Da Ros v Qantas Airways Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision set aside on appeal and remitted: See Da Ros v Qantas Airways Limited [2010] NSWCA 89. Determined on remitter: See Da Ros v Qantas Airways Limited (No 2) [2010] NSWWCCPD 55
CITATION:		Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58
APPELLANT:		Saverio Da Ros
RESPONDENT:		Qantas Airways Limited
INSURER:		Self insurer
FILE NUMBER:		A1-7547/08
ARBITRATOR:	Mr J. Ireland
DATE OF ARBITRATOR’S DECISION:		2 January 2009
DATE OF APPEAL DECISION:		27 May 2009
SUBJECT MATTER OF DECISION:		Sections 4 and 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:	Turner Freeman Lawyers
Respondent:	Moray & Agnew Solicitors
ORDERS MADE ON APPEAL:		The decision of the Arbitrator contained in the Certificate of Determination dated 2 January 2009 is confirmed but for the reasons stated in this decision. No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 29 January 2009 Saverio Da Ros (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 2 January 2009.

1. The Respondent to the Appeal is Qantas Airways Limited (‘the Respondent’).

1. The Appellant, who is 63 years of age, commenced employment with the Respondent on 11 October 1976 as a long haul flight attendant. The Appellant’s duties included service as crewman on international flights. On 8 September 2005 the Appellant arrived in Los Angeles, USA at a time between 6 and 7am local time. The crew, including the Appellant, were transported by the Respondent’s bus to accommodation provided by the Respondent at the Bonaventure Hotel which is located in downtown Los Angeles. That accommodation was made available given the circumstance that the Appellant was scheduled to work as a crewman on a Qantas flight leaving Los Angeles, destination Sydney, at 11pm on 9 September 2005. The interval between arrival and departure is known as “slip-time” and the Appellant was, in accordance with the Enterprise Bargain Agreement which governed the terms of his employment, paid by the Respondent for each hour that he was absent from his home base (Sydney).

1. On 9 September 2005, during slip-time, the Appellant was injured when the bicycle he was riding was struck by another bicycle causing him to fall to the ground. This occurred shortly before 7pm. The Appellant suffered injuries to his dominant right arm and shoulder, his right hand and right knee.

1. The Appellant sought medical treatment in Los Angeles and was unable to report for duty as scheduled later that night. The Appellant was unable by reason of his injuries to attend work until 9 January 2006 at which time he was certified as being fit for restricted ground duties.

1. The Appellant claimed workers compensation benefits on 23 September 2005. The Respondent denied liability. On 19 November 2007 a further claim was made on behalf of the Appellant by his solicitors against the Respondent. That claim,…