Rawson v Coastal Management Group Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Rawson v Coastal Management Group Pty Ltd [2015] NSWWCCPD 3
APPELLANT:	Timothy Rawson
RESPONDENT:	Coastal Management Group Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-9136/13
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	30 October 2014
DATE OF APPEAL DECISION:	20 January 2015
SUBJECT MATTER OF DECISION:	Claim for weekly compensation from 17 September 2012 to 23 September 2014; claim made before 17 September 2012; whether entitlement periods for weekly compensation commence to run from date weekly compensation first paid or payable or from 17 September 2012; application of Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37; ss 33, 38 and 43 of the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012; whether the Commission has jurisdiction to determine a claim for weekly compensation under s 38 of the Workers Compensation Act 1987 (as amended); meaning of “work capacity decision” considered; Lee v Bunnings Group Ltd [2013] NSWWCCPD 54 applied
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers

REPRESENTATION:	Appellant:	Law Partners Compensation Lawyers
Respondent:	Lee Legal Group
ORDERS MADE ON APPEAL:	1.     The Arbitrator’s determination of 30 October 2014 is confirmed. 2.     No order as to costs.

INTRODUCTION

1. This appeal raises two issues.

2. The first is when the entitlement periods introduced by the Workers Compensation Legislation Amendment Act 2012 (the 2012 amending Act) commence to run. If they run from the date on which weekly compensation was first paid or payable to the worker, as was held in Kilic v Kmart Australia Ltd [2013] NSWWCCPD 37 (Kilic), the worker’s entitlement to weekly compensation, in the period in dispute, falls in the third entitlement period and is determined under s 38 of the Workers Compensation Act 1987 (the 1987 Act) (as amended by the 2012 amending Act).

3. The second is, if the worker’s entitlement to weekly compensation is determined under s 38, as amended, whether the Commission has jurisdiction to determine that claim. (Unless otherwise stated, all references to the 1987 Act in this decision are to the provisions of that Act as it has been amended by the 2012 amending Act.)

BACKGROUND

1. At about 3 am on 18 December 2004, the appellant worker, Timothy Rawson, suffered serious injuries when the truck he was driving, which was owned by the respondent, left the road and collided with a tree. He alleged that that accident occurred in the course of his employment because he had just picked up a spot welder from a friend for use in his work for the respondent.

2. Mr Rawson’s main injuries included, but were not limited to, a severe crush injury to his left foot, with multiple fractures involving the mid foot and the hind foot, and a significant rotator cuff injury to his right shoulder. Both conditions required major surgery.

3. The circumstances of the accident were, at some stage, accepted as giving Mr Rawson rights…