Klemke v Grenfell Commodities Pty Ltd

[2011] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Klemke v Grenfell Commodities Pty Ltd [2011] NSWWCCPD 27
APPELLANT:		John Klemke
RESPONDENT:		Grenfell Commodities Pty Ltd
INSURER:		Allianz Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6848/10
ARBITRATOR:	Mr J Phillips
DATE OF ARBITRATOR’S DECISION:		11 January 2011
DATE OF APPEAL DECISION:		23 May 2011
SUBJECT MATTER OF DECISION:		Whether employment connected with New South Wales; section 9AA of the Workers Compensation Act 1987; meaning of “temporary arrangement”
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Slater & Gordon Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 19 January 2011 is confirmed. No order as to costs.

BACKGROUND

1. The appellant worker, Mr John Klemke, commenced employment with the respondent employer, Grenfell Commodities Pty Ltd (Grenfell Commodities), on or about 24 November 2009. Subject to a trial or probationary period of three weeks, he was employed to work as a site manager at the employer’s premises at Kwinana Beach, Western Australia.

2. Mr Klemke alleged that during the trial or probationary period, he injured his left ankle on or about 10 December 2009, when he twisted his ankle after stepping on a piece of timber.

3. Mr Klemke continued working for Grenfell Commodities in Western Australia for the duration of the trial or probationary period which ended on 16 December 2009, when he returned to New South Wales. He did not return to the duties in Western Australia on 4 January 2010, as previously arranged, and has not worked since. He alleges he is incapacitated by reason of the injury on 10 December 2009.

4. Mr Klemke received voluntary payments of weekly compensation to 16 June 2010.

5. On 3 June 2010, Allianz issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and under s 54 of the Workers Compensation Act 1987 (the 1987 Act). It denied liability for weekly payments after 17 June 2010, among other things, on the basis that the worker’s employment was not connected with the State of New South Wales pursuant to s 9AA of the 1987 Act on the grounds that:

   (a)     Mr Klemke was employed as a site manager at the respondent’s premises at Kwinana Beach, Western Australia when he was allegedly injured;

   (b)     Mr Klemke was not injured in the course of his employment, and, if he was injured in the course of his employment, his employment was not a contributing factor to his injuries.

6. In an Application to Resolve a Dispute (the Application) registered in the Commission on 24 August 2010, Mr Klemke claimed weekly payments of compensation from 17 June 2010, alleging injuries to his left ankle occurring on 10 December 2010 in the course of his employment at Kwinana Beach, Western Australia. Mr Klemke also claimed medical expenses associated with the treatment of his injuries.

7. The respondent’s solicitors filed a Reply on 14 September 2010. It denied liability for weekly…