WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56
APPELLANT: Snow Confectionary Pty Ltd
RESPONDENT: Guldeniz Askin
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Ltd
FILE NUMBER: WCC10103-2003
DATE OF ARBITRATOR’S DECISION: 18 September 2003
DATE OF APPEAL DECISION: 20 August 2004
SUBJECT MATTER OF DECISION: Application of sections 40 and 43A of the Workers Compensation Act 1987, Availability of work, Adequacy of reasons.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:27 July 2004
REPRESENTATION: Appellant: Bartier Perry Solicitors
Respondent: Watson Stafford Solicitors,
Attorneys, Notary
ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:
(1)That the Appellant pay the Respondent weekly compensation at the rate of $310.13 from 1 April 2003 to 19 August 2004 under section 40 of the Workers Compensation Act 1987.
(2)Such weekly payments to continue in accordance with the provisions of the Act.
(3)No order as to costs.
CONTENTS
THE APPEAL PARAGRAPHS 1 - 8
ISSUES IN DISPUTE PARAGRAPH 9
LEAVE PARAGRAPH 10
BACKGROUND FACTS PARAGRAPHS 11 - 14
THE RELEVANT LAW PARAGRAPHS 15 - 18
DISCUSSION AND FINDINGS PARAGRAPHS 19 - 47
DECISION PARAGRAPH 48
COSTS PARAGRAPH 49
THE APPEAL
On 13 October 2003 Snow Confectionary Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 September 2003.
The Respondent to the Appeal is Guldeniz Askin (‘the Respondent Worker/Ms Askin’). The Respondent Worker filed submissions in Reply to the appeal on 26 November 2003.
The relevant insurer is NRMA Workers Compensation (NSW) (No.2) Pty Ltd (‘NRMA’).
The appeal concerns a claim by Ms Askin for weekly compensation in respect of a lower back injury sustained on 15 July 1999, when employed by the Appellant Employer.
On 20 May 2003, Ms Askin lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held between the parties on 12 August 2003, after which the matter proceeded to conciliation/arbitration on 9 September 2003. The parties were unable to reach an agreement; therefore the matter proceeded to arbitration before the same Arbitrator. Ms Askin gave oral evidence at the arbitration, which was sound recorded.
The ‘Certificate of Determination’ and attached ‘Statement of Reasons’ (‘the reasons’) dated 18 September 2003 records the Arbitrator’s decision, allegedly reached with the consent of the parties, as follows:
·“That the Respondent pay the Applicant weekly compensation at a rate equal to the amount that the worker was receiving as at and from the date weekly payments were stopped (1st April, 2003) [sic] to date.
·Such weekly payments to continue in accordance with the Act.
·The Respondent is to pay the Applicant’s costs as agreed or assessed.”
The Appellant Employer submits that the decision of the Arbitrator should be revoked and a new decision, that the Worker is not entitled to weekly compensation, be made in its place. The…
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- Case
- [2004] NSWWCCPD 56
- Decision Date
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