Venetsanos v State Transit Authority of New South Wales

[2006] NSWWCCPD 251

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Venetsanos v State Transit Authority of New South Wales [2006] NSWWCCPD 251

APPELLANT:  Chris Venetsanos

RESPONDENT:  State Transit Authority of New South Wales

INSURER:State Transit Authority of New South Wales

FILE NUMBER:  WCC 3844-05

DATE OF ARBITRATOR’S DECISION:          7 November 2005

DATE OF APPEAL DECISION:  29 September 2006

SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987

PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin

HEARING:On the papers

REPRESENTATION:  Appellant:      Konstan Lawyers

Respondent:    Sparke Helmore Solicitors

ORDERS MADE ON APPEAL:  1.    Paragraph 3 of the Arbitrator’s                Decision dated 7 November 2005 is      revoked and the following order is substituted:

“3. That State Transit Authority of New South Wales pay Chris Venetsanos $164.68 per week from 5 August 2003 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”

2.   Paragraphs 1, 2 and 4 of the Certificate of Determination of 7 November 2005 are   confirmed.

3.   State Transit Authority of New South Wales is to pay Chris Venetsanos’ costs of            the appeal.

BACKGROUND TO THE APPEAL

1.On 30 November 2005 Chris Venetsanos (‘Mr Venetsanos’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 November 2005.

2.The Respondent to the Appeal is State Transit Authority of New South Wales (‘State Transit’).

3.Mr Venetsanos was born on 3 April 1956 and is 43 years of age.  He is married and his wife is employed as a primary school teacher.  He has two children, the eldest being Frances, born on 21 July 1987 and who was dependent until she commenced a hairdressing apprenticeship in February 2004.  The youngest, Peter was born on 5 November 1990 and is 15 years of age.

4.Mr Venetsanos was born in Greece and came to Australia at the age of one.  After completing his School Certificate at De La Salle College, Marrickville, he spent two years working as an apprentice cabinetmaker.  He then returned to Greece completing two years of national service and then worked in a family cafeteria in Greece for a further 3 years.

5.On return to Australia, he commenced employment with State Transit in March 1986 as a bus driver.

6.On 27 June 2001, whilst driving a bus, Mr Venetsanos injured his right shoulder when making a U-turn.  He reported the incident and consulted his general practitioner who certified him unfit for work for one week.  Mr Venetsanos underwent physiotherapy treatment, then returned to work on normal duties.  There was a flare-up of symptoms in his right shoulder whilst driving a bus in October 2001 resulting in three days off work.  Mr Venetsanos then returned to work on normal duties.

7.On 25 February 2003 whilst driving a bus Mr Venetsanos injured his back when turning the steering wheel ‘hard left’.  He stopped work and attended his general practitioner who certified him unfit for work.  Mr Venetsanos remained off work at the time of the arbitration hearing.

8.Payments of weekly compensation were paid to 4 August 2003.  Mr Venetsanos was medically retired by State Transit, effective from 4 November 2003.

9.Proceedings were commenced in the Commission on 14 March 2005 for weekly payments of compensation, medical expenses and lump sum compensation in relation to the injury to both the right shoulder and back.

10.A teleconference was held on 23 May 2005 and the parties reached agreement in so far as the lump sum claim arising from the shoulder injury and a section 66A Lump Sum Agreement was registered in the Commission on 29 August 2005 for 7.5% ‘loss of right arm at or above the elbow’.

11.As a result of the teleconference Mr Venetsanos was referred to Dr Winer, Approved Medical Specialist, on 26 July 2005 for assessment of his ‘lower back impairment’ resulting from the injury on 25 February 2003 and ‘incapacity for work in respect of either or both incidents (right arm and lower back)’.

12.A further teleconference between the parties and the Arbitrator took place on 26 September 2005 and an Award was entered by Consent in respect of 3% whole person impairment for the back in accordance with the Certificate of Dr Winer.  The outstanding matters of entitlement to weekly compensation and medical expenses were then set down for arbitration hearing on 17 October 2005 and Mr Venetsanos has appealed from the decision resulting from the arbitration.

