CITATION:Broun v Woolworths Limited [2008] NSWWCCPD 40
APPELLANT: William Broun
RESPONDENT: Woolworths Limited
INSURER:self-insured
FILE NUMBER: WCC3968-07
DATE OF ARBITRATOR’S DECISION: 17 October 2007
DATE OF APPEAL DECISION: 31 March 2008
SUBJECT MATTER OF DECISION: Injury; section 4 of the Workers Compensation Act1987; causation; no evidence; incorrect findings
PRESIDENTIAL MEMBER: President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION: Appellant: PK Simpson & Co.
Respondent: Moray and Agnew
ORDERS MADE ON APPEAL:
Time to appeal is extended to 26 November 2007.
The decision of the Arbitrator dated 17 October 2007 is revoked and the matter is remitted to a different Arbitrator for determination afresh.
The costs of the first arbitration hearing are to be determined by the new Arbitrator at the conclusion of the rehearing.
The Respondent is to pay the Appellant’s cost of the appeal.
BACKGROUND TO THE APPEAL
On 26 November 2007, William Broun (‘the Appellant / Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 October 2007.
The Respondent to the Appeal is Woolworths Limited (‘the Respondent /Employer’).
Mr Broun is a 24 year old who was employed as a perishables assistant in the Woolworth store at Gordon. He alleges that on 10 October 2003 he sustained an injury to his back and right leg as a result of lifting three tubs of ice-cream and bending to place them in a coffin freezer.
Mr Broun filed an Application to Resolve a Dispute in the Commission on 30 May 2007 in respect of the above injury seeking weekly compensation of $250.00 per week from 1 November 2004 to 31 May 2006 and at the rate of $680.00 per week from 1 August 2006 to date and continuing, compensation under section 60 for medical expenses and lump sum compensation under section 66 in respect of 5% whole person impairment (WPI).
Mr Broun subsequently increased his claim under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) to 10% WPI and to claim compensation pursuant to section 67 for pain and suffering.
Woolworths filed a Reply, relying on the issues raised in the section 74 Notice, and disputed liability for the claim on the basis that the Worker was fit for pre-injury duties, and disputed liability for further medical treatment. Woolworths alleged that the Worker’s WPI was 0% and that section 9A of the1987 Act was in issue.
The parties were unable to settle the claim and the matter proceeded to arbitration hearing on 4 September 2007. Both parties were represented and after hearing submissions from the parties the Arbitrator issued a Certificate of Determination accompanied by a statement of reasons dated 17 October 2007 and it is from this decision that Mr Broun seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 17 October 2007 records the Arbitrator’s orders as follows:
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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Broun v Woolworths Limited [2008] NSWWCCPD 40
Case
[2008] NSWWCCPD 40
Decision Date
CaseChat Overview and Summary
In the case of Broun v Woolworths Limited, the Worker, William Broun, appealed against a decision of the Workers Compensation Commission Arbitrator. The Arbitrator had determined that Mr Broun had sustained an aggravation of a pre-existing injury to his lumbar spine in relation to an injury he sustained at work. The Arbitrator found that Mr Broun had no ongoing incapacity as a result of the work injury. President Greg Keating, DCJ considered the appeal on the papers and found that the Arbitrator had erred in law in making certain findings. The President revoked the Arbitrator’s decision and remitted the matter to a different Arbitrator for determination afresh. The President also ordered that the Respondent, Woolworths Limited, pay the Appellant’s costs of the appeal.