APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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STATUS: Confirmed by Appeal: Chubb Security Australia Pty Ltd v Treverrow [2004] NSWCA 344, (2006) 5 DDCR 1
| CITATION: | Chubb Security Australia Pty Ltd v Annette Treverrow [2003] NSW WCC PD 17 |
| APPELLANT: | Chubb Security Australia Pty Ltd |
| RESPONDENT: | Annette Treverrow |
| INSURER: | NRMA Workers Compensation (NSW) Pty Ltd |
| FILE NO: | WCC2411-2002 |
| DATE OF DECISION: | 20 June, 2003 |
| PRESIDENTIAL MEMBER: | Deputy President, Gary Byron |
| DECISION UNDER APPEAL: | Decision by Arbitrator that the Respondent employer pay to the Applicant worker, compensation by way of weekly payments. Injury arising out of or in the course of employment; whether employment is a substantial contributing factor; error of law; failure to provide reasons; determination of weekly wage rate; incapacity not continuing; determination of expenses not made pursuant to s 60 WCA. |
| DATE OF DECISION UNDER APPEAL: | 22 January, 2003 |
| HEARING: | 16 April, 2003 |
| REPRESENTATION: | Appellant: Mr. M. Adamo, instructed by Turks Legal |
| Respondent: Mr. B. Batchelor, instructed by Bale Boshev Lawyers | |
| ORDERS MADE ON APPEAL: | The decision by the Arbitrator as to total and partial incapacity for work is revoked and the following decision is substituted: The Appellant is to pay to the Respondent Worker, weekly compensation at the rates to be determined according to law, for a period of total incapacity from 11 October, 2001 to 11 February, 2002, and thereafter, for periods of total or partial incapacity on presentation of appropriate medical certificates, up to 15 October, 2002. The purported decision of the Arbitrator concerning the calculation and determination of the amounts of compensation payable to the Respondent Worker is not a valid decision and the matter is referred to the Registrar for return to the Arbitrator, for a decision to be made by her, according to law. No order is made as to costs. |
THE APPEAL
On 19 February, 2003, Chubb Security Australia Pty Ltd, the Respondent in the proceedings before the Arbitrator, (“the Appellant”), lodged an appeal with the Workers Compensation Commission (“the Commission”) against a decision of the Arbitrator, dated 22 January, 2003. The Arbitrator had decided that the Appellant should pay compensation to the Applicant (“the Respondent Worker”), pursuant to section 36 of the Workers Compensation Act 1987 (“the 1987 Act”) at the rate of $495.80 per week from 11 October, 2001 to 23 March, 2002 and thereafter at the statutory rate as prescribed under the the 1987 Act, on presentation of appropriate medical certificates.
The issues in dispute before the Arbitrator were summarised by the Arbitrator, at paragraph 6 of her decision, as follows:
·Did the Applicant receive an injury arising out of or in the course of her employment? (WCA s 9)
·Was the Applicant’s employment a substantial contributing factor to her injury? (WCA s 9A)
·Was the Applicant totally or partially incapacitated for work as a result of her injuries? (WCA s 33)
·For what period was the Applicant totally incapacitated? (WCA ss 36 and 37)
·For what period was…
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- Case
- [2003] NSWWCCPD 17
- Decision Date
CaseChat Overview and Summary
The legal issues before the Commission on appeal included whether the Arbitrator erred in finding that the employee's injury arose out of or in the course of her employment, whether the employment was a substantial contributing factor to the injury, and if there were any errors of law in the Arbitrator's failure to provide reasons for her decision. The employer also challenged the Arbitrator's method of determining the weekly wage rate and questioned the validity of the expenses awarded. Furthermore, the employer argued that the Arbitrator's determination of the employee's incapacity and expenses was not made pursuant to section 60 of the Workplace Injury Management and Workers Compensation Act 1998.
The Commission found that the Arbitrator had indeed erred in several respects. The Commission held that the Arbitrator had failed to provide reasons for her decision, which was a breach of natural justice. Additionally, the Commission found that the Arbitrator's determination of the weekly wage rate and the expenses was not in accordance with the law. The Commission also noted that the Arbitrator had incorrectly determined the employee's incapacity and the expenses. Consequently, the Commission revoked the Arbitrator's decision and remitted the matter back to her for reconsideration according to law. The Commission did not order any costs.
In summary, the appeal by the employer was successful in part. The Commission upheld the Arbitrator's finding that the employee's injury arose out of or in the course of her employment and that the employment was a substantial contributing factor. However, the Commission found that the Arbitrator had made errors in the calculation of compensation and in the determination of expenses. The matter was remitted back to the Arbitrator for reconsideration.
Orders
Orders of the court
The decision by the Arbitrator as to total and partial incapacity for work is revoked and the following decision is substituted:
The Appellant is to pay to the Respondent Worker, weekly compensation at the rates to be determined according to law, for a period of total incapacity from 11 October, 2001 to 11 February, 2002, and thereafter, for periods of total or partial incapacity on presentation of appropriate medical certificates, up to 15 October, 2002.
The purported decision of the Arbitrator concerning the calculation and determination of the amounts of compensation payable to the Respondent Worker is not a valid decision and the matter is referred to the Registrar for return to the Arbitrator, for a decision to be made by her, according to law.
No order is made as to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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