Winter v NSW Police Force
[2010] NSWWCCPD 12
•8 February 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Wolfinger v Goldmember Enterprises Pty Ltd [2010] NSWWCCPD 12 | |||||
| APPELLANT: | Rudi Wolfinger | |||||
| RESPONDENT: | Goldmember Enterprises Pty Ltd | |||||
| INSURER: | CGU Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | A1-6420/09 | |||||
| ARBITRATOR: | Ms R Gurr | |||||
| DATE OF ARBITRATOR’S DECISION: | 23 October 2009 | |||||
| DATE OF APPEAL DECISION: | 8 February 2010 | |||||
| SUBJECT MATTER OF DECISION: | Incapacity; weekly benefits and ability to earn; section 40 of the Workers Compensation Act 1987. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Bell Lawyers | ||||
| Respondent: | Turks Legal | |||||
| ORDERS MADE ON APPEAL: | The decision of the Arbitrator dated 23 October 2009 is revoked and the following decision is made in its place: | |||||
| 1. Award in favour of the Applicant pursuant to section 40 of the 1987 Act as follows: a. For the period from 15 June 2008 to 30 June 2009 at the rate of $281.00 per week; | ||||||
| b. For the period 1 July 2009 to 19 August 2009 at the rate of $197.50 per week; c. For the period 20 August 2009 to date and continuing at the rate of $155.00 per week. 2. The Respondent to pay the Applicant’s costs as agreed or assessed. The Respondent is to pay the Appellant’s costs of the appeal. | ||||||
BACKGROUND TO THE APPEAL
The Appellant, Mr Wolfinger, is presently twenty five years old. He commenced employment as a cook with the Respondent, Goldmember Enterprises Pty Ltd, at the Rest Easy Motel in Wentworth Falls on 18 October 2005. He had previously commenced an apprenticeship as a chef but had discontinued this for personal reasons in 2003 in his second year.
He worked casually for the Respondent, his hours varying from 13 to 44 per week, but averaging about 38. He worked a second job initially at the Ritz Nursing Home and from January 2007 as a general services officer (principally a kitchen hand) at the Martyn Claver Nursing Home in Leura.
On 12 June 2007 he injured his back whilst removing rubbish at the end of his shift with the Respondent. He ceased work that day and was unable to resume his job at the nursing home.
In mid February 2008 he commenced employment at Josh’s Bistro at the Springwood Golf and Country Club working an average of 28 hours per week, and has remained a permanent employee there since that time.
He was paid weekly benefits by the Respondent’s insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’) up until 14 June 2008 when liability was declined on the basis that he was no longer incapacitated, his general practitioner, Dr Singh, having certified him fit to resume his pre-injury duties from that date.
Agreement was reached between the parties as to a 7% WPI in relation to the back, and a complying agreement was entered into on 30 January 2009.
In an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 13 August 2009, Mr Wolfinger sought weekly benefits from 14 June 2008.
The parties attended a hearing before the Arbitrator on 30 September 2009. No oral evidence was given, and submissions by Counsel for both parties are recorded in a transcript of that date.
In a reserved decision delivered on 23 October 2009, the Arbitrator found in favour of the Respondent.
The Certificate of Determination dated 23 October 2009 with an accompanying Statement of Reasons (‘Reasons’) records the following formal orders:
“Award for the Respondent in relation to the claim for weekly benefits.”
It is from this decision that Mr Wolfinger seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
Leave to appeal is granted.
FRESH EVIDENCE
‘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.”
Practice Direction No.6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:
“FRESH EVIDENCE AND/OR ADDITIONAL EVIDENCE
Each application to introduce fresh evidence or additional evidence on appeal will be considered on its own facts and circumstances and in the context of the Commission’s obligation to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see section 354 of the 1998 Act).
In the exercise of its discretion to admit fresh evidence or further evidence on appeal the Commission will have regard to, and the parties should make submissions on, whether:
·it can be demonstrated that the evidence could not with reasonable diligence have been obtained by the party and tendered in proceedings before the Arbitrator;
·the evidence is credible;
·there is a high degree of probability that there would have been a different decision if the evidence had been admitted at the arbitration, and/or
·it is just to admit the evidence in all the circumstances of the individual case.
Parties should be aware that a review under section 352 of the 1998 Act is not a rehearing or hearing de novo. The original arbitration should not be treated as a preliminary hearing and all relevant evidence should be called at that time.”
Mr Wolfinger seeks to admit a list of payments from CGU together with a report from Dr Singh dated 5 March 2009 wherein he recommends further treatment by way of physiotherapy and rehabilitation. As Mr Wolfinger points out, his sole claim was for weekly benefits, the insurer having agreed to a 7% WPI and continuing liability for medical treatment. The purpose of these documents he submits is to counter apparent criticism by the Arbitrator at [38] of her Reasons that, despite complaints of ongoing symptoms which had failed to significantly improve, Mr Wolfinger “brought no evidence that he has seen any doctor nor sought treatment for any condition since June 2008.”
The list of payments is current to November 2009, and certainly demonstrates that Mr Wolfinger was having treatment subsequent to June 2008.
Mr Wolfinger claims that the list of payments was not available at the time of the arbitration, although the report of Dr Singh was, but he did not consider it necessary to rely on this material given the limited nature of the dispute between the parties.
The Respondent “disputes” the inclusion of this evidence and submits:
“The Arbitrator’s comments with respect to medical expenses were merely observations on the basis of the available evidence. This issue was not determined and treatment expenses remain a non-issue…
The Arbitrator made no comments about the Appellant’s credit and it is therefore unclear why the…documents should be included…
[The documents] were both available long before the hearing date and were not entered into evidence by the Appellant’s solicitors.”
The principles governing the admission of fresh or additional evidence were considered by ADP Snell in Box v APKEngineering Pty Ltd [2009] NSWWCCPD 149 (Box) where he observed at [20]-[21]:
“20. The Practice Direction was discussed in Haider v JP Morgan Holdings Aust Limited (t/as JP Morgan Operations Australia Ltd) [2007] NSWCA 158, 4 DDCR 634 (‘Haider’). Basten JA at [41] described the test set out in the Practice Direction as “apt to give rise to error by treating the discretion as fettered in a way which it is not”. The requirements set out in the Practice Direction “reflect the conditions which must generally be met before ‘fresh evidence’ is admitted” (at [41]). This fails to take account of the discretion to admit “additional evidence which did not need to satisfy the common understanding of ‘fresh evidence’. A more flexible test was available, but not applied.” (at [45]). At [44] Basten JA, dealing with the admission of evidence pursuant to the discretion in section 352(6), said:
“Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the Tribunal suggest that the material should have been considered in order to address the substantial merits of the case.”
