Winter v NSW Police Force

[2010] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Wolfinger v Goldmember Enterprises Pty Ltd [2010] NSWWCCPD 12
APPELLANT:		Rudi Wolfinger
RESPONDENT:		Goldmember Enterprises Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-6420/09
ARBITRATOR:	Ms R Gurr
DATE OF ARBITRATOR’S DECISION:		23 October 2009
DATE OF APPEAL DECISION:		8 February 2010
SUBJECT MATTER OF DECISION:		Incapacity; weekly benefits and ability to earn; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:		Bell Lawyers
Respondent:		Turks Legal
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 23 October 2009 is revoked and the following decision is made in its place:
1. Award in favour of the Applicant pursuant to section 40 of the 1987 Act as follows: a.  For the period from 15 June 2008 to 30 June 2009 at the rate of $281.00 per week;
b.  For the period 1 July 2009 to 19 August 2009 at the rate of $197.50 per week; c.  For the period 20 August 2009 to date and continuing at the rate of $155.00 per week. 2. The Respondent to pay the Applicant’s costs as agreed or assessed. The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. The Appellant, Mr Wolfinger, is presently twenty five years old. He commenced employment as a cook with the Respondent, Goldmember Enterprises Pty Ltd, at the Rest Easy Motel in Wentworth Falls on 18 October 2005. He had previously commenced an apprenticeship as a chef but had discontinued this for personal reasons in 2003 in his second year.

1. He worked casually for the Respondent, his hours varying from 13 to 44 per week, but averaging about 38. He worked a second job initially at the Ritz Nursing Home and from January 2007 as a general services officer (principally a kitchen hand) at the Martyn Claver Nursing Home in Leura.

1. On 12 June 2007 he injured his back whilst removing rubbish at the end of his shift with the Respondent. He ceased work that day and was unable to resume his job at the nursing home.

1. In mid February 2008 he commenced employment at Josh’s Bistro at the Springwood Golf and Country Club working an average of 28 hours per week, and has remained a permanent employee there since that time.

1. He was paid weekly benefits by the Respondent’s insurer, CGU Workers Compensation (NSW) Ltd (‘CGU’) up until 14 June 2008 when liability was declined on the basis that he was no longer incapacitated, his general practitioner, Dr Singh, having certified him fit to resume his pre-injury duties from that date.

1. Agreement was reached between the parties as to a 7% WPI in relation to the back, and a complying agreement was entered into on 30 January 2009.

1. In an ‘Application to Resolve a Dispute’ (‘the Application’) registered in the Commission on 13 August 2009, Mr Wolfinger sought weekly benefits from…