Coles Myer Limited v Gibson - [2008] NSWWCCPD 18

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Coles Myer Limited v Gibson [2008] NSWWCCPD 18
APPELLANT:  Coles Myer Limited
RESPONDENT:  Suzanne Jane Gibson
INSURER:Coles Group Limited
FILE NUMBER:  WCC5936-07
DATE OF ARBITRATOR’S DECISION:          18 September 2007
DATE OF APPEAL DECISION:  14 February 2008
SUBJECT MATTER OF DECISION: Incapacity; section 40 assessment; weight of evidence
PRESIDENTIAL MEMBER:  President Greg Keating, DCJ
HEARING:On the papers
REPRESENTATION:  Appellant:      Lander and Rogers
Respondent:   MRM Lawyers

ORDERS MADE ON APPEAL:
1.    Paragraphs 1 (a), (b), (c), (f) and (g) of the Arbitrator’s decision dated 18 September 2007 are revoked and the matter is remitted to another Arbitrator for determination in accordance with the reasons in this decision.
2.    Paragraphs 1 (d) and (e), Paragraph 2 and Paragraph 3 of the Arbitrator’s decision dated 18 September 2007 are confirmed.
3.    No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 10 October 2007 Coles Myer Limited (‘the Appellant/Coles’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 September 2007.

The Respondent to the Appeal is Ms Suzanne Gibson (‘the Respondent/Worker/ Ms Gibson’).

Ms Gibson is a 40-year-old casual delicatessen assistant who slipped on a wet floor and suffered a jarring injury to her back at the end of her shift on 14 December 2002 whilst working at Coles at West Gosford. Ms Gibson reported the injury but continued to work until Christmas Eve when she ceased work due to increased pain in her low back and mid to upper back. She was referred for physiotherapy by a general practitioner and underwent four months of physiotherapy treatment. She returned to work after one month and was provided with light duties, and, after an unspecified time she returned to delicatessen work with some informal modifications so she could avoid lifting from heights and avoid heavy lifting generally.

Ms Gibson confirmed in oral evidence that on 28 March 2003 Dr Loh, general practitioner, certified her fit for full duties and at that time she was transferred to a permanent part time position of 19 hours per week in the bakery section. On 24 June 2004 Ms Gibson resigned from Coles, effective 1 July 2004, and in July 2004 she commence work managing her brother’s motorcycle business where she worked full time until the business closed in April 2005. From 1 October 2005 to 16 March 2006 Ms Gibson worked part time from home as an area manager for Penny Miller Home Shopping, however, after the deduction of business expenses her taxable income from this work was $nil. From 25 January 2006 to July 2006 Ms Gibson worked as a casual delivery driver for between 3 and 5 hours per day. She continued in this work until she resigned in July due to being six months pregnant. Ms Gibson’s son was born on 6 October 2006 and on 10 May 2007 she…

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: [2008] NSWWCCPD 18
Decision Date: 14 February 2008

CaseChat Overview and Summary

In the appeal of Coles Myer Limited against the decision of an arbitrator in the Workers Compensation Commission, the appeal was lodged within 28 days of the arbitrator’s decision, satisfying the threshold requirements of section 352 of the 1998 Act. The appeal focused on the Arbitrator's findings regarding the extent of Ms Gibson's incapacity and the calculation of compensation. The appeal was determined on the papers, without a formal hearing, as both parties submitted that sufficient information was available. The application to introduce fresh evidence was refused as the evidence had little probative value and the appeal was not a rehearing. The appeal challenged the Arbitrator's findings on Ms Gibson's incapacity for work from certain dates, her ability to earn, and the causal link between her employment and ongoing incapacity. The appeal was partly successful, with the Arbitrator's findings on the periods from 1 August 2004 to 8 September 2004, 1 April 2005 to 24 January 2006, and 1 February 2007 to 10 May 2007 being revoked and the matter being remitted to another Arbitrator for determination. The Arbitrator's findings on Ms Gibson's incapacity from 1 August 2004 to 8 September 2004, and the causal link between the injury and ongoing incapacity were upheld. No order was made as to costs of the appeal.

Orders