Cargill Australia Limited v Hardwick

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cargill Australia Limited v Hardwick [2009] NSWWCCPD 83
APPELLANT:		Cargill Australia Limited
RESPONDENT:		Shane Hardwick
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-9782/08
ARBITRATOR:	Mr G Adelstein
DATE OF ARBITRATOR’S DECISION:		6 April 2009
DATE OF APPEAL DECISION:		20 July 2009
SUBJECT MATTER OF DECISION:		Sufficiency of reasons; section 40 Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:	Walkom Lawyers
Respondent:	Leitch Hasson & Dent
ORDERS MADE ON APPEAL:		Paragraph one of the Arbitrator’s decision dated 6 April 2009 is revoked and the following order is made in its place: “1. Award for the applicant is at the rate of $336.00 per week from 15 July 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.”
Paragraphs two and three are confirmed.
The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 4 May 2009 Cargill Australia Limited (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 April 2009.

1. The respondent to the Appeal is Shane Hardwick (‘the worker’).

1. The worker, who is 49 years of age, commenced employment with the appellant as a labourer on 29 August 2005. He was employed at the appellant’s meat processing plant situated at Wagga Wagga NSW.

1. On 25 August 2006 the worker received a crush injury to his dominant right hand when he reached into an apparatus known as a “pre-breaker” which had become jammed. His wrist and hand region were crushed between portions of the beasts which were being processed. The worker’s right hand became swollen and treatment was immediately provided at the appellant’s clinic.

1. The worker made a claim for worker’s compensation benefits and liability was accepted by the appellant’s insurer. The worker was unable to perform duties for a short period however was soon placed on lighter duties which he continued to perform until his resignation from the employ of the appellant on 14 July 2008. At the time of his resignation the worker had been certified by Dr John Paget, his general practitioner, as being fit for permanently modified duties. The restrictions specified were as follows:

“The worker has the following capabilities for 10 hrs/day 4 days/week
lifting up to 7kg in RT hand.”

1. The worker has not been employed since the date of his resignation and a dispute has arisen concerning a claim made for continuing weekly benefits.  An ‘Application to Resolve a Dispute’ (‘Application’) was filed on his behalf with the Commission on 5 December 2008.

1. The worker’s Application was listed for conciliation/arbitration before an arbitrator on 26 March 2009. A determination of that claim was made by the Arbitrator on 6 April 2009.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 6 April 2009 records the Arbitrator’s orders as follows:

“The Commission determines:

1.I…