Styash Pty Ltd v Nguyen

[2008] NSWWCCPD 146

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Styash Pty Ltd v Nguyen [2008] NSWWCCPD 146
APPELLANT:		Styash Pty Ltd
RESPONDENT:		Duc Tuan Nguyen
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		WCC4595-08
DATE OF ARBITRATOR’S DECISION:		26 August 2008
DATE OF APPEAL DECISION:		23 December 2008
SUBJECT MATTER OF DECISION:		Absence of a transcript of proceedings; assessment under section 40 of the Workers Compensation Act 1987; suitable duties.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Sparke Helmore
Respondent:		MN Compensation Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 26 August 2008 is confirmed.
The Appellant to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 23 September 2008 Styash Pty Ltd (‘the Appellant/Employer/Styash’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 August 2008.

1. The Respondent to the Appeal is Duc Tuan Nguyen (‘the Respondent/Worker’).

1. Mr Nguyen is a 39-year labourer who was employed by Styash as labouring assistant to a printer. He commenced work with Styash in about August 1998. On 5 September 2002 he fell approximately two metres onto a cement floor when he was attempting to climb down from a printer after securing paper in the machine.

1. Mr Nguyen fractured his right dominant wrist in the fall, which required internal fixation at the hands of Dr Walker.  After the injury, Mr Nguyen was off work until January 2003 when he returned to light duty work performing stencilling work, mostly with his left hand, two hours per day, five days per week.  Mr Nguyen was also required to sweep, which he stated caused back pain.  He also complained of a pins and needle sensation in his right shoulder blade, which he attributed to becoming more active at work.

1. On 27 June 2003, Mr Nguyen underwent further surgery to remove the internal fixation.  He complained of increased pain after the internal fixation was removed and that Dr Walker suggested a wrist fusion, which he declined.

1. On 7 November 2003, Styash terminated his employment on the basis that it could no longer provide light duties. 

1. In 2004, Mr Nguyen brought proceedings in the Commission (WCC21069-04), which resolved by consent with the issuing of a ‘Certificate of Determination-Consent Orders’ on 1 August 2005. The terms of settlement were an award in favour of Mr Nguyen in respect of 12% whole person impairment ($15,500.00) under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) and $8,500.00 under section 67 for pain and suffering. The Worker also agreed to discontinue his section 60 claim.

1. Mr Nguyen remained in receipt of weekly compensation payments until 29 November 2007 when payments were discontinued following his participation in a vocational assessment. He was assessed as capable of employment in a range of occupations, which paid wages in excess of his pre injury earnings. On that basis Mr Nguyen was assessed…