last 6 months. He has probable definable neuropsychiatric deficit and is awaiting further investigation under Dr Montanari. His functional SPECT brain scan revealed hypo-functioning of his right temporal lobe. Prognosis guarded, no further improvement.”
62.Dr McCarthy, consultant in rehabilitation medicine at the Brain Injury Rehabilitation Service, Westmead Hospital, reviewed Mr Sonter on 14 February 2003. In a report of 19 February 2003, Dr McCarthy recorded that the worker’s speech was, at times, verbose and tangential, and that he found it difficult to make decisions. However, other areas were intact, including intellectual function, attention, working memory, speed and capacity of information processing, and higher level thinking skills, such as abstract thinking, reasoning, conceptual problem-solving, verbal fluency, and mental flexibility. Psychologically, he continued to report a moderate level of depression and a mild level of stress. Mr Sonter displayed a lowering of social tact and mild disinhibition. Mr Sonter’s wife reported behavioural and personality changes that commenced about two years ago, and appeared to be an exacerbation of his premorbid personality.
63.Dr Rhonda Buskell, staff specialist consultation liaison psychiatrist at Nepean Hospital, reported on Mr Sonter, having interviewed him at irregular intervals over the previous several months. Mr Sonter’s mood had fluctuated, but remained generally dysphoric. He demonstrated marked sensitivity to the most minor perceived rejection, criticism, or abandonment. This response probably related to his pre-existing personality style and developmental experiences, but was exacerbated by his depressed mood and external stressors, namely, that he was going to lose some of his work contracts. There was, however, a potential contribution from the head injury.
64.On 15 August 2003, Dr Parapuram, rehabilitation registrar for Dr McCarthy, reported that neuropsychometric testing performed in September 2002 revealed that Mr Sonter had made a good cognitive recovery, but still showed mild deficits. It was felt that his problems were more regarding his low mood rather than his traumatic brain injury.
65.Dr Parmegiani, psychiatrist, examined Mr Sonter for medico-legal purposes at the request of his former solicitors on 26 August 2003. In a report dated 27 August 2003, the doctor noted Mr Sonter’s previous history of depression, which the assault had exacerbated. After receiving appropriate psychiatric treatment, Mr Sonter’s behaviour was in accordance with social norms. He had returned to productive activities and was renovating two investment properties. Dr Parmegiani concluded that Mr Sonter was fit to resume full-time employment in his pre-injury occupation.
66.Alexandra Walker, senior clinical neuropsychologist and clinical psychologist at the Brain Injury Rehabilitation Unit, reported on 6 November 2003. She estimated Mr Sonter’s premorbid level of intellectual functioning to be in the average to high-average range. His current level of intellectual function was assessed similarly as being in the high-average range, with no discrepancy between verbal and non-verbal skills. His ability to learn and retain new information was variable. He demonstrated good verbal and non-verbal reasoning, and abstract thinking abilities. His mental flexibility was reasonable on double tracking and he had improved from the previous year. His approach to tasks was well planned and organised. However, he performed poorly on complex conceptual problem-solving tasks, and had difficulty generating alternative strategies.
67.Dr Montanari, treating psychiatrist, first saw the worker on 22 March 2004. The worker’s complaints at that time, as far as they related to the present claim, included a low stress and frustration tolerance, amotivation, social withdrawal, and reduced hygiene and self-care. Mr Sonter presented as moderately dishevelled and unkempt. He expressed himself in a “disorganised, over-inclusive” manner. In subsequent consultations, Mr Sonter gave examples of how “solving problems and making decisions had become much more difficult since his head injury”. He required other people to “guide and direct and motivate him”.
68.Dr Montanari found the clinical picture “highly suggestive of cognitive impairment”. As a result, he arranged for neuropsychological assessment and for various scans. The SPECT scan demonstrated “markedly reduced perfusion of the right temporal lobe”, which was indicative of impaired function of the right temporal lobe of the brain, and was consistent with the brain injury sustained in July 2002.