THE DECISION UNDER REVIEW

13.The ‘Certificate of Determination’, dated 7 November 2005 records the Arbitrator’s orders as follows:

“1.I order the Respondent pay the Applicant his S66 entitlements as follows:

(a)7.5% in respect of his right arm at or above the elbow.

(b)3% WPI in respect of low back injury.

2.I order the Respondent pay the Applicant’s S60 expenses to date in the sum of $5,596.95.

3.I enter an award in favour of the Respondent in respect of weekly benefits claims as and from 4 August 2003.

4.I order the Respondent to pay the Applicant’s costs to be assessed if not agreed.”

ISSUES IN DISPUTE

14.The issues in dispute in the appeal are:

“1.that the Arbitrator erred in law in failing to correctly identify the appropriate statutory issues;

2.that the Arbitrator erred in fact in finding that the preponderance of medical opinion was against Mr Venetsanos;

3.that the Arbitrator erred in law in relying on Dr Winer’s opinion that Mr Venetsanos did not have a shoulder disability as a result of the injury to the right shoulder, in that he was estopped on this issue by the prior consensual determination of the parties;

4.that the Arbitrator erred in law in failing to adequately state his reasons;

5.that the Arbitrator erred in evaluating the medical evidence by failing to take relevant material considerations into account, to properly evaluate the basis for the various opinions and the relative expertise of the expert witnesses;

6.that the Arbitrator erred in law in relying on Dr Gliksman’s opinion that Mr Venetsanos’s back condition did not have some work related cause, in that he was estopped on this issue by the prior award entered in these proceedings;

7.that the Arbitrator erred in law in relying on Dr O’Neil’s opinion that Mr Venetsanos’s back injury was not a substantial contributing factor to his low back condition in that he was estopped on this issue by the prior award entered in theses proceedings; and

8.that the Arbitrator erred in law in considering and applying section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).”

ON THE PAPERS REVIEW

15.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.”

16.Mr Venetsanos has submitted that he “…would appreciate the opportunity of lodging further submissions in reply to the respondent’s if that seems necessary”, but that it is ultimately a matter for the Commission.  No further submissions have been received from Mr Venetsanos after the submissions in reply were served on Mr Venetsanos’s solicitor by State Transit on 21 December 2005.

17.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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.

LEAVE

18.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.

19.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

20.As the appeal involves a claim for continuing weekly compensation, backdated to 4 August 2003, clearly it satisfies the monetary threshold and accordingly I grant leave to appeal.

FRESH EVIDENCE

21.Neither party seeks to introduce fresh evidence.

EVIDENCE AND DISCUSSION

22.At the teleconference on 26 September 2005 the Arbitrator directed the parties to lodge statements outlining the issues in dispute.  As the lump sum claims in respect of both the right arm and back had been finalized the following remaining issues were agreed on by the parties:

“(a)Whether the Applicant has been totally or partially incapacitated as a result of the above injuries since 5 August 2003;

(b)What the Applicant’s actual earnings have been since 5 August 2003.

(c)What the Applicant’s ability to earn in some suitable employment or occupation has been since 5 August 2003.

(d)What, but for injury, the Applicant would have earned in the Respondent’s employ since 5 August 2003.

(e)What person or persons have been dependent for support on the Applicant subsequent to 5 August 2003.

(f)Whether the Applicant has required or continues to require medical and related expenses as a consequence of his injuries.  If so whether such medical and related expenses are reasonable and necessary.”

23.Mr Venetsanos did not give oral evidence at the arbitration hearing and the matter was dealt with on the papers with the parties giving lengthy submissions which were recorded.

Right Shoulder Injury

24.As stated above, Mr Venetsanos injured his right shoulder on 27 June 2001 and after a brief period off work, returned to normal duties.

