Ausgrid v Parasiliti

[2020] NSWWCCPD 51

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

CITATION:

Ausgrid v Parasiliti [2020] NSWWCCPD 51

APPELLANT:

Ausgrid

RESPONDENT:

Gaetano Parasiliti

INSURER:

Self-insured

FILE NUMBER:

A1-4765/19

ARBITRATOR:

Ms R Homan

DATE OF ARBITRATOR’S DECISION:

12 December 2019

DATE OF APPEAL DECISION:

6 August 2020

SUBJECT MATTER OF DECISION:

Alleged factual error: application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; an arbitrator’s duty to provide adequate reasons: application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms K Hogan, counsel

BBW Lawyers

Respondent:

Mr C Tanner, counsel

Turner Freeman Lawyers

ORDERS MADE ON APPEAL:

1. To the extent to which it is necessary, leave to appeal is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2.    The Arbitrator’s decision dated 12 December 2019 is confirmed.

INTRODUCTION AND BACKGROUND

1. Gaetano Parasiliti (the respondent) was employed by Ausgrid (the appellant) from 1986 to 9 January 2015, when he accepted a voluntary redundancy. He was employed as an electrical cable technician. Over the many years while he worked with the appellant, the respondent developed problems with his left shoulder and his back. His description of his duties is of arduous physical work. He also developed problems in his right shoulder, although the timing of these is more controversial. He said that by the time he left this employment “the job was becoming too much for me”.[1]

   [1] Respondent’s statement 12/7/19, Application to Resolve a Dispute (ARD), pp 5–7, [5]–[15], [18]–[20].

2. The respondent was assessed at his then solicitors’ request by Dr Giblin, an orthopaedic surgeon, who in reports dated 16 May 2016 and 4 December 2018 assessed him as suffering 16 per cent whole person impairment (increased to 17 per cent in the later report) in respect of his lumbar spine and both upper extremities (shoulders). This was as a result of work injury with the appellant.[2] The respondent, through his solicitors, made claims for permanent impairment compensation on this basis.[3] The appellant had the respondent examined by Dr Machart, an orthopaedic surgeon, who reported on 28 November 2016. The appellant denied liability for the claim for lump sum compensation in a s 74 notice dated 15 December 2016.[4] It raised other issues in correspondence. The s 74 notice disputed, amongst other things, the allegations relating to the right shoulder.

   [2] Dr Giblin’s reports dated 16/5/16 (x 2) and 4/12/18 (x 2), ARD, pp 27–34 and 35–39.

   [3] ARD, pp 8–9, 18–20 and 26.

   [4] ARD, pp 10–15.

3. These proceedings were commenced by way of an ARD dated 12 September 2019. The claim in respect of the right shoulder was pursued on alternative bases. It was alleged the right shoulder was injured due to the ‘nature and conditions’ of the respondent’s employment with a deemed date of injury of 1 May 2012. It was also alleged that the right shoulder condition…