Duncan v Roads & Traffic Authority of NSW

[2007] NSWWCCPD 113

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Duncan v Roads & Traffic Authority of NSW and Anor [2007] NSWWCCPD 113

APPELLANT:  Peter Wayne Duncan

FIRST RESPONDENT:  Roads & Traffic Authority of NSW

SECOND RESPONDENT:  Sungate Pty Limited

INSURERS:GIO General Limited (First Respondent prior to 30 June 1989)

GIO (Treasury Managed Fund) (First Respondent subsequent to 30 June 1989)
GIO Workers Compensation (NSW) Limited (Second Respondent)

FILE NUMBER:  WCC13735-04

DATE OF ARBITRATOR’S DECISIONS:        24 November 2005 and 18 January 2006

DATE OF APPEAL DECISION:  15 May 2007

SUBJECT MATTER OF DECISION: Meaning of ‘decision’ in section 352 of the Workplace Injury Management and Workers Compensation Act 1998; extension of time; application of the ‘disease’ provisions of the Workers Compensation Act 1987; medical histories and section 60 of the Evidence Act 1995; section 40 assessment – intermittency of employment; notice of injury pursuant to section 61 of the 1998 Act.

PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell

HEARING:On the papers

REPRESENTATION:  Appellant: McCabe Partners  

Respondent: Thompson Cooper (First Respondent – prior to 30 June 1989)

Leitch Hasson & Dent (First Respondent – after 30 June 1989)

Abbott Tout (Second Respondent)

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 18 January 2006, is revoked and the following decision is made in its place:

1. That the First Respondent Employer in respect of its insurance interest on risk as at

26 February 1993 pay the Appellant Worker weekly compensation pursuant to section 40 of the 1987 Act as follows:

(i)      $88.69 from 27 February 1993 to 30 June 1993;

(ii)     $98.21 from 1 July 1993 to 30 June 1994;

(iii)   $123.28 from 1 July 1994 to 30 June 1995;

(iv)   $250.80 from 1 July 1995 to 30 September 1995;

(v)     $252.10 from 1 October 1995 to 31 March 1996;

(vi)   $253.70 from 1 April 1996 to 30 June 1996;

(vii)     $190.54 from 1 July 1996 to 30 June 1997;

(viii)   $256.40 from 1 July 1997 to 30 September 1997;

(ix)   $261.30 from 1 October 1997 to 31 March 1998;

(x)     $263.30 from 1 April 1998 to 30 September 1998;

(xi)   $267.90 from 1 October 1998 to 31 March 1999;

(xii)     $272.60 from 1 April 1999 to 30 June 1999;

(xiii)   $68.18 from 1 July 2000 to 30 June 2001;

(xiv)   $243.94 from 1 July 2001 to 30 June 2002;

(xv)     $128.36 from 1 July 2002 to date and continuing.

2.  That the First Respondent Employer in respect of its insurance interest on risk as at 26 February 1993 pay the Appellant Worker’s expenses pursuant to section 60 of the 1987 Act.

3. That the First Respondent Employer in respect of its insurance interest on risk as at 26 February 1993 pay the Appellant Worker’s costs of the proceedings before the arbitrator, and of this appeal. No order as to the costs of the other insurance interest of the First Respondent Employer, or of the Second Respondent Employer.

4.  Award for the…