25.State Transit arranged for Mr Venetsanos to be examined by Dr Gliksman, Occupational Physician, on 1 November 2001 and Mr Venetsanos informed the doctor that before the injury on 27 June 2001 he was active in Martial Arts and was also a masseur, both activities that he had stopped since the injury at work.

26.Dr Gliksman was of the opinion that:

“The clinical examination suggests the distinct possibility that a rotator cuff injury more substantial than a simple muscular strain, is present.  It is possible that a supraspinatus tear, probably partial if present, may be the underlying pathophysiological problem….Mr Venetsanos is fit to continue with his current duties but that steps should be taken to determine the precise nature of the underlying pathophysiological condition, in order to ensure effective treatment is provided and that the long-term continuation of his current duties does not involve risk.”

27.Mr Venetsanos was referred by his solicitor to Dr Searle, Consultant Orthopaedic Surgeon, on 2 June 2004.  Dr Searle was of the opinion that the injury on 21 June 2001 “…caused capsulitis of the right shoulder and the ongoing symptoms from this are permanent and cause a moderate degree of disability”.

28.On 21 March 2005 Mr Venetsanos was examined by Dr Harvey at the request of State Transit.  Dr Harvey provided the following opinion in relation to the right shoulder:

“…I think it would be reasonable to assess the patient may have some continuing symptoms and therefore have a 5% loss of the use of the right arm above elbow level.  This loss of use would seem to be entirely attributable to the incident he describes at work on 27.06.01.”

29.As stated above the parties reached agreement at the teleconference on 23 May 2005 that Mr Venetsanos had 7.5% ‘loss of the right arm at or above the elbow’ as a result of the injury on 27 June 2001.

30.The only other doctor to comment on the right shoulder injury was Dr Winer, Approved Medical Specialist, who, as stated above, was asked to consider the issue of incapacity.  Dr Winer examined Mr Venetsanos on 26 July 2005 and on considering the issue of fitness for work stated:

“He did not mention any shoulder problems when I asked him to describe his present symptoms and disabilities, and neither did he mark any painful area over the shoulders on his pain diagram (copy attached).

Yet during the examination movements of abduction and flexion at the right shoulder were markedly restricted, and all movements of the right arm against resistance caused pain at the right shoulder (which is non-anatomical).  The current restricted movements at his right shoulder are not attributable to an injury of 4 years ago; they are due to constitutional degenerative changes at the shoulder and such changes are not uncommon in the community.”

31.At paragraph 28.5 of the Decision the Arbitrator made this finding:

“As Dr Winer noted, at the time of AMS examination, the Applicant did not mention any shoulder problems.  I find the right shoulder has had no effect on the Applicant’s capacity for work, he having performed his normal work duties up to 2003 incident.  That being the case, it is only consistent with a finding that the right shoulder did not contribute to any work incapacity and I so find.”

32.Mr Venetsanos submits that this finding of the Arbitrator is an error or law and states that the correct approach is whether the injury has lessened the worker’s incapacity to earn in the open labour market reasonably accessible to him.  In support of this submission, reference is made to the decision of Metropolitan Coal Ltd v Duffy (1966) 84 WN (Pt 2) 25 (‘Duffy’) where Jacobs JA said:

“The question is whether the admitted employment injury has affected the value of the worker on the open labour market…The fact that his previous job is open to him and that he is able to carry it out are no doubt very important elements in determining whether the employment injury has affected the value of the worker on the open labour market.  However they are not conclusive and, particularly if his pre-injury is a suitable employment as a result of particular circumstances of the applicant’s position, it does not follow as a matter of law that the applicant has suffered no incapacity for work.”

The above passage was approved by the Court of Appeal in Steggles Pty Ltd v Aguirre (1988) 4 NSWCCR 42.

33.Mr Venetsanos submits that the Arbitrator in his finding has treated the fact that Mr Venetsanos returned to his normal work after the shoulder injury up to the 2003 incident as “conclusive”.

