Albury City Council v Gow - [2006] NSWWCCPD 319

WORKERS COMPENSATION COMMISSION

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

CITATION:Albury City Council v Gow [2006] NSWWCCPD 319

APPELLANT: Albury City Council

RESPONDENT: Trevor Joseph Gow

INSURERS:i. GIO Workers Compensation (NSW) Limited – on risk 3.6.86 – 31.3.02

ii.StateCover Mutual Limited – on risk 1.4.02 to date

FILE NUMBER:  WCC1731-06
DATE OF ARBITRATOR’S DECISION:          7 June 2006
DATE OF APPEAL DECISION:  27 November 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for a finding of ‘injury’ resulting from ‘nature and conditions of employment’. Sections 4 and 16 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Bartier Perry Solicitors
Respondent: White Barnes Solicitors

ORDERS MADE ON APPEAL:
1.Paragraphs 1 to 4 inclusive of the decision of the Arbitrator dated 7 June 2006 are revoked and the following decision is substituted:
Award in favour of Albury City Council in the interests of StateCover Mutual Limited

2.Paragraph 5 of the decision of the Arbitrator dated 7 June 2006 is confirmed.

3. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Trevor Joseph Gow (‘Mr Gow’) was employed by Albury City Council (‘the Council’) as a machine operator commencing in about 1979 until his resignation on 3 March 2005. His duties principally involved the operation of ride-on lawn mowers, whipper snippers and edgers.

Concurrently, commencing in about 1986, Mr Gow was employed as a cleaner at the Albury K-Mart store until he resigned from that employment in September 2004.

Mr Gow claimed to have suffered injuries to his back, right hip and right knee due to a number of frank incidents and the nature and conditions of his employment with the Council. The injuries occurred on numerous dates from November 1989 to when he resigned from the Council in March 2005.

In September 2004, Mr Gow ceased employment with the Council to undergo an arthroscopy on his right knee. He did not return to work with the Council and ultimately resigned on 3 March 2005.

The Council was insured by GIO Workers Compensation (NSW) Limited (‘GIO’) from 3 June 1986 to 31 March 2002. Thereafter, the Council was insured by StateCover Mutual Limited (‘StateCover’).

As a result of negotiations between Mr Gow and the GIO during 2005, those parties resolved the permanent impairment dispute and an agreement pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) was executed on 16 January 2006. Briefly, the terms of that agreement provided that the GIO would pay Mr Gow $6,000.00 in respect of 10% permanent impairment of the back, $18,750.00 in respect of 25% permanent loss of use of the right leg at or above the knee, including any loss below the knee, and $15,000.00 for ‘pain and suffering’ pursuant to the provisions of section 67 of the 1987 Act.

On 7 February 2006 Mr Gow filed an ‘Application to Resolve a Dispute’ in the Commission against both insurers seeking weekly payments…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 319
Decision Date: 27 November 2006

CaseChat Overview and Summary

In Albury City Council v Gow, the appeal was brought by StateCover Mutual Limited against a decision of the Workers Compensation Commission of New South Wales. The appeal concerned the adequacy of evidence for a finding of ‘injury’ resulting from the ‘nature and conditions’ of Trevor Joseph Gow’s employment with the Albury City Council. The Arbitrator had determined that StateCover was liable to pay Mr Gow weekly compensation payments and medical expenses in relation to his right knee injury, which was alleged to have occurred during the course of his employment. StateCover challenged this decision, arguing that there was insufficient evidence to support the finding of injury post 31 March 2002, when StateCover assumed the risk.

The Acting Deputy President, Deborah Moore, found that the appeal was suitable for determination ‘on the papers’ and granted leave to appeal. The primary issue was whether there was sufficient evidence for the Arbitrator to find that Mr Gow sustained an injury within the meaning of the Workers Compensation Act 1987, in the course of his employment with the Council on or after 31 March 2002. The Acting Deputy President reviewed the lay and factual evidence, as well as the medical evidence, and concluded that there was no adequate evidence to support the Arbitrator's finding of injury. The Acting Deputy President found that the Arbitrator had dismissed other evidence and possibilities for the cause of Mr Gow’s right knee condition. As such, the Acting Deputy President revoked paragraphs 1 to 4 of the Arbitrator's decision and substituted an award in favor of Albury City Council in the interests of StateCover Mutual Limited, while confirming paragraph 5 of the Arbitrator's decision. No order was made as to the costs of the appeal.

Orders