Weate v Racing NSW

[2020] NSWWCCPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Weate v Racing NSW [2020] NSWWCCPD 40

APPELLANT:

Geoffrey Wayne Weate

RESPONDENT:

Racing NSW

INSURER:

Racing NSW

FILE NUMBER:

A1-4244/19

ARBITRATOR:

Mr B Batchelor

DATE OF ARBITRATOR’S DECISION:

11 December 2019

DATE OF APPEAL DECISION:

24 June 2020

SUBJECT MATTER OF DECISION:

The requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr M Grady, solicitor

Everingham Solomons Solicitors

Respondent:

Mr P Macken, solicitor

Leigh Virtue & Associates

ORDERS MADE ON APPEAL:

1. The appeal cannot be brought as it does not satisfy the requirements of s 352(3) of the 1998 Act. Additionally, it cannot be brought as it is an appeal against an interlocutory decision and leave is not granted pursuant to s 352(3A) of the 1998 Act.

2.     The appeal is dismissed.

INTRODUCTION AND BACKGROUND

1. Geoffrey Wayne Weate (the appellant) was a jockey for about 37 years. It is uncontroversial that Racing NSW (the respondent) is to be regarded as his employer. In his long career as a jockey, the appellant was involved in multiple incidents when he suffered injury to various parts of his body. The appellant last worked as a jockey on 15 January 2008, when he suffered injury to his right shoulder together with a number of fractured ribs, in a fall from a horse in a barrier trial. Thereafter he was not cleared to resume racing. He has since undertaken some part-time cleaning work.[1]

   [1] Appellant’s statement 20/12/2018, [3]–[22], Application for Assessment by an Approved Medical Specialist (Application). (The pages of this document are not numbered.)

2. The appellant pursued a claim for lump sum compensation in earlier proceedings (No. 4934/2009). Permanent losses of use and permanent impairments resulting from 16 injuries, ranging from 30 July 1982 to 15 January 2008, were assessed by Dr Bodel, an Approved Medical Specialist (AMS) in a Medical Assessment Certificate (MAC) dated 17 November 2009. In respect of the frank injury on 15 January 2008 (which is the injury pleaded in the current proceedings) Dr Bodel assessed 11 per cent whole person impairment, reduced to 7 per cent after a deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).[2] The appellant was paid weekly compensation benefits until 26 December 2017, which then ceased as the appellant had received 260 weeks of weekly benefits since 1 October 2012.[3]

   [2] Application.

   [3] Application.

3. The appellant was under the care of Dr Sharp, an orthopaedic surgeon. On 19 April 2018 Dr Sharp sought approval from Racing NSW to cover the cost of surgery involving stabilisation of the right shoulder. Ultimately proceedings were commenced by the appellant seeking orders for payment of the cost of this surgery (No. 349/19). On 11 April 2019 consent orders…