21. The power to admit evidence that is in addition to, or substitution for, the evidence received at the arbitration hearing, pursuant to section 352(6), must be exercised having regard to sub-sections 354(1) to (3) of the 1998 Act (Haider at [41] to [42]).”
In the present case, I am not persuaded that the Arbitrator’s remarks were, as the Respondent suggests, “merely observations.” The Arbitrator determined that Mr Wolfinger had failed to demonstrate that he was incapacitated for work beyond June 2008. In so finding, she correctly observed at [37]:
“A finding of incapacity is not based solely on the medical opinions but on the totality of the evidence.”
Her remarks then immediately following at [38] to which I have referred above suggest to me that the apparent lack of treatment was a factor she considered when determining the claim. In those circumstances, the additional evidence Mr Wolfinger seeks to rely on is, in my view, clearly material and probative for the reasons that follow:
a. The evidence is credible, and clearly contradicts the Arbitrator’s acceptance of the Respondent’s submission that Mr Wolfinger had failed to bring evidence that he had seen any doctor or sought treatment.
b. Whether there is a high degree of probability that the outcome of proceedings would have been different if this material were admitted is open to conjecture, but again, as ADP Snell said in Box at [34]:
“As Basten JA makes clear in Haider at [41] to [45], this requirement is one of the conditions “which must generally be met before ‘fresh evidence’ is admitted”. However where evidence is treated as additional evidence, this need not “satisfy the common understanding of ‘fresh’ evidence”, a “more flexible test” is available. It would be difficult to conclude Mr Hendy’s statutory declaration is such that there is a high degree of probability of a different decision, had it been admitted at the arbitration. However it is unnecessary that it meet this test, when I consider whether leave should be given for its use, as additional evidence, pursuant to section 352(6) of the 1998 Act. In exercising this discretion, the following matters favour the granting of such leave:
(i)The evidence could not, with reasonable diligence, have been obtained for the arbitration hearing;
(ii)it is apparently credible evidence;
(iii)it is material and probative evidence;
(iv)consideration of the evidence will assist in addressing the substantial merits of the case, and
(v)the Respondent Employer points to no prejudice that will result from use of the evidence.”
c. Given that the claim was limited to weekly benefits, it would not have been anticipated that this material was necessarily relevant to the issue to be determined.
In the circumstances of this case, I consider that this material constitutes additional evidence, and in the exercise of my discretion, for the reasons stated, I have concluded the interests of justice favour the granting of leave to permit this material to be used in this appeal, and I grant such leave.
THE EVIDENCE
Mr Wolfinger’s Evidence
In a detailed statement dated 31 October 2008 Mr Wolfinger said:
· He worked an average of 38.5 hours per week with the Respondent, but sometimes worked up to 44.5 hours or as little as 13 to 17 hours.
· His job at the Martyn Claver Nursing Home at Leura for one or two shifts per week as a kitchen hand involved a lot of bending and lifting of pots and pans and the set up was not “optimal given my height.”
· He was unable to resume this work after his back injury.
· Following his injury, he attended the Accident and Emergency Department at the Blue Mountains hospital, then saw his GP, Dr Singh.
· Over the following six months, his treatment consisted of physiotherapy, hydrotherapy, a gym programme and medication.
· He was assessed for rehabilitation by CGU in about January 2008 and commenced seeking suitable employment.
· He commenced at the Bistro in February 2008. His employer is aware of his “back condition” and others assist him with lifting boxes of fruit and vegetables weighing greater than 10 kilos.
· He presently works an average of 28 hours per week. He believes he is capable of working 30 hours per week.
· He continues to take pain relieving medication.
· He was unhappy with his referral by Dr Singh in February 2008 to Dr Kevin Boundy, a sports medicine practitioner, and was offended by his apparent suggestion that he was not genuine in his complaints. He denied the criticisms Dr Boundy made of his presentation in his reports (to which I will refer later).
· He saw Dr Singh regularly following his injury who eventually certified him fit for 30 hours work per week in April 2008 with restrictions on certain activities.
· Dr Singh certified him fit for pre-injury duties from 14 June 2008. He was unhappy with this assessment as no indication had been given to him about this at a prior consultation on 21 May 2008. He thought that Dr Singh’s certification was in response to an unfavourable report from Dr Boundy which had been sent to CGU.
· He denies attending Dr Singh’s rooms on 13 June 2008 (the date of the certificate) or any consultation with him prior to the issuing of the ‘final certificate.’ He did not sign that certificate.
· There has been some improvement in his condition since the injury, but cold weather, gardening, prolonged driving, and standing for 7 or 8 hour shifts increases his symptoms.
· He asked his current employer if he could split his shifts so that he could rest between the lunch and evening shifts.
In a supplementary statement dated 23 September 2009, Mr Wolfinger said:
· He continues to have symptoms of pain and discomfort in his lower back. He has difficulty sleeping and needs to sit down and have breaks if he stands for longer than an hour. Driving aggravates his pain, and he avoids lifting objects weighing more than 10 to 15 kilograms.
· His principal treatment is medication, but since April 2009 he has resumed physiotherapy which he initially paid for himself but has subsequently been reimbursed by CGU.
· He works Wednesday lunch, Thursday lunch and dinner, Friday lunch and dinner, Saturday lunch and dinner and Sunday lunch.
· In the 2.5 hour break between the lunch and dinner shifts, he rests with relatives who live 10 minutes drive from his workplace.
· Since July 2009 following discussions with his employer, he is no longer paid casually but at the rate of $670.00 gross per week provided he works between 28 and 31 hours per week.
· Because of the drop in income since his injury, in the last five weeks he has commenced working at the Lapstone Hotel as a kitchen hand one shift per week, approximately four hours, for which he is paid between $85 and $95 per week.
