Bartter Enterprises Pty Limited v Miller

[2005] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Bartter Enterprises Pty Limited v Miller [2005] NSW WCC PD 19

APPELLANT:  Bartter Enterprises Pty Limited

RESPONDENT:  Bryan Michael Miller

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC14197-2003

DATE OF ARBITRATOR’S DECISION:          19 December 2003

DATE OF APPEAL DECISION:  23 March 2005

SUBJECT MATTER OF DECISION: Calculation of entitlement pursuant to section 38 of the Workers Compensation Act 1987.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:23 March 2005

REPRESENTATION:  Appellant:    Rankin & Nathan Solicitors

Respondent: Bale Boshev Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 19 December 2003, is revoked and the following decision is made in its place:

The Appellant Employer is not liable for the Respondent Worker’s claim for weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 for the period 9 November 2001 to 29 October 2002.

The Appellant Employer is to pay the costs of the appeal.

THE APPEAL

1. This is an appeal against the decision of an Arbitrator, dated 19 December 2003, to award Mr Miller weekly compensation payments in accordance with section 38 of the Workers Compensation Act 1987. The Employer Bartter Enterprises Pty Limited is the Appellant.

1. Leave to appeal is granted.

1. The parties attended a hearing of the appeal on 23 March 2005 and came to an agreement as to the outcome of the appeal.

1. I am satisfied that the Arbitrator made an error of fact in coming to her decision.  I therefore revoke the Arbitrator’s decision.

1. By the consent of the parties I substitute the following decision:

The Appellant Employer is not liable for the Respondent Worker’s claim for weekly compensation pursuant to section 38 of the Workers Compensation Act 1987 for the period 9 November 2001 to 29 October 2002.

COSTS

1. The Appellant Employer is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

23 March 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE