Cronje v Leighton Contractors Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cronje v Leighton Contractors Pty Ltd [2015] NSWWCCPD 16
APPELLANT:	Guill Cronje
RESPONDENT:	Leighton Contractors Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3829/14
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	31 October 2014
DATE OF APPEAL DECISION:	3 March 2015
SUBJECT MATTER OF DECISION:	Claim for weekly compensation for psychological injury; whether s 74 notice disputed current work capacity; whether Arbitrator erred in determining that worker had no economic incapacity from a specified date; failure to give reasons; failure to determine claim for weekly compensation in accordance with the legislation; ss 32A, 35 and 37 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; need to apply the new terminology introduced by the Workers Compensation Legislation Amendment Act 2012; relevance of post-injury work in worker’s own business; assessment of ability to earn in suitable employment where worker effectively self-employed; relevance of earnings of worker’s own business
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott Lawyers
Respondent:	BBW Lawyers
ORDERS MADE ON APPEAL:	1.       Paragraphs 1, 2, 4 and 5 of the Certificate of Determination of 31 October 2014 are confirmed. 2.       Paragraph 3 of the Certificate of Determination of 31 October 2014 is revoked and the matter remitted to a different Arbitrator for re-determination of the appellant worker’s entitlement to weekly compensation from 1 April 2014 to date and continuing. 3.       No order as to costs.

INTRODUCTION

1. This appeal concerns whether the worker’s capacity to work was an issue properly before the Senior Arbitrator, that is, if it was a matter disputed in the s 74 notice and, if it was, whether the Senior Arbitrator erred in deciding that the worker had no entitlement to weekly compensation after a date and in giving no reasons for that finding. For the reasons explained below, the first point is unsuccessful but the second and third are upheld. As a result, part of the claim must be re-determined.

BACKGROUND

1. The appellant worker, Guill Cronje, worked for the respondent employer, Leighton Contractors Pty Ltd, as a plumber. On 15 August 2012, he suffered a needle stick injury while pumping water out of a sediment pond. He reported the incident and saw the company doctor. Blood tests were arranged and Mr Cronje was certified fit for work.

2. As a result of the needle stick injury, Mr Cronje developed major depression, which forced him to stop work at the end of January 2013. The insurer accepted the claim and paid weekly compensation until 3 October 2013, having disputed liability in a s 74 notice dated 22 August 2013.

3. Essentially, liability was disputed because:

   (a) any incapacity within the meaning of s 33 of the Workers Compensation Act 1987 (the 1987 Act) which may have resulted from any work-related injury ceased by 3 July 2013;

   (b)     Mr Cronje was fit for his…