Sheridan v David Anthony Clarke t/as Freestyle Marine Sports

[2003] NSWWCCPD 9

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Ian John Sheridan v David Anthony Clarke t/as Freestyle Marine Sports [2003] NSW WCC PD 9
APPELLANT:	Ian John Sheridan
FIRST RESPONDENT:	David Anthony Clarke t/as Freestyle Marine Sports
SECOND RESPONDENT:	WorkCover Authority of NSW
FILE NO:	WCC 251- 2002
DATE OF DECISION:	28 March 2003
PRESIDENTIAL MEMBER:	Dr. Gabriel Fleming
DECISION UNDER APPEAL:	Application to review decision of  Arbitrator on grounds of: failure to base decision on logically probative evidence, inadequate reasons, incorrect application of statutory test of whether work was the ‘substantial contributing factor’ to the injury, and error in exercise of the Arbitrator’s discretion in relation to consideration of the evidence.
DATE OF DECISION UNDER APPEAL:	1 November 2002
HEARING:	7 March 2003
REPRESENTATION:	Appellant: Mr. Odling of Counsel instructed by Walker Gibbs King Pty Ltd
First Respondent: Mr. Stockley of Counsel instructed by Kennedy Cooke Solicitors Second Respondent: Mr. Davis of Counsel instructed by Ms B Grant Solicitor, WorkCover Authority of NSW
ORDERS MADE ON APPEAL:	The Appeal is not allowed.  The decision appealed against is confirmed.  No order as to costs.

THE APPEAL

1. Ian John Sheridan (‘the Applicant’) has appealed against the decision of an Arbitrator of the Workers Compensation Commission (‘the Commission’) refusing his claim for workers compensation made against David Anthony Clarke t/as Freestyle Marine Sports (‘the First Respondent’).  The WorkCover Authority of NSW has been identified as the Second Respondent pursuant to the Uninsured Liability and Indemnity Scheme (‘ULIS’). 

2. The Applicant seeks to have the decision of the Arbitrator set aside and the matter reheard by another Arbitrator, or alternatively that compensation be awarded to him in the terms of his claim

3. Mr. Sheridan’s claim is that he suffered a total incapacity for work as a result of an injury to his right middle finger that arose out of, or in the course of, his employment as a marine mechanic with the First Respondent between April and November 1996.  Specifically, his claim under the Workers Compensation Act 1987 (‘the 1987 Act’) is for compensation as follows:

   · Permanent impairment, being 15% loss of the use of his right hand pursuant to section 66 of the Act,

   · pain and suffering pursuant to section 67 of the Act,

   · medical expenses pursuant to section 60 of the Act, and

   ·    continuing weekly payments of compensation from 5 April 1997.

THE DECISION UNDER REVIEW

1. A Certificate of Determination and attached statement of reasons were issued on 1 November 2002 and set out the decision of the Arbitrator as follows:

   i.The Workers Compensation Commission has sole jurisdiction to hear the claim.

   ii.The Applicant is not barred from recovering compensation under s61 and s65 of the Workplace Injury Management and Workers Compensation Act 1998.

   iii.The Respondent is not liable to pay the Applicant’s claim for weekly compensation at the rate of $500.00 per week from 1/4/1987 to date and continuing in accordance with s36 and s37 of the provisions of…