Casey v Cullen Auto Group Pty Ltd

[2012] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Casey v Cullen Auto Group Pty Ltd [2012] NSWWCCPD 7
APPELLANT:		Francis Casey
RESPONDENT:		Cullen Auto Group Pty Ltd
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-9446/10
ARBITRATOR:	Mr R Caddies
DATE OF ARBITRATOR’S DECISION:		31 August 2011
DATE OF APPEAL DECISION:		14 February 2012
SUBJECT MATTER OF DECISION:		Appeals; effect of amendment of Certificate of Determination under slip rule; extension of time to appeal; fresh evidence or additional evidence on appeal; s 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether reconsideration power permits Presidential member to reconsider a decision by an Arbitrator; costs thrown away by adjournment of arbitration
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Walker Legal
Respondent:	Stephen Lee Legal
ORDERS MADE ON APPEAL:		1.       Time to appeal is extended until 5 October 2011. 2.       Paragraphs 1 and 2 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, are confirmed. 3.       Paragraph 3 of the Certificate of Determination dated 31 August 2011, as amended on 7 September 2011, is revoked and the following order made in its place: “3.  The respondent employer is to pay the applicant worker’s costs and disbursements thrown away by the adjournment on 30 March 2011. The applicant’s professional costs are assessed at $1,100 with disbursements relating to travelling expenses for that day to be agreed or assessed.” 4.       Each party is to pay his or its own costs of the appeal.

INTRODUCTION

1. This appeal concerns:

   (a)     the effect of an amendment of a Certificate of Determination under the slip rule and whether the amendment dates from the date of the original certificate or from the date of the amendment;

   (b)     extension of time to appeal;

   (c)     fresh evidence or additional evidence on appeal and the circumstances in which that evidence will be admitted on appeal;

   (d) whether a Presidential member has power to reconsider an Arbitrator’s decision under s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and

   (e)     whether, in circumstances where an applicant worker has failed with his substantive claim for compensation, that applicant is entitled to costs thrown away by an adjournment because of the respondent’s failure to appear on an earlier date.

BACKGROUND

1. The appellant worker, Francis Casey, started work as a car salesman with the respondent employer, Cullen Auto Group Pty Ltd, in August 2007. He injured his back and knees in the course of his employment on 11 March 2008 when his chair collapsed, causing him to hyperextend his back and causing his knees to hit his desk. He had surgery to his back in the form of a laminectomy in April 2009, performed by Dr Spittaler, neurosurgeon, for which the respondent accepted liability.

2. On 17 November 2010, he lodged an Application to Resolve a Dispute in the Commission in which he claimed weekly compensation from 28 September…