Stratco (NSW) Pty Ltd v Korunovic

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Stratco (NSW) Pty Ltd v Korunovic [2009] NSWWCCPD 16
APPELLANT:		Stratco (NSW) Pty Ltd
RESPONDENT:		Radomir Korunovic
INSURER:		GIO General Limited – Agent for NSW Workcover Scheme
FILE NUMBER:		A1-5048/08
DATE OF ARBITRATOR’S DECISION:		7 October 2008
DATE OF APPEAL DECISION:		17 February 2009
SUBJECT MATTER OF DECISION:		Review of credit findings where no oral evidence called; proof of facts through medical histories; application of the ‘disease’ provisions; duty to give reasons.
PRESIDENTIAL MEMBER:		Acting Deputy President Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		Turkslegal
Respondent:		Gajic & Co
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 7 October 2008 is varied by substituting the figure “$154.15” for the figure “$274.15” in paragraph [5]. The decision is otherwise confirmed.
The Appellant Employer is to pay the costs of the Respondent Worker of this appeal.

BACKGROUND TO THE APPEAL

1. On 5 November 2008 Stratco (NSW) 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 7 October 2008.

1. The Respondent to the Appeal is Radomir Korunovic (‘the Respondent Worker’).

1. The Respondent Worker was born in 1954 in the then Yugoslavia. He had approximately ten years schooling in Serbia, then trained there as a fitter and turner, after which he carried out factory work. He came to Australia in about 1981, and carried out factory work in this country, before commencing in the employ of the Appellant Employer in about 1992. The Appellant Employer manufactured guttering and roofing, and the Respondent Worker carried out process work in its factory. He has a dependant wife.

1. The Respondent Worker was apparently in good health, until being injured in a motor accident whilst driving to work on 19 January 1998. He claimed compensation from the Appellant Employer, which accepted liability on a voluntary basis.

1. He was knocked unconscious in the accident of 19 January 1998, and also sustained multiple orthopaedic injuries, lacerations and contusions. The complaints are detailed in a report of his general practitioner Dr Khan dated 15 November 2002. He came under the care of an orthopaedic surgeon, Dr Lee, who at initial consultation (described in a report dated 25 March 1998) recorded “multiple injuries to his neck, right knee, left ankle and foot”. X-rays of the left foot and ankle indicated an avulsion of the lateral cortex of the lower fibula. Dr Lee also describes a CT scan as having demonstrated “lateral disc prolapse at C4/5”. Dr Lee carried out an arthroscopy of the right knee on 7 April 1998, which revealed a “torn posterior horn of the medial meniscus”, which he treated by way of  partial medial menisectomy. Ongoing complaints recorded by Dr Lee thereafter in 1998 and 1999 were predominantly of the right knee and left ankle. In a report dated 13 August 1998 Dr Lee assessed various permanent losses involving the right arm, right…