· He is concerned whether he can continue to do this work because of his pain, but does it because of “dire financial necessity.”
· He has a dependent wife and son.
A CT Scan of his lumbar spine taken on 31 July 2007 reported:
“There is mild posterior bulging of the L5/S1 disc with minimal indentation on the anterior surface of the thecal sac.”
Similar findings were observed in a CT Scan taken on 7 November 2007.
The report of an MRI Scan carried out on 8 July 2008 concluded:
“Minor L5/S1 disc bulge. No evidence of neural impingement or significant stenosis. No evidence of progression compared with the CT approximately 12 months prior.”
In an undated report apparently received by Mr Wolfinger’s solicitor some time in June 2008, Dr Singh said:
“1. I saw Mr Wolfinger on the 06/06/08. He was upset and didn’t want me to issue pre injury duty certificate. My general findings over the last few visits were not very different from that of Dr Boundy. CT Scan is a help to make a diagnosis you do not always go by it.
2. Mr Wolfinger is fit for pre injury duties. He is fit for forty two hours per week.
3. To make an opinion I relied upon my own examination over the last few visits.”
Dr Boundy’s qualifications are noted as “BMBS, M Sp Med, FACSP.” He first saw Mr Wolfinger on 19 February 2008. In a report dated 22 February 2008, he recorded the history of the injury “lifting boxes of rotten fruit into a waste bin.” He noted that Mr Wolfinger had been having physiotherapy and pain killers since, and had been wearing a back brace for the last 6 or 7 months. He reported:
“Despite the extensive treatment …Rudi still feels his pain is at 60-70% of that which it was originally. He also reports that returning to light duties has now exacerbated his pain and it is worse.
Rudi is presently working shifts at the Springwood Country Club as a cook.
Rudi said his pain was increased by washing dishes, bending forward, sweeping, mowing the lawn or driving the car.
Rudi reports being totally drained after doing his gym program and being ‘buggered’ after work.
Despite the high levels of reported fatigue Rudi says his sleep is very poor. He has to toss and turn for an hour to get comfortable as he is unable to lie on his back.
On examination Rudi was Trendelenburg positive bilaterally to both passive and active testing…When asked to extend his lumbar spine he reported pain in the left sacroiliac joint at the end of the range only…
When assessing core stability by using hip flexor strength as a measure, Rudi’s left core stability was seen to be worse than his right. Rudi said this was because of pain but the impression I got through the examination was that he was not complying fully with my requests…
Palpation of the sacroiliac joints revealed tenderness on the left that was not present on the right.
Rudi appeared to have some minor pain in his left sacroiliac joint with movement. He did not appear to be making maximal effort to comply with my requests during the examination.
I injected Rudi’s left sacroiliac joint…I would have given roughly 1000 of these injections over the last three years and Rudi’s pain behaviour relating to the injection was greater than that in anyone I have seen. Not only could Rudi not lie still on the couch while the injection was being performed, but despite the installation of local anaesthetic he complained of ongoing high levels of pain throughout the injection.
I have to admit to being less than impressed by Rudi’s discussion of his pain. Overall he gave the impression of being a victim who could do nothing to manage his condition. His responses during the examination part of the consultation suggested he was actually doing very little to help himself.”
At a consultation on 3 March 2008 Dr Boundy noted that Mr Wolfinger had made very little progress since the last consultation but had not had any physiotherapy and had not been able to afford to buy anti-inflammatories. He administered a further injection and arranged for further physiotherapy.
In a lengthy report dated 18 March 2008 addressed to CGU Dr Boundy commenced thus:
“Rudi returned to Nepean Specialist Sports Medicine on 17 March 2008. My secretary reported that he sat comfortably in the waiting room reading the newspaper even though I was running 40 minutes late for his appointment. When he entered the room he yawned repeatedly and did not make eye contact throughout the majority of the consultation. When asked direct questions Rudi gave evasive answers and tried to lead the consultation in the direction he wanted it to go.”
Dr Boundy was critical of Mr Wolfinger’s presentation. He noted that when asked to remove his back brace, there was no evidence of a rash about which he’d complained. When he touched his left sacroiliac joint, he flinched, but did not do so when the joint was touched whilst examining other areas of the back. He said that he thought that Mr Wolfinger was “exaggerating his symptoms” and therefore asked him in some detail about the mechanism of the injury. He was again critical of Mr Wolfinger’s responses, claiming that he was unable to state how many boxes of rotten vegetables he had lifted. He continued:
“ I reviewed Rudi’s treatment and asked if he had been having hydrotherapy twice a week and going to the gym 3 times a week since July 2007. He stated that he had most weeks. I then asked him if he was any better. He was unable to answer this question. He started rambling about back pain and the impact on his life and how annoying everything was but he still failed to answer the question. When pressed to answer the question of whether or not he was any better he said he thought he might have been a little better.
I indicated to Rudi that after 8 months of treatment with no noticeable improvement it was a reasonable assumption that the treatment was not working. I therefore notified him that all treatment would be stopped immediately.
Rudi wanted to know what was going to happen if his pain came back now that his treatment had been stopped….I said I did not think that that would be a problem. I said I did not think that his problem was that serious, and that he was making more of any mild ache he had than he needed to.
At this stage Rudi started to make eye contact with me and said: ‘are you saying I am full of shit.’ I replied that I was not making that statement but I was suggesting that he was lying about the intensity of his pain and that I did not believe he had a significant problem…
Rudi stated that he felt insulted by my comments and got up to leave saying that he would not be back. He tore up his appointment card and threw it on the floor outside.
After he left I rang Dr Singh. I explained that I had just seen Rudi and I did not think there was that much wrong with him. Dr Singh said that he had found ‘no objective evidence’ to support Rudi’s claims of back pain.
It is my considered opinion that Rudi is malingering. I believe Dr Singh would agree with this diagnosis. I would recommend that all treatment that has previously been approved for Rudi be stopped immediately. Any signs that Rudi had when he initially presented to my practice have now fully resolved. Despite this Rudi reports no change in his pain. It is reasonable to assume that his pain is not related to any biomechanical disturbance.”
