Moorby v J & D Stephens Pty Ltd & Ors

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Moorby v J & D Stephens Pty Ltd & Ors [2024] NSWPIC 36

APPLICANT:

Kevin John Moorby

FIRST RESPONDENT:

Damien Flannery

SECOND RESPONDENT:

Workers Compensation Nominal Insurer

THIRD RESPONDENT:

J & D Stephens Pty Ltd

MEMBER:

John Turner

DATE OF DECISION:

30 January 2024

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; injury to the lumbar spine, neck, both shoulders, both elbows, both wrists, both knees and both ankles as the result of the nature and conditions of the applicants employment as a shearer and/or shedhand; dispute as to who was the last employer for the purposes of section 16(1)(b); claim for permanent impairment compensation pursuant to section 66, weekly compensation pursuant to sections 36 and 37 and medical and treatment expenses pursuant to section 60; Taylor v J & D Stephens Pty Ltd, Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd, Perry v Tanine Pty Ltd t/as Ermington Hotel, Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office, AV v AW, Ariton Mitic v Rail Corporation of NSW considered and applied; Held – award for the third respondent; that the applicant sustained injury on 14 December 2017 (deemed) to his lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists in the course of his employment as a shearer with the applicant’s employment as a shearer being the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of a disease(s) of the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists; pursuant to section 16(1)(b) the first respondent, being the employer who last employed the applicant as a shearer, to be liable for any compensation payable; the applicant had no current work capacity from 15 December 2017 to 1 April 2018, from 19 May 2018 to 20 August 2018, and from 17 April 2019 to 2 December 2019; the applicant had pre-injury average weekly earnings for the 12 months to 14 December 2017 of $890.

DETERMINATIONS MADE:

The Commission determines:

1.     Award for the third respondent.

2.     That the applicant sustained injury on 14 December 2017 (deemed) to his lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists in the course of his employment as a shearer with the applicant’s employment as a shearer being the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of a disease(s) of the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists.

3. Pursuant to s 16(1)(b) of the Workers Compensation Act 1987 (the 1987 Act) I find that the first respondent, being the employer who last employed the applicant as a shearer, to be liable for any compensation payable.

4.     That the applicant had no current work capacity:

(a)    from 15 December 2017 to 1 April 2018;

(b)    from 19 May 2018 to 20 August 2018, and

(c)…