Cole v Baytech Industrial Pty Limited - [2005] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Cole v Baytech Industrial Pty Limited [2005] NSW WCC PD 70

APPELLANT:  Yomi Cole
RESPONDENT:  Baytech Industrial Pty Limited
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC11585-03
DATE OF ARBITRATOR’S DECISION:          16 February 2004 & 1 March 2004
DATE OF APPEAL DECISION:  15 July 2005
SUBJECT MATTER OF DECISION:                Error in Certificate of Determination; procedural fairness; estoppel, res judicata; error in referral to Approved Medical Specialist.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:     R L Whyburn & Associates
Solicitors
Respondent: Turks Legal

ORDERS MADE ON APPEAL: The decisions of the Arbitrator dated 16

February 2004 and 1 March 2004 are revoked
and the following decision is made in their
place:
1. That the Respondent pay the Applicant, as lump-sum compensation under section 66 of the Workers Compensation Act 1987, the amount of $10,500.00 in respect of a further 15% permanent loss of efficient use of the right leg below the knee.
2. That the Respondent pay the Applicant’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
3. The matter is referred back to the Arbitrator for determination of Mr Cole’s claim for compensation pursuant to section 67 of the Workers Compensation Act 1987.

Background to the Appeal

Yomi Cole was working for Baytech Industrial Pty Limited as a labourer when, on 26 October 1998, he injured his leg. He was using a steel chisel during which a fragment came free and lodged in his right calf. He continued working with Baytech for only a short time after the injury, until the job on which he was working finished. He now works as a Chef in his own restaurant.

Some months after the injury, Mr Cole began to feel discomfort in his calf, so underwent radiological investigations, which revealed the presence of a foreign body, which was a metal shard, embedded in his right calf. He underwent two separate operative procedures to remove it, but each was unsuccessful.

Mr Cole lodged a claim in the Compensation Court of NSW for compensation related to his injury, including medical expenses, $12,600 for 18% permanent loss of efficient use of the right leg below the knee, and $15,000 for pain and suffering. Baytech’s workers compensation insurer is GIO Workers Compensation (NSW) Limited. On 20 October 2000, the parties reached a consent agreement, under which Mr Cole was paid $3,500 for 5% permanent loss of use of his right leg below the knee, as well as his legal costs.

In November 2000 Mr Cole underwent a third operative procedure on his right leg, which was successful in removing the metal shard. He continues to notice numbness above his right ankle and also now experiences pain and extreme sensitivity in the area of the scar remaining after the procedure, as a result of possible nerve damage, caused by the foreign body.

On 20 February…

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: [2005] NSWWCCPD 70
Decision Date: 15 July 2005

CaseChat Overview and Summary

This appeal concerns the assessment of a workers compensation claim lodged by Yomi Cole against Baytech Industrial Pty Limited. The central issues were the correctness of the Arbitrator's decisions on the amount of compensation for permanent impairment and the failure to provide reasons for the decision. The appeal was heard by Dr Gabriel Fleming, Deputy President, who found that the Arbitrator had made several errors in her determination, including an incorrect application of the law regarding apportionment of permanent impairment and an incorrect acceptance of Baytech's submission on the method of assessing Mr Cole's entitlement. The Deputy President also found that the Arbitrator had failed to provide adequate reasons for her decision, which is a critical error. Consequently, the decisions of the Arbitrator were revoked, and Mr Cole was awarded an additional $10,500 for 15% permanent loss of efficient use of the right leg below the knee, along with an order for payment of his medical expenses on production of receipts. The matter was referred back to the Arbitrator for determination of Mr Cole's claim for compensation for pain and suffering. Baytech was ordered to pay the costs of the appeal.

Orders