69.Mr Sonter’s former solicitors referred him to Dr Arthur Shores, consultant neuropsychologist, for neuropsychological assessment on 4 August 2004. Dr Shores reported to the solicitors on 7 September 2004. He recorded that Mr Sonter had owned a carpet-cleaning and property maintenance business since 1976. After the assault, he did not return to the carpet-cleaning business, but did some light maintenance work before he was dismissed because his work was inconsistent and unsatisfactory. He had not worked since then, except for some work for his wife in her art supplies shop. He said he could work under supervision.
70.Dr Shores also spoke with Mrs Sonter. She stated that the main change in her husband since the assault was a loss of drive and initiative. He was no longer a “self-starter”. She said that his everyday memory was only slightly impaired, but he mixed up the dates of his appointments.
71.On testing, Dr Shores found the worker to have well-preserved verbal memory function, but strong evidence of visual memory impairment, and evidence of slowness in processing mental information. There was no psychometric evidence of executive dysfunction, but the history from his wife of a lack of drive and motivation was consistent with a behavioural manifestation of frontal lobe dysfunction. Dr Shores concluded that Mr Sonter was unfit for work because of his poor memory, slow information processing, and lack of initiation.
72.On 28 March 2006, Dr Lethlean, neurologist, examined Mr Sonter on behalf of the respondent’s solicitors, and reported on 29 March 2006. His impression was that Mr Sonter had made a good recovery from his severe head injury, but was left with difficulties in programming and organisation, memory, some loss of drive, minor disinhibition, and some reduction in insight. The doctor felt that Mr Sonter was not fit for his pre-injury employment and that it was doubtful that he could maintain self-supervised physical activities other than part time, simple and supervised.
73.Dr Montanari reported to Dr Ryan on 25 April 2006 that Mr Sonter continued to be free from a depressive syndrome and had been off anti-depressants since early 2005. However, Mr Sonter continued to report multiple deficits in function, such as:
(a)an abnormal level of impulsive behaviour during times of frustration;
(b)difficulty organising tasks, due to an inability to screen out competing distractions;
(c)difficulty directing his focus of attention effectively;
(d)procrastination and indecisiveness, and
(e)reduced spontaneous initiative.
74.Dr Montanari felt it was unlikely that there would be further improvements in Mr Sonter’s condition.
75.On 12 January 2007, the rehabilitation registrar at Nepean Brain Injury Rehabilitation Clinic reviewed Mr Sonter, and noted that he had significant emotional behavioural disturbances. He had difficulty with planning and executing tasks. He left all domestic tasks to his wife, who worked full time. He was quite “verbose, tangential and perseverative in his speech”. He had a “rigid mentation”. It was suggested that he should plan his days and activities so that he did not get overburdened and frustrated.
76.Mr Sonter was referred for further neuropsychological assessment in August and September 2007. Mr Cipriani, clinical psychologist, who reported on 27 September 2007, performed those tests. It was noted that, prior to the assault, Mr Sonter experienced chronic dysthymia and had dependent, avoidant and passive-aggressive personality traits. Cipramil, which he was still taking at the time of the assault, controlled his irritability and dysthymia. Though Dr Ryan had advised a reduction in Cipramil in October 2001, that did not happen.
77.In respect of his pre-accident work activities, Mr Cipriani recorded that Mr Sonter was mostly involved in property maintenance and had contracts with Raine & Horne, which he subsequently lost because of his unreliability. Since the accident, Mr Sonter had worked intermittently. He helped his wife move her art supply business in 2003 and renovated four houses. He bought and sold four properties, and helped his son with minor house maintenance and repairs. The brain injury had caused cognitive and emotional changes and, in Mr Cipriani’s opinion, had significantly and permanently affected Mr Sonter’s ability to earn an income. His difficulty with initiating and completing tasks, unreliability and loss of motivation affected his earning capacity.
78.Mr Cipriani felt it was unlikely that Mr Sonter would be consistently self-employed again, or be able to work for an employer. Mr Sonter denied any physical limitations. Though Mr Sonter had a history of pre-existing personality problems, some personality changes consistent with his brain injury were distinguishable. They included his verbosity, loss of drive and initiation, irritability, lack of judgment, difficulty making decisions, rigidity, and emotional lability. Such changes were typical after a right frontotemporal brain injury.
