Toll Pty Ltd v Morrissey (No 3)

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Toll Pty Ltd v Morrissey (No 3) [2009] NSWWCCPD 85
APPELLANT:		Toll Pty Ltd
RESPONDENT:		Craig Anthony Morrissey
INSURER:		Self insurer
FILE NUMBER: ARBITRATOR:		A1-2123/07 Mr C Messenger
DATE OF ARBITRATOR’S DECISION:		9 February 2009
DATE OF APPEAL DECISION:		29 July 2009
SUBJECT MATTER OF DECISION:		Discretionary admission of unserved DVD – Rule 10.3(3); assessment under section 40 of the Workers Compensation Act 1987 – application of JC Ludowici & Son Limited v Cutri (1992) 26 NSWLR 580.
PRESIDENTIAL MEMBER:		Acting Deputy President Michael Snell
HEARING:		On the papers
REPRESENTATION:		Appellant:		Leigh Virtue & Associates
Respondent:		M.J. Duffy & Son
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 9 February 2009 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
The Respondent Worker’s costs of obtaining and serving a statement dated 24 June 2009 are to form part of his costs on the further arbitration. Otherwise no order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 9 March 2009 Toll 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 9 February 2009.

1. The Respondent to the Appeal is Craig Anthony Morrissey (‘the Respondent Worker’).

1. The Respondent Worker is now 37 years of age, and claims two dependant children. He commenced working for the Appellant Employer as a truck driver in 2001. He alleges injury to his back and left leg on 30 January 2003, while changing a tyre in the course of that employment. A wheel brace he was using to tighten nuts slipped, and he fell to his knees. His work thereafter, with the Appellant Employer, is set out in the decision of Handley ADP in Toll Pty Ltd v Morrissey [2007] NSWWCCPD 221 (‘Morrissey’) at [2]. There were periods on and off work, and periods of lighter duties. The Respondent Worker ceased carrying out duties for the Appellant Employer on 18 February 2005, and his employment was terminated on 4 May 2005.

1. The Respondent Worker and his wife had, from before his injury on 30 January 2003, owned a Kenworth prime mover, that he said he used to do “some harvest work for grain growers in the Gilgandra area”. He said that, from when light duties with the Appellant Employer were no longer available for him in February 2005, he began looking for truck driving work using this truck. From 18 October 2006 he and his wife incorporated a company, C & J Morrissey Transport Pty Limited (‘the company’). He states he could not “do enough truck driving to earn enough money to keep the company going”, and the truck and a trailer were sold in April 2007.

1. The Respondent Worker’s statement dated 20 November 2008 indicates the company continued operating after the Kenworth prime mover…