Transley Solutions Pty Ltd v Steve Kagiorgis

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Transley Solutions Pty Ltd v Steve Kagiorgis [2010] NSWWCCPD 45
APPELLANT:		Transley Solutions Pty Ltd
RESPONDENT:		Steve Kagiorgis
INSURER:		Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:		A1-5364/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		24 December 2009
DATE OF APPEAL DECISION:		29 April 2010
SUBJECT MATTER OF DECISION:		Injury and causation; weight of the evidence; onus of proof; interlocutory decision
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Edwards Michael Lawyers
Respondent:		Keddies Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 24 December 2009 is for the reasons stated herein confirmed.
The Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Steve Kagiorgis (‘the Worker’), who is 46 years of age, commenced employment with Transley Solutions Pty Ltd (‘the Appellant’) in January 2002 as a truck driver. The Worker describes the vehicle used in the course of his work as a “pantech truck”. He worked mostly without the assistance of an offsider, and his duties involved loading and unloading the vehicle, which was utilised most days of the week for the transportation of large bags of discarded clothing which had been accumulated by the charitable organisation St Vincent de Paul. One day a week, the Worker was engaged in transporting food supplies for that organisation.

1. The Worker performed those duties until 2 October 2003, on which day he received injury when he fell from the vehicle to the ground whilst in the course of unloading bags of clothing at a rubbish depot at Bankstown. He alleges that he received injury to his right knee and back in that fall.

1. The Worker completed his duties on the day of his injury with difficulty. The Worker sought medical treatment the following day and was unable to resume duties. He has been unable to return to work by reason of alleged incapacity since that time.

1. The Worker’s past medical treatment includes a lengthy hospital admission which commenced on 19 November 2003, following diagnosis of spinal infection. A claim for weekly benefits was made by the Worker against his employer, and payment was made until a date in September 2005. In that year, the Worker was advised to undergo surgical treatment to his spine. However, liability with respect to such treatment was declined by the employer’s insurer. Payments of weekly benefits ceased on 26 October 2005, following service upon the Worker of a Notice of Discontinuance of Compensation Payments issued pursuant to section 54 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Worker subsequently underwent lumbar spinal fusion as a public patient on 10 April 2006.

1. On 29 July 2008, a claim for lump sum benefits in respect of alleged whole person impairment was made on behalf of the Worker against his employer and its insurer. That claim was declined by the insurer, and the Worker proceeded to register an Application…