Adecco Industrial Pty Limited v Bilaver

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Adecco Industrial Pty Limited v Bilaver [2009] NSWWCCPD 77
APPELLANT:		Adecco Industrial Pty Limited
RESPONDENT:		Frank Bilaver
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-9211/08
ARBITRATOR:	Ms S Duncombe
DATE OF ARBITRATOR’S DECISION:		6 April 2009
DATE OF APPEAL DECISION:		9 July 2009
SUBJECT MATTER OF DECISION:		Partial incapacity; weekly compensation; section 40 Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Gillis Delaney Lawyers
Respondent:	Eugene Lepore & Associates
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 6 April 2009 is confirmed. The appellant employer is to pay the respondent worker’s costs, which I assess at $2,200.00 plus GST.

BACKGROUND

1. The appellant, Adecco Industrial Pty Limited (‘Adecco’), is a labour hire company.  It placed the respondent, Mr Bilaver, on its books in 2006.  In the first few months it found work for him at different locations on an “on call” basis, but not working a full week.  After a few months, Mr Bilaver was placed with CSR Fibre Cement (‘CSR’) at Wetherill Park as a forklift driver/factory hand, a position he started in or about March 2007.

1. On 31 May 2007, Mr Bilaver fell while working at CSR’s premises and sustained a fracture at the base of the fifth metatarsal in his right foot.  The occurrence of the injury is not disputed and the claim was accepted.

1. On 17 September 2008, Mr Bilaver claimed lump sum compensation in the sum of $11,000.00 in respect of an 8 percent whole person impairment as a result of his injury.  That claim was denied.  Liability for continuing weekly compensation was also denied by QBE Workers Compensation (NSW) Limited (‘QBE’) by notice dated 14 November 2008 on the grounds that Mr Bilaver’s treating physicians had certified him fit to resume his pre-injury duties from 30 April 2008.

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 19 November 2008, Mr Bilaver sought weekly compensation from 1 May 2008 to date and continuing together with lump sum compensation in respect of an 8 percent whole person impairment.

1. Adecco disputed liability on the grounds set out in its Notice dated 14 November 2008.

1. On 26 February 2009, Dr McGroder, approved medical specialist (‘AMS’), assessed Mr Bilaver to have a 1 percent whole person impairment as a result of his work injury and issued a medical assessment certificate (‘MAC’) to that effect.

1. The matter was listed for hearing before Arbitrator Duncombe on 12 March 2009.  Mr Bilaver gave oral evidence and was cross-examined and the parties made submissions through their respective counsel.  In a reserved decision delivered on 6 April 2009, the Arbitrator found in favour of Mr Bilaver.  The Commission’s Certificate of Determination dated 6 April 2009 records the following formal orders:

“The Commission determines:

1.     That the Respondent pay the Applicant pursuant to s.66 of the 1987 Act the sum of $1375…