Cargill Australia Ltd v Madigan - [2007] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Cargill Australia Ltd v Madigan [2007] NSWWCCPD 10
APPELLANT:  Cargill Australia Ltd
RESPONDENT:  Jodie Madigan
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC3725-06
DATE OF ARBITRATOR’S DECISION:          22 June 2006
DATE OF APPEAL DECISION:  12 January 2007
SUBJECT MATTER OF DECISION: Treatment of the evidence as to causation and obtaining suitable employment; section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      Walkom Lawyers
Respondent:   Walsh & Blair Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 June 2006 is confirmed.

The Appellant, Cargill Australia Ltd is to pay the Respondent, Ms Madigan’s costs of this appeal.

BACKGROUND TO THE APPEAL

On 20 July 2006, Cargill Australia Ltd (‘Cargill’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 2 June 2006. The Respondent to the appeal is Jodie Madigan. Cargill’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).

Ms Madigan was born on 18 August 1974 and is aged 32. She has a dependent son aged 12. In October 2003, Ms Madigan commenced employment at Cargill’s meat processing unit in Wagga Wagga, initially as a labourer and later as a slicer. Her duties included lifting cuts of meat. She claims that on or about 10 September 2004, she began to notice pain in her lower back and left buttock radiating down the outside of her left leg. Towards the end of 2004, she also began to experience pain in her right shoulder and left index finger. She notified Cargill of her injury on 6 May 2005 and made a workers compensation claim. Initially, Ms Madigan was placed on light duties but, on 28 June 2005, Cargill informed her that it no longer had suitable duties for her. By letter of the same date, Allianz informed her that it denied further liability with effect from 23 June 2005.

On 10 March 2006, the Commission registered Ms Madigan’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation from 28 June 2005 to date and continuing and for medical, hospital or related expenses. On 31 March 2006, the Commission received Allianz’s ‘Reply’. On 19 May 2006, an Arbitrator conducted a teleconference with the parties and, on 30 May 2006, conciliation having proved unsuccessful, he conducted an arbitration hearing. The Arbitrator’s decision, dated 22 June 2006, is set out below.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 22 June 2006, records the Arbitrator’s orders as follows:

“1. There will be an award for the Applicant for weekly workers compensation at the rate of $661.90 per week in respect of the period 28 June 2005 to 27 June 2006 pursuant to Section 38 and thereafter at the rate of $413.40 per week being the maximum statutory rate for a worker with one…

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: [2007] NSWWCCPD 10
Decision Date: 12 January 2007

CaseChat Overview and Summary

Cargill Australia Ltd sought to appeal a decision of an arbitrator who awarded Jodie Madigan weekly compensation. The dispute centered on the causation of Ms Madigan's injuries and whether Cargill's employment was a substantial contributing factor to her injuries. The appeal hinged on the interpretation of sections 9A and 38A of the Workers Compensation Act 1987. Cargill argued that the Arbitrator erred in his treatment of the evidence, particularly concerning the date of injury and the contribution of the employment to the injury.

The Acting Deputy President Robin Handley reviewed the Arbitrator's decision on the papers, noting that the appeal could be decided without a formal hearing. The President examined each ground of appeal, considering whether the Arbitrator's decision was affected by legal, factual, or discretionary errors. The President found that the Arbitrator properly considered the evidence and provided adequate reasons for his findings. Notably, the President concluded that the Arbitrator correctly identified the injury as attributable to the nature and conditions of employment rather than a specific incident, and that Cargill's employment was indeed a substantial contributing factor to the injury. The President also rejected arguments concerning the treatment of expert evidence and the effect of changes in workload and other injuries on Ms Madigan's capacity to work.

Given that none of the grounds of appeal were substantiated, the Acting Deputy President confirmed the Arbitrator's decision. The final order was that the decision of the Arbitrator dated 22 June 2006 is confirmed, and Cargill Australia Ltd is to pay Ms Madigan's costs of the appeal.

Orders