79.Mr Cipriani’s testing revealed the worker to have above-average verbal and very superior non-verbal intelligence. However, information processing remained relatively impaired. Memory functions were below expectations, and visual memory most impaired. Those changes had “significantly compromised” Mr Sonter’s employability. Though he had been capable of renovating, and buying and selling homes with support and guidance, since his injury, he had considerable difficulty relating to others, starting and completing work, and making decisions, which had affected his ability to earn an income consistently since the assault.
80.On 24 June 2009, Dr Ryan completed a medical report and certification for superannuation disablement claim in respect of a claim by Mr Sonter for a superannuation benefit from AMP. The doctor referred to the assault and its consequences. He described Mr Sonter’s “job title” and “critical duties” of his (pre-injury) occupation as “self-employed handyman & property maintenance” in which he worked “40-60 hrs”. Dr Ryan confirmed that Mr Sonter was unable to do his normal job because he was unable to do “high level organisational activities & decision making tasks”. He was, however, able to do “physical aspects under direct supervision”.
81.Dr Akkerman, psychiatrist, examined Mr Sonter at the request of the respondent’s solicitors on 2 July 2009. In his report of the same date, he concluded that Mr Sonter had sustained mild frontal lobe damage in the assault, and that the injury had led to rigidity in his thinking, and possibly irritability. However, he thought that the symptoms were fairly minimal and not severe enough to stop him from working. He felt that Mr Sonter could do any kind of work that did not rely extensively on frontal lobe functioning, which has an executive role and is involved in judgment, humour and information processing. After noting that Mr Sonter had never previously performed work involving “an executive function”, he concluded that he could do the type of work he did in the past. The doctor noted that most people with frontal lobe damage were able to continue to work.
THE ARBITRATOR’S REASONS
82.After dealing with issues that have not been challenged on appeal, the Arbitrator considered Mr Sonter’s entitlement to weekly compensation between 6 May 2006 and 15 July 2008 [sic, 15 July 2009]. He found that:
(a)at the time of the injury, Mr Sonter had been undertaking light part-time clerical and administrative duties, answering phones and doing occasional maintenance, and assisting his son. He did not accept that he was working anywhere near full time, but assessed that he had been working, at the most, 30 per cent of the time;
(b)the tenor of the worker’s submissions was that he obtained “some benefit” from his exertion in undertaking administrative and physical duties in the “cleaning business”. However, Mr Sonter seemed to acknowledge that his benefit was not in the form of a standard weekly wage, and did not contest the statement by Mr Flint that he had no income. Mr Sonter appeared to equate his benefits as non-monetary earnings which he assessed as being equal to $489.00 per week, the amount paid under the Cleaning and Building Contractor’s Award;
(c)the carpet-cleaning business was earning an income, and Mr Sonter provided 30 per cent of his time in administrative services and physical assistance in that business;
(d)30 per cent of $489.00 equalled $146.70, which he rounded up to give probable earnings but for the injury of $147.00 per week, and
(e)by the middle of 2006, Mr Sonter’s ability to undertake administrative duties in the labour market reasonably accessible to him had substantially diminished, resulting in a reduction in his pre-injury earnings of 90 per cent. Therefore, he assessed Mr Sonter’s ability to earn in suitable employment to be $15.00 (10 per cent of $147.00, rounded up). Deducting $15.00 from $147.00 left a difference of $132.00 per week. The Arbitrator saw no reason to reduce that amount in the exercise of his discretion, and he awarded weekly compensation in that sum from 6 May 2006 until 15 July 2008.