Mr Wolfinger consulted Dr Richard Deveridge at the request of his solicitor on 20 February 2008. Dr Deveridge’s qualifications are “MBBS; FRCS(ENG); FRACS.” He is also a “Workcover and MAA trained assessor of Permanent Impairment.”
In a report dated 21 February 2008, he took a detailed history of the incident, noting that, in the course of moving the bread crates full of “rubbish” Mr Wolfinger “was repeatedly standing at a lower level than the other worker and leaning to his left in order to empty the rubbish” whereupon he became aware of “increasing low back pain and stiffness” On examination, he noted:
“ He had some difficulty with heel and toe walking…a well worn lumbar corset was in evidence.
There is some loss of lordosis with pain across the lower lumbar region extending into the gluteals particularly on the left side. Some of his lumbar movements were quite restricted, irritable and associated with significant paralumbar muscle spasm…Rotation was irritable…there was some mild weakness of resisted hip flexion.”
Having viewed the CT Scans, Dr Deveridge concluded:
“[Mr Wolfinger] developed acute back pain and stiffness as a result of heavy physical work performed on 12.6.2007. Mechanical back pain has persisted ever since. The medical imaging has demonstrated a small L5/S1 disc lesion, which is entirely consistent with the mechanism of injury sustained…
He has only marginal fitness for his pre-accident employment as a cook. He is going to be permanently unfit for repetitive bending, heavy lifting, carrying, twisting, pushing and dragging. He should avoid prolonged periods of sitting or standing…
He appears to have just found a suitable job. Time will tell whether or not his hours and duties can be increased. Ideally he should have the assistance of a kitchen hand for heavier lifting. Currently he has a sympathetic employer, but he is clearly going to have difficulty with suitable employment on an open labour market in the future.”
Dr Deveridge concluded that Mr Wolfinger had a 7% WPI in respect of his lumbar spine.
Mr Wolfinger was re-examined on 26 June 2008. In a report dated 1 July 2008, he said:
“Your client feels that there has been some limited improvement in his back condition since I last examined him…
Findings were similar to the previous occasion although there has been some marginal improvement in his mobility and spinal movement…
On each occasion that I have examined your client, he presented his complaints in a consistent and genuine fashion, and I have no reason to doubt them. The degree of disability and the requirement for regular high dosage analgesia is a little excessive for a mild lumbosacral disc bulge but still lies within the expected range in the community.”
Dr Deveridge confirmed his previous WPI assessment.
In a report dated 19 August 2008, Dr Deveridge viewed the MRI scan noting “there is mild disc dessication at L5/S1.” This did not change his view.
In his final report dated 26 March 2009, after re-examining Mr Wolfinger on 17 March 2009, he made reference to the report of Dr Boundy of 18 March 2008 and the report of Dr Singh of 5 March 2009 (admitted as additional evidence) which had been provided to him. He said:
“ He remains employed as assistant cook in the bistro at the Springwood Country Club. He averages about 30 hours of work each week. He does the split shift on 3 or 4 days a week. He has the opportunity to rest with relatives in Springwood between shifts. He drives to and from the workplace, but with increased pain.
Today he provided almost identical complaints of ongoing back pain and stiffness…
Findings [on examination] were similar to the previous occasions…
There is evidence of ongoing significant paralumbar muscle spasm and dysmetria.
Your client’s condition has remained unchanged since my previous assessment. He has significant residual disability with mechanical low back pain and stiffness. Diagnosis remains consistent with L5/S1 disc lesion. Your client’s complaints were presented in a very consistent and acceptable manner on each occasion that I have examined him. I have no reason to doubt his complaints…Dr Boundy has expressed an opinion that your client is malingering, but I do not consider that this is the case. The independent orthopaedic assessor (Dr J Douglas report dated 31.3.2008) makes reference to possible pain avoidance behaviour. Pain thresholds vary within the population, your client may well have a low pain threshold, but his chronic pain is acceptable and clearly related to the L5/S1 disc lesion.
Your client is working to his reasonable maximal capacity in his current part time job at the Golf Club. He benefits from the split shift otherwise he would be limited to 3 to 4 hours of such work daily. With the split shift, 30 hours is his reasonable maximal capacity. He is considered unfit for repetitive bending, heavy lifting, carrying, twisting, pushing, dragging and prolonged periods of fixed spinal posture…”
Various wage records were in evidence, and a Wage Schedule was contained in late documents admitted by the Arbitrator which disclosed probable earnings but for injury of between $1,096.00 and $1,144.00 per week, with actual earnings ranging from $503.00 to $755.00 per week. At the hearing, the parties agreed that average weekly pre-injury earnings were $1,065.00 per week (Reasons [12]).
The Complying Agreement in relation to the section 66 claim was also in evidence. It is noted that the agreement was reached on 22 December 2008.
The Respondent’s Evidence
The Respondent relied upon a series of reports from Dr Ronald Thomson. In his first report dated 26 September 2007, Dr Thomson said:
“ This worker appeared considerably discomforted today and tended to minimise movements of his lumbar back.
At the lumbar back, there was a reasonable lumbar lordosis, no frank paraspinal muscle spasm was evident and there was tenderness to palpation in the area of the lumbosacral disc.”
Dr Thomson noted that straight leg raising tests were consistent with the area of complaint, and diagnosed “Acute/becoming chronic musculoligamentous strain of the lumbar back, possible aggravation of pre-existing L5/S1 disc degenerative disease.”
Dr Thomson agreed with Dr Singh that Mr Wolfinger was currently unfit for work.
At his second consultation on 30 January 2008, Dr Thomson said:
“ Physical examination directed to the lumbar back of this worker today appeared somewhat inconsistent.”
Dr Thomson diagnosed “pain in the lumbar back of uncertain aetiology.” His prognosis was “could be better than this worker may lead one to believe.” He considered that he was fit for part time suitable duties.
In a second short report of the same date, Dr Thomson said:
“As inferred in the main report, I think the clinical reality in this case is that this worker has no legitimate symptom production in or related to his lumbar back and is or ought to be fit to perform his usual normal duties as a cook.”
The Respondent also relied upon a report from Mr Wolfinger’s physiotherapist, Mr Neuvonen, dated 11 April 2008 addressed to Dr Singh. He said:
“This gentleman has been attending our clinic for treatment since July 2007 for a back injury sustained at work. He is also participating in a supervised gym-based exercise programme (commenced October 2007).
