Rafoo v Rafinc Pty Ltd

[2010] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rafoo v Rafinc Pty Ltd [2010] NSWWCCPD 42
APPELLANT:		John Rafoo
RESPONDENT:		Rafinc Pty Ltd
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4014/09
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		20 October 2009
DATE OF APPEAL DECISION:		21 April 2010
SUBJECT MATTER OF DECISION:		Nature and extent of an aggravation of a pre-existing injury; weekly benefits and lump sum compensation.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:		Higgins & Higgins Lawyers
Respondent:		Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 20 October 2009 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. The Appellant, John Rafoo, commenced employment with the Respondent, Rafinc Pty Ltd, as a Service Station Manager / Console Operator at its Mobil Smithfield Road service station in June 1999.

1. Mr Rafoo came to Australia from Iraq in July 1980. After some initial employment as a process worker, he obtained employment again as a process worker at AWA Thorn Pty Ltd in about 1981 but ceased work in 1983 when he developed back pain. He brought a claim for compensation which was settled in 1985 “for $29,000.00.”

1. He subsequently obtained work at a 7/11 store in Fairfield for about three months in 1985 before travelling to America for about eight months. He returned to Australia in 1986 and worked for about three years under a franchise agreement with the 7/11 store in Caringbah. He then returned to Iraq where he was married, and returned to Australia in 1990. He was unemployed until late 1991 when he obtained a job as a console operator at the Mobil service station in Rocky Point Road for four months. Following a further period of unemployment, he commenced as a console operator at Shell in Ramsgate in 1992 where he remained until 1995.

1. In about February 1995 he commenced work at Mobil Smithfield Road, and has worked for a “Mobil franchisee” ever since. In June 1999 Mobil Oil Australia changed its name to Rafinc Pty Ltd, and Mr Rafoo signed a new contract and became a permanent employee.

1. On 12 December 1998 Mr Rafoo was involved in a car accident on his way to work and again injured his back. He said that he made a third-party motor vehicle claim which was settled “for $84,000.00 in my hand in June 2001.”

1. In October 2001 he again injured his back at work when he struck the edge of an open cupboard. He did not seek treatment, and remained at work until 8 October 2003. On that occasion, he said that he injured his back lifting boxes of soft drinks.

1. At the hearing before the Arbitrator, Mr Rafoo sought leave, which was granted, to amend his claim to plead a further injury to his back by way of aggravation on 9 October 2003 when he said that he was again…