SUBMISSIONS, DISCUSSION AND FINDINGS
83.It was submitted on behalf of Mr Sonter that:
(a)the Arbitrator briefly referred (at [66] of his Reasons) to Mr Sonter having done “some property maintenance”, but made no further reference to the property maintenance business;
(b)Mr Flint’s report confirmed that Mr Sonter worked full time pre-injury;
(c)the Arbitrator noted Mr Sonter’s statement of 15 June 2004 that he was not doing much in the carpet-cleaning business at the time of the injury, but failed to take into account the work Mr Sonter performed in the property maintenance business, which was a separate and independent business conducted by the respondent;
(d)in determining that Mr Sonter only worked for 30 per cent of the time, the Arbitrator failed to consider the work Mr Sonter performed in the property maintenance business, and failed to consider all of the evidence;
(e)Mr Sonter’s statement of 15 June 2004 referred to the property maintenance business and to contracts that business had with Raine & Horne to perform property maintenance at various premises;
(f)Mr Sonter made submissions in an email dated 10 November 2009 in which he confirmed that he had been a working director and hands-on manager of the respondent, and had been proficient in all aspects of the business, including “hands-on with cleaning and property maintenance duties”;
(g)the Arbitrator failed to refer to invoices supplied by Mr Sonter after the arbitration;
(h)the “cheque register” from Raine & Horne supports the invoices previously tendered by Mr Sonter;
(i)the work performed in the property maintenance business was performed solely by Mr Sonter up to the date of his injury. Therefore, the Arbitrator should have found the difference between probable earnings and ability to earn ($489.00 less $15.00) to be $474.00 per week, an amount that does not exceed the maximum payable for a worker with a dependent spouse, and
(j)Mr Sonter is entitled to an award in the sum of $474.00 per week from 6 May 2006 until 15 July 2009.
84.It was submitted on behalf of the respondent that:
(a)the Arbitrator did not err in finding that Mr Sonter was only working 30 per cent of the time prior to his injury. If he did err on this point, he did not err in finding Mr Sonter was only entitled to weekly compensation of $132.00 from 6 May 2006;
(b)Mr Sonter had pre-existing psychological problems and it is not unreasonable to infer that they could have adversely affected his ability to work. The evidence established that he earned no income pre-injury. If the Arbitrator did err, the Commission ought not accept that Mr Sonter was working full time at the time of the injury;
(c)on Mr Flint’s evidence, Mr Sonter did not earn any income from his businesses, either before or after the injury. Therefore, had he not been injured, his pre-injury earnings would have remained at nil, and he has no entitlement to compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’);
(d)in the alternative, the gross income from work performed for Raine & Horne must be discounted to take into account the running costs associated with the maintenance business. There is no evidence that Mr Sonter would have received the whole of the net profit from that work. The relevant award rate was $489.00 per week;
(e)it is not reasonable to conclude that Mr Sonter would have earned $489.00 per week had he not been injured and continued working. A lesser figure (between $300.00 and $400.00 per week) would be reasonable;
(f)Mr Sonter is fit to work for 15 hours per week. Assuming a wage of $15.00 per hour, that equals $225.00 per week. Therefore, the difference between probable earnings but for the injury and Mr Sonter’s ability to earn is in the range of $75.00 to $175.00 per week;
(g)it would be reasonable for the Commission to exercise its discretion under section 40 and reliance is placed on page two of Dr Lethlean’s report of 29 March 2006;
(h)overall, the Arbitrator’s award of $132.00 per week was open to him, and
(i)Mr Sonter’s wife has run an art and craft business for many years, and there was no probative evidence that she was dependent upon Mr Sonter for support.
85.The Arbitrator erred in finding that Mr Sonter only performed part-time administrative work for the respondent’s cleaning business and that, therefore, he only worked for 30 per cent of the time. Though the evidence was far from ideal, it has established that the respondent conducted two businesses, a cleaning business, and a property maintenance business.
86.I accept that Mr Sonter worked part time performing administrative duties in the cleaning business and that his son did most of the physical work in that part of the business. I also accept that Mr Sonter worked in the property maintenance side of the respondent’s business. Exactly how many hours he worked is difficult to determine. Dr Ryan recorded in his certificate prepared for AMP on 24 June 2009 that Mr Sonter had worked 40 to 60 hours per week prior to his disablement. In his statement of 9 February 2009, Mr Sonter did not say how many hours he worked but merely asserted that he was “working full-time” at the time of the assault. In another of his statements, Mr Sonter said he worked “20 – 30 hours a week” in property maintenance.