A recent assessment was conducted (23.3.2008) in order to provide a comparative analysis of this gentleman’s physical status and progress during the course of therapy (from July 2007 to current date).
Mr Wolfinger reported that he has been increasing his hours at work, and should shortly return to full time load. He advised he is feeling stronger and is generally coping…
Overall I believe Rudi has improved with his functional abilities and postural tolerances. Given this, he still frequently reports significant levels of discomfort which has not changed a great deal over the course of his attendances. This subjective symptomatic reporting by Rudi conflicts somewhat with our Oswestry disability measure scores (re functional/ postural tolerances and pain.)”
THE ARBITRATOR’S FINDINGS AND REASONS
After setting out the background to the claim, the Arbitrator noted at [11] that the only issue in dispute was Mr Wolfinger’s entitlement to weekly benefits from 14 June 2008 (wrongly noted by the Arbitrator as 2009).
At [14] she set out in some detail the “legal framework” for determining the issue of incapacity and weekly benefits. At [15]-[16], she said:
“15. The High Court considered the meaning of “incapacity” in this context in the case of Arnott’s Snack Products v Yacob (1985) 155CLR 171(Yacob). The Court had the following to say about incapacity at 178 per Mason, Wilson, Deane and Dawson JJ:
‘The concept of partial incapacity for work is that of reduced physical capacity by reason of physical disability for actually doing work in the labour market in which the employee was working or might be expected to work. Under s. 11(1) (the predecessor of s.40) an applicant’s entitlement to compensation will depend on loss of earning power.’
It is clear from this that a worker will be entitled to weekly benefits arising from an incapacity if there is a loss of earning power because of the injury.
16. It is also the case that incapacity is not incapacity only for the applicant’s pre injury employment but incapacity for work on the open labour market reasonably accessible to him or her prior to the injury.”
She then turned to consider the terms of section 40 and 43A of the 1987 Act, and set out the “five step process” she was required to follow in calculating any entitlement to weekly benefits in line with Mitchell v Central West Area Health Service (1997) 14 NSW CCR 527 (‘Mitchell’).
Commencing at [20], she summarised all of the medical evidence. At [33] she turned to consider whether Mr Wolfinger had established that he was incapacitated for work during the relevant period. She commenced by discussing the evidence as to the hours worked by Mr Wolfinger at his various jobs stating:
“33. It is unclear from the Applicant’s evidence how many hours he was working in total pre injury on average and at what hourly rate. It is agreed between the parties that his pre injury earnings were $1065 and on his evidence Mr Wolfinger was working variable hours with the Respondent and in his second employment. There is evidence is hat (sic) the hourly rates also varied. He says in his statement that when he worked less than full time hours – 38 hours per week – he worked his second job at the Martin Claver Nursing Home. His earnings there in the January – June 2007 period averaged $160 and he says that he worked there about ten hours per week, which means that he earned an average of $905 with the Respondent and that his hourly rate with the Respondent was considerably higher than the rate at the Nursing Home – and higher than his current average rate with Josh’s Bistro – probably because it included a significant number of hours at casual weekend rate and he now works permanent part time which includes paid holidays. The casual hourly rate at the Lapstone hotel (see below) is lower than that paid by Josh’s Bistro on a permanent part time basis. This appears from the payslips from Josh’s Bistro to be because his weekly wage includes a much higher weekend rate as part of the total wage and the one shift at Lapstone is on a weekday.
34. According to Mr Wolfinger’s evidence his work with Josh’s bistro yields $670 for a week, which varies between 28 and 31 hours. In his earlier statement (31st October 2008) he says that 30 hours per week is the most he can work and he was at that time working 28 hours per week. By the time of his later statement (23rd September 2009) he says he is also working an extra weekly shift at the Lapstone Hotel of between 4.2 and 4.4 hours earning between $85 and $95 per week so that his total weekly earnings from 28.8.09 are between $755 and $765 per week for between 32.2 and 35.5 hours per week.
35. Dr Singh’s final Workcover Certificate notes 42 hours per week as being the full pre injury hours and, in the absence of clear statement in relation to total average pre injury hours worked from the Applicant, I accept this to be the case.”
She rejected Mr Wolfinger’s argument that pre-injury earnings would have increased by the rate of inflation over the relevant period because of the absence of any evidence to this effect [36].
As I said earlier, she then noted at [37] that a finding of incapacity is not based solely on the medical opinions but on “the totality of the evidence.”
She continued at [38]:
“38. The Respondent points out that, despite his evidence as to continuing pain and disability which has not improved a great deal over the period since the injury, and, according to his report to Dr Deveridge, has deteriorated since June 2008, the Applicant has brought no evidence that he has seen any doctor nor sought treatment for any condition since mid June 2008 and there are no subsequent Workcover Certificates nor any treating doctor’s report in relation to his condition, which postdates the final certificate of 14.6.2008. That submission must be accepted. In addition, Mr Wolfinger says he still takes large amounts of analgesics when he can afford, it but brings no evidence of having purchased these.
In considering the medical evidence, the Arbitrator said:
“40. On behalf of Mr Wolfinger it is argued that Dr Boundy’s evidence should not be accepted because he formed a negative view of Mr Wolfinger. Dr Singh, it is argued, provided the final certificate based on Dr Boundy’s view and not an independent view of his own based on his own observation or examination. The Respondent points out that Dr Singh and Boundy were treating doctors and that Dr Boundy initially sought to treat Mr Wolfinger based on his complaints of pain – he did not simply form a negative view without making his own clinical observations.
41. I do not find that Dr Deveridge’s evidence, as the Applicant submits, should be accepted in preference to the preponderance of medical opinion, provided by two treating doctors and another medical witness.
42. Dr Deveridge as a general surgeon could not been seen to have the experience and expertise that Dr Boundy would have as a sport medicine specialist, dealing on a daily basis with disabilities and physical activities and with the usual course of injuries such as those of Mr Wolfinger. I accept that Dr Boundy did not get on well with Mr Wolfinger and formed a negative view of him from his mode of communication, which may not be justified. However, he also carried out thorough examinations, made detailed records and engaged in treatment, initially accepting Mr Wolfinger’s reports of pain. He supports his view of Mr Wolfinger’s disabilities with detailed observations and reasoning and drawing on his experience. I accept his evidence based on those well documented observations.
