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Bi-Lo Pty Ltd v Saunders

Bi-Lo Pty Ltd v Saunders

Case [2007] NSWWCCPD 235 30 November 2007

Substantial Contributing Factor

Causation

Incapacity

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSIONCONSTITUTED BY AN ARBITRATOR

CITATION:Bi-Lo Pty Ltd v Saunders [2007] NSWWCCPD 235
APPELLANT:  Bi-Lo Pty Ltd
RESPONDENT:  Jodi Saunders
INSURER:Self insured
FILE NUMBER:  WCC4201-07
DATE OF ARBITRATOR’S DECISION:          16 August 2007
DATE OF APPEAL DECISION:  30 November 2007
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987; substantial contributing factor
PRESIDENTIAL MEMBER:  President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION:  Appellant:      Lander & Rogers
Respondent:   Walker Smith Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 16 August 2007, is revoked and the following decision is made in its place:

“1.Award for the Respondent, Bi-Lo Pty Ltd.
2.No order as to costs.”

No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

On 5 September 2007 Bi-Lo Pty Ltd (‘the Appellant/Bi-Lo’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 August 2007.

The Respondent to the Appeal is Jodi Saunders (‘the Respondent / Worker’).

Ms Saunders is a 23 year old delicatessen assistant and claims to have sustained injury to her left knee on 21 November 2006 when she experienced sudden pain in her knee walking back to work from a break.

Ms Saunders ceased work on 23 November 2006 and sought weekly benefits. Bi-Lo denied liability on the basis that employment was not a substantial contributing factor to the injury, under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’).

On 8 June 2007 an Application was filed in the Commission claiming compensation at the rate of $612.19 per week from 21 November 2006 to 11 January 2007 together with medical expenses. The Application noted that Ms Saunders had returned to work on 12 January 2007.

Bi-Lo filed a Reply to the Application on 5 July 2007 putting injury, section 9A and incapacity in issue.

The parties were unable to resolve the matter at a telephone conference and it proceeded to an arbitration hearing in Taree on 9 August 2007, both parties were represented.

The Arbitrator delivered an ex tempore decision and made orders which were the subject of the Certificate of Determination dated 16 August 2007.

THE DECISION UNDER REVIEW

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

1.Respondent to pay $612.19 per week from 22 November 2006 to 10 January 2007 pursuant to section 36.
2.Respondent to pay section 60 expenses.
3.Respondent to pay the Applicant’s costs as agreed or assessed.

ISSUES IN DISPUTE

The issues in dispute in the appeal are:

-whether the Arbitrator erred in concluding that Ms Saunders’ employment was a substantial contributing factor to the injury, and

-whether the Arbitrator erred in finding incapacity from 22 November 2006 to 1 December 2006.

ON THE PAPERS REVIEW

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information…

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 Bi-Lo Pty Ltd v Saunders

Details

AGLC: Bi-Lo Pty Ltd v Saunders [2007] NSWWCCPD 235
Case: [2007] NSWWCCPD 235
Decision Date: 30 November 2007

CaseChat Overview and Summary

In the matter of Bi-Lo Pty Ltd v Saunders, the Appellant, Bi-Lo Pty Ltd, appealed against a decision of the Arbitrator in the Workers Compensation Commission. The Respondent, Jodi Saunders, claimed to have sustained an injury to her left knee while walking back to work from a break. Bi-Lo denied liability on the grounds that employment was not a substantial contributing factor to the injury. The Arbitrator had awarded compensation to Ms Saunders, which Bi-Lo contested. The appeal was determined on the papers, without holding any conference or formal hearing.

The primary issue in the appeal was whether the Arbitrator erred in concluding that Ms Saunders' employment was a substantial contributing factor to the injury. Additionally, the appeal addressed whether the Arbitrator erred in finding incapacity from 22 November 2006 to 1 December 2006. The Arbitrator's decision was reviewed, and it was found that there was insufficient evidence to support the conclusion that employment was a substantial contributing factor to the injury. The Appellant's argument that the Arbitrator's finding was an error of law was accepted. As a result, the Arbitrator's determination was revoked, and the award for the Respondent was rescinded. There was no order as to costs.

Orders