Colan Products Pty Ltd v Kale - [2006] NSWWCCPD 69

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Colan Products Pty Ltd v Kale [2006] NSWWCCPD 69

APPELLANT: Colan Products Pty Ltd

RESPONDENT: Metin Kale

INSURER:Employers Mutual Indemnity (Workers Compensation) Limited

FILE NUMBER:  WCC8327-04
DATE OF ARBITRATOR’S DECISION:          2 March 2005
DATE OF APPEAL DECISION:  28 April 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for section 40 of the Workers Compensation Act 1987 Award; adequacy of reasons.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Church & Grace, Solicitors
Respondent: Dennis & Co, Solicitors

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 2

March 2005 is revoked.

2.The matter is remitted to another Arbitrator for rehearing and re-determination of all issues.

3. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Metin Kale (‘Mr Kale) was employed by Colan Products Pty Ltd (‘Colan’), weavers of industrial fabrics, as a process worker. He claimed that due to the nature and conditions of his employment, and as a result of an incident on 27 October 2000 lifting a wooden shaft, he suffered an injury to his back and legs.

After a period of time off work, Mr Kale resumed selected duties and remained at work with Colan until February 2002 when his employment was terminated.

He was paid weekly compensation by Colan’s insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) during all periods of incapacity up until 11 February 2003.

Mr Kale brought proceedings before the former Compensation Court being matter number 8672/01. There are no details as to the nature of those proceedings however, on 27 June 2003, Terms of Settlement were signed between the parties in respect of claims brought by Mr Kale pursuant to the provisions of sections 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

Mr Kale received $6,000.00 in respect of 10% permanent impairment of his back, $5,625.00 in respect of 7.5% permanent loss of efficient use of his left leg at or above the knee pursuant to section 66, and $3,375.00 pursuant to section 67. He received section 60 expenses up to $3,500.00 on production of accounts or receipts. Those Terms of Settlement also reflect an award in favour of Colan in respect of “… the claim for the right leg.”

On 26 May 2004, Mr Kale lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 30 January 2003. He claimed one child as dependant.

On 16 June 2004 Colan filed a Reply disputing all aspects of Mr Kale’s claim including ‘injury’ but in particular, whether or not he was incapacitated for work.

The matter was listed for conciliation/arbitration hearing on 6 October 2004. A ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was not issued until 2 March 2005. The Arbitrator’s Determination was as follows:

“1.The Respondent pay the Applicant weekly compensation at the rate of $482.65 from 11 February 2003 to date under…

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 69
Decision Date: 28 April 2006

CaseChat Overview and Summary

The appeal against the decision of an Arbitrator in the matter of Colan Products Pty Ltd v Kale was heard by Deborah Moore, Acting Deputy President of the Workers Compensation Commission. The primary issue was whether the Arbitrator's decision to award weekly benefits compensation to the respondent, Metin Kale, was in error, including whether the amount awarded was correct and whether the reasons provided were adequate. The appeal also questioned the Arbitrator's handling of the issue of cross-examination. The Acting Deputy President found that the Arbitrator's decision was flawed on several grounds. Firstly, the award of weekly benefits exceeded the statutory maximum allowable for a worker with one dependant. Secondly, the Arbitrator's acceptance of Mr Kale's medical evidence over the employer's contrary evidence was not supported by the weight of evidence, particularly regarding the extent of Mr Kale's economic incapacity. Thirdly, the Arbitrator did not properly apply the 'five-step' process required by Mitchell's case in calculating the section 40 award. Fourthly, the Arbitrator's reasons for his decision were inadequate, failing to clearly disclose the grounds upon which his determination was made. Lastly, the Arbitrator's comments about the employer's failure to cross-examine Mr Kale, despite the limited right to cross-examination in the Commission, amounted to a denial of procedural fairness. Consequently, the Acting Deputy President revoked the Arbitrator's decision and remitted the matter to another Arbitrator for re-hearing and re-determination of all issues. No order was made as to the costs of the appeal.

Orders