Dick v Steelfixed Pty Ltd (in liquidation)

[2009] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Dick v Steelfixed Pty Ltd (in liquidation) [2009] NSWWCCPD 7
APPELLANT:		James Robert George Dick
RESPONDENT:		Steelfixed Pty Ltd (in liquidation)
INSURER:		GIO General Limited
FILE NUMBER:		A1-4495/08
DATE OF ARBITRATOR’S DECISION:		18 September 2008
DATE OF APPEAL DECISION:		23 January 2009
SUBJECT MATTER OF DECISION:		Effect in law of prior Consent Order; partial incapacity (section 40 of the Workers Compensation Act 1987)
PRESIDENTIAL MEMBER:		Acting Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		PK Simpson & Co
Respondent:		Turks Legal
ORDERS MADE ON APPEAL:		1.	Paragraphs 1, 3 and 4 of the decision of the Arbitrator dated 18 September 2008 are confirmed.
2.	Paragraph 2 of the decision of the Arbitrator dated 18 September 2008, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
3.	No order as to costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 22 October 2008 James Robert George Dick (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 September 2008.

1. The Respondent to the Appeal is Steelfixed Pty Ltd (in liquidation) (‘the Respondent’). 

1. As the Respondent has been wound up, and upon the Appellant’s application, the Commission declares pursuant to section 162(1) of the Workers Compensation Act 1987 (‘the 1987 Act’) that:

(1)   the Respondent is a deregistered corporation which has ceased to exist, and

(2)   the Respondent had, before ceasing to exist, entered into a contract with the insurer GIO General Ltd, in respect of liability to the Appellant under the 1987 Act.

1. The Appellant, who is 50 years of age, was born in New Zealand and arrived in this country in 1979.  He completed his schooling at the age of 16 since which time he has had various forms of employment.  It must be said at the outset that the evidence before the Commission concerning, in particular, the Appellant’s work history is scant and lacking in detail.  It seems that the Respondent Company was established by the Appellant in NSW on some unspecified date but probably in 1987.  Thereafter the Appellant was employed by the Respondent as a Steel Fixer.  The Appellant’s work history with the Respondent is, having regard to the state of the evidence, uncertain.  It appears that the Appellant continued performing his duties until a date in 1995 or 1996 at which time he ceased work by reason of general health problems.  The evidence suggests that the Appellant’s cessation of work was occasioned by reason of either a depressive psychological state or general health problems including back disability or by reason of a combination of such ill health.  There is no evidence that any claim for compensation was made as against the Respondent prior to the occurrence of an injury on the first day of his return to work on 6 November 1997.  On that…