Rocla Pty Ltd v Stephenson

[2009] NSWWCCPD 125

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125
APPELLANT:		Rocla Pty Ltd
RESPONDENT:		Gregory Stephenson
INSURER:		Self Insurer
FILE NUMBER:		A1-9656/08
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:		11 May 2009
DATE OF APPEAL DECISION:		8 October 2009
SUBJECT MATTER OF DECISION:		Injury; notice; incapacity; weight of evidence; exercise of discretion.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	Phil Bannister Pty Ltd
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 11 May 2009 is confirmed.
The Appellant is to pay the costs of the appeal assessed at $2,000.00 plus GST.

BACKGROUND TO THE APPEAL

1. On 5 June 2009 Rocla Pty Ltd (‘the Appellant/Rocla’) sought leave to bring an appeal against a decision of a Commission Arbitrator dated 11 May 2009. 

1. The Respondent to the Appeal is Gregory Lloyd Stephenson (‘Mr Stephenson/the Respondent’).

1. Mr Stephenson is presently 46 years old.  He first commenced employment with Rocla in about August 1999 as a casual through a labour hire company. He gained permanent full-time employment with that company in December 1999 working as a dredge operator on the Hawkesbury River.

1. He underwent a pre-employment medical assessment at the request of Rocla by Dr Smith at Parramatta.

1. His duties included loading an outboard motor and fuel tank onto a dinghy which he then took out to the dredge which he operated all day. His duties on the dredge included hauling heavy anchor chains and steel cables and operating a welder. Those duties he claimed involved heavy manual lifting, carrying, bending and pulling of weights up to fifty kilograms.

1. He first noted pain in his back in about March 2001 when he was lifting the outboard motor. He consulted his doctor on 10 April 2001and was prescribed anti-inflammatory medication but remained at work.

1. On 17 April 2001 towards the end of the day, he was walking on uneven ground when he twisted his ankle and fell heavily to the ground, jarring his back. He reported the injury to his boss, and saw his doctor the same day. He resumed work on selected duties, but after some further time off his employment was terminated.  He has not resumed work since that time.

1. Liability was accepted by Rocla and weekly benefits and medical expenses were paid up until 14 April 2005 when liability was declined apparently in purported reliance upon the provisions of sections 52A and 54 of the Workers Compensation Act 1987 (‘the 1987 Act’).

1. He underwent extensive treatment particularly for his back, and had a laminectomy performed by Dr Noel Dan in February 2002 followed by spinal fusion performed by Dr Steel in October 2003.

1. By an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 2 December 2008, Mr Stephenson sought weekly benefits from 15 April 2005, medical expenses and lump sum compensation for his injuries. Those he described as…