Perri v Adriatic Concrete Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Perri v Adriatic Concrete Pty Ltd [2015] NSWWCCPD 70
APPELLANT:	Frank Perri
RESPONDENT:	Adriatic Concrete Pty Ltd
INSURER:	Cambridge Integrated Services Pty Ltd
FILE NUMBER:	A1-1279/15
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	13 August 2015
DATE OF APPEAL HEARING:	3 December 2015
DATE OF APPEAL DECISION:	15 December 2015
SUBJECT MATTER OF DECISION:	Section 66 of the Workers Compensation Act 1987; consequential condition resulting from injury; proof of causation; application of wrong test and consideration of irrelevant matter affecting Arbitrator’s decision; raising new point on appeal; need for remitter for redetermination
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr R Page, instructed by Shine Lawyers
Respondent:	Mr L Morgan, instructed by Stiles Lawyers
ORDERS MADE ON APPEAL:	1.     The award found in [1] of the Certificate of Determination dated 13 August 2015 is revoked. 2.     The orders made in [2] and [3] of the Certificate of Determination dated 13 August 2015 are confirmed. 3.     The matter is remitted for redetermination by another Arbitrator.

BACKGROUND

1. Mr Frank Perri, who is 54 years of age, commenced work as a concreter at the age of 20 years. He was, at first, employed by Adriatic Concrete Pty Ltd (the respondent) for a period of 14 years following which he was self employed as a concreter for a period of 10 years. Thereafter he returned to employment with the respondent. There is no dispute that, on 18 February 2011, Mr Perri received an injury to his right ankle in the course of that employment. Compensation benefits have been paid to Mr Perri by the respondent to date.

2. Since the subject injury, Mr Perri has experienced disability, not only in his right ankle but has suffered, as he alleges, consequential conditions in his right knee and lumbar spine as well as post-surgical scarring to his right ankle.

3. In the course of treatment Mr Perri, who alleges that he gained very substantial weight following his incapacity, was advised by those treating him to undergo bariatric surgery, more particularly described as laparoscopic sleeve gastrectomy. The purpose of that bariatric surgery was to permit a decrease in Mr Perri’s body weight which, it was intended, would likely assist his orthopaedic recovery. That bariatric surgery was conducted by Dr Ken W K Loi, consultant surgeon, in March 2013.

4. On 13 November 2014 Mr Perri’s solicitors gave written notice to the respondent of a claim by him in respect of lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). The claim made was in respect of whole person impairment resulting from the ankle injury, right knee and back disability as well as alleged whole person impairment which arose following the bariatric surgery. It is relevant to note that the correspondence stated “…as a result of the injury [Mr Perri] was unable to exercise and due to weight gain and obesity he underwent…