CSR Limited v Jong

[2008] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		CSR Limited v Jong [2008] NSWWCCPD 69
APPELLANT:		CSR Limited
RESPONDENT:		Joao Alcino Martins Jong
INSURER:		CSR Limited (self insurer)
FILE NUMBER:		WCC7020-07
DATE OF ARBITRATOR’S DECISION:		5 March 2008
DATE OF APPEAL DECISION:		3 July 2008
SUBJECT MATTER OF DECISION:		Sections 4, 9A, 38 and 38A of the Workers Compensation Act 1987; fresh evidence; adequacy of evidence to support findings of injury and incapacity; adequacy of reasons; impact of video evidence; decision to permit amendment of the claim; section 261(1) of the Workplace Injury Management & Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:		Leigh Virtue & Associates
Respondent:		Frisina Lawyers
ORDERS MADE ON APPEAL:		(1)     The decision of the Arbitrator dated 5 March 2008 is revoked and the following decision made in its place. (a) The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the 1987 Act as follows: (i) From 28 May 2007 at the rate of $568.50 per week for a period of 26 weeks to 27 November 2007; and (ii)From 28 November 2007 to 27 May 2008 at the rate of $568.50per week. (b)     The Respondent to pay the Applicant’s section 60 expenses. (c)     The Respondent to pay the Applicant’s costs as agreed or assessed. (2)   The matter is remitted to the Arbitrator at first instance for the determination of the Applicant’s entitlements to weekly compensation (if any) after 27 May 2008. (3)   The Appellant, CSR, is to pay 80% of the Respondent, Mr Jong’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 1 April 2008 CSR Limited (‘the Appellant/CSR’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 5 March 2008.

1. The Respondent to the Appeal is Joao Alcino Martins Jong (‘the Respondent/Mr Jong).

1. Mr Jong is presently 53 years of age. He was born in East Timor and came to Australian in 1980. He commenced employment with CSR in September 1987. He was principally employed at CSR’s PGH Brickworks at Horsley Park as a burner operator/kiln operator.

1. In about May 2004 Mr Jong suffered an injury to his right shoulder at work. Following treatment, he resumed employment with CSR on ‘selected duties’ whereby use of his right arm and shoulder was restricted.

1. Mr Jong claimed that in about September 2006 he was required to resume ‘normal duties’. These duties included pushing and pulling of carts in and out of kilns. The carts weighed approximately 70 kilograms.

1. Mr Jong claimed that, in order to protect his right shoulder, he would push the carts mainly using his left leg. Mr Jong claimed that on 16 December 2006 whilst at work he felt severe pain in his left hip, back and left foot.

1. He consulted his general practitioner, Dr So, remained at work until 19 December 2006 and then took holidays.