Sutherland Shire Council v Wurzel

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sutherland Shire Council v Wurzel [2010] NSWWCCPD 79
APPELLANT:		Sutherland Shire Council
RESPONDENT:		Rolf Wurzel
INSURER:		Sutherland Shire Council
FILE NUMBER:		A1-000441/10
ARBITRATOR:	Ms M Dalley
DATE OF ARBITRATOR’S DECISION:		6 April 2010
DATE OF APPEAL DECISION:		27 July 2010
SUBJECT MATTER OF DECISION:		Nature and extent of partial incapacity; ability to earn; discretion; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Vardanega Roberts
Respondent:	Leitch Hasson Dent

ORDERS MADE ON APPEAL:

Paragraph 1 of the Arbitrator’s determination of 6 April 2010, as amended on 3 May 2010, is revoked and the following order made in its place:

“1. The respondent employer is to pay the applicant worker weekly compensation in the sum of $158.00 per week under section 40 of the Workers Compensation Act 1987 from 30 July 2009 to date and continuing.”

Paragraph 2 of the Arbitrator’s determination is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

1. The respondent worker, Mr Wurzel, started work as a labourer for the appellant employer, Sutherland Shire Council (‘the Council’), in approximately 2004. On 10 April 2007, he injured his back whilst lifting rubbish. Injury is not disputed.

2. After a few weeks off work, he returned to employment on light duties. His back symptoms increased on 1 May 2007, but whether he stayed at work at that time is unclear. The Council terminated his employment on 22 May 2007 because of misconduct, but then made voluntary payments of weekly compensation.

3. In a section 54 notice dated 16 June 2009, the Council informed Mr Wurzel that, from 29 July 2009, his weekly compensation would be reduced to $28.99 per week. That amount was based on the difference between his pre-injury earnings of $927.30 and his assessed ability to earn as a cleaner/labourer of $898.31. In other words, the Council asserted that the economic loss from the injury was $28.99 per week. The notice did not allege that the effect of the injury had ceased or that Mr Wurzel had no incapacity on the open labour market.

1. In previous proceedings against the Council, Mr Wurzel sought lump sum compensation as a result of permanent impairment due to the condition of his lumbar spine following his injury on 10 April 2007. The Commission referred that application to an Approved Medical Specialist (‘AMS’) for assessment in mid-2008. Dr Sachdev assessed Mr Wurzel to have nil whole person impairment. On appeal, a Medical Appeal Panel revoked Dr Sachdev’s assessment on 4 September 2008 and issued a new Medical Assessment Certificate assessing Mr Wurzel to have a five per cent whole person impairment as a result of his injury. The Council has paid the compensation due as a result of that assessment.

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 January 2010, Mr Wurzel sought weekly compensation…