87.The “cheque register” from Raine & Horne is of limited assistance. It merely recorded that the respondent received payments from Raine & Horne for lawn maintenance and other repairs provided by the respondent between March 2001 and May 2003. The respondent has conceded that the average weekly payment from Raine & Horne in that period was approximately $700.00. However, that figure makes no allowance for expenses and gives no indication of the hourly rate paid for Mr Sonter’s labour.
88.The respondent’s accounts for the financial year ending June 2002 listed wages at $41,549. Mr Sonter’s evidence is that the respondent paid his son $700.00 per week ($36,400 per annum) and that his own “earnings” were “in excess of $700”. While it may well be that the respondent paid Mr Sonter’s son $700.00 per week, that is not the issue. Section 40 requires the calculation of the weekly amount Mr Sonter would probably have earned “as a worker” but for his injury. It does not make any allowance for loss profits or loss of return on capital that may have resulted from the injury. The evidence does not support Mr Sonter’s assertion as to his own earnings and I do not accept that his earnings “as a worker” were in excess of $700.00 per week at the time of the assault.
89.That is not to say that Mr Sonter’s work for the respondent was of no value, as Mr Flint concluded and the respondent urged at the arbitration. The respondent’s “total gross earnings” for 2002 were $152,762. Mr Sonter clearly contributed to those earnings and his labour had a value for the business. Therefore, for the purposes of section 40, I do not accept Mr Flint’s evidence that Mr Sonter had no pre-injury earnings.
90.Mr Sonter’s tax return for the financial year ending June 2001 declared a taxable income of $25,428 ($489.00 per week). This is the amount set out under “comparable/probable” earnings in the schedule of wages in the Application. Though the respondent did not file a competing schedule, I accept that the parties conducted the arbitration on the basis that the respondent disputed probable earnings. The respondent argued that the figure was nil and Mr Sonter argued that it was in excess of $700.00 per week. The evidence supports neither figure.
91.I accept that Mr Sonter worked full time for the respondent. He performed administrative work for the cleaning business and physical work in the property maintenance business. The difficulty is in determining the value of that work to the respondent. Doing the best I can, given the unsatisfactory state of the evidence, I find that Mr Sonter’s average weekly earnings at the date of the assault were $489.00. That is the amount said to have been the relevant award rate of pay in 2002 and the amount for probable earnings in the schedule of earnings in the Application. It assumes that the value of Mr Sonter’s labour, based on the invoices from Raine & Horne, was about $700.00 per week (before expenses), but makes an allowance of approximately 30 per cent for expenses. Given the figures set out at [56] above, the allowance of 30 per cent for expenses is generous to Mr Sonter.
92.As the respondent had no “comparable” employees after 2002, the figure of $489.00 per week is the appropriate figure for probable earnings but for injury (section 40(2)(a) of the 1987 Act). However, given that this figure is now several years out of date, it is appropriate that it be adjusted annually by three per cent from July 2002 to allow for general movements in wage rates. This adjustment gives the following for probable earnings but for injury under section 40(2)(a) (step one in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’)):
(a) 6 May 2006 – 5 May 2007 $550.37
(b) 6 May 2007 – 5 May 2008 $566.88
(c) 6 May 2008 – 5 May 2009 $583.89
(d) 6 May 2009 – 15 July 2009 $601.40
93.It has been submitted on behalf of Mr Sonter that his ability to earn at all relevant times was $15.00 per week. This was based on the Arbitrator’s finding that, by the middle of 2006, Mr Sonter’s ability to undertake administrative duties in the labour market reasonably accessible to him had been reduced by 90 per cent. Allowing 10 per cent of $147.00 equals $15.00. Given the finding I have made as to probable earnings but for injury, that approach to Mr Sonter’s ability to earn is no longer appropriate.
94.The respondent has submitted that Mr Sonter has been capable of earning $225.00 per week during the closed period claimed. This was on the basis that, during the period from May 2006 until July 2009, Mr Sonter was fit to work, in some suitable employment, for 15 hours per week at $15.00 per hour.
