Coverbid Pty Ltd t/as Eclipse Couriers v Geary

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Coverbid Pty Ltd t/as Eclipse Couriers v Geary [2012] NSWWCCPD 36
APPELLANT:		Coverbid Pty Limited t/as Eclipse Couriers
RESPONDENT:		Francis Geary
INSURER:		Allianz
FILE NUMBER:		A1-9793/11
ARBITRATOR:	Ms J Connelly
DATE OF ARBITRATOR’S DECISION:		28 March 2012
DATE OF APPEAL DECISION:		6 July 2012
SUBJECT MATTER OF DECISION:		Contractor taken to be worker; Sch 1 cl 2 to the Workplace Injury Management and Workers Compensation Act 1998; sufficiency of reasons
PRESIDENTIAL MEMBER:		Acting President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	DLA Piper Australia
Respondent:	Thurlow Fisher Lawyers
ORDERS MADE ON APPEAL:		1.       The Arbitrator’s findings, orders and determinations recorded in Certificate of Determination dated 28 March 2012 are confirmed. 2.       The appellant is to pay the worker’s costs of the appeal.

BACKGROUND

1. Mr Francis Neil Geary was engaged as a courier driver by Coverbid Pty Ltd trading as Eclipse Couriers (the appellant) on 8 October 2009. Mr Geary performed that work until he was injured on 14 January 2010. Mr Geary ceased work and consulted his general practitioner, Dr Hettiaratchi. He was referred to Dr Popoff, orthopaedic surgeon, for investigation of a right shoulder injury. Mr Geary has undergone two surgical procedures to that shoulder. It is alleged that the right shoulder injury has given rise to whole person impairment.

2. Mr Geary made a claim for workers compensation benefits against the appellant. That claim was declined upon the basis that, at the time of injury, Mr Geary was not a worker within the meaning of that term as defined in the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. An Application to Resolve a Dispute (the Application) was filed with the Commission on Mr Geary’s behalf in November 2011. That Application sought orders for weekly payments, medical expenses and a lump sum in respect of the alleged whole person impairment. The Application came before Arbitrator Connelly for conciliation and arbitration on 23 February 2012. Mr Geary amended the Application by withdrawal of the claim in respect of ongoing weekly payments.

4. The matter proceeded to arbitration and the Arbitrator reserved her decision. A Certificate of Determination was issued on 28 March 2012 accompanied by a Statement of Reasons (Reasons). That Certificate made the following notation, orders and determinations:

   “The Commission determines:

   1.       By consent the claim for weekly compensation is discontinued.

   2.       The Application to Admit Late Documents filed by the respondent on 16 December 2011 is admitted into evidence.

   3. On 14 January 2010 the applicant was a deemed worker under clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 when he suffered an injury to his right shoulder, arm and hand.

   4.       The permanent impairment dispute is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of whole person impairment as follows:

   Date of injury: 14 January 2010
   Body part referred: Right upper extremity
   Documents to be…