State Rail Authority of NSW v Awad
[2005] NSWWCCPD 78
•25 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Rail Authority of NSW v Awad [2005] NSW WCC PD 78
APPELLANT: State Rail Authority of NSW
RESPONDENT: Shadi Awad
INSURER:State Rail Authority of NSW
FILE NUMBER: WCC18744-2003
DATE OF ARBITRATOR’S DECISION: 17 May 2004
DATE OF APPEAL DECISION: 25 July 2005
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987, ‘Dependency’; ‘Capacity to Earn’; Arbitrator’s findings of fact.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Acting President
HEARING:On the papers
REPRESENTATION: Appellant: Phillips Fox Lawyers
Respondent: Keddies Litigation Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is corrected, for obvious error, to read $1321.90 in Order 1a. The remainder of the Arbitrator’s orders are confirmed.
The Appellant is to pay the costs of the appeal as agreed or assessed.
Background to the Appeal
Mr Shadi Awad commenced employment with the State Rail Authority of NSW in late 1996. In the course of his employment as a train guard he observed a number of traumatic incidents where passengers were injured. In October 2001 and March 2002 Mr Awad made a claim upon State Rail for compensation by way of weekly benefits and reimbursement of medical expenses. The claim alleged Mr Awad suffered a work related psychological injury, namely Post Traumatic Stress Disorder (‘PTSD’). State Rail disputed Mr Awad’s claim and, on 1 December 2003, he lodged an ‘Application to Resolve a Dispute’ in the Commission.
The dispute was referred to an Arbitrator who, on 17 May 2004, found in favour of Mr Awad. She determined that Mr Awad was totally incapacitated for work from 29 January 2003 to 19 May 2003 and partially incapacitated “being fit only for suitable duties” from 20 May 2003 to date and continuing. The Arbitrator ordered that State Rail pay Mr Awad weekly compensation at the rate of:
a. $1321.09 from 26 January 2003 to 19 May 2003 under Section 36 of the Workers Compensation Act 1987.
b. $369.50 under Section 40 of the Workers Compensation Act 1987 that being the maximum statutory rate for a single worker with one dependent child as adjusted from 20 May 2003 to date and continuing.
The Arbitrator also awarded Mr Awad medical expenses (section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’) and the costs of the application.
On 15 June 2004 State Rail sought leave to appeal the Arbitrator’s decision.
I am satisfied that I have sufficient information to proceed ‘on the papers’ pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. I am satisfied that the amount of compensation at issue in the appeal is at least $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted.
Issues in Dispute
The submissions on the appeal raise two substantive issues:
1. Did the Arbitrator err in finding that Mr Awad’s son was a ‘dependent’ for the purposes of the 1987 Act?
2. Did the Arbitrator err in finding that Mr Awad has a continuing, partial incapacity for work?
In reply to the appeal Mr Awad’s legal representative filed copies of the assessment of child support payable by Mr Awad during 2003 and 2004 as calculated by the Child Support Agency.
Did the Arbitrator err in finding that Mr Awad’s son was a ‘dependent’ for the purposes of the Workers Compensation Act 1987 (‘the 1987 Act’)?
The Arbitrator, in her reasons for decision, refers to the fact that Mr Awad pays child support for his son and that he does not reside with him. She finds that his son is ‘mainly dependent’ upon him for support.
State Rail submits that the Arbitrator erred in finding that Mr Awad’s son was “mainly dependent” on him for support. It argues that:
“Whilst the average monthly income of the Applicant’s ex-de facto and her husband is presently unknown, given that his son resides with them the Appellant submits that, as a matter of fact, the Applicant’s son is mainly dependent upon his mother and her de facto for food, maintenance, clothing and lodgings.”
State Rail refers to Campbell v Department of Community Services (2000) 19 NSWCCR 336 as authority for the principle that children are mainly dependent on the parent who provides “food and clothing”. This misrepresents the reasoning and findings in that decision. Curtis J gave brief reasons (six paragraphs) where he essentially found that ‘dependency’ was a question of fact to be determined in each case and that there was “no ‘rule of thumb’ that a child is mainly dependent upon the parent who earns more money” (at 337).
In this case it need only be established that Mr Awad’s son was ‘mainly dependent’ upon him for support. The Arbitrator had before her evidence of the legal obligation of Mr Awad to provide support to his son, namely child support contributions of $428.00 per month (as at 31 October 2004). This was logically probative evidence upon which she was entitled to make a finding of dependency in relation to Mr Awad’s son.
The Arbitrator did not err in finding that Mr Awad’s son was mainly dependent upon him for support.
Did the Arbitrator err in finding that Mr Awad has a continuing, partial incapacity for work?
State Rail submits that the Arbitrator erred in calculating the amount Mr Awad is capable of earning in some suitable employment after the injury, pursuant to section 40 (2)(b) of the 1987 Act. The Appellant submits firstly that the “diagnostic criteria” for PTSD “provides that symptoms resolve within 6 to 12 months of onset”. Therefore Mr Awad’s symptoms should have subsequently resolved, “particularly given that [he] has not been exposed to trauma in or around trains or train stations since 2003.” Secondly, State Rail submits that Mr Awad is “capable of significantly increased earnings from those currently being earned performing suitable duties with” State Rail.
These are questions of fact to be determined by the Arbitrator on the basis of logically probative evidence. In my view this is exactly what the Arbitrator did, and she set out her reasons adequately in writing. The Arbitrator accepted the medical evidence that Mr Awad is still suffering from PTSD. She refers to the evidence of the treating psychiatrist, Dr Quinn, and the treating general practitioner Dr Gilbertson. She gives her reasons for preferring their evidence and for not accepting the opinion of Dr Akkerman. She heard oral evidence from Mr Awad and accepted his evidence and the evidence of Mr Hogan. The Arbitrator considered the evidence of Ms Hickey, Clinical Psychologist and Ms Bailey, Rehabilitation Consultant, as to Mr Awad’s ability to return to work. She specifically rejected State Rail’s submission that Mr Awad did not have an incapacity to work.
It is not sufficient for State Rail to argue that Mr Awad should be capable of work because the diagnostic criteria for PTSD states that his condition should have resolved. The Arbitrator must consider the evidence as it actually relates to Mr Awad, not to any objective criterion that does not take account of the circumstances of his particular injury.
The Arbitrator did not err in finding that Mr Awad suffered a partial incapacity to work pursuant to section 40 of the 1987 Act.
DECISION
The Arbitrator’s order contains what appears to be an obvious, typographical error. The statutory rate under section 36 of the 1987 Act, for the relevant period, was $1321.90, whereas the order reads as $1321.09. I correct this error on review.
The decision of the Arbitrator is corrected, for obvious error, to read $1321.90 in Order 1a. The remainder of the Arbitrator’s orders are confirmed.
COSTS
The Appellant is to pay the costs of the appeal as agreed or assessed.
Dr Gabriel Fleming
Acting President
25 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, ACTING PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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