Issue 6: June 2013



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Issue 6: June 2013

On Appeal

Welcome to the 6th issue of ‘On Appeal’ for 2013.

Issue 6 – June 2013 includes a summary of the May 2013 decisions.

These summaries are prepared by the Presidential Unit and are designed to provide a brief overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.

Please note that the following abbreviations are used throughout these summaries:



ADP

Acting Deputy President

AMS

Approved Medical Specialist

Commission

Workers Compensation Commission

DP

Deputy President

MAC

Medical Assessment Certificate

Reply

Reply to Application to Resolve a Dispute

1987 Act

Workers Compensation Act 1987

1998 Act

Workplace Injury Management and Workers Compensation Act 1998

2003 Regulation

Workers Compensation Regulation 2003

2010 Regulation

Workers Compensation Regulation 2010

2010 Rules

Workers Compensation Commission Rules 2010

2011 Rules

Workers Compensation Commission Rules 2011

Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia

Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au

Table of Contents

Presidential Decisions:





Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 3

Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation 3



Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31 6

Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation 6



Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 9

Aggravation of disease of varicose veins; meaning of incapacity in s 16 of the 1987 Act; application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the 1998 Act; cl 46 of the 2010 Regulations 9



Grasa v Roads & Maritime Services [2013] NSWWCCPD 30 16

Psychological injury; relevance and effect of consent orders; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant medical evidence; findings based on information not in evidence; application of principles in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment; perception of real events; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76 16



Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28 20

Challenge to factual findings; ss 61 and 261 of the 1998 Act; requirements as to giving notice of injury and making of a claim; obligation to state reasons for decision. 20



Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32 23

Concurrent employment; casual employment; essential features of a contract of employment; calculation of current weekly wage rate, average weekly earnings, and probable earnings; ss 42(7), 43(1)(e) and (f) of the 1987 Act; ability to earn; entitlement to weekly compensation; assessment of evidence; partial incapacity; orders inconsistent with the findings made; non-compliance with Practice Direction No 6; unsatisfactory written submissions by appellant; appeal unnecessarily protracted by appellant’s conduct; costs on appeal 23



Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 29

Journey claim; s 10(1A) of the 1987 Act; whether personal injury (resulting in death) attributable to the serious and wilful misconduct of the worker; excessive speed; riding motor bike at double the speed limit in a suburban area; meaning of serious and wilful misconduct; failure to comply with Practice Direction No 6 29



MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013] NSWWCCPD 26 33

Whether injury received in the course of employment; application of the principles in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 33



AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25 37

Section 4 of the 1987 Act; personal injury; disease which is contracted in the course of employment; obligation to state adequate/sufficient reasons for decision. 37






Di Matteo v RDM Ceramics Pty Limited [2013] NSWWCCPD 27 3

Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation 3



Spinelli v Integrated Labour Network Pty Limited [2013] NSWWCCPD 31 6

Question of Law; s 351 of the 1998 Act; application of savings and transitional provisions of the Workers Compensation Legislation Amendment Act 2012 with respect to claims for lump sum compensation 6



Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29 9

Aggravation of disease of varicose veins; meaning of incapacity in s 16 of the 1987 Act; application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the 1998 Act; cl 46 of the 2010 Regulations 9



Grasa v Roads & Maritime Services [2013] NSWWCCPD 30 16

Psychological injury; relevance and effect of consent orders; application of principles in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648; failure to consider relevant medical evidence; findings based on information not in evidence; application of principles in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419; alleged bullying and harassment; perception of real events; application of principles in State Transit Authority (NSW) v Chemler [2007] NSWCA 249; 5 DDCR 286 and Attorney General’s Department v K [2010] NSWWCCPD 76 16



Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28 20

Challenge to factual findings; ss 61 and 261 of the 1998 Act; requirements as to giving notice of injury and making of a claim; obligation to state reasons for decision. 20



Drive Recruit Pty Ltd v Back [2013] NSWWCCPD 32 23

Concurrent employment; casual employment; essential features of a contract of employment; calculation of current weekly wage rate, average weekly earnings, and probable earnings; ss 42(7), 43(1)(e) and (f) of the 1987 Act; ability to earn; entitlement to weekly compensation; assessment of evidence; partial incapacity; orders inconsistent with the findings made; non-compliance with Practice Direction No 6; unsatisfactory written submissions by appellant; appeal unnecessarily protracted by appellant’s conduct; costs on appeal 23



Karim v Poche Engineering Services Pty Ltd [2013] NSWWCCPD 24 29

Journey claim; s 10(1A) of the 1987 Act; whether personal injury (resulting in death) attributable to the serious and wilful misconduct of the worker; excessive speed; riding motor bike at double the speed limit in a suburban area; meaning of serious and wilful misconduct; failure to comply with Practice Direction No 6 29



MacLeod v John Radcliffe and Andrew Lye t/as Dripping Wet Surf Company [2013] NSWWCCPD 26 33

Whether injury received in the course of employment; application of the principles in Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473 33



AHG Services (NSW) Pty Ltd v Milojkovic [2013] NSWWCCPD 25 37

Section 4 of the 1987 Act; personal injury; disease which is contracted in the course of employment; obligation to state adequate/sufficient reasons for decision. 37


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