Marshall v Skilled Group Ltd

[2018] NSWWCCPD 44

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Marshall v Skilled Group Ltd [2018] NSWWCCPD 44
APPELLANT:	Garry Marshall
RESPONDENT:	Skilled Group Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-324/18
SENIOR ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	12 April 2018
DATE OF APPEAL DECISION:	17 October 2018
SUBJECT MATTER OF DECISION:	Admission of new evidence – D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 applied; whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied; application for extension of time to file the appeal – r 16.2(12) of the Workers Compensation Commission Rules 2011; requirement to identify error – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Self-represented
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

1. Mr Garry Marshall brought a claim for weekly payments and treatment expenses pursuant to the provisions of the Workers Compensation Act 1987 (the 1987 Act) in respect of an alleged injury in the course of his employment with Skilled Group Ltd (Skilled) on 9 January 2015. Skilled disputed that Mr Marshall suffered the injury.

2. The matter proceeded to arbitration and the Senior Arbitrator issued a Certificate of Determination (COD) with written reasons on 12 April 2018, entering an award in favour of Skilled.[1]

   [1] Garry Marshall v Skilled Group Ltd [2018] NSWWCC 96 (Reasons).

3. Mr Marshall appeals the decision. He first lodged an Application – Appeal Against the Decision of an Arbitrator (appeal application) on 26 June 2018, but a direction was issued for the document to be amended. An amended appeal application was lodged on 12 July 2018.

BACKGROUND

1. Mr Marshall was employed by Skilled as a plant operator and labourer from 9 December 2014 until his employment was terminated on 16 January 2015.

2. Mr Marshall alleged that he suffered an injury to his lumbar spine and left elbow on 9 January 2015, when he jumped out of the way of a reversing excavator.

3. Skilled issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that Mr Marshall suffered an injury and that employment was a substantial contributing factor. The self-insurer relied on ss 4 and 9A of the 1987 Act. It also disputed that Mr Marshall suffered any incapacity for work and that it was liable for Mr Marshall’s treatment expenses pursuant to s 60 of the 1987 Act. In a second s 74 notice dated 7 October 2015, Skilled reiterated that it disputed Mr Marshall had suffered an injury and added that any whole person impairment suffered by Mr Marshall did not result from any injury with Skilled.

4. Mr Marshall commenced proceedings in respect of the same alleged injury on…