Munce v Thomson Cool Rooms Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39
APPELLANT:	Garry Munce
RESPONDENT:	Thomson Cool Rooms Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-125/17
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	4 May 2017
DATE OF APPEAL DECISION:	7 September 2017
SUBJECT MATTER OF DECISION:	Error of fact; application of the principles discussed in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 and Fox v Percy [2003] HCA 22; 214 CLR 118; non‑compliance with Practice Direction No 6 – Appeal Against a Decision of the Commission Constituted by an Arbitrator
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	PK Simpson & Co
Respondent:	HWL Ebsworth Lawyers
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s Amended Certificate of Determination of 4 May 2017 is confirmed.

INTRODUCTION

1. The worker suffered an accepted injury to his left wrist and arm. The appeal concerns a dispute regarding impairments to other body parts not initially reported as injured and an alleged consequential condition affecting the right shoulder and arm. The claimed compensation is based upon the Table of Disabilities, which remains in force in respect of injuries which occurred prior to 1 January 2002.

BACKGROUND

1. The appellant, Mr Munce, was employed by the respondent, Thomson Cool Rooms Pty Ltd, as a joiner. On 29 January 1999, Mr Munce allegedly injured various parts of his body when he fell from a four metre ladder in the course of his employment. He claims that he suffered injuries to his “neck, left wrist, left arm, back, pelvis, left leg, right leg and right arm due to overuse”.

2. On 4 February 1999, Mr Munce completed an employee’s compensation claim form for the respondent’s then insurer, Zurich Australian Workers Compensation Ltd. He recorded injury to the groin and left hand as a result of the 29 January 1999 injury. Mr Munce also recorded, in a report of injury dated 10 February 1999, the body parts affected as left hand and groin.

3. In 2001, Mr Munce commenced proceedings in the Compensation Court of New South Wales claiming lump sum compensation in respect of alleged injury to the pelvis, left arm and left leg in respect of the injury on 29 January 1999. The application was heard by Judge Burke who determined that the only compensable injury was the injury to the left arm. His Honour ordered that the respondent pay Mr Munce compensation in respect of 20 per cent loss of use of his left arm at or above the elbow and compensation for pain and suffering.

4. In 2007 Mr Munce commenced further proceedings in the Commission, in respect of the 29 January 1999 injury. The application filed on that occasion is not in evidence, however, it is apparent that the application sought further lump sum compensation based on an increase in the impairment of the left arm.

5. On 29 August…