Howlett v Coles Logistics Pty Ltd

[2009] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Howlett v Coles Logistics Pty Ltd [2009] NSWWCCPD 5
APPELLANT:		David Russell Howlett
RESPONDENT:		Coles Logistics Pty Ltd
INSURER:		Coles Group Ltd – self insurer
FILE NUMBER:		WCC5125-08
DATE OF ARBITRATOR’S DECISION:		3 September 2008
DATE OF APPEAL DECISION:		20 January 2009
SUBJECT MATTER OF DECISION:		Employer’s application to review award; section 55 of the Workers Compensation Act 1987; whether the Arbitrator correctly determined the Worker’s entitlement pursuant to section 40 of the 1987 Act in accordance with the principles in Mitchell v Central West Health Service (1997) 14 NSWCCR 527
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bussoletti Lawyers
Respondent:	Lander & Rogers
ORDERS MADE ON APPEAL:		1.       The appeal is successful for the reasons set out in Coles Logistics Pty Limited v Howlett [2009] NSWWCCPD 6 2.       Coles Logistics Pty Limited is to pay the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 11 September 2008 David Russell Howlett (‘the Appellant/Mr Howlett’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 3 September 2008.

1. The Respondent to the Appeal is Coles Logistics Pty Limited (‘the Respondent /Coles’).

1. On 1 October 2008 Coles Logistics Pty Limited also filed an appeal against the same decision. That appeal is the subject of review in Coles Logistics Pty Limited v Howlett [2009] NSWWCCPD 6.

1. Mr Howlett’s appeal is confined to the issue as to whether the Arbitrator correctly calculated his entitlement in accordance with the principles set out in Mitchell v Central West HealthService (1997) 14 NSWCCR 527 (‘ Mitchell’). Briefly, the Arbitrator found that Mr Howlett’s probable earnings were $856.45 per week, and that his ability to earn, from 23 July 2008, was $554.40. Although accepting that his reduction in earnings was $302.05 per week, she deducted this amount from the statutory rate for a worker with two dependent children resulting in an award at the rate of $230.85 per week. Mr Howlett submits that the award made in his favour should have been at the rate of $302.05 per week.

1. In its ‘Notice of Opposition’ filed on 30 September 2008, Coles submits that it has “…no legal basis to oppose [Mr Howlett’s] sole Ground of Appeal.”   That is correct. There is simply no basis in law for such a result.

1. Accordingly, this appeal is successful. Coles challenges the Arbitrator’s determination on a number of grounds such that it is appropriate for me to firstly consider the substantive matters raised in its appeal to determine whether or not Mr Howlett has any entitlement to weekly benefits.

1. For all information, reasons, findings and the determination of this appeal, see Coles Logistics Pty Limited v Howlett [2009] NSWWCCPD 6.

DECISION

1. The appeal is successful for the reasons set out in Coles Logistics Pty Limited v Howlett [2009] NSWWCCPD 6.

COSTS

1. Coles Logistics Pty Limited is to pay the costs of this appeal.

Deborah Moore

Acting Deputy President  

20 January 2009

I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE