Benjamin v Leisure Lawns & Gardens - [2007] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION

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

CITATION:Benjamin v Leisure Lawns & Gardens [2007] NSWWCCPD 147
APPELLANT:  Bradley Benjamin
RESPONDENT:  Leisure Lawns & Gardens
INSURER:GIO General Ltd
FILE NUMBER:  WCC16895-06
DATE OF ARBITRATOR’S DECISION:          16 February 2007
DATE OF APPEAL DECISION:  27 June 2007
SUBJECT MATTER OF DECISION:                Procedural fairness; treatment of the evidence
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      In person
Respondent:   Home Wilkinson Lowry Lawyers

ORDERS MADE ON APPEAL: Leave to appeal is extended to 28 March 2007.

The decision of the Arbitrator dated 16 February 2007 is confirmed.
There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 28 March 2007, Bradley Benjamin sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 16 February 2007. The Respondent to the appeal is Leisure Lawns & Gardens (‘the employer’) and the employer’s workers compensation insurer is GIO General Ltd (‘GIO’).

Mr Benjamin was born on 9 March 1974 and is aged 33. He claimed that he injured his back on 6 April 1997 while carrying a masonry block when working for the employer as an apprentice landscaper. In about May 2005, Mr Benjamin’s then solicitors made a claim for weekly compensation on his behalf with GIO. On 21 September 2005, GIO declined liability on the ground that work was not a substantial contributing factor to the injury.

On 25 October 2006, the Commission registered Mr Benjamin’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation and compensation for permanent impairment and pain and suffering. On 15 November 2006, GIO filed its ‘Reply’. On 17 January 2007, an Arbitrator conducted a teleconference with the parties. On 14 February 2007, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing. She gave her decision orally at the conclusion of the hearing in the terms set out below.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 16 February 2007, records the Arbitrator’s orders as follows:

“1. Award for the Respondent with respect to the Applicant’s claim for weekly benefits compensation, section 60 expenses and lump sum compensation.

2. No order as to costs.”

In her Statement of Reasons given orally at the conclusion of the hearing, the Arbitrator reviewed the medical and other evidence before her. She noted that the primary issue for her to decide was “whether Mr Benjamin sustained a personal injury arising out of and in the course of his employment with the respondent” (transcript 14 February 2007, p 36). She accepted that Mr Benjamin’s last day of employment with the employer was in August 1995 and not in 1997 as he originally claimed, the employer having supplied a statement that Mr Benjamin ceased work there on 11 August 1995. Consequently, section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) did not apply, since it only applies…

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: [2007] NSWWCCPD 147
Decision Date: 27 June 2007

CaseChat Overview and Summary

Bradley Benjamin appealed the decision of an arbitrator in the Workers Compensation Commission of New South Wales, who had awarded him nothing in his claim for workers' compensation for a back injury. The dispute was whether the Arbitrator accorded him procedural fairness and whether she erred in her treatment of the evidence. Benjamin argued that he was not represented at the arbitration hearing, that he was unable to obtain legal representation, and that he needed an extension of time to prepare the appeal. He also contended that the Arbitrator refused to consider his medical evidence. The insurer, GIO General Ltd, submitted that the Arbitrator afforded Benjamin procedural fairness and that she provided clear and logical reasons for her decision. The Acting Deputy President reviewed the transcripts and evidence and found that the Arbitrator had taken steps to ensure Benjamin understood the proceedings and facilitated the presentation of his evidence. The Acting Deputy President was also satisfied that the Arbitrator had given proper consideration to the evidence, particularly the medical evidence, and had provided reasons for her decision. The appeal was dismissed, and the Arbitrator's decision was confirmed. There was no order as to the costs of the appeal.

Orders