43. Dr Deveridge bases his assessment of permanent impairment on findings that Mr Wolfinger suffers paralumbar spasm and dysmetria, which other doctors did not observe - Dr Thompson (sic) specifically notes the absence of paralumbar spasm… Dr Deveridge is inconsistent in his opinion about Mr Wolfinger’s maximum capacity. In his second report he was under the mistaken impression Mr Wolfinger was working 35 hours and considers this appropriate. By the third report when he correctly records that it is 30 hours he then says this is his maximal capacity. Dr Deveridge provides no support for his opinion that Mr Wolfinger’s complaints of pain are “within the expected range within the community.” He acknowledges that level of complaint might be considered excessive, given the scan findings. Dr Boundy makes specific reference to his experience in giving injections to many patients over a period…
46. The Applicant submits that the scan findings of minor diffuse disc bulge are greater than one would expect to find in a person of Mr Wolfinger’s age. None of the medical witnesses, including Dr Deveridge, put forward an expert opinion which would form a basis for this submission. The permanent impairment rating is not said to be based on the scan findings but on other factors, which are noted above. Dr Deveridge did not seem to be concerned about the dessication, which was revealed by the MRI. He made no comment that it would be considered unusual. Dr Thompson (sic) thought the scan findings of little clinical relevance.
47. The existence of permanent impairment of itself is not sufficient for a finding of incapacity, although it is a relevant consideration and I note that the Respondent has agreed to it on the basis of Dr Deveridge’s assessment. Considered in the light of all of the other evidence, however, I do not find that it indicates Mr Wolfinger is incapacitated for work.
48. It is argued that Mr Wolfinger has shown himself motivated to return to work and that the best evidence of what he can earn is what he does earn. What he does earn on a weekly basis is a result of fewer hours worked (allegedly because of his injury) and the fact that he works on a different basis – that of a permanent part time employee. The latter factor is not related to his injury. What he does earn forms part of the evidence as to what he can earn but it is not the only or even necessarily the best evidence.
49. The labour market Mr Wolfinger has accessible to him is that in which he was working pre injury – in kitchen work in restaurants or residential institutions. Mr Wolfinger has returned to cooking duties, which are substantially the same as those he was performing prior to the injury. It is probable that his injury was caused because he was asked to lift loads which were heavier than he should have been asked to lift without mechanical assistance and in conditions which were not safe – the slippery sloping driveway. However, there is no evidence that these activities are part of what he would be regularly required to do in order to obtain employment in the market in which he was employed.
50. The Applicant has not proved his case that his ability to sell his labour in the market has been compromised some 12 months after his injury. His current employer has agreed to take him on and he now works also for a second employer. Some weeks he works up to 35.5 hours, which is approaching the weekly hours he worked pre injury. He says that he has a sympathetic employer and that he receives assistance with the heavier tasks. He was not challenged in relation to that assertion. He brings no evidence other than his own assertion, however, that the split shift he works is at his request and because of his injury, rather than being simply attributable to his employer needing him to work for the two meals which are served. He could have obtained corroborative evidence in relation to this.
51. Taking into account all of the evidence, Mr Wolfinger has failed on balance to substantiate his contention that he is not fit to perform his pre injury duties and that his earning capacity continues after 13th June 2008 to be affected by his injury. In summary, this finding is on the basis that
·The overwhelming preponderance of evidence, in particular from treating doctors, is that Mr Wolfinger is fit to perform his pre injury duties.
·He is in fact performing those duties for a number of hours per week which approaches his pre injury employment.”
THE ISSUES IN DISPUTE
Mr Wolfinger submits that the Arbitrator erred in finding that he was fit to perform his pre-injury duties and was thus not entitled to an award of weekly payments. More specifically, he submits that the Arbitrator erred in her findings on a number of issues, namely:
i. Mr Wolfinger’s credit;
ii. the relevance of treatment and medical expenses;
iii. her acceptance of the expertise of Dr Boundy;
iv. her disregard of the relevant authorities in relation to actual earnings, and
v. pre-injury hours of work.
THE SUBMISSIONS AND DISCUSSION
Most of the specific issues raised by Mr Wolfinger identified above are encompassed in his principle submission that the evidence supported a finding of partial incapacity which entitled him to an award of weekly payments. I propose to consider this issue overall, and will refer to the particular matters raised by Mr Wolfinger where appropriate.
The Arbitrator quite correctly identified the “legal framework” by reference to Yacob, but in my view, she failed to properly apply that test in the circumstances of this particular case for reasons that will follow and in line with a number of authorities to which I shall refer.
The test for incapacity is conveniently summarised in the text Workers Compensation in New South Wales, second edition, by C P Mills, where the author said, at 285:
“The question is whether the injury has left the worker in such a position that in the open labour market his earning capacity is less than it was before the injury (Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 431 per Starke J), and it is not limited to the effect on his capacity for his former work (per Dixon J). In Ball v Hunt [1912] AC 496, Lord Loreburn had said that there is incapacity when a man has a physical defect which makes his labour unsaleable in any market reasonably accessible to him, and there is partial incapacity when such a defect makes his labour saleable for less than it would otherwise fetch: see Commissioner for Railways v Agalianos (1955) 92 CLR 390 per Dixon CJ.”(emphasis added)
In Alexander v Ashfield Municipal Council, CA 78/81, 27 October 1982, Hutley JA observed:
“Capacity is diminished even though in selected instances the worker can earn as much as he did before, if there are fields from which he is excluded, by reason of the injury, in which he laboured at the time of injury.”
The Court of Appeal quoted the above passages, with apparent approval, in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155 (‘Ric Developments’).
