Atanasoska v Inghams Enterprises Pty Ltd

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ATANASOSKA -v- INGHAMS ENTERPRISES PTY LTD [2009] WASCA 17

CORAM:   WHEELER JA

PULLIN JA
BUSS JA

HEARD:   18 NOVEMBER 2008

DELIVERED          :   16 JANUARY 2009

FILE NO/S:   CACV 138 of 2007

BETWEEN:   CVETANKA ATANASOSKA

Appellant

AND

INGHAMS ENTERPRISES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA

Coram  :COMMISSIONER NISBET

File No  :C 38 of 2007

Catchwords:

Workers compensation - Assessment of relevant degree of disability - Arbitrator found the appellant/worker and her husband were not credible witnesses - Arbitrator found that, as a result, the factual foundation in the medical reports relied on by the appellant was flawed - Arbitrator dismissed appellant's application claiming degree of disability of not less than 30% - Whether appeal from Arbitrator 'involved' any question of law - Whether appeal from Commissioner was 'on' a question of law

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 93D(10), s 93E(1), s 93E(3), s 247, s 254

Result:

Application for leave to appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr K J Bradford

Respondent:     Mr M D Sonter

Solicitors:

Appellant:     Bradford & Co

Respondent:     Pynt & Partners

Case(s) referred to in judgment(s):

BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250

Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Pollock v Wellington (1996) 15 WAR 1

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

  1. WHEELER JA:  I agree with Buss JA.

  2. PULLIN JA:  I agree with Buss JA.  

  3. BUSS JA:  At all material times, the appellant was employed by the respondent as a process worker.  On 9 August 2000, she allegedly suffered an injury in the course of her employment.

  4. On 5 July 2006, the appellant filed a Form 22 application under the Workers' Compensation and Injury Management Act 1981 (WA) (the Act), seeking a referral of the question of her 'degree of disability' (as defined in s 93E(1) of the Act) to the Dispute Resolution Directorate. In the application the appellant described her alleged injuries as 'injuries to the neck, left shoulder, psychiatric impairment and sexual dysfunction'. She claimed to have sustained a degree of disability of not less than 30%. This was contested by the respondent. The dispute was referred to arbitration pursuant to s 93D(10) of the Act.

  5. The appellant's application was heard by Arbitrator Whitford‑Harvey on 26, 27 and 28 March 2007.  The Arbitrator delivered his decision on 13 July 2007 and published reasons on 2 August 2007.  He found the appellant had not made out her case, and dismissed the application.

  6. On 16 August 2007, the appellant applied for leave to appeal to the Commissioner, pursuant to s 247(1) of the Act, against the Arbitrator's decision. On 21 September…

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Details
Case
[2009] WASCA 17
Decision Date

CaseChat Overview and Summary

The appellant, Atanasoska, sought a review of an arbitrator's decision dismissing her application for a workers compensation assessment of her relevant degree of disability. The appellant's husband also sought a review of the same arbitrator's decision, but subsequently abandoned his appeal. The appellant argued that the arbitrator erred in finding that she and her husband were not credible witnesses, resulting in the factual foundation in the medical reports being flawed. The appellant's application for leave to appeal was dismissed.

The court had to determine whether the appeal from the Arbitrator involved any question of law and whether the appeal from the Commissioner was 'on' a question of law. The court held that the appeal from the Arbitrator did not involve any question of law and that the appeal from the Commissioner was not 'on' a question of law. The court found that the appellant's argument that the Arbitrator erred in finding that she and her husband were not credible witnesses was not a question of law but rather a question of fact, which the Arbitrator was entitled to determine. The court also held that the appeal from the Commissioner was not 'on' a question of law, as the Commissioner's decision was not based on a question of law but rather on a question of fact.

The court further held that the Arbitrator's decision was not flawed and that the appellant's argument that the factual foundation in the medical reports was flawed was not supported by the evidence. The court found that the Arbitrator was entitled to make findings of fact and that the appellant's argument that the Arbitrator erred in finding that she and her husband were not credible witnesses was not a question of law but rather a question of fact. The court also held that the Arbitrator's decision to dismiss the appellant's application for a workers compensation assessment of her relevant degree of disability was not flawed.

The application for leave to appeal was dismissed. The court held that the appeal from the Arbitrator did not involve any question of law and that the appeal from the Commissioner was not 'on' a question of law. The court found that the Arbitrator's decision was not flawed and that the appellant's argument that the factual foundation in the medical reports was flawed was not supported by the evidence. The court held that the Arbitrator was entitled to make findings of fact and that the appellant's argument that the Arbitrator erred in finding that she and her husband were not credible witnesses was not a question of law but rather a question of fact.

Orders

Orders of the court

Application for leave to appeal dismissed

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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