Mather v BHP Billiton Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Mather v BHP Billiton Limited [2009] NSWWCCPD 129
APPELLANT:		Maurice Craig Mather
RESPONDENT:		BHP Billiton Limited
INSURER:		Self Insurer
FILE NUMBER:		A1-1826/09
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		16 June 2009
DATE OF APPEAL DECISION:		13 October 2009
SUBJECT MATTER OF DECISION:		Application for an increase in an award; adequacy of evidence; whether the inference drawn that the worker had ‘retired’ was appropriate; exercise of discretion.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:				Whitelaw McDonald
Respondent:				Rankin & Nathan
ORDERS MADE ON APPEAL:		1.  Paragraph 1 of the decision of the Arbitrator dated 16 June 2009 is revoked and the following decision is made in its place:
(1)   The Award of O’Meally CCJ in Matter Number 54681 of 1999 is amended from 30 June 2005 as follows:
i.   $400.27 per week from 30 June 2005 to 24 August 2005;
ii.  $434.78 per week from 25 August 2005 to 30 June 2006;
iii. $384.78 per week from 1 July 2006 to 24 August 2006;
iv. $420.32 per week from 25 August 2006 to 30 June 2007;
v.  $370.32 per week from 1 July 2007 to 24 August 2007;
vi. $406.93 per week from 25 August 2007 to 1 April 2008;
vii. $444.64 per week from 2 April 2008 to date and continuing.
Credit to the Respondent for any payments made from 30 June 2005 to date.
2.  Paragraphs 2 and 3 are confirmed.
3.  The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Maurice Mather, (‘the Appellant’) injured his back on 18 June 1992 when he slipped whilst alighting from a crane in the course of his employment with the Respondent.  Liability was initially accepted by the Respondent and compensation paid up to June 1999.

1. By an Award made by O’Meally CCJ in the former Compensation Court on 24 August 2000 in matter number 54681 of 1999, Mr Mather was awarded weekly benefits in the sum of $272.00 per week from 22 June 1999 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). Comparable earnings were found to be $1,022.00 per week, and Mr Mather’s ability to earn was assessed at $750.00 per week.

1. Prior to that decision, in proceedings number 4521 of 1997, Mr Mather received lump sum compensation in respect of 20% permanent impairment of his back, 10% loss of efficient use of his left leg at or above the knee, 10% permanent loss of efficient use of his right leg at or above the knee, and compensation for pain and suffering.

1. Proceedings brought in the Commission in 2004 (WCC14656 – 04) resulted in the registration of a section 66A Agreement by which the Respondent agreed to pay Mr Mather  further lump sum compensation in respect of an additional 5% loss of each named body part.

1. By an ‘Application to…