Cabra-Vale Ex-Servicemen's Club Ltd v Berkmann - [2006] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Cabra-Vale Ex-Servicemen’s Club Ltd v Berkmann [2006] NSWWCCPD 63
APPELLANT:  Cabra-Vale Ex-Servicemen’s Club Ltd
RESPONDENT:  Margaret Berkmann
INSURER:QBE Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC 16298-04
DATE OF ARBITRATOR’S DECISION:          23 February 2005
DATE OF APPEAL DECISION:  20 April 2006
SUBJECT MATTER OF DECISION:                Adequacy of reasons, treatment of evidence
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Cambridge Integrated Services
Respondent: Whitelaw McDonald, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.

The Appellant, Cabra-Vale Ex-Servicemen’s Club Ltd, is to pay the Respondent, Ms Berkmann’s costs in this appeal.

BACKGROUND TO THE APPEAL

On 18 March 2005, Cabra-Vale Ex-Servicemen’s Club Ltd (‘the Club’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 23 February 2005. The Club’s workers compensation insurer is QBE Workers’ Compensation (NSW) Ltd (‘QBE’).

The Respondent to the appeal is Margaret Berkmann. Ms Berkmann was born on 25 October 1947 and is aged 58. She is married with two adult children. Ms Berkmann worked as a poker machine attendant at the Club from 1985 to February 2001. Her work included various tasks requiring use of her thumbs, in particular, the counting of bank notes between thumb and index finger. Ms Berkmann claims that in the last two years of working for the Club, she began to develop pain and soreness around the base of her thumbs that would spread into her hands. On about 15 February 2001, she consulted her general practitioner, Dr S Mohan, about this and ceased work on 21 February 2001, when she notified the Club of her injury. Although later certified as fit for restricted duties, the Club informed her that there was no work available for her. In July 2001, she moved to the Central Coast.

Ms Berkmann lodged a claim for lump sum compensation in respect of an injury to both thumbs as a result of the nature and conditions of her employment from 1 January 1999 to 21 February 2001. On 12 December 2003, the Commission registered an agreement in respect of this claim pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) to the effect that permanent impairment compensation was to be paid to Ms Berkmann in respect of a 10% permanent loss of efficient use of both thumbs, totalling $5,600.00. By letter dated 6 September 2004, Ms Berkmann’s solicitors made a claim on her behalf for the payment of weekly compensation from the Club.

On 12 October 2004, the Commission registered Ms Berkmann’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation from 31 May 2001 to date and continuing, and for medical, hospital, or related expenses. The Club’s ‘Reply’ was lodged on 21 October 2004. On 31 January 2005, the Arbitrator conducted a teleconference with the parties and, on 18 February 2005, conciliation…

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

AGLC: Cabra-Vale Ex-Servicemen's Club Ltd v Berkmann [2006] NSWWCCPD 63
Case: [2006] NSWWCCPD 63
Decision Date: 20 April 2006

CaseChat Overview and Summary

The case of Cabra-Vale Ex-Servicemen's Club Ltd v Berkmann involved an appeal by the Club against a decision of an arbitrator of the Workers Compensation Commission. The dispute was between the Club and Ms Margaret Berkmann, who claimed compensation for injuries to her thumbs sustained during her employment as a poker machine attendant. The Arbitrator had awarded Ms Berkmann weekly compensation from 30 May 2001, continuing, and ordered the Club to pay her medical expenses and costs. The Club argued that the Arbitrator had erred in determining the amount of compensation, the exercise of his discretion under section 40 of the Workers Compensation Act 1987, and that his findings were inconsistent with a prior award for permanent loss of efficient use of each thumb.

The appeal was heard on the papers, with both parties submitting written arguments. The Acting Deputy President reviewed the Arbitrator’s decision, noting that the role of the appeal was not a rehearing but to determine if there was any legal, factual, or discretionary error. The Club contended that the Arbitrator did not provide adequate reasons for his findings on Ms Berkmann's earning capacity and failed to properly exercise his discretion. They argued that Ms Berkmann could undertake full-time work in sales, contrary to the Arbitrator’s finding of a $250 per week capacity. However, the Acting Deputy President found that the Arbitrator sufficiently described the unskilled work Ms Berkmann could undertake and was supported by medical evidence and other submissions. The Acting Deputy President also noted that Ms Berkmann’s initial attempt to retrain and the difficulty in finding work for someone of her age and experience with hand disabilities were appropriately considered by the Arbitrator.

Regarding the exercise of discretion, the Club argued that the Arbitrator's decision to reduce the award by only approximately 20% was inadequate. The Acting Deputy President found that the Arbitrator had considered relevant factors such as Ms Berkmann's age, experience, and the nature of her disability. Lastly, the Club argued that the Arbitrator's findings were inconsistent with the prior award of a 10% permanent loss of efficient use of each thumb. However, the Acting Deputy President concluded that the Arbitrator's findings were supported by evidence and did not conflict with the prior award, as the section 66 assessment related only to permanent loss of a specified body part, and the type of disability suffered by Ms Berkmann was relevant in considering her capacity for work.

The Acting Deputy President confirmed the Arbitrator's decision, finding that the Club had not demonstrated any legal, factual, or discretionary error. Consequently, the decision under review was upheld, and the Club was ordered to pay Ms Berkmann's costs in the appeal.

Orders