Puzyrewski v Zumtobel Staff and Ors [2002] NSWCC 17

Puzyrewski v Zumtobel Staff and Ors [2002] NSWCC 17

The worker satisfied the requirements for seeking suitable employment under s 38A at the time of the s 52A notice because she had shown readiness, willingness and ability to accept suitable work, had supplied medical material sufficient to assist determination of suitable employment, had requested suitable employment from the insurer, and had taken reasonable steps to obtain suitable employment when reasonably able to do so. Her lack of job applications while at Wallagoot Lake was explained by her residence, leg weakness, breast cancer, mastectomy and left shoulder consequences, and did not end her continuing intention to obtain suitable employment. She remained partially incapacitated...

Jurisdiction
Australia
Judgment Date
14 March 2002
Procedural Posture
Workers Compensation Summons and Consolidated Applications / Ex Tempore Judgment on Summons to Restore Weekly Compensation and S 60 Expenses, Worker's Application for Increase, and Employer's Application for Diminution or Termination
Outcome
Worker succeeded on restoration and increase of weekly compensation, restoration of s 60 expenses, additional s 66 compensation, and costs; employer's application for termination or diminution was rejected except to the extent of the assessed weekly payment amounts.
Legal Topics
['weekly Payments' 'suitable Employment' 'cessation of Weekly Payments' 'partial Incapacity' 'permanent Loss of Use' 'medical Expenses' 'costs']
['workers Compensation'] ['weekly Payments' 'suitable Employment' 'cessation of Weekly Payments' 'partial Incapacity' 'permanent Loss of Use' 'medical Expenses' 'costs']

Case Brief

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Procedural Posture

Workers Compensation Summons and Consolidated Applications / Ex Tempore Judgment on Summons to Restore Weekly Compensation and S 60 Expenses, Worker's Application for Increase, and Employer's Application for Diminution or Termination

Legal Issues

  1. 1 ["Whether the employer's s 52A notice validly ceased weekly payments on the basis that the worker was not suitably employed and was not seeking suitable employment." 'Whether the worker had made reasonable efforts to obtain suitable employment within s 38A despite not applying for work while resident at Wallagoot Lake.' 'Whether the worker remained partially incapacitated for work as a result of the employment injury.' 'Whether weekly payments under s 40 should be increased, diminished or terminated.' 'Whether the worker had additional permanent loss of use of the right arm at or above the elbow compensable under s 66.' 'Whether payment of s 60 expenses should resume.']

Ratio Decidendi

The worker satisfied the requirements for seeking suitable employment under s 38A at the time of the s 52A notice because she had shown readiness, willingness and ability to accept suitable work, had supplied medical material sufficient to assist determination of suitable employment, had requested suitable employment from the insurer, and had taken reasonable steps to obtain suitable employment when reasonably able to do so. Her lack of job applications while at Wallagoot Lake was explained by her residence, leg weakness, breast cancer, mastectomy and left shoulder consequences, and did not end her continuing intention to obtain suitable employment. She remained partially incapacitated...

Court Disposition

Worker succeeded on restoration and increase of weekly compensation, restoration of s 60 expenses, additional s 66 compensation, and costs; employer's application for termination or diminution was rejected except to the extent of the assessed weekly payment amounts.

Orders

  • ['Employer to resume payment of weekly award of Judge Neilson from 10 November 2000 to date and continuing.' 'Such award increased to $90 per week from 10 November 2000 to 31 December 2000 and to $100 per week from 1 January 2001 to date and continuing both pursuant to s 40.' "Employer to resume payment of worker's...