Berri (NSW) Ltd v Moxham - [2005] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Berri (NSW) Ltd v Moxham [2005] NSW WCC PD 55
APPELLANT:  Berri (NSW) Ltd
RESPONDENT:  Gary Moxham
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 7956-04
DATE OF ARBITRATOR’S DECISION:          2 November 2004
DATE OF APPEAL DECISION:  28 June 2005
SUBJECT MATTER OF DECISION: Entitlement to weekly payments during partial incapacity: section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Diana Benk, Solicitor, QBE Workers Compensation (NSW) Ltd
Respondent: Firths, Compensation Lawyers

ORDERS MADE ON APPEAL: That part of the decision of the Arbitrator dated 2 November 2004 ordering the Appellant, Berri (NSW) Ltd, to pay the Respondent, Mr Moxham, weekly compensation from 1 July 2004 and continuing, is revoked and the following decision is made in its place:

(1) The Appellant is not liable to pay the Respondent weekly compensation from 1 July 2004 pursuant to section 40 of the Workers Compensation Act 1987. The decision of the Arbitrator is otherwise confirmed.
(2) No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 12 November 2004, Berri (NSW) Ltd (‘Berri’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 2 November 2004.

The Respondent to the Appeal is Gary Moxham.

Mr Moxham was born on 9 October 1954 and is aged 50. He commenced employment with Sunburst Foods in November 1989. That company subsequently became National Foods Ltd and then Berri. Mr Moxham commenced his employment with Sunburst Foods as a pallet packer and later became a machine operator. On 7 February 1996, he slipped on a mouldy floor at work, landing on a steel beam and injuring his back. He was off work for about 6 weeks, initially returning to work on light duties. Mr Moxham states that when, after about eight months on light duties, he returned to his pre-injury duties as a machine operator, his injury prevented him from performing the overtime he had undertaken before the accident. In late 1999, he was offered a new position within the company as a factory cleaner, operating two machines - a factory floor scrubber and a sweeper. He accepted this position because the work placed less pressure on his back. However, whilst he is paid at the higher penalty rate for the cleaning work he does on Sundays when the factory is quieter, he claims he does not have the opportunity to work overtime in the way he did as a machine operator and, in any event, the 40 hours a week that he now works is the limit of his physical capacity.

Mr Moxham lodged a claim for compensation for permanent impairment that was settled in the Compensation Court of NSW on 27 July 1999, with Sunburst Foods agreeing to pay him the sum of $9,000 in respect of…

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 Berri (NSW) Ltd v Moxham

Details

AGLC: Berri (NSW) Ltd v Moxham [2005] NSW WCC PD 55
Case: [2005] NSWWCCPD 55
Decision Date: 28 June 2005

CaseChat Overview and Summary

Berri (NSW) Ltd appealed a decision of the Workers Compensation Commission, constituted by an Arbitrator, to pay Gary Moxham weekly compensation from 1 July 2004, in accordance with section 40 of the Workers Compensation Act 1987. The issues in dispute were whether the Arbitrator erred in calculating Mr Moxham’s entitlement to weekly payments of compensation and whether the amount of compensation at issue met the threshold for leave to appeal. The Acting Deputy President found that the Arbitrator made an error of law in making the award of weekly payments and that the award exceeded the maximum permitted by section 40. The Acting Deputy President revoked part of the Arbitrator’s decision and ordered that Berri (NSW) Ltd was not liable to pay Mr Moxham weekly compensation from 1 July 2004. The decision of the Arbitrator was otherwise confirmed, and no order was made as to the costs of this appeal.

Orders