95.I do not accept that, between May 2006 and July 2009, Mr Sonter’s capacity to earn was only $15.00 per week. In arriving at that figure, the Arbitrator failed to determine Mr Sonter’s ability to earn in the labour market reasonably accessible to him and failed to consider his capacity to perform lawn-mowing or similar unskilled work. Instead, he determined Mr Sonter’s ability to earn by reference to the incorrect figure for probable earnings but for injury ($147.00). In a teleconference on 29 April 2010, I directed Mr Sonter’s solicitor to file further submissions on behalf of Mr Sonter on this issue and on the exercise of the discretion. The Commission received those submissions on 6 May 2010.
96.I accept that, since May 2006, Mr Sonter’s injuries have reduced his ability to earn in the labour market reasonably accessible to him. The accident significantly reduced his ability to perform higher executive functions and that includes administrative duties where planning and decision-making skills are required. However, given that Mr Sonter completed maintenance jobs after the assault, and prepared a number houses for sale, I find that, between May 2006 and July 2009, he was capable of performing similar physical duties to those he performed prior to the assault, but not in his previous capacity as a manager.
97.Mr Sonter’s difficulty in initiating jobs and processing information has made it impossible for him to manage the respondent’s businesses and resulted in him losing the Raine & Horne contract. He is clearly unfit to work as a manager or in any self-supervised capacity. He is fit, however, for work that does not involve higher executive functioning. Therefore, he was fit for part-time work such as lawn-mowing, simple maintenance work, or directed manual work, as per Dr Lethlean’s assessment in 2006 and Dr Ryan’s assessment in June 2009.
98.I find that Mr Sonter was fit for such work between May 2006 and July 2009 for 15 hours per week. I assess the value of that work in the labour market reasonably accessible to Mr Sonter as at May 2006 at $15.00 per hour or $225.00 per week (step two in Mitchell). Consistent with the adjustments made to the figures for probable earnings but for injury, that figure must also be adjusted annually by three per cent as follows:
(a) 6 May 2006 – 5 May 2007 $225.00
(b) 6 May 2007 – 5 May 2008 $231.75
(c) 6 May 2008 – 5 May 2009 $238.70
(d) 6 May 2009 – 15 July 2009 $245.86
99.Deducting the figures for Mr Sonter’s ability to earn from his probable earnings but for injury (step three in Mitchell) gives the following difference:
(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
100.The respondent has submitted that I should use the section 40(1) discretion (step four in Mitchell) to reduce the amounts in [99] above because of Dr Lethlean’s history that Mr Sonter retired to gain access to his superannuation. There is no evidence of exactly when Mr Sonter sought access to his superannuation. The certificate completed by Dr Ryan suggested that that was not until 2009. In any event, the respondent’s submission is, in effect, that the discretion should be used because Mr Sonter has not been looking for employment. A failure to look for employment is not a proper ground for using the section 40 discretion (Mitchell). There is no evidence that, had he not been injured, Mr Sonter intended retiring before he turned 66 and I do not accept that Dr Lethlean’s history has provided any basis for the exercise of the discretion.
101.The respondent has also submitted that the discretion should be used because Mr Sonter had not insignificant psychological problems before his accident. Whilst it is true that Dr Ryan treated Mr Sonter for depression before the accident, there is no evidence that the depression prevented Mr Sonter from working and I do not accept that it provides a ground for exercising the section 40 discretion.
102.It follows that Mr Sonter is entitled to an award in the amounts set out at [99] above. As these amounts are below the maximum statutory rate for a worker without a dependent spouse, the question of whether Mrs Sonter was dependent on Mr Sonter does not arise. Had it been necessary, I would have determined that Mrs Sonter was not wholly or mainly dependent for support on Mr Sonter. The evidence establishes that, at all material times, Mrs Sonter conducted a successful art supply business. There is no evidence that she was at any stage wholly or mainly dependent for support on Mr Sonter.
DECISION
103.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”
104.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.
COSTS
105.The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.
Bill Roche
Deputy President13 May 2010
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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