Thompson v Coffs Harbour City Council

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Thompson v Coffs Harbour City Council [2009] NSWWCCPD 94
APPELLANT:		Brian Thompson
RESPONDENT:		Coffs Harbour City Council
FIRST INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
SECOND INSURER:	StateCover Mutual Ltd
FILE NUMBER:		A1-10390/08
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		22 April 2009
DATE OF APPEAL DECISION:		7 August 2009
SUBJECT MATTER OF DECISION:		Particulars of claim; disease; nature of injury; sections 4, 15 and 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	White Barnes
First Insurer: Second Insurer:	Ellison Tillyard Callanan Hicksons
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 22 April 2009 is confirmed.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. The appellant worker, Mr Thompson, started work with Coffs Harbour City Council (the Council) as a labourer in April 1984.  His duties were heavy and physical.  He injured his left elbow while performing his normal duties at work in the 1980s and underwent surgery to that elbow at the hands of Dr Jones.  He also injured both his elbows and shoulders as a result of lifting or using jackhammers, though the exact date is unclear.

1. On 11 November 2003 Mr Thompson’s solicitors, White Barnes, claimed lump sum compensation in respect of the condition of his arms as a result of the nature and conditions of his employment from April 1994. That claim was settled and the settlement registered under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) and dated 21 January 2004 (‘the section 66A Agreement’). The section 66A Agreement records that the claim was duly made on 11 November 2003 and that the date of injury was 28 April 1994. It provided for the payment of lump sum compensation under the ‘Table of Disabilities’ in respect of a 20 per cent permanent loss of efficient use of the right arm at or above the elbow and a 10 per cent permanent loss of efficient use of the left arm at or above the elbow together with compensation for pain and suffering. Mr Thompson and his solicitor, Mr O’Halloran, signed the agreement on 28 January 2004. A representative from “Allianz Australia”, Tracey Wyse, was also named in the document though she did not sign it.

1. Mr Thompson remained at work with the Council and in either 1999 or 2001 (the evidence is in conflict) his position was changed to that of a works supervisor in the engineering department, which he continued until he resigned on 25 July 2008.  He then worked for a business known as Naric Civil North for one week in August 2008 and for Peter Rowan Pty Ltd (‘Peter Rowan’) from August 2008 until mid January 2009.

1. By letter dated 13 October 2008, Mr O’Halloran notified the Council that Mr Thompson claimed weekly compensation.  The letter attached a…