Awick v Formcorp Pty Ltd

[2009] NSWWCCPD 61

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Awick v Formcorp Pty Ltd [2009] NSWWCCPD 61
APPELLANT:		Mohammad Awick
RESPONDENT:		Formcorp Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A2-7692-08
ARBITRATOR:	Ms J. Conley
DATE OF ARBITRATOR’S DECISION:		18 February 2009
DATE OF APPEAL DECISION:		3 June 2009
SUBJECT MATTER OF DECISION:		Section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		P K Simpson & Co
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		Leave to appeal the Arbitrator’s decision dated 18 February 2009 is refused. No order as to cost of the appeal.

BACKGROUND TO THE APPEAL

1. On 9 March 2009 Mohammad Awick (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 February 2009.

1. The Respondent to the Appeal is Formcorp Pty Ltd (‘the respondent’).

1. The appellant, who is 28 years of age, commenced employment with the respondent on 30 June 2007 as a formwork-stripper. On that first day of employment the appellant was clearing debris on a worksite at Roseberry NSW when he was struck by a number of scaffold pipes which had fallen towards him as he was dislodging a wooden plank beneath those pipes. The pipes struck the appellant on the forehead and the chest causing him to fall onto his back.

1. As a result of the incident the appellant sustained a laceration to his forehead and was other wise injured.

1. The appellant was transported to the Prince of Wales Hospital by ambulance where he received treatment at the outpatients department. Treatment received at the hospital included the insertion of four nylon sutures at the site of the scalp laceration.

1. The appellant did not return to work by reason of his injuries and made a claim in respect of workers compensation benefits. Whilst there was subsequently a dispute between the appellant and the respondent concerning employment it appears that the respondent’s insurer accepted liability, initially on a provisional basis, and weekly payments were made until 22 December 2007.

1. A dispute arose between the parties concerning entitlement to and liability for compensation benefits and an Application to Resolve a Dispute (‘Application’) was filed on the appellant’s behalf by his solicitors on 25 September 2008.

1. It was alleged in that Application that as a result of the incident on 30 June 2007 the appellant had received injury to his head, neck, right arm, left arm, chest, back, right leg, right foot, left leg, bowel function, sexual organs, scarring and it was further alleged that he suffered anxiety and/or depression.

1. The respondent defended the Application brought by the appellant and the matter came before an arbitrator for conciliation/arbitration on 21 January 2009. The respondent at the arbitration hearing denied employment of the appellant, disputed the injuries as particularised in the Application and denied the alleged incapacity.

1. Following conduct of the…