Anshaw v Woolstar Pty Ltd

[2020] NSWWCCPD 30

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

CITATION:

Anshaw v Woolstar Pty Ltd [2020] NSWWCCPD 30

APPELLANT:

Cole Anshaw

RESPONDENT:

Woolstar Pty Ltd

INSURER:

Employers Mutual Ltd – as agent for NSW Self Insurance Corporation

FILE NUMBER:

A1-3874/19

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

25 October 2019

DATE OF APPEAL DECISION:

19 May 2020

SUBJECT MATTER OF DECISION:

The duty to give reasons; aggregation pursuant to s 322 of the Workplace Injury Management and Workers Compensation Act1998; application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6; 7 DDCR 288

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms E Grotte, counsel

John Peisley & Associates

Respondent:

Mr T Grimes, counsel

BBW Lawyers

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 25 October 2019 is revoked.

2.     The matter is remitted to another Arbitrator for re-determination.

INTRODUCTION AND BACKGROUND

1. Cole Anshaw (the appellant) worked for Woolstar Pty Ltd (the respondent) from 7 November 2006 as a picker, at Woolworths Wyong Distribution Centre. He picked items for package and distribution to Woolworths stores in New South Wales. He initially carried out this function manually, which was heavy physical work. From 2008 to 2013, he worked on a high reach forklift. He stated that he commenced suffering from neck pain about 12 months after starting on the high reach forklift. He said this work involved looking upwards at racks that were at least five metres high and twisting his neck to look up and backwards, as he reversed withdrawing his load from racking.[1]

   [1] Appellant’s statement 14/5/19 (appellant’s statement), Application to Resolve a Dispute (ARD), p 1, [3]–[7].

2. The appellant stated that he reported injury to his right shoulder and neck on about 24 April 2013 and was taken off the high reach forklift.[2] The appellant had arthroscopic surgery to his right shoulder performed by Dr Hutabarat on 24 April 2013, involving a SLAP repair, bursectomy and decompression.[3] When he resumed work after this surgery, the appellant was returned to manual picking, but of confectionary, which was less heavy than some of the other products. He stated it was repetitive and made his shoulder worse.[4] Claim documents confirm reports of injury on multiple occasions from 2011 to 2017 involving variously the right shoulder, the neck and the lower back.[5]

   [2] Appellant’s statement, ARD, pp 1–2, [8]–[9].

   [3] ARD, p 22.

   [4] Appellant’s statement, ARD, p 2, [12].

   [5] Reply to Application to Resolve a Dispute (Reply), pp 13–26, 100–102, 129–135, 149–151, 199­–200, 250–252.

3. The appellant was assessed at the request of his solicitors by Dr Medhat Guirgis, an orthopaedic surgeon, who reported on 21 November 2018. Dr Guirgis assessed whole person impairment at 15 per cent (cervical spine), 5 per cent (lumbar spine) and 8 per cent (right upper extremity), a total of 26 per cent on the combined tables.

4. Following the most recent of the incidents on 4 November 2017, a slip…