34.State Transit submit in reply that as Mr Venetsanos was able to work in his normal duties after the injury to his right shoulder until the incident involving his back, that the Arbitrator was correct in finding that the right shoulder has had no effect on Mr Venetsanos’ capacity for work.  In support of this submission it is pointed out that the loss is modest, being 7.5% of the right arm at or above the elbow.

35.I agree with the submission made on Mr Venetsanos’ behalf.  The Arbitrator in his Decision (paragraph 31 above) has conclusively based his finding on the fact that Mr Venetsanos performed his normal work duties until the later incident and the fact that no mention was made of any shoulder problems to Dr Winer.  As stated in Duffy’s case, these are clearly important considerations, but not conclusive.

36.Dr Winer noted marked restriction in the right shoulder which in itself is inconsistent with the conclusion the Arbitrator appears to have drawn from the fact that no mention of any shoulder problem was made to Dr Winer.  Interestingly Dr Winer noted the left shoulder was essentially normal on examination.

37.Although Mr Venetsanos was able to continue to perform his normal duties until the later incident in 2003, there was a flare-up of symptoms in October 2001 and Mr Venetsanos had informed Dr Gliksman that after the injury to the right shoulder he had to give up Martial Arts and work as a masseur.

38.The parties had agreed on a 7.5% loss of the right arm at or above the elbow as a result of the injury and in my view it was an error of law for the Arbitrator to find that there was no incapacity as a result of the right shoulder injury.  State Transit’s own medical advisor, Dr Gliksman in his report of 1 November 2001 (see paragraph 26), was of the opinion that even though Mr Venetsanos was fit to continue with his current duties, there were risk factors involved with long-term continuation of those current duties.

39.Having found an error of law it is necessary that the decision of the Arbitrator be revoked.  As such I do not need to consider the further grounds of appeal.

40.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 and wages and medical material and as such am in a position to determine Mr Venetsanos’ entitlement to weekly compensation pursuant to section 40 of the 1987 Act. Before doing so it is necessary that I consider the evidence in relation to the back injury.

Back Injury

41.At paragraph 28.8 of the Decision the Arbitrator stated:

“I find that the Applicant had recovered sufficiently from his back injury to have returned to work by the beginning of August 2003.  His continuing inability to return to work I find was due to his underlying health issues and lifestyle choices.  I do not accept the Applicant is entitled since 4 August 2003 to any weekly entitlements as a consequence of either his right shoulder injury or back injury.”

42.Dr Macauley, Consultant Physician, examined Mr Venetsanos on 14 March 2003 at the request of State Transit.  The doctor was of the opinion that Mr Venetsanos was not fit for his pre-injury duties, however, a report from his local doctor would assist in clarifying his diagnosis.  The doctor was of the further opinion that “his work is not seen to be a substantial contributing factor to his condition”.

43.Mr Venetsanos was seen by Dr John O’Neill, Consultant Neurologist, at the request of State Transit.  In his report dated 4 July 2003 Dr O’Neill was of the opinion that Mr Venetsanos was unfit to return to work and had no symptoms or clear signs of neurological dysfunction arising from the lumbar spine.  In a later report dated 15 July 2003 Dr O’Neill was of the opinion that Mr Venetsanos’ employment was not a substantial contributing factor to the injury.

44.Dr Gliksman saw Mr Venetsanos on 15 May 2003 at the request of State Transit but, this time for his back.  The doctor diagnosed left-sided sciatica and was of the opinion:

“Assuming the veracity of the history provided by Mr Venetsanos today, it is medically credible that it has arisen in the manner described by him, on a possible background of increased susceptibility due to co-existing degenerative osteophyte formation.”

45.Dr Gliksman provided a further report dated 1 October 2003 where he stated:

“While Mr Venetsanos complains of ongoing severe symptomatology, today’s clinical examination is more suggestive of a substantial recovery from the condition diagnosed on 22 May 2003.

