Reid v Delta Electricity

[2009] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Reid v Delta Electricity [2009] NSWWCCPD 49
APPELLANT:		Terry James Reid
RESPONDENT:		Delta Electricity
INSURER:		Self Insurer
FILE NUMBER:		A1-6246-08
ARBITRATOR:	Ms S Duncombe (Registrar’s Certificate of Determination)
DATE OF ARBITRATOR’S DECISION:		22 January 2009
DATE OF APPEAL DECISION:		12 May 2009
SUBJECT MATTER OF DECISION:		Sections 4 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Whitelaw McDonald
Respondent:		Bartier Perry
ORDERS MADE ON APPEAL:		The orders made by the Registrar in accordance with sections 294 and 371(1) of the Workplace Injury Management and Workers CompensationAct 1998 in Certificate of Determination dated 22 January 2009 are confirmed. No order as to costs.

BACKGROUND TO THE APPEAL

1. On 18 February 2009 Terry James Reid (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 January 2009.

1. The Respondent to the appeal is Delta Electricity (‘the Respondent’).

1. The Appellant, who is 58 years of age, commenced employment as a maintenance worker with the Respondent in September 1986. He remains in that position however since a date in 2004 he has, by reason of back disability, been employed on restricted duties.

1. The Appellant alleges that his back disability is the result of work related injury.

1. On 16 April 2007 a claim in respect of lump sum entitlement under the Workers Compensation Act 1987 (‘the 1987 Act’) was made on the Appellant’s behalf by his solicitors. That claim particularised allegations of four separate injuries between September 1994 and January 2001 and claimed section 66 lump sum in respect of an alleged 35% permanent impairment of the back. The notice also included a claim in respect of a 15% permanent loss of efficient use of the Appellant’s right leg at or above the knee, a 10% permanent loss of efficient use of the left leg at or above the knee and lump sum for pain and suffering (section 67). That notice also particularised four separate injuries between April 2002 and August 2005. A claim pursuant to section 66 in respect of an alleged 7% whole person impairment was made.

1. A dispute arose with respect to those claims and an Application to Resolve a Dispute (‘the ARD’) was filed on behalf of the Appellant with the Commission on 12 August 2008. The ARD particularised nine separate injuries. The last of those injuries was said to have occurred on 16 April 2007. The inclusion of that allegation was made in error and was subsequently corrected by the Appellant. That date was in fact the date of claim relied upon by the Appellant and corresponds with the date of the aforementioned correspondence forwarded to the Respondent by his solicitors. The ninth allegation of injury as particularised remained as an allegation that the Appellant’s employment “has been a substantial contributing factor to the aggravation, acceleration,…