DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Bonds Industries Limited v Borg [2007] NSWWCCPD 80
APPELLANT: Bonds Industries Limited
RESPONDENT: Susan Borg
INSURER:Self insurer
FILE NUMBER: WCC15624-04
DATE OF ARBITRATOR’S DECISION: 6 October 2005
DATE OF APPEAL DECISION: 8 March 2007
SUBJECT MATTER OF DECISION: Leave to appeal; factual errors not affecting the result; estoppel from prior consent award for lump sum compensation; section 67 – pleading, approach on review; procedural fairness; section 40.
PRESIDENTIAL MEMBER: Acting Deputy President Michael Snell
ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator, dated 6 October 2005, is revoked and the following decision is made in its place:
“The Respondent is to pay the Applicant weekly compensation pursuant to section 40 at the following rates:
(i)$222.00 per week from 12 January 2004 to 30 June 2004:
(ii)$161.49 per week from 1 July 2004 to date and continuing.”
The balance of the decision of the Arbitrator dated 6 October 2005 is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 26 October 2005 Bonds Industries Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 October 2005.
The Respondent to the Appeal is Susan Borg (‘the Respondent Worker’).
The Respondent Worker was born on 30 April 1960. She commenced employment with the Appellant Employer from about 2 October 1990, as a picker and packer, working full-time. She relied upon an injury to her left shoulder suffered on 30 January 1992, when lifting in the course of this employment. She came under the care of the orthopaedic surgeon, Dr Matthew Giblin, who carried out manipulations and injections to the shoulder, followed by an arthroscopic procedure on 18 November 1992. She was then referred to Professor Sonnabend, who carried out surgery to the left shoulder on 10 March 1993, involving “a routine anterior capsular shift”. Post-operatively a diagnosis of ‘frozen shoulder’ was made. The Respondent Worker came under the care of a pain management specialist, Dr Salmon. He administered various treatments, including injections to the shoulder. She was assessed by other treating specialists, including Dr Howell, rheumatologist, Dr Rail, neurologist, and Dr Bokor, orthopaedic surgeon.
About two years after Professor Sonnabend’s surgical procedure, the Respondent Worker resumed employment with the Appellant Employer full-time, but with restrictions on the use of her left arm. She did this work for about one year. As at 21 June 1996, when she was being examined by Dr Maloney at the Appellant Employer’s request, she said she was continuing in office duties, which she had commenced in October 1995. She told Dr Noll, on about 10 September 2003, that after carrying out the light work for approximately one year, she was unemployed until commencing childcare work, further described below.
The Respondent Worker brought…
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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AGLC
Bonds Industries Limited v Borg [2007] NSWWCCPD 80
Case
[2007] NSWWCCPD 80
Decision Date
CaseChat Overview and Summary
In Bonds Industries Limited v Borg, the Workers Compensation Commission heard an appeal against a decision of an arbitrator. The Respondent, Susan Borg, had commenced employment with the Appellant, Bonds Industries Limited, as a picker and packer, on 2 October 1990. She suffered an injury to her left shoulder on 30 January 1992, which resulted in surgery and post-operative care. She subsequently commenced employment in a childcare capacity, which she claimed was limited by her injury. The Appellant claimed she was fit for full-time employment, including in the childcare industry, and sought to reduce her weekly compensation payments accordingly. The Arbitrator found in favour of the Respondent, awarding her weekly compensation and further lump sum compensation. The Appellant sought leave to appeal, which was granted in part. The appeal raised multiple issues, including factual errors, procedural fairness, and the assessment of weekly compensation under section 40 of the Workers Compensation Act 1987. The Appeal was ultimately dismissed, but the weekly compensation award was varied to reflect the correct actual earnings.