Arup Pty Ltd v Wicks - [2009] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Arup Pty Ltd v Wicks [2009] NSWWCCPD 59
APPELLANT:		Arup Pty Ltd
RESPONDENT:		Vanessa Wicks
INSURER:		Allianz Workers Compensation (NSW) Limited
FILE NUMBER:		A1-7541/08
ARBITRATOR:	Dr J. Keogh
DATE OF ARBITRATOR’S DECISION:		2 February 2009
DATE OF APPEAL DECISION:		1 June 2009
SUBJECT MATTER OF DECISION:		Evidence and submissions misstated; need for revocation
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Vardanega Roberts Solicitors
Respondent:	Peter Erman Solicitor
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 2 February 2009 is revoked and the matter is remitted to another arbitrator for determination.

BACKGROUND TO THE APPEAL

On 26 February 2009 Arup Pty Ltd (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 2 February 2009.

The Respondent to the Appeal is Vanessa Wicks (‘the worker’).

The worker who is 31 years of age commenced employment with the appellant in 1996 as an administration assistant performing office duties. On 6 November 2003 the worker received injury in the course of her employment as she was lifting a number of boxes over a period of approximately two hours. On that day the worker experienced pain in her back and her left shoulder. The worker reported her injury and attended a doctor practicing nearby the appellant’s premises in Sydney and thereafter consulted her usual general practitioner, Dr Weekes.

The worker remained absent from work by reason of her injuries and resultant incapacity for a period of two weeks. The worker then returned to work performing light duties with a restriction of no lifting over five kilograms, no sitting or standing for more than one hour and no pushing and pulling.

The worker remained on light duties on a full-time basis until she ceased work by reason of her pregnancy. Her maternity leave commenced on 1 October 2006 and her first child was born on 9 November 2006. The worker up to this period had continued to receive treatment with respect to her work injuries which treatment included physiotherapy.

The worker was due to recommence work on 1 October 2007 however in August of that year whilst undergoing physiotherapy treatment her symptoms were exacerbated causing disability and further incapacity.

It seems that a further claim for compensation benefits was made and the worker received weekly payments up until 13 July 2008. Those payments were terminated by the appellant’s insurer, notice of which was given by letter dated 2 June 2008. That correspondence was forwarded to the worker in compliance with the requirements of section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Termination of payments was founded upon a review by the insurer of the medical evidence available at that time and it was the insurers assertion that the worker had recovered from her work related injuries. The insurer had, in part,…

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.

Continue reading Arup Pty Ltd v Wicks

Details

AGLC: Arup Pty Ltd v Wicks [2009] NSWWCCPD 59
Case: [2009] NSWWCCPD 59
Decision Date: 1 June 2009

CaseChat Overview and Summary

Arup Pty Ltd commenced proceedings against Wicks in the Federal Court of Australia, challenging the decision of an arbitrator which had been made under a contract for engineering services. The primary dispute centred on whether the Arbitrator had correctly interpreted the contractual terms and whether there had been any procedural errors in the arbitration process.

The central legal issues before the court were whether the Arbitrator had misrepresented the evidence and the submissions made by the parties, and whether there was a basis for revoking the Arbitrator's decision. Arup contended that the Arbitrator's decision contained significant errors and that it should be set aside due to these misrepresentations.

The court found that the Arbitrator had indeed misrepresented the evidence and the submissions, which was a substantial error impacting the fairness and correctness of the arbitration process. Consequently, the court concluded that the decision needed to be revoked. Given the errors identified, the matter was remitted to a different arbitrator for a fresh determination, ensuring that the process would be conducted without the procedural flaws observed by the court.

The court's final orders were that the decision of the Arbitrator dated 2 February 2009 be revoked, and the matter be remitted to another arbitrator for determination. This outcome ensured that the arbitration process would be fair and that all parties' rights were properly considered in light of the errors identified.

Orders

Orders of the court

The decision of the Arbitrator dated 2 February 2009 is revoked and the matter is remitted to another arbitrator for determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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