Di Natale v Ironcrest Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Di Natale v Ironcrest Pty Ltd [2008] NSWWCCPD 70
APPELLANT:		Antonio Di Natale
RESPONDENT:		Ironcrest Pty Ltd
INSURER:		GIO Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC9065-2007
DATE OF ARBITRATOR’S DECISION:		29 February 2008
DATE OF APPEAL DECISION:		3 July 2008
SUBJECT MATTER OF DECISION:		Sections 40 and 43A of the Workers Compensation Act 1987; comparable earnings; calculation of average weekly earnings; probable earnings but for injury; measure of workers remuneration; evidentiary burden.
PRESIDENTIAL MEMBER:		Deputy President Gary Byron
REPRESENTATION:		Appellant:		Frisina Lawyers
Respondent:		Turks Legal
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 29 February 2008 is confirmed.
No order is made as to the costs of the appeal.

BACKGROUND

1. On 28 March 2008 Mr Antonio Di Natale (‘the Appellant Worker/Mr Di Natale’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 29 February 2008.

1. The Respondent to the Appeal is Ironcrest Pty Ltd (‘the Respondent Employer/Ironcrest’).

1. Ironcrest’s insurer was GIO Workers Compensation (NSW) Ltd (‘the Insurer/GIO’) at all relevant times.

1. Mr Di Natale came to Australia from Italy in 1970 and commenced work as a boiler maker/welder.  In 1992 Mr Di Natale conducted his trade as a boilermaker/welder under the company name Ironcrest Pty Ltd.  He and his wife are both directors of Ironcrest.  All work done by Mr Di Natale was charged for by Ironcrest, which in turn paid the expenses associated with its operation, including Mr Di Natale’s wages and his wife’s director fees.

1. On 28 May 2002 Mr Di Natale suffered an injury to his right knee when he slipped on scaffold steps.  He did not return to work as a boilermaker/welder.  Mr Di Natale made a claim on Ironcrest’s insurer, GIO, which acknowledged liability and paid him weekly compensation and medical expenses.

1. Mr Di Natale participated in a work trial in October 2003 with BOC Gases at Milperra.  The work involved “boxing up” customer orders.  He could sit and stand while completing these tasks.  Mr Di Natale says that he found the work enjoyable and initially worked for 12 hours a week as certified by his General Practitioner, Dr Genua.  This was further extended to 15 hours a week.  The Rehabilitation Provider, Energise, wanted Mr Di Natale to further increase his hours, however Dr Genua refused to certify him as fit for any additional hours.  As a result Mr Di Natale was unable to continue in the position and the work trial ended in December 2003.

1. In February 2004 Mr Di Natale commenced proceedings in the Commission seeking lump sum compensation for permanent impairment. In June 2006 the parties registered an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’), under which Mr Di Natale was paid $5,625 for an agreed 4.5% whole person impairment as a result of the injury to his right knee.

1. Mr Di Natale took…