Young v Labourpower Recruitment Services Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Young v Labourpower Recruitment Services Pty Ltd [2016] NSWWCCPD 37
APPELLANT:	William Young
RESPONDENT:	Labourpower Recruitment Services Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6920/15
ARBITRATOR:	Ms A Britton
DATE OF ARBITRATOR’S DECISION:	30 March 2016
DATE OF APPEAL DECISION:	29 July 2016
SUBJECT MATTER OF DECISION:	Forensic medical reports; application of cl 49 of the Workers Compensation Regulation 2010; adequacy of reasons; assessment of expert evidence; application of principles in Paric v John Holland (Constructions) Pty Ltd[1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505; Hancock v East Coast Timber Products Pty Ltd[2011] NSWCA 11; 80 NSWLR 43
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Brydens Lawyers Pty Ltd
Respondent:	Kaden Boriss Legal & Business Strategists
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 30 March 2016 is revoked and the matter remitted to another Arbitrator for re-determination.

INTRODUCTION

1. This appeal concerns an Arbitrator’s finding that the effects of an accepted work injury ceased after 13 weeks and the adequacy of her reasons for so finding.

2. The appeal also concerns whether the Arbitrator erred by taking into consideration evidence that had been excluded as being in breach of cl 49 of the Workers Compensation Regulation 2010 (the 2010 Regulation).

3. For the reasons explained below the appeal is successful.

BACKGROUND

1. The appellant worker, William Young, worked for the respondent employer, Labourpower Recruitment Services Pty Ltd, as a machine operator.  The respondent was a labour hire firm which hired out the appellant’s employment to a host employer, NSW Investments Pty Ltd. His duties included the operation of bulldozers.

2. The appellant alleges that he was injured on 18 October 2013 while attempting to climb on to a bulldozer. The handle he had grasped broke free causing him to fall from the bulldozer and injure his back. He has not worked since that date.

3. On 28 October 2013, the appellant lodged a workers injury claim form in respect of the incident of 18 October 2013 which he claims resulted in a L4/L5 disc displacement.

4. On 22 November 2013, the respondent’s insurer, QBE advised the appellant that it had accepted liability for the claim for injury on 18 October 2013. However, on 13 December 2013, QBE advised the appellant that his worker’s compensation claim had been closed.

5. In late November 2013, the appellant was incarcerated for approximately seven months due to driving related charges.

6. On 3 November 2014, QBE issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining liability for the claim. It declined liability on the basis that it claimed that the injury had resolved and as the appellant did not continue to suffer from the effects of any injury, ongoing treatment was no longer reasonably necessary. It also disputed that the appellant’s employment was a substantial contributing factor to the…