Bi-Lo Pty Ltd v Sorial - [2006] NSWWCCPD 271

WORKERS COMPENSATION COMMISSION

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

CITATION:Bi-Lo Pty Ltd v Sorial & Anor [2006] NSWWCCPD 271
APPELLANT:  Bi-Lo Pty Ltd
FIRST RESPONDENT:  Romany Sorial
SECOND RESPONDENT:  Franklins Ltd
APPELLANT’S INSURER:  Coles Myer NSW Injury Services
SECOND RESPONDENT’S INSURER:            Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 18603-04
DATE OF ARBITRATOR’S DECISION:          27 April 2006
DATE OF APPEAL DECISION:  11 October 2006
SUBJECT MATTER OF DECISION:                Partial incapacity for work, and apportionment of liability for payment of weekly compensation
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Lander & Rogers Lawyers
First Respondent: Milicevic Solicitors
Second Respondent: Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The Arbitrator’s decision of 27 April 2006 is confirmed.
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The Appellant, Bi-Lo Pty Ltd, is to pay Mr Sorial’s costs and those of the Second Respondent, Franklins Ltd, in this appeal.

BACKGROUND TO THE APPEAL

On 25 May 2006, Bi-Lo Pty Ltd sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 27 April 2006. The First Respondent in the appeal is Romany Sorial; the Second Respondent is Franklins Ltd. Franklins’ workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’). Bi-Lo’s workers compensation insurer was Allianz from 8 October 2001 to 16 February 2002, and from 17 February 2002 Bi-Lo was a self-insurer through Coles Myer NSW Injury Services (‘Coles Myer’).

Mr Sorial was born in Egypt on 12 September 1961 and is aged 45. He migrated to Australia in 1992 and has a dependant wife and, at the time of the decision, had two dependant children, aged eight and nine, his wife also then being pregnant.

Mr Sorial was first employed by Franklins as a baker in their store at Campbelltown in about February 2000. With a change in ownership of the store, he was employed by Bi-Lo from 8 October 2001, and moved to the grocery section on 6 May 2002. Mr Sorial’s work in the grocery section involved “pushing and pulling pallets from the storeroom and distributing boxes on the floor” (statement dated 9 June 2004, paragraph 16). On 13 December 2002, in the course of working his shift, Mr Sorial experienced pain in his hands and wrists, shoulders, neck and back. On the next day he experienced numbness in his right leg. In the period before Christmas 2002, although continuing to work, Mr Sorial consulted his general practitioner, Dr R Lau, and was referred for x-rays, and for acupuncture and physiotherapy. On 10 January 2003, Dr Lau certified Mr Sorial as fit only for light duties. Mr Sorial remained on light duties until, on 28 July 2003, he was sent home.

Mr Sorial claims to have injured his left arm on 10 April 2000 when this was caught in a cooling machine, to have suffered burns to the back of his left hand in September 2000, and to have injured his arms, shoulders,…

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 271
Decision Date: 11 October 2006

CaseChat Overview and Summary

Bi-Lo Pty Ltd, the appellant, sought to appeal a decision of an arbitrator dated 27 April 2006 in relation to a dispute with Romany Sorial, the first respondent, and Franklins Ltd, the second respondent. The central issues in the appeal were the mathematical correctness of the Arbitrator's award of continuing weekly compensation, the cause of Mr Sorial’s partial incapacity for work, the apportionment of weekly compensation between the insurers, and whether the Arbitrator correctly assessed Mr Sorial’s ability to earn during his period of partial incapacity.

The court examined each of these issues in turn. Firstly, regarding the mathematical correctness of the award, the court found that the Arbitrator's calculations were accurate, dismissing Bi-Lo’s first ground of appeal. Secondly, concerning the cause of the partial incapacity, the court held that the Arbitrator’s reasoning, though not entirely clear, was supported by the evidence and the issue of the left arm injury was not relevant, rejecting the second ground of appeal. Thirdly, the court found that the issue of apportionment was not raised before the Arbitrator and there was no evidence to support it, thus dismissing the third and fourth grounds of appeal. Lastly, on the issue of Mr Sorial’s ability to earn, the court concluded that the Arbitrator correctly applied the relevant legal principles and there was no evidence suggesting Mr Sorial could earn more than his current earnings, leading to the dismissal of the fifth ground of appeal.

Given that Bi-Lo failed to establish any of its grounds of appeal, the appeal was dismissed, and the Arbitrator’s decision of 27 April 2006 was confirmed. The appellant, Bi-Lo Pty Ltd, was ordered to pay the costs of the first respondent, Mr Sorial, and the second respondent, Franklins Ltd, in this appeal.

Orders