Bartter Enterprises Pty Ltd v Smith - [2006] NSWWCCPD 292

WORKERS COMPENSATION COMMISSION

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

CITATION:Bartter Enterprises Pty Ltd v Smith [2006] NSWWCCPD 292
APPELLANT:  Bartter Enterprises Pty Ltd
RESPONDENT:  Daphne Betty Smith
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC19565-05
DATE OF ARBITRATOR’S DECISION:          23 March 2006
DATE OF APPEAL DECISION:  6 November 2006
SUBJECT MATTER OF DECISION:                Reasons; weight of evidence; total incapacity
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Workplace Law
Respondent:   White Barnes

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 23 March 2006 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 21 April 2006 Bartter Enterprises Pty Ltd (‘the Appellant Employer/Bartter’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 March 2006.

The Respondent to the Appeal is Daphne Betty Smith (‘the Respondent Worker/Mrs Smith’).

Mrs Smith was born on 3 September 1955 and is now 51 years of age. She completed her schooling in year eight and has not undertaken any additional training or education since then. Her working career started when she was about 20 years old when she worked at a cannery doing process work.

After a period out of the work force to care for her family she started work with Bartter as a process worker on 22 October 1998. Mrs Smith described the work as “basically work as a labourer” (Respondent Worker’s statement 7 September 2004, paragraph two).

On 30 March 2004 she fell at work and sustained injury to her face, head, neck and back. Her claim for compensation was accepted and she was paid voluntary compensation until 13 April 2005.

On 17 November 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 14 April 2005 to date and continuing. By its Reply filed on 2 December 2005 the Appellant Employer denied that Mrs Smith was incapacitated. In the alternative, if she was incapacitated, such incapacity was unrelated to her injury of 30 March 2004. It also alleged that Mrs Smith was not entitled to compensation because she had failed to comply with the provisions of sections 47 and 48 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) in that she had failed to comply with Injury Management Plans and had failed to return to work on suitable duties with the Appellant Employer.

The matter was listed for conciliation and arbitration before a Commission Arbitrator on 15 March 2006 when it proceeded to arbitration hearing with oral evidence being given by Mrs Smith and oral submissions being made by the parties’ legal representatives.

In a reserved decision delivered on 23 March 2006 the Arbitrator made an award in favour of Mrs Smith for total incapacity under section 37 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Appellant…

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 292
Decision Date: 6 November 2006

CaseChat Overview and Summary

Bartter Enterprises Pty Ltd appealed a decision of the Workers Compensation Commission, constituted by an Arbitrator, which found that Daphne Betty Smith, the worker, was entitled to total incapacity benefits. The Arbitrator had made findings that the worker was a genuine and truthful witness, that her continuing incapacity for work resulted from her injury on 30 March 2004, and that there was no accessible labour market for her. The Appellant employer argued that the Arbitrator erred in various respects, including by failing to give adequate reasons for his findings, by finding the worker to be totally incapacitated for work contrary to the evidence, and by failing to consider the employer’s offer of suitable employment. The appeal was dismissed and the Appellant employer was ordered to pay the worker’s costs of the appeal. The Acting Deputy President found that the Arbitrator’s reasons were adequate and that he had not erred in fact, law or discretion. The Arbitrator had accepted the worker’s evidence and the medical evidence that her continuing incapacity for work resulted from her injury, and had rejected the employer’s medical evidence. The Arbitrator had also properly considered the evidence about the accessible labour market for the worker. The Arbitrator had not failed to consider the employer’s offer of suitable employment, as he had accepted the worker’s evidence that she was unable to return to work due to her pain and disability.

Orders