Haddadi v Bunnings Group Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Haddadi v Bunnings Group Limited [2010] NSWWCCPD 43
APPELLANT:		Kamran Haddadi
RESPONDENT:		Bunnings Group Limited
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-7512/09
ARBITRATOR:	Mr R O’Moore
DATE OF ARBITRATOR’S DECISION:		1 December 2009
DATE OF APPEAL DECISION:		23 April 2010
SUBJECT MATTER OF DECISION:		Section 40(2A) of the Workers Compensation Act 1987; suitable employment; unreasonable rejection of suitable employment
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Carroll & O’Dea
Respondent:	Lucas & Staggs
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 1 December 2009 is revoked and the matter is remitted to a different Arbitrator for the applicant worker’s entitlements to compensation to be re-determined in accordance with the reasons in this decision.
The respondent employer is to pay the applicant worker’s cost of the appeal, as agreed or assessed.

BACKGROUND

1. The appellant worker, Mr Haddadi, started work with the respondent employer, Bunnings Group Limited (‘Bunnings’), as a co-ordinator at its Dural store in May 2006.  He performed a number of administrative duties, but also lifted stock, such as timber beams.

1. On 21 July 2006, Mr Haddadi tripped on a staircase at the Dural warehouse and fell down several steps, injuring his shoulders and right knee.  The injury was reported and liability accepted.  Mr Haddadi’s right shoulder symptoms continued and made it difficult for him to lift stock.  As no suitable duties were available at Dural, he was transferred to Bunnings’ Norwest store, where he assisted the building co-ordinator.

1. On 30 November 2006, Mr Haddadi underwent surgery to his right shoulder, and was unfit for any work until late February 2007.  He ultimately returned to restricted duties at Norwest in 2007 and underwent a manipulation to his right shoulder under a general anaesthetic in November 2007.  He returned to full-time duties, but with a 10 kg lifting restriction and a restriction on lifting above shoulder level.  He was not to pull or push heavy material. Notwithstanding these restrictions, Mr Haddadi’s evidence is that Bunnings expected him to lift items that weighed more than 15 kg.

1. By letter dated 11 August 2008, Mr Haddadi resigned from his position as a co-ordinator with Bunnings, but requested that he be provided with part-time employment for between 15 and 20 hours per week, but only between 5.00 pm and 9.00 pm Monday to Friday.  By letter dated 4 September 2008, Bunnings’ operations manager, Shane Fuller, stated that it was not possible to accommodate Mr Haddadi’s request, and that his employment would cease immediately.

1. On a date not identified in the evidence, Mr Haddadi purchased a franchise known as “Jim’s Building and Maintenance”, a business he continues to operate in his own name.

1. By letter dated 22 January 2009, Mr Haddadi’s solicitors, Carroll & O’Dea, claimed weekly compensation on his behalf from 11 August 2008 to date and continuing, in the sum of $850.00 per week. 

1. By letter dated 8 July…