Sikoski v Dolci Doro Pty Ltd

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sikoski v Dolci Doro Pty Ltd [2020] NSWWCCPD 60
APPELLANT:	Pero Sikoski
RESPONDENT:	Dolci Doro Pty Ltd
INSURER:	GIO General Ltd
FILE NUMBER:	A1-786/20
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	6 May 2020
DATE OF APPEAL DECISION:	25 September 2020
SUBJECT MATTER OF DECISION:	Alleged error in fact finding – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, the rule in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; 98 ER 969
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Koutzoumis, solicitor
Koutzoumis Lawyers
Respondent:
Mr L Robison, counsel
BBW Lawyers
ORDERS MADE ON APPEAL:	1.    The decision of the Arbitrator dated 6 May 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Pero Sikoski (the appellant) was employed by Dolci Doro Pty Ltd (the respondent), which manufactured confectionary. He was a process worker with the respondent for many years. He suffered injury to the lower back (which is not disputed) on 8 August 2011 when he fell while operating a machine.[1] He suffered a compression fracture of L2.[2] He came under the care of a general practitioner, Dr Nigro, from 15 August 2011.[3] He had little time off work, but stated that he suffered ongoing back pain.[4] There are varying histories of the duties carried out after the injury, some of the medical histories state the appellant performed lighter duties thereafter, others do not.[5] The appellant ceased working with the respondent when it closed in about March 2017,[6] and he then worked for another company performing process work to about February 2019.[7]

   [1] Appellant’s statement 4/2/20, [4]–[8], Application to Resolve a Dispute (ARD), p 1.

   [2] Dr Travers’ CT scan report 16/8/11, ARD, p 35.

   [3] ARD, p 92.

   [4] ARD, p 2.

   [5] For example, see Dr Giblin’s report 24/9/18, ARD p 22, contra Professor Young’s report 17/9/19, Reply, p 22.

   [6] Dr Giblin’s report, ARD, p 22.

   [7] Professor Young’s report, Reply, p 22.

2. The appellant was assessed at his solicitors’ request by Dr Giblin, an orthopaedic surgeon, who reported on 24 September 2018, assessing 12 per cent whole person impairment (WPI) in respect of the lumbar spine.[8] The appellant was assessed at his solicitors’ request by Dr Herman, a cardiologist, who reported on 12 March 2019 and 1 July 2019.[9] Dr Herman diagnosed “hypertension … in the setting of several cardiac risk factors which started after his work related injury”. These were described as “weight gain, chronic pain, anti-inflammatory consumption, decreased mobility and the development of sleep apnoea (all of which provoke hypertension)”. Dr Herman assessed WPI of 10 per cent in respect of the cardiovascular system. The appellant was assessed at his solicitors’ request by Dr Hamor, a respiratory and sleep physician. Dr Hamor reported on 22 February 2019, making a diagnosis of mild sleep apnoea, which he said was “related to his weight…