Box v APK Engineering Pty Ltd

[2009] NSWWCCPD 149

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Box v APK Engineering Pty Ltd [2009] NSWWCCPD 149
APPELLANT:		Neil Thomas Box
RESPONDENT:		APK Engineering Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-3655/09
ARBITRATOR:	Ms J. David
DATE OF ARBITRATOR’S DECISION:		11 August 2009
DATE OF APPEAL DECISION:		25 November 2009
SUBJECT MATTER OF DECISION:		“Additional evidence” pursuant to section 352(6) of the Injury Management and Workers Compensation Act 1998; application of Haider v JP Morgan Holdings Auist Ltd (t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158, 4 DDCR 634
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:	Slater & Gordon
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 11 August 2009, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons. The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 9 September 2009 Neil Thomas Box (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 11 August 2009 (the Certificate of Determination due to a typographical error describes its date as 11 August 2008).

1. The Respondent to the Appeal is APK Engineering Pty Ltd (‘the Respondent Employer’).

1. The Appellant Worker is 51 years of age, and ultimately claimed two children as dependants. He is illiterate. He had been an upholsterer, but for many years prior to the alleged injury had worked in the steel industry. He worked with the Respondent Employer  for a number of years as a steel fabricator.

1. His claim related to an alleged incident on 7 May 2008. He stated he was using a large steel guillotine to cut pieces of steel, the weight of which he estimated at 90 kilograms. A piece of steel had dropped down whilst being cut. As the Appellant Worker pulled it back to its appropriate position on the table that supported it, he experienced mid-back pain. He said  the pain persisted, and on the date of injury he reported at work to Mr Mentiplay that he had hurt his back, left early, and attended Mildura Base Hospital. The Appellant Worker lodged a claim form dated 26 June 2008.

1. The claim presented at the arbitration hearing was on the basis of total incapacity from 7 May 2008 to 6 August 2008, and thereafter partial incapacity pursuant to section 40. There was an ongoing loss from 6 August 2008, flowing from the Appellant Worker working five hours per day, rather than his previous full time hours.

1. Liability for the claim was denied by the Respondent Employer’s insurer, a section 74 Notice dated 2 October 2008 disputed inter alia that the Appellant Worker had suffered an injury, and that employment was a substantial contributing factor to injury.

1. The matter proceeded to arbitration hearing on 7 August 2009. Both…