I reiterate the necessity for an MRI in this matter.  I am advised that there is a machine available in Gosford which could accommodate Mr Venetsanos.  His reason for non-attendance is not credible.

While there is considerable evidence of functional overlay during today’s examination, and the clinical findings are suggestive of a significant recovery from the condition diagnosed in May 2003, there is also evidence of ongoing significant pathology.

The question now revolves around whether this is of a work-related nature or whether it reflects a pre-existing degenerative condition, and around the extent to which it limits his work capacity.  An MRI is capable of adding information to allow these points to be clarified, as well as informing further treatment options.

However in the absence of that MRI or if the MRI does not show evidence of an acute contribution to the current condition, it is my medical opinion that State Transit would be justified on sound medical grounds to accept the opinions of Drs O’Neill and McCauley [sic Macauley], in preference to the opinion I had expressed in May 2003 regarding this matter.”

46.Dr Harvey, who saw Mr Venetsanos on 21 March 2005 at the request of State Transit, was of the opinion that work was not a significant contributing factor to his continuing complaint of back pain.

47.On 5 June 2003 Mr Venetsanos was seen by Dr G Rosenberg, Orthopaedic Surgeon, at the request of his general practitioner.  Dr Rosenberg was of the opinion that Mr Venetsanos had sustained a disc injury and suggested a MRI scan.  A scan was not possible, as due to his large frame, Mr Venetsanos could not fit into the scanner.

48.Dr Searle, who saw Mr Venetsanos on 2 June 2004, was of the opinion that the injury to the back caused bulging of the lower three lumbar discs and aggravation of some pre-existing but previously minimal lumbar spondylosis.

49.Drs Macauley, O’Neil and Harvey are all of the opinion that Mr Venetsanos’ employment was not a substantial contributing factor to any back condition he may have and as such their opinions are inconsistent with the Certificate of the Approved Medical Specialist, that Mr Venetsanos has a 3% whole person impairment for the back.  As such I find their opinions of little assistance.

50.Dr Gliksman, whilst initially appearing to find that Mr Venetsanos’ employment was a substantial contributing factor to his ‘left-sided sciatica’, has in a later report deferred to the opinions of Drs O’Neil and Macauley and again I find his opinion of little assistance.

51.Drs Searle and Rosenberg accept that Mr Venetsanos’ back condition was caused by his work and accordingly I find that since 5 August 2003 Mr Venetsanos is partially incapacitated for work as a result of the injuries to his right shoulder and back.

Section 40 Entitlement

52.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.

53.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

54.At the arbitration hearing the parties were unable to reach agreement as to probable earnings.  It was submitted on behalf of Mr Venetsanos that the appropriate rate was $921 per week and that this was based on wages information provided by State Transit.  In response State Transit submitted that the correct figure to be arrived at from that information was $764.68.

55.As Acting Deputy President Handley said in McCloy v API Manufacturing Pty Ltd [2006] NSWWCCPD 196:

“The approach adopted by the courts and the Commission in calculating a worker’s probable weekly earnings but for the injury is to assume the worker would have continued in the same employment as that at the time of the injury and to make a finding based on evidence of a worker’s earnings in such employment:  Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 (NSW Court of Appeal).

56.State Transit have provided evidence which sets out the gross earnings of Mr Venetsanos in the 54 weeks prior to his injury.  This amount averages out at $764.68 per week and I find that this is the amount at step (1).

The Amount the Worker is earning, or would be able to earn

57.As Mr Venetsanos has not worked since the accident to his back on 25 February 2003, I am required to consider his ability to earn in the labour market that is reasonably accessible to him (section 40(3)(a)) and have regard to suitable employment within the meaning of section 43A of the 1987 Act.

