Sinitsky v Workpac Constructions Pty Ltd

[2020] NSWWCCPD 61

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sinitsky v Workpac Constructions Pty Ltd [2020] NSWWCCPD 61
APPELLANT:	Jake Nicholas Sinitsky
RESPONDENT:	Workpac Constructions Pty Ltd
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-830/20
ARBITRATOR:	Mr J Harris
DATE OF ARBITRATOR’S DECISION:	13 May 2020
DATE OF APPEAL DECISION:	6 October 2020
SUBJECT MATTER OF DECISION:	Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011 – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Bryce v Department of Corrective Services [2009] NSWCA 188 applied; application of the former ss 44C, 44E, 44F and Item 8 of Sch 3 to the Workers Compensation Act 1987 – calculation of pre-injury average weekly earnings where a worker has two or more employers and was injured prior to 21 October 2019; Schedule 1.1 of the Workers Compensation Legislation Amendment Act2018 – jurisdiction of the Commission to determine a work capacity decision
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Sinitsky
Unrepresented
Respondent:
Mr D Russell, solicitor
Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION AND BACKROUND

1. Mr Jake Nicholas Sinitsky (the appellant) suffered an injury to his right wrist in the course of his employment with Workpac Constructions Pty Ltd (the respondent) on 24 November 2017. At the time of the injury, the appellant held concurrent employment at the Great Central Hotel, Glen Innes, where he performed work in exchange for accommodation and meals. The appellant did not receive any monetary reward for that work.

2. The appellant was previously involved in a motorcycle accident in 2015 in which he suffered a fracture of the right distal radius and ulna, requiring several surgeries and involving a complex recovery.

3. In respect of the injury the subject of these proceedings, the appellant was paid weekly payments at varying rates together with treatment expenses. The respondent did not, however, include the value of the appellant’s concurrent employment in its calculation of the appellant’s pre-injury average weekly earnings (PIAWE). The respondent then issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 4 March 2019, denying liability for ongoing weekly payments and treatment expenses.

4. The issues raised in the denial of liability were:

   (a)    that the work-related aggravation to the appellant’s right wrist condition had resolved;

   (b)    whether the appellant suffered any incapacity for work as a result of the injury, and

   (c)    whether treatment expenses were reasonably necessary as a result of the injury.

5. The disputed treatment expenses included the cost of surgery to the right wrist proposed by the appellant’s treating surgeon, Dr Mark Ross, orthopaedic surgeon.

6. The appellant commenced proceedings in the Commission,…