Kolak v Hunani Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Kolak v Hunani Pty Ltd and anor [2008] NSWWCCPD 60
APPELLANT:		Percia Kolak
FIRST RESPONDENT: SECOND RESPONDENT:		Hunani Pty Ltd Dynamic Formwork (NSW) Pty Ltd
FIRST RESPONDENT’S INSURER: SECOND RESPONDENT’S INSURER:		GIO Workers Compensation (NSW) Limited GIO Workers Compensation (NSW) Limited
FILE NUMBER:		WCC1628-07
DATE OF ARBITRATOR’S DECISION:		22 February 2008
DATE OF APPEAL DECISION:		19 June 2008
SUBJECT MATTER OF DECISION:		Lump sum compensation; multiple post 31 December 2001 injuries; circumstances in which the effects of multiple injuries can be aggregated to meet the threshold for compensation under section 67 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Taylor & Scott
First and Second Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		Paragraphs one and two of the Arbitrator’s determination of 22 February 2008 are revoked and the matter is remitted to the same Arbitrator for the entry of formal orders in accordance with the reasons in this decision and for determination of the issue of apportionment. Paragraph three of the Arbitrator’s determination of 22 February 2008 is confirmed.
The Respondents are to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 20 December 2002 Perica Kolak, (‘the Appellant Worker’), injured his back in the course of his employment with Hunani Pty Ltd (‘the First Respondent/Hunani’).  He reported the injury, sought medical treatment and continued working on lighter duties until a new foreman started in about April or May 2004 when Mr Kolak’s employer changed to a related company, Dynamic Formwork Pty Ltd (‘the Second Respondent/Dynamic’), and his duties returned to normal, requiring him to engage in heavy lifting.  On 12 November 2004, he again injured his back when lifting timber and he ceased work because of his pain on 17 November 2004.

1. By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 28 March 2007, Mr Kolak seeks lump sum compensation in respect of 14% whole person impairment as a result of his injury on 20 December 2002 and the nature and conditions of his employment from 23 February 2001 until 28 April 2004.  At a conciliation and arbitration on 31 May 2007, Mr Kolak amended his claim to add the injury on 12 November 2004 and an injury as a result of the nature and conditions of his employment up to 17 November 2004.

1. In a Certificate of Determination dated 3 August 2007, the Arbitrator referred the matter to the Registrar for referral to an Approved Medical Specialist (‘AMS’) for assessment of the whole person impairment “attributed to the Applicant’s lumbar spine and to apportion as appropriate between each of the two frank injuries on 20 December 2002 and 12 November 2004 and the nature and conditions claim with a deemed date of injury on 17 November 2004” (Statement of Reasons for Decision, 3 August 2007, paragraph 18).

1. An AMS (Dr Dixon) examined…