PCR Plaster Settings Pty Ltd v De Brito (No 3)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: PCR Plaster Settings Pty Ltd v De Brito (No 3) (2008) 7 DDCR 143
CITATION:			PCR Plaster Settings Pty Ltd v De Brito (No 3) [2008] NSWWCCPD 82
APPELLANT:			PCR Plaster Settings Pty Ltd
RESPONDENT:			Manuel De Brito
INSURER:			Employers Mutual NSW Ltd
FILE NUMBER:			WCC15597-06
DATE OF ARBITRATOR’S DECISION:			26 March 2008
DATE OF APPEAL HEARING:		29 July 2008
DATE OF APPEAL DECISION:			7 August 2008
SUBJECT MATTER OF DECISION:			Sections 54, 52A and 38A of the Workers Compensation Act 1987; whether the worker was seeking suitable employment; discretion to admit additional evidence on appeal under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Wardell, solicitor, employed by Edwards Michael Lawyers
Respondent:	Mr Pluznyk, instructed by Joseph G Capogreco & Associates
ORDERS MADE ON APPEAL:			For the reasons given in this decision, paragraph one of the Arbitrator’s determination dated 26 March 2008 is revoked and I make the following orders: “1.  The Employer is to pay the Worker weekly compensation at the rate of $150.00 per week from 2 June 2005 until 5 June 2005 inclusive. 1A. Subject to order 1 above, the Worker’s Application for the restoration of weekly compensation payments in respect of his partial incapacity is dismissed, his right to such compensation having been abrogated by operation of section 52A(1)(a) of the Workers Compensation Act 1987.” Paragraphs two, three, four and five of the Arbitrator’s determination of 26 March 2008 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal, certified in the sum of $2,200, plus GST.

INTRODUCTION

1.This case raises two main issues. First, whether the employer’s insurer validly served a notice under section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’) terminating Mr De Brito’s weekly compensation from 1 June 2005 on the grounds that he had received weekly compensation for over 104 weeks and, being partially incapacitated, was not suitably employed and was not seeking suitable employment (section 52A of the 1987 Act). Second, if the notice was validly served, whether the worker was seeking suitable employment at the time the notice was given (section 38A of the 1987 Act).

2.The case is complicated because at the time Mr De Brito first claimed compensation he lived at 72 Gallipoli Street, Lidcombe, but by the time his case was determined by Judge O’Toole on 4 February 2004, he lived in Portugal.  By letter dated 7 June 2004, his solicitor advised the insurer’s solicitor that his weekly entitlements were to be sent “C/- 19 D’arcy Avenue LIDCOMBE NSW 2141” (‘the Lidcombe address’).  It is the insurer’s contention that it validly served the section 54 notice by mailing it to the Lidcombe address.

BACKGROUND

3.This is the third appeal in this matter.  The background has been succinctly set out by Acting Deputy President Handley…