Allen v Hudson Global (Aust) Pty Limited - [2006] NSWWCCPD 360

WORKERS COMPENSATION COMMISSION

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

CITATION:Allen v Hudson Global (Aust) Pty Limited [2006] NSWWCCPD 360
APPELLANT:  Mark John Allen
RESPONDENT:  Hudson Global (Aust) Pty Limited
INSURER:Vero Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC6960-05
DATE OF ARBITRATOR’S DECISION:          30 September 2005
DATE OF APPEAL DECISION:  21 December 2006
SUBJECT MATTER OF DECISION: Sections 4, 9A and 11 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robert Harrington
HEARING:On the papers
REPRESENTATION:  Appellant:      Keddies Litigation Lawyers
Respondent:   Hunt and Hunt Lawyers

ORDERS MADE ON APPEAL: 1.The decision of the Arbitrator dated 30 September 2005 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.

2.The Respondent is to pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 21 October 2005 Mark John Allen (‘Mr Allen’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 September 2005.

The Respondent to the Appeal is Hudson Global (Aust) Pty Limited (‘Hudson’).

Mr Allen is 33 years of age. He has a degree in economics and commerce and works as a business analyst.

In 1999 he was employed by Hudson as a payroll manager. His employment activities were performed in Sydney.

In October 1999 Hudson had arranged for its employees to travel to Melbourne to attend a conference.

Whilst attending the conference Mr Allen noted the onset of back pain.

The back pain became so severe that he was unable to return to Sydney with his colleagues when the conference was completed.

Mr Allen was subsequently diagnosed as suffering from a significant disc protrusion at the L4/5 level. Dr T. Steel (neurosurgeon) operated on Mr Allen’s back on 6 December 1999; an L4/5 microdiscectomy was performed. The right L5 nerve root was found tightly compressed by a sequestrated disc fragment.

Mr Allen commenced proceedings in the Commission on 12 May 2005 claiming lump sum compensation and medical hospital and related expenses in respect of his injury.

Mr Allen’s claim was heard before a Commission Arbitrator on 19 August 2005 and the Arbitrator delivered his decision on 30 September 2005. Mr Allen was unsuccessful. It is against the Arbitrator’s decision that Mr Allen now seeks leave to appeal.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 30 September 2005 records the Arbitrator’s orders as follows:

1. Award and determination in favour of the Respondent.
2. No order as to costs.

ISSUES IN DISPUTE

The issues in dispute in the appeal are:

· whether Mr Allen’s injury was an injury ‘arising out of or in the course of his
employment’ with Hudson. (Hatzimanolis issue);

· whether Mr Allen’s employment was a substantial contributing factor to his
Injury (9A issue), and

· whether Mr Allen’s injury occurred during an ordinary recess or authorised
absence (recess issue).

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury…

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 360
Decision Date: 21 December 2006

CaseChat Overview and Summary

Mark John Allen has appealed a decision of the Workers Compensation Commission, constituted by an Arbitrator, which dismissed his claim for compensation in relation to a back injury sustained during a work conference in Melbourne. The Arbitrator had found that the injury did not occur in the course of Mr Allen's employment with Hudson Global (Aust) Pty Limited, and therefore was not compensable. The Arbitrator's decision was based on the premise that there was no inducement or encouragement by the employer for Mr Allen to attend Timezone, an amusement centre in Melbourne, where he sustained his injury. The Acting Deputy President found three errors in the Arbitrator's application of the principles established in Hatzimanolis v ANI Corp Ltd, including that there is a requirement for the employer to have sanctioned the activity, the activity must be of some benefit to the employer, and there must be something unusual or special about the activity. The Acting Deputy President held that the employer had encouraged Mr Allen to attend the conference in Melbourne, and it was a reasonable inference that Melbourne was chosen as the venue for the conference in part due to the fringe benefits the city offered to the delegates, such as the service industry including leisure activities like Timezone. The Acting Deputy President also found errors in the Arbitrator's analysis of section 9A and the recess issue and concluded that the matter must be remitted to another Arbitrator for determination afresh. The Respondent is to pay the Appellant's costs of the appeal.

Orders