58.When considering section 43A of the 1987 Act regard must be had to Mr Venetsanos’ incapacity, pre-injury employment, work experience, education, skills and length of time unemployed.  State Transit referred Mr Venetsanos to Colin Bass, psychologist, on 22 April 2005 in order to assess his employability.  Mr Bass concluded:

“His performance on a vocational assessment battery indicates that he is not suited to re-training programmes which require even simple or straight-forward problem-solving, intellectual abilities or clerical skills aptitude.

Mr Venetsanos gave an overall impression of being amotivated with regard to employment.  Although he has apparently spoken to some mates concerning employment in cafes, he did not appear interested or committed.

He remains suited to a wide range of employment positions which would not place unusual stress on his upper body.  He may benefit from an ergonomic work station designed to accommodate his obesity.  Examples of positions for which he is suited have been provided earlier in this report.”

Mr Bass set out a number of suitable employment positions, such as weighbridge operator, car park attendant and console operator that were suited to Mr Venetsanos.  These would appear consistent with a man who worked as a bus driver for 17 years.

59.Having regard to the medical evidence, Mr Venetsanos clearly has a large non-work related incapacity that has arisen since the accident on 25 February 2003.  Putting aside his weight, about which Mr Venetsanos informed Dr Harvey that “…he was always very heavy and he’s put on no weight since his injuries”, Mr Venetsanos has a significant psychological overlay and neck symptoms.  Dr Searle was of the opinion that “…at least half of the assessment of impairment and loss is attributable to non-work-related factors, i.e. psychological effects and/or simulation”.  Dr Winer noted in his report that he agreed with this opinion of Dr Searle on impairment and assessment.

60.Dr Voutos, general practitioner, is of the opinion that Mr Venetsanos is unfit for any type of work.  Dr Rosenberg does not address the issue whilst Dr Searle is of the opinion that Mr Venetsanos is unfit for work, however in view of his organic orthopaedic problems he would be fit for some suitable form of light work, part-time.

61.Dr Gliksman states that Mr Venetsanos does not have a safe future as a bus driver whilst Dr Macauley states Mr Venetsanos is not fit for pre-injury duties.  Dr O’Neil is of the view that Mr Venetsanos has a significant psychomatic component and is unfit to return to work with his current pain complaints.

62.Dr Harvey comments on Mr Venetsanos’ morbid obesity which practically renders him unemployable in any unskilled work.  Dr Winer is of the view that Mr Venetsanos is unfit for any employment.

63.Having regard to the medical evidence and documentary material, I find that Mr Venetsanos’ ability to earn in some suitable employment is negligible and accordingly his ability to earn is nil.

64.The amount at step (3) after subtracting the figure at step (2) from step (1) is $764.68 per week.

Section 40 Discretion

65.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 (‘Nicholson’) the 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.” 

66.As I stated above, Mr Venetsanos has a significant psychological overlay and neck symptoms.  Mr Venetsanos did not rely on either of these conditions in the proceedings before the Commission.  Both conditions arose after the accident on 25 February 2003 and as such are supervening illnesses or injury that I propose to take into account in the exercise of my discretion.  As stated above both Dr Searle and Dr Winer were of the opinion that the psychological overlay accounted for at least half of the assessment of impairment and loss.  Clearly the discretion is very significant in this case.  As McHugh J stated in Nicholson:

“Compensation for lost earnings as the result of work injury remains the primary purpose of the statute.”

In the exercise of my discretion I reduce the amount at step (4) by $600.

67.At step (5) the amount is $164.68 per week.

DECISION

68.For the reasons referred to above, I revoke paragraph 3 of the Arbitrator’s Decision dated 7 November 2005 and the following decision is made in its place:

“3.$164.68 per week from 5 August 2003 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”

69.Paragraphs 1, 2 and 4 of the Certificate of Determination of 7 November 2005 are confirmed.

COSTS

70.State Transit Authority of New South Wales is to pay Mr Venetsanos’ costs of the appeal.

Julian Martin

Acting Deputy President  

29 September 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