The circumstances of that case were similar in some respects to those of the present. In that case, the worker injured his right arm in May 2001. By September 2005, following vocational assessments, the worker’s weekly benefits were discontinued on the basis that his ability to earn in some alternative employment was higher than his average pre-injury wage. Meanwhile, in March 2003, the parties had settled a claim for lump sum compensation in respect of a 15% permanent loss of use of the dominant right arm at or above the elbow. The claim for weekly benefits was rejected by the Arbitrator but upheld on appeal, Deputy President Roche concluding at [94] that:
“…it was for the Arbitrator to assess Mr Muir’s section 40 entitlement in light of the fact that he had an agreed 15% permanent loss of use of his right arm at or above the elbow and that he had a proven incapacity on the labour market.”
The employer appealed, claiming that DP Roche erred in law in considering that the award of 15% loss was indicative of a partial incapacity under section 40 of the 1987 Act. The Court of Appeal however confirmed the decision. Although acknowledging that it cannot be inferred from an award made under section 66 that a worker is entitled to any award at all under section 40, consideration must be given to the impact of the loss on the particular worker. As Campbell JA observed at [48] in approving the Deputy President’s approach:
“The error that the Deputy President saw in the Arbitrator’s reasoning was that the Arbitrator had not paid attention to the practical realities of the Worker, in his injured condition, actually being able to get and keep a job. The VCC reports did not address the Worker’s practical prospects in the labour market. Rather, they assessed his physical and mental capacities, and matched them to the tasks required to be performed in various jobs. That the Worker had the physical and mental capacity to carry out the tasks involved in some particular job is not sufficient to establish that there was a realistic prospect that anyone would actually give him such a job, or that he would be able to keep it. A further enquiry was needed concerning those matters, and it was that further enquiry that, in the Deputy President’s view, the Arbitrator had failed to carry out.”
The difference between Ric Developments and the present case is that Mr Wolfinger had obtained other employment which was, as the Arbitrator noted at [49], “substantially the same” (my emphasis) as his pre-injury duties. However, there were limitations, as Mr Wolfinger described, which in my view the Arbitrator failed to properly consider. For example, she noted at [50] that Mr Wolfinger said that he receives assistance with heavier tasks in his current employment and that “he was not challenged in relation to that assertion.” However, she goes on to criticise his “own assertion” that he works a split shift at his request because of his symptoms and disability. He was similarly not challenged in relation to that assertion, and there was no basis for the Arbitrator to reject it.
The Arbitrator has paid scant attention to the evidence of Mr Wolfinger, particularly his second statement dated 23 September 2009 wherein he describes the continuing difficulties he has with certain activities, and the rest breaks he takes between shifts.
The Arbitrator’s task was to assess Mr Wolfinger’s entitlement to weekly benefits in light of the fact that he had an agreed 7% WPI in relation to his back. His evidence, supported by Dr Deveridge whose opinion the Respondent accepted in terms of “impairment,” was that he was restricted in his ability to perform certain activities. These factors together are sufficient to demonstrate a “proven incapacity” on the open labour market.
Similar issues were recently considered by President Keating in The Bright Group Pty Ltd v Akdeniz [2009] NSWWCCPD 113 (Akdeniz) where he said at [108]-[109]:
“108. Bright Group’s submission on appeal that the effects of the work injury had resolved on or before 30 September 2004 and/or that at no time relevant to her application had Ms Akdeniz suffered the effects of the work injury, are inconsistent with its agreement on 18 February 2009 to pay compensation for permanent impairment under section 66 in respect of 10% WPI. As observed by Snell ADP in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 at [39]:
‘39. To say that a worker can fail in a claim for weekly compensation, and yet still potentially have an entitlement to lump sum compensation for permanent impairment, is clearly true. It will depend on the basis for the worker’s failure in his weekly claim. A worker may be found to have no entitlement to weekly compensation as there is no economic incapacity, and yet still have a compensable permanent impairment. However if, for example, a worker fails in his weekly claim because there is a finding he has not suffered an injury, or the effects of employment injury have ceased, such a finding is inconsistent with the existence of a compensable permanent impairment caused by the alleged employment injury.’(emphasis added).
109. Whilst it is not disputed that an assessment of disability under section 66 is different from an assessment of incapacity, the AMS assessment of permanent impairment is binding evidence of a continuing disability as a result of the work injury. It is also probative evidence that must be weighed in the determination of Ms Akdeniz’s incapacity for work and her ability to earn in the labour market available to her (see Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155). I accept and agree with Bright Group’s submissions that “parties to a dispute concerning incapacity are bound by findings of permanent impairment.”
The effect of any impairment will vary depending on the individual. As the Court of Appeal observed in Ric Developments:
“43 The reference to a violinist in the passage just quoted is to an example frequently given in explaining the notion of incapacity as used in the Workers Compensation Act. That example was clearly expressed by Mahoney JA (with whom Hope and Samuels JJA agreed) in Yacob v Arnotts Snack Products Pty Ltd [1982] 1 NSWLR 632 at 636, that:
‘... the loss of a finger on his left hand would be disastrous for a violinist, but might result in no relevant incapacity for a trial lawyer.’”
Mr Wolfinger is quite young, and the limitations referred to by Dr Deveridge including restrictions on bending, lifting, and prolonged periods of fixed spinal posture are in my view significant in a man of his age.
Even though Mr Wolfinger was certified fit to perform his pre-injury duties by a number of doctors, that does not determine his entitlement to weekly benefits (see Francis and Diane Elsley t/as Frank Elsley Contracting v Wadwell [2009] NSWWCCPD146). As Deputy President Roche said in Adecco Industrial Pty Ltd v Bilaver [2009] NSWWCCPD 77 at [56]:
“56. The Commission is required to assess his ability to earn in the labour market reasonably accessible to him (see Steggles Pty Ltd v Aguire (1988) 12 NSWLR 693).”
When a worker is employed, his or her actual earnings will be prima facie evidence of ability to earn. As the Court of Appeal said in Aitkin v Goodyear Tyre & Rubber Co (Aust)Ltd (1945) 45 SR (NSW) 20:
“As to the phrase ‘is earning’, it has been held that if the partially incapacitated worker is earning something, his actual earnings must prima facie be taken as the basis…If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes them lower than they should be, the other alternative, ‘what he is able to earn’, must be adopted. This is so where it is shown that he is deliberately taking lower-paid work than he could get or is idling and on this account receiving less than he could be reasonably be expected to obtain, or where his actual earnings have been compulsorily reduced by something unconnected with his injury or general earning power.”
