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Bagtrans Pty Limited v Simunic

Bagtrans Pty Limited v Simunic

Case [2007] NSWWCCPD 212 19 October 2007

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:Bagtrans Pty Limited v Simunic [2007] NSWWCCPD 212

APPELLANT:  Bagtrans Pty Limited
RESPONDENT:  John Simunic
INSURER:Employers Mutual NSW Limited
FILE NUMBER:  WCC338-07
DATE OF ARBITRATOR’S DECISION:          11 April 2007
DATE OF APPEAL DECISION:  19 October 2007
SUBJECT MATTER OF DECISION: Leave to appeal; order or determination of an interlocutory nature; section 352(8) Workplace Injury Management and Workers Compensation Act 1998; Clause 200B of the Workers Compensation Regulation 2003; error of law in failing to exercise jurisdiction; error of law in referral to Approved Medical Specialist for assessment without determining injury; inadequate reasons, and weight of evidence.
PRESIDENTIAL MEMBER:  Acting President Gary Byron
HEARING:On the papers
REPRESENTATION:  Appellant:      Edwards Michael Moroney
Respondent:   Firths

ORDERS MADE ON APPEAL: Leave to appeal is refused.
The Appellant Employer is ordered to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mr John Simunic, the Respondent Worker, commenced employment as a forklift driver/labourer with Bagtrans Pty Limited (‘Bagtrans’), the Appellant Employer, in May 2002.

Employers Mutual NSW Limited (‘the Insurer’) was Bagtrans’ insurer at all relevant times.

Mr Simunic claims to have suffered an injury to his thoracic spine, lumbar spine and left lower extremity on 9 February 2004 while he was lifting a heavy bracket weighing approximately 36 kilograms.

Mr Simunic saw his family doctor, Dr Tablante on 10 February 2004 who referred him for a CT scan of the lumbar spine and deemed him unfit for work from 10 February 2004. Mr Simunic subsequently lodged a Workers Compensation claim with Bagtrans on 18 March 2004 claiming injury sustained on 9 February 2004 as “protrution [sic] in lower back (discs L4/5)”.

On 23 April 2004 the Insurer advised Mr Simunic that liability for his claim was declined pursuant to section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). In making this decision to discontinue weekly payments of compensation the Insurer relied upon the reports of Dr Ian Barrett, Orthopaedic Surgeon, dated 16 March 2004 and Dr John Silver, Consultant Occupational Physician, dated 8 April 2004.

In late March 2004 Mr Simunic attempted a gradual return to suitable duties and by April 2004 attempted to return to normal duties. However, he experienced a severe exacerbation of his symptoms and accordingly, he returned to suitable duties. He alleges that Bagtrans advised him that if he could not return to normal duties at that stage his services were no longer required. He further claimed that as a consequence of being unable to perform his normal duties his employment was terminated on 10 May 2004.

On 11 December 2006 the Insurer advised Mr Simunic that liability for his claim for permanent impairment was declined on the basis that:

“Evidence in our possession indicates that the worker does not suffer with an assessable permanent impairment as a result of the injury relied upon. The evidence relied upon in reaching this decision is Dr Matheson’s (Neurosurgeon) report…

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 Bagtrans Pty Limited v Simunic

Details

AGLC: Bagtrans Pty Limited v Simunic [2007] NSWWCCPD 212
Case: [2007] NSWWCCPD 212
Decision Date: 19 October 2007

CaseChat Overview and Summary

Bagtrans Pty Limited appealed a decision of the Workers Compensation Commission of New South Wales, which referred the case to an Approved Medical Specialist for an assessment of permanent impairment in relation to Mr. Simunic's thoracic spine, lumbar spine, and left lower extremity. The appeal raised the issue of whether the Arbitrator erred in law by referring the matter to an AMS without first determining the issue of injury to Mr. Simunic's thoracic spine, and if that determination was made, it was without proper reasons and against the weight of the evidence.

The court had to decide whether the Arbitrator's decision was interlocutory in nature, within the meaning of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 and Clause 200B of the Workers Compensation Regulation 2003. If the decision was interlocutory, leave to appeal would be refused. The court found that the order or determination appealed against was preliminary or interim and of an interlocutory nature, as prescribed by the Regulation. Therefore, the leave to appeal was refused.

The court concluded that the order or determination made by the Arbitrator on 11 April 2007 was interlocutory in nature, and leave to appeal was refused. The appeal cannot proceed because of the interlocutory nature of the preliminary or interim order or determination. Bagtrans, the Appellant Employer, is ordered to pay the Respondent Worker's costs of this appeal.

Orders