Le Twins Pty Ltd v Luo

[2019] NSWWCCPD 52

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Le Twins Pty Limited v Luo [2019] NSWWCCPD 52
APPELLANT:	Le Twins Pty Limited
RESPONDENT:	Ze Ming Luo
INSURER:	AAI Limited t/as GIO – Agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-82/19
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	5 April 2019
DATE OF APPEAL DECISION:	25 October 2019
SUBJECT MATTER OF DECISION:	Causation; assessment of whole person impairment; whether two injuries received approximately a year apart are causally connected; whether pathology in the left shoulder ‘resulted from’ the initial right shoulder injury; two distinct injuries; combined assessment of both injuries not permitted; neither assessment of the two shoulders separately was greater than 10 per cent whole person impairment; award for respondent employer; Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49 discussed; drawing of inferences from the evidence
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers

REPRESENTATION:	Counsel:
W Nicholson (Respondent)
Solicitors:
Hicksons (Appellant)
Brydens Lawyers (Respondent)
ORDERS MADE ON APPEAL:	1.     The Order of the Arbitrator made 5 April 2019 is revoked and in substitution therefore I enter an award in favour of the respondent.

INTRODUCTION

1. This is an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) against a decision of the Workers Compensation Commission constituted by an Arbitrator dated 5 April 2019.

THE DECISION UNDER APPEAL

1. The Certificate of Determination dated 5 April 2019 records as follows:

   “The Commission determines:

   1. The notice dated 4 January 2019 complied substantially with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 and was a notice of dispute for the purposes of s 289A of the same Act such that the Commission has jurisdiction to hear or deal with the dispute on which the respondent seeks to rely.

   2.     The applicant sustained a consequential condition affecting his left upper extremity (shoulder) as a result of the injury of 18 August 2015 to his right upper extremity (shoulder).

   The Commission orders:

   1. The respondent to pay the applicant lump sum compensation of $25,420 pursuant to s 66 of the Workers Compensation Act 1987 in respect of 12% whole person impairment of the right upper extremity (shoulder) and left upper extremity (shoulder) resulting from the injury on 18 August 2015.”[1]

   [1] Luo v Le Twins Pty Ltd [2019] NSWWCC 130 (Reasons).

PRELIMINARY MATTERS

1. Section 354(6) of the 1998 Act provides:

   “(6)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. The parties to the appeal have each indicated that an oral hearing is not required and that the appeal can be decided solely on the basis of the written application and the written Notice of Opposition.

3. Pursuant to a direction made 11 October 2019 the parties were requested to make additional submissions on…