In Pira Pty Ltd t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 (‘Pira’) the Court of Appeal unanimously held:
“The appropriate amount to be applied under section 40(2)(b) in determining the rate of compensation to be awarded under section 40 is, prima facie, the person’s actual earnings after injury unless it is proved that the worker’s actual earnings are not a proper test, because there is some reason unconnected with the worker’s earning power.”
There is no evidence that Mr Wolfinger is “idling”. Indeed, the evidence is clear that, notwithstanding his accepted disability, he persists in seeking further suitable work. This is demonstrated by his recent employment for one shift per week at the Lapstone Hotel which, by his own admission, he has concerns about his ability to maintain.
Although the Arbitrator considered it “unclear” from Mr Wolfinger’s evidence the hours and rate of pay received pre-injury, the parties agreed that pre-injury earnings in both jobs were $1,065.00 per week The hours worked were variable, but Mr Wolfinger clearly stated that he worked “an average” of 38.5 hours per week. Even though, as the Arbitrator noted, there were inconsistencies in the various reports as to pre-injury hours, whether they were 38.5 or 42 (as Dr Singh noted), Mr Wolfinger has clearly worked less hours subsequently and on split shifts for the reasons he stated.
The question is, are those hours and earnings a proper reflection of his ability to earn?
I acknowledge that there is conflicting evidence as to the authenticity of Mr Wolfinger’s complaints. Dr Boundy considered that he was malingering. Dr Deveridge considered that he had a low pain threshold, not uncommon in the wider community. Dr Thomson had an each way bet: in his main report, he had some reservations as to the prognosis, but considered Mr Wolfinger fit for suitable duties (in line with Dr Singh at that time) but in a supplementary report of the same date, he concluded that Mr Wolfinger was fit to perform his usual duties. This clear inconsistency must diminish the weight of Dr Thomson’s opinion.
No reference is made by the Arbitrator (nor indeed the parties) to the opinion of Dr Douglas to whom Dr Deveridge referred. If such a report exists, it was not in evidence. It may simply be an error on the part of Dr Deveridge.
It is fair to say that Mr Wolfinger is performing most of his pre-injury tasks both as a cook and kitchen hand. I accept that he has some limitations in his ability to perform all of the tasks required in those occupations, and in the open labour market as Dr Deveridge described. The change in the basis upon which he is employed may also be a relevant factor in considering his entitlement to weekly benefits.
He is however entitled to an award of weekly payments for the reasons stated above, and in line with the authorities to which I have referred. Before turning to consider the terms of that award, it is appropriate that I make reference to some of the other matters raised by Mr Wolfinger in his appeal which I have not yet canvassed.
Mr Wolfinger submitted that the Arbitrator erred in “making assumptions and then findings” as to his credit, without giving him the opportunity “to provide an explanation.” No further submissions are made on this point. I accept that the Arbitrator appeared critical of Mr Wolfinger on occasions, but in my view, the criticism was directed at the evidence, not to Mr Wolfinger himself. Having determined that the Arbitrator erred in not awarding Mr Wolfinger weekly benefits, it is not necessary to consider this further. In any event, as President Keating said in Redman Holdings Pty Ltd t/as Hibiscus Gardens Caravan Park v Lee [2010] NSWWCCPD4 at [124]:
“Where the worker’s evidence is confirmed by other independent or objective evidence it may be acceptable, but where it is not independently supported it must be assessed with great care to determine whether it can be properly accepted as proof of any matter in issue (see Malco Engineering Pty Limited v Ferreira & Others (1994) 10 NSWCCR 117).”
Other evidence supported Mr Wolfinger’s assertions. Some did not, but its weight was questionable.
This leads me to the issue of the Arbitrator’s acceptance of the expertise of Dr Boundy. I accept Mr Wolfinger’s submission that no adequate reasons were given by the Arbitrator as to the basis upon which she concluded at [42] that “Dr Deveridge as a general surgeon could not have been seen to have the experience and expertise that Dr Boundy would have as a sport medicine specialist…” Dr Deveridge’s qualifications appear superior to those of Dr Boundy, and he is a WorkCover accredited specialist. This is by no means a criticism of the expertise of Dr Boundy, but his opinion could not stand in the face of an agreed impairment of 7%. The tone of Dr Boundy’s reports clearly reflected his adverse opinion of Mr Wolfinger, for example, his expression that he was “rambling about back pain.” It was not surprising that Mr Wolfinger chose to leave that consultation.
Taking into account the totality of the evidence, and in reliance on Mr Wolfinger’s statements and Wage Schedule, I make the following findings:
1. The amount that Mr Wolfinger would probably have earned but for injury is $1065.00 per week.
2. His actual earnings post injury for the relevant period are:
a. For the period 15 June 2008 to 30 June 2008 $503.00 per week
b. For the period 1 July 2009 to 19 August 2009 $670.00 per week
c. For the period 20 August 2009 to date $755.00 per week.
3. The difference between these amounts is as follows:
a. $562.00
b. $395.00
c. $310.00
4. In the exercise of my discretion pursuant to section 40(1) of the 1987 Act, having regard to all of the evidence, particularly the medical evidence as to the extent of Mr Wolfinger’s symptoms and disabilities, and the fact that he is working in substantially similar circumstances, I think a reduction of 50% is appropriate in the circumstances of this case.
CONCLUSION
Having conducted a “review on the merits” (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249) I conclude, for the reasons stated in this decision, that the decision of the Arbitrator was incorrect, and that Mr Wolfinger is entitled to an award of weekly payments.
DECISION
The decision of the Arbitrator dated 23 October 2009 is revoked, and the following decision made in its place:
1. Award in favour of the Applicant pursuant to section 40 of the 1987 Act as follows:
a.For the period 15 June 2008 to 30 June 2009 at the rate of $281.00 per week.
b.For the period 1 July 2009 to 19 August 2009 at the rate of $197.50 per week.
c.For the period 20 August 2009 to date and continuing at the rate of $155.00 per week.
2. The Respondent to pay the Applicant’s costs as agreed or assessed.
COSTS
The Respondent is to pay the Appellant’s costs of the appeal.
Deborah Moore
Acting Deputy President
8 February 2010
I, EMMA LETHBRIDGE-GILL CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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