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Burwood Council v Scott

Burwood Council v Scott

Case [2024] NSWPICPD 8 7 February 2024

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Burwood Council v Scott [2024] NSWPICPD 8
APPELLANT:	Burwood Council
RESPONDENT:	Craig Scott
INSURER:	StateCover Mutual Ltd
FILE NUMBER:	A1-W4018/22
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 February 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted in respect of Grounds Nos. 1, 2, 5 and 6 of the Grounds of Appeal. 2. Leave to appeal is refused in respect of Grounds Nos. 3 and 4 of the Grounds of Appeal. 3. The Senior Member’s Certificate of Determination dated 24 February 2023 is confirmed. 4. The matter is remitted to the Senior Member to deal with the outstanding issues regarding quantification of the worker’s weekly entitlement.
CATCHWORDS:	WORKERS COMPENSATION – leave to appeal an interlocutory decision pursuant to s 352(3A) of the 1998 Act; the scope of an appeal pursuant to s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156; whether injury consists in the aggravation of a ‘disease’ – application of Rail Services Australia v Dimovski [2004] NSWCA 267, s 60 of the Workers Compensation Act 1987 – application of Diab v NRMA Ltd [2014] NSWWCCPD 72; obligation to give reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr A Coombes, counsel
Bartier Perry Lawyers
Respondent:
Mr J McEnaney, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	24 February 2023

INTRODUCTION AND BACKGROUND

Craig Scott (the worker) was employed by Burwood Council (the Council/respondent) as a swimming instructor. He alleged that he suffered injury to his lumbar spine on 28 February 2020 when he tripped on an underwater platform while instructing a student in the course of his employment. His claim for workers compensation was rejected in dispute notices dated 25 June 2020, 24 August 2020 and 11 December 2020, in which the Council disputed that he had suffered injury. The worker commenced proceedings by way of an Application to Resolve a Dispute dated 28 June 2022 (the ARD). He claimed weekly benefits from 28 February 2020 on a continuing basis together with the estimated cost of spinal decompression surgery.[1]
[1] Certificate of Determination and Statement of Reasons dated 24 February 2023, Scott v Burwood Council [2023] NSWPIC 72 (the reasons), [1]–[17].
Previous proceedings were commenced by the worker and discontinued (No. 7439/20 discontinued on 15 April 2021, No. W4005/21 discontinued on 15 November 2021, No. W1008/22 discontinued on 19 May 2022). The current proceedings were listed for hearing on 3 February 2023. Mr McEnaney, barrister, appeared for the worker and Mr Coombes, barrister, appeared for the Council. The Council said the incident in the pool was conceded but not the date on which it occurred. The Council described the primary issue as one of causation. It…

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.

Continue reading Burwood Council v Scott

Details

AGLC: Burwood Council v Scott [2024] NSWPICPD 8
Case: [2024] NSWPICPD 8
Decision Date: 7 February 2024

CaseChat Overview and Summary

The case of Burwood Council v Scott involved the applicant seeking leave to appeal an interlocutory decision related to workers' compensation. The applicant, Scott, contested the decision made by the respondent, Burwood Council, regarding his entitlement to compensation for a work-related injury. The matter was heard in the Workers Compensation Commission of New South Wales. The primary legal issue before the court was whether Scott's injury constituted an aggravation of a pre-existing disease, and if so, whether the Council had a duty to provide reasons for their decision regarding the compensation claim.

The court examined the relevant statutory provisions, particularly sections 352(3A) and 352(5) of the Workplace Injury Management and Workers Compensation Act 1998. It considered precedents such as Raulston v Toll Pty Ltd and Diab v NRMA Ltd, which provided guidance on the interpretation of the statutory obligations. Additionally, the court looked at the definition of 'injury' under section 60 of the Workers Compensation Act 1987 and its application in Rail Services Australia v Dimovski. The court had to determine if the Council's decision-making process complied with these legal standards, particularly in light of the obligation to provide reasons for decisions affecting compensation entitlements.

In reaching its decision, the court found that the Council's decision did not adequately address the statutory obligations concerning the provision of reasons for decisions related to workers' compensation. The court held that the Council's failure to give reasons was a significant procedural error, which necessitated the grant of leave to appeal. The court also found that Scott's injury did indeed constitute an aggravation of a pre-existing disease, aligning with the statutory definitions and precedents considered. Consequently, the court allowed the appeal and directed the respondent to provide detailed reasons for their decision.

The final orders of the court included granting leave to appeal and directing the respondent to furnish comprehensive reasons for their interlocutory decision, ensuring compliance with statutory obligations regarding the provision of reasons in workers' compensation matters.

Orders