Fairfield City Council v Arduca

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: On appeal to the Court of Appeal
CITATION:	Fairfield City Council v Arduca [2014] NSWWCCPD 31
APPELLANT:	Fairfield City Council
RESPONDENT:	Giuseppe Arduca
INSURER:	Self-insured
FILE NUMBER:	A1-304/13
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISIONS:	11 December 2013 and 11 February 2014
DATE OF APPEAL DECISION:	29 May 2014
SUBJECT MATTER OF DECISION:	Procedural fairness; s 354 of the Workplace Injury Management and Workers Compensation Act 1998; Commission informing itself; notice of injury; s 254 of the Workplace Injury Management and Workers Compensation Act 1998; weekly payments; former s 40 of the Workers Compensation Act 1987; onus of proof of unreasonable failure to comply with requirements of Ch 3 of the Workplace Injury Management and Workers Compensation Act 1998; former s 57 of the Workplace Injury Management and Workers Compensation Act 1998; challenge to factual findings
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Villari & Co Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s findings found in Certificate of Determination dated 11 December 2013 are confirmed. 2.       The orders found in Certificate of Determination dated 11 February 2013 are confirmed. 3.       The appellant is to pay Mr Arduca’s costs of the appeal.

BACKGROUND

1. Mr Giuseppe Arduca was employed by Fairfield City Council (the appellant) as a general handyman and truck driver between 1988 and 19 April 2010. It is not in dispute that, on 9 March 1995, Mr Arduca received injury to his back in the course of his employment. At the date of that injury the appellant was insured in respect of worker’s compensation liability by Allianz Australia Worker’s Compensation (NSW) Limited (Allianz). The appellant became a self-insurer within the meaning of s 3 of the Workers Compensation Act 1987 (the 1987 Act) on 1 January 2002.

2. Proceedings were commenced against the appellant by Mr Arduca in the former Worker’s Compensation Court of NSW in 2000 seeking awards of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act in respect of permanent impairment of his back and permanent loss of efficient use of his right leg, said to have resulted from the injury received in 1995. Those proceedings were settled by agreement. Orders were made, by consent, which provided for payment of lump sums in respect of 15 per cent impairment of the back, 5 per cent loss of efficient use of the right leg, together with a lump sum of $7,250, pursuant to s 67.

3. Mr Arduca alleges that, subsequent to that settlement, he has suffered further injury to his back by reason of the physical demands of his work with the appellant and, in particular, as a result of heavy lifting performed on 16 October 2008. It is further alleged that, as a result of that lifting incident, he suffered bilateral inguinal hernias. Some compensation benefits were paid by the appellant in respect of incapacity,…