Broadspectrum Australia Pty Ltd v Skiadas - [2016] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34
APPELLANT:	Broadspectrum Australia Pty Ltd
RESPONDENT:	Jenny Skiadas
INSURER:	Self-insured
FILE NUMBER:	A1-6006/15
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	16 March 2016
DATE OF APPEAL DECISION:	30 June 2016
SUBJECT MATTER OF DECISION:	Fresh evidence on appeal, s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998; ability to earn in suitable employment as defined by s 32A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Holman Webb Lawyers
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 16 March 2016 is confirmed.

INTRODUCTION

This appeal concerns a claim for weekly compensation under Pt 3 Div 2 of the Workers Compensation Act 1987 (the 1987 Act), amended by the Workers Compensation Legislation Amendment Act 2012. It specifically concerns whether the Arbitrator erred in finding that from 12 February 2015 the worker has “no current work capacity” as defined by s 32A of the 1987 Act.

BACKGROUND

The respondent worker, Jenny Skiadas, worked as a cleaner for the appellant, Broadspectrum Australia Pty Ltd (formerly known as Transfield Services (Australia) Pty Ltd). Ms Skiadas cleaned schools and TAFE facilities. She was required to vacuum, dust, polish, use a buffing machine, and undertake other cleaning duties.
It is not disputed that Ms Skiadas sustained an injury to her back on 15 November 2011 after using a buffing machine and an injury to her neck on 9 July 2014 after using a vacuum cleaner in the course of her employment with the appellant. It is also not disputed that Ms Skiadas sustained injury to her back and neck as a result of the nature and conditions of her employment as described above.
From 15 November 2011, Ms Skiadas commenced working light duties. There were however, intermittent periods when Ms Skiadas was totally incapacitated. Liability for weekly compensation and medical expenses was accepted for those periods. Ms Skiadas returned to full-time duties on 13 December 2013 with restrictions in place concerning the use of the buffing machine. By June 2014 Ms Skiadas had returned to normal cleaning duties. However, Ms Skiadas began to experience increased back and neck pain and she ceased work on or about August 2014.
On 29 July 2014, the appellant issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) declining further liability for the neck and right arm injury of 9 July 2014. The reasons for doing so are not currently relevant. However, on 17 November 2014, the appellant issued a further s 74 notice declining liability for weekly compensation and medical expenses. It denied that Ms Skiadas continued to suffer an incapacity, under s 33 of the 1987 Act, as a result of a compensable injury to the neck.
On 21 August 2015, the appellant issued…

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: [2016] NSWWCCPD 34
Decision Date: 30 June 2016

CaseChat Overview and Summary

Broadspectrum Australia Pty Ltd brought an appeal against a decision of an arbitrator who had determined that the appellant was liable to pay compensation to the respondent, Mr Skiadas, following an injury sustained during his employment. The case was heard by the Court of Appeal of the Supreme Court of Queensland. The appellant contested the arbitrator's decision on various grounds, including the assessment of Mr Skiadas's capacity to earn in suitable employment, a key factor in determining the quantum of compensation.

The primary legal issue before the court was whether the arbitrator correctly assessed Mr Skiadas's ability to earn in suitable employment, in accordance with the statutory provisions. The court also considered whether fresh evidence presented by the appellant on appeal could be taken into account under section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998. Another significant point of contention was whether the appellant had properly challenged the arbitrator's findings within the requisite timeframe.

The court held that the arbitrator's assessment of Mr Skiadas's ability to earn in suitable employment was consistent with the relevant statutory framework and was not manifestly erroneous. The court found that the fresh evidence submitted by the appellant did not meet the criteria for consideration under section 354(6) of the Act, as it did not address a matter of fundamental error in the original decision. Consequently, the court confirmed the arbitrator's determination and dismissed the appeal.

Orders

Orders of the court

1. The Arbitrator’s determination of 16 March 2016 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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