Buhler v Email Ltd & Anor - [2008] NSWWCCPD 135

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Buhler v Email Ltd & Anor [2008] NSWWCCPD 135
APPELLANT:  Fiona Buhler
FIRST RESPONDENT:  Email Ltd
SECOND RESPONDENT  Julia Ross Human Directions Ltd
FIRST RESPONDENT INSURER:  Self insurer
SECOND RESPONDENT INSURER:                Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCCA1-004180-08
DATE OF ARBITRATOR’S DECISION:          6 August 2008
DATE OF APPEAL DECISION:  19 November 2008
SUBJECT MATTER OF DECISION: Treatment of the evidence; injury; disease; section 16 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:Determined on the papers
REPRESENTATION:  Appellant:                   Bateman Battersby Lawyers
FirstRespondent:      Rankin & Nathan Lawyers
Second Respondent:   Vardanega Roberts Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 6 August 2008 is confirmed.
There is no order as to the costs of this appeal.

BACKGROUND

On 2 September 2008, Fiona Buhler (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 6 August 2008. The Respondents to the appeal are Email Ltd (‘the First Respondent’) and Julia Ross Human Directions Ltd (‘the Second Respondent’, also referred to as ‘Julia Ross Recruitment’). The First Respondent filed a ‘Notice of Opposition’ to the appeal on 30 October 2008 and the Second Respondent on 17 October 2008.

Ms Buhler, who is aged 37, was employed as a Vocational Training Adviser: (1) by Email Ltd from 11 May 1998 to 29 June 2001, (2) by Julia Ross Recruitment from 30 June 2001, and (3) by the Department of Education and Training (‘the Department’, the third respondent in the original proceedings) from 29 September 2001. In the case of the Ms Buhler’s employment with both Email Ltd and Julia Ross Recruitment, she was actually working within the Department as a Vocational Training Adviser in the New Apprenticeships Centre, and she continued to work in this capacity after commencing her employment with the Department. Ms Buhler continues to work as a Vocational Training Adviser for the Department although in a different position.

According to a statement made by Ms Buhler on 21 September 2006, she first suffered neck pain on 2 April 2001 after completing a large volume of paperwork. Although she experienced neck pain that night, she still went to work next day. However, she had to leave work early and go home. She reported the injury to Email Ltd on 4 April 2001. Ms Buhler consulted her family doctor, Dr Chamberlain, on 7 April 2001. She used Nurofen and a heat pillow and had five or six physiotherapy sessions. She stated that she took one day off. On 2 May 2001, Ms Buhler first made a claim for workers compensation in respect of the incident on 2 April 2001.

Ms Buhler has suffered neck pain since that time which, she says, “is easily aggravated” by workplace activities. On 20 November 2006, she claimed compensation under section 66 of the Workers Compensation Act 1987 (‘the…

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: [2008] NSWWCCPD 135
Decision Date: 19 November 2008

CaseChat Overview and Summary

Buhler v Email Ltd & Anor is a workers' compensation case where Fiona Buhler appealed against the decision of an Arbitrator, arguing that she sustained an injury on 2 April 2001, or that her injury was due to the nature and conditions of her employment. The Arbitrator found that Buhler did not suffer an injury on 2 April 2001 or as a result of the nature and conditions of her employment. The Arbitrator's decision was appealed by Buhler, who argued that the Arbitrator erred in finding that she did not sustain an injury on 2 April 2001 or due to the nature and conditions of her employment. The appeal was determined on the papers, without holding any conference or formal hearing.

The Acting Deputy President of the Workers Compensation Commission, Robin Handley, reviewed the Arbitrator's decision and found that the Arbitrator had carefully analysed the relevant medical evidence and that Buhler's claims were not supported by the evidence presented. Buhler had failed to establish her grounds for appeal, and therefore the appeal was dismissed and the Arbitrator's decision was confirmed. The Acting Deputy President found that the Arbitrator's reasoning evidenced no error of fact or law and that the findings made were clearly open to her on the evidence.

The final orders made on appeal were that the decision of the Arbitrator dated 6 August 2008 is confirmed, and there is no order as to the costs of this appeal.

Orders