Hume v CSR Ltd

[2015] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hume v CSR Ltd [2015] NSWWCCPD 7
APPELLANT:	Thomas Hume
RESPONDENT:	CSR Ltd
INSURER:	Self-insured
FILE NUMBER:	A1 and A2-4722/13
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:	9 October 2014
DATE OF APPEAL DECISION:	3 February 2015
SUBJECT MATTER OF DECISION:	Failure to determine all issues in dispute; failure to consider submissions made on entitlement to weekly compensation; failure to consider the legislation; failure to consider if worker had a current work capacity; meaning of suitable employment; relevance of worker’s failure to disclose prior back injury when applying for post-injury employment; whether post-injury employment was “artificial” and therefore not suitable employment because of non-disclosure of prior back injury; relevance of unavailability of suitable employment on the open labour market; ss 32A, 36 and 37 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; extension of time to appeal; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; absence of provision for a cross-appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Taylor & Scott Lawyers
Respondent:	Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1.       Time to appeal in the appeal filed by CSR Ltd is extended until 11 November 2014. 2.       Paragraphs 1 and 2 of the Certificate of Determination of 9 October 2014 are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3.       Each party is to pay his or its own costs of the appeals. 4.       Costs of the second arbitration, and of the first arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

1. In this matter, both parties have appealed. The issues raised concern the worker’s entitlement to weekly compensation in the first and second entitlement periods in ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act), and the meaning of “suitable employment” in s 32A. (All references to the 1987 Act in this decision are to that Act, as amended by the 2012 amending Act.)

2. The employer’s challenge relates to the Arbitrator’s decision to award weekly compensation for a period on the basis that the worker had no current work capacity, but without giving any reasons, considering the legislation or the submissions made in opposition to such an award.

3. The worker’s challenge relates to the Arbitrator’s decision not to award continuing weekly compensation for the period after his post-injury employment was terminated. The essential issue is whether the relevant post-injury employment was “artificial”, and therefore not “suitable employment”, as defined, because the worker obtained the employment by not disclosing his previous back injury, it being accepted that, had he done so, he would not have obtained the relevant employment. There is also an issue as to whether the worker lost his post-injury employment…