Connelly v Toll Pty Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Connelly v Toll Pty Limited [2009] NSWWCCPD 142
APPELLANT:		Graham Connelly
RESPONDENT:		Toll Pty Limited
INSURER:		Self Insurer
FILE NUMBER:		A1-1926/09
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		3 June 2009
DATE OF APPEAL DECISION:		4 November 2009
SUBJECT MATTER OF DECISION:		Section 151A Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		27 October 2009
REPRESENTATION:		Appellant:		Maurice Blackburn Lawyers
Respondent:		Lucas & Staggs
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 3 June 2009 is revoked and the following decision is made in its place:.
“1. The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an Approved Medical Specialist.
2. The respondent is to pay the applicant’s costs as agreed or assessed.”
The respondent is to pay the appellant’s costs of this appeal.

BACKGROUND TO THE APPEAL

1. Graham Connelly (‘the appellant’) commenced employment with Toll Pty Ltd (‘the respondent’) as a truck driver in 1999. He remained in that employment until 14 July 2005 at which time he received notice of termination from his employer. In the course of his work he received injury to his left shoulder on four separate occasions being 24 November 2003, 10 December 2003, 27 January 2005 and10 June 2005.

1. On 23 November 2006 the appellant instituted proceedings in the Supreme Court of the Australian Capital Territory against his employer as defendant. It was alleged in that statement of claim that, as a result of the negligence of his employer on 27 January 2005, he had suffered injury, loss and damage and a claim was made in respect of damages together with interest. A defence was filed in response to that statement of claim on behalf of the respondent.

1. Those proceedings, being matter number 891 of 2006 (‘the common law proceedings’), were settled by consent and a general form of consent judgment was filed with the Supreme Court registry on 10 October 2007. The appellant on 6 June 2008 claimed lump sums pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of three injuries occurring on 24 November 2003, 10 December 2003 and 10 June 2005. The “body system affected by the injury” was particularised in the form as being “left upper limb”. The claim was for 8 per cent whole person impairment (‘WPI’).

1. The claim for lump sums was declined by the respondent and on 10 November 2008 a notice prepared pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) was forwarded to the appellant. Reference was made in that notice to the provisions of section 151A(1) of the 1987 Act. It was asserted by the respondent that the appellant had “received compensation (sic)” in respect of left shoulder injury and that he was…