Carter v GIO Workers Compenation (NSW) Ltd - [2006] NSWWCCPD 180

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Carter v GIO Workers Compensation (NSW) Limited [2006] NSWWCCPD 180

APPELLANT: Jennifer Yvonne Carter

RESPONDENT: GIO Workers Compensation (NSW) Limited

INSURER:GIO Workers Compensation ( NSW) Limited

FILE NUMBER:  WCC7865-05
DATE OF ARBITRATOR’S DECISION:          31 March 2006
DATE OF APPEAL DECISION:  9 August 2006
SUBJECT MATTER OF DECISION:                Issue estoppel; prior District Court proceedings; identity of parties.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Fitzpatrick Solicitors
Respondent: Moray & Agnew

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 31 March 2006 is revoked and the following order made:

i. The matter is remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine the Appellant Worker’s entitlements in accordance with the reasons in this decision.
ii The Respondent Employer is to pay the costs of the appeal and of the proceedings before the Arbitrator.

BACKGROUND TO THE APPEAL

On 24 April 2006, Jennifer Yvonne Carter (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the decision dated 31 March 2006.

The Respondent to the appeal is GIO Workers Compensation (NSW) Limited (‘the Respondent Employer’) substituted as the Respondent by order made at an arbitration hearing on 23 February 2006 in place of a deregistered employer, described by the Arbitrator as ‘Community Services and Health Industry Training Company Limited trading as Care Skills’.

On 19 May 1999, the Appellant Worker was engaged by the Respondent Employer to work as an assistant in nursing at the Nyora Gardens Nursing Home (‘Nyora’). She claimed that on that date, she was assaulted by a patient as a consequence of which she suffered a number of injuries.

On 24 April 2002 the Appellant Worker filed a Statement of Claim in the District Court being proceedings number 2628/02 against Stelcom Pty Limited trading as Nyora Gardens Nursing Home seeking damages as a result of the injuries she suffered on 19 May 1999 allegedly as a consequence of Nyora’s negligence.

On 12 December 2002 Nyora filed a cross-claim against ‘the Government Insurance Office of New South Wales’ named as Cross Defendant, stating that: “At all material times the Cross Defendant was the worker’s compensation insurer of the Plaintiff’s employer trading as Careskills Community Services and Health Industry Training Company”. Nyora alleged the Cross Defendant had breached its duty of care to the Appellant Worker.

Those proceedings were heard and determined by Dodd DCJ on 25 August 2004. The decision of the Court was “… a verdict and judgment for the defendant against the plaintiff with costs and to dismiss the defendant’s cross claim”.

On 26 May 2005 the Appellant Worker filed her ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation, medical, hospital or related expenses, and permanent impairment/pain and suffering compensation as a consequence of the incident on…

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: [2006] NSWWCCPD 180
Decision Date: 9 August 2006

CaseChat Overview and Summary

In this appeal, Acting Deputy President Deborah Moore was tasked with reviewing the decision of an Arbitrator who found that Jennifer Yvonne Carter was estopped from claiming workers compensation benefits under the Workers Compensation Act 1987 (NSW) due to a prior judgment in the District Court. The Arbitrator's decision was revoked, and the matter was remitted to a different Arbitrator to determine the Appellant Worker's entitlements in accordance with the reasons set out in the decision. The Acting Deputy President found that the Arbitrator erred in applying the principle of issue estoppel, as the findings in the District Court were not necessary or fundamental to the judgment and therefore could not estop the Appellant Worker from pursuing her claim for compensation in the Workers Compensation Commission. Consequently, the Appellant Worker was not estopped from pursuing her claim, and the matter was remitted to a different Arbitrator for further determination.

The Acting Deputy President first addressed the Appellant Worker's grounds of appeal, including the Arbitrator's handling of the bias issue, the section 66 entitlement issue, and the identity of parties issue. The Acting Deputy President found that the Arbitrator had not demonstrated any bias in his conduct of the proceedings and that the Arbitrator's determination on the section 66 entitlement issue and the identity of parties issue were not erroneous. The Acting Deputy President then examined the issue of issue estoppel, which was the primary focus of the Arbitrator's decision.

The Acting Deputy President concluded that the Arbitrator's determination on the issue of issue estoppel was wrong in law, as the findings in the District Court were not necessary or fundamental to the judgment such that they could estop the Appellant Worker from pursuing her claim for compensation. The Acting Deputy President found that the findings on the issues of injury and incapacity were not indispensable to the District Court's determination of liability, and therefore, the principle of issue estoppel did not apply in this case.

As a result, the decision of the Arbitrator dated 31 March 2006 was revoked, and the matter was remitted to a different Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine the Appellant Worker's entitlements in accordance with the reasons set out in the Acting Deputy President's decision. The Respondent Employer was ordered to pay the costs of the appeal and the proceedings before the Arbitrator.

Orders