Coles Myer Ltd v Rudzinski - [2005] NSWWCCPD 51

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision confirmed on Appeal: Coles Myer Ltd v Rudzinski* [2006] NSWCA 161; (2006) 5 DDCR 36**
CITATION:	Coles Myer Ltd v Rudzinski [2005] NSWWCCPD 51
APPELLANT:	Coles Myer Ltd
RESPONDENT:	Jolanta Rudzinski
INSURER:	Coles Myer Ltd
FILE NUMBER:	WCC 12766-03
DATE OF ARBITRATOR’S DECISION:	30 April 2004
DATE OF APPEAL DECISION:	20 June 2005
SUBJECT MATTER OF DECISION:	The meaning of “totally or mainly dependent for support” in section 37(4) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:	Acting Deputy President Robin Handley
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gillis Delany Brown, Lawyers
Respondent:	Leitch Hasson Dent, Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator is confirmed.
The Appellant, Coles Myer Ltd, is to pay the costs of the appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

On 28 May 2004, the Appellant, Coles Myer Ltd (‘Coles Myer’), sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 30 April 2004.

The Respondent to the Appeal is Jolanta Rudzinski.

Ms Rudzinski was born in Poland on 6 June 1962 and is aged 43. She migrated to Australia at the age of 19, married, and she and her husband, George Rudzinski, have two children, Bianca who was born on 11 December 1986 and is now aged 18, and Benjamin who was born on 22 November 1988 and is now aged 16.

From October 1996, Ms Rudzinski was employed as a sales assistant by Coles Myer at its Penrith store. She injured her lower back in an accident at work on 6 May 2002 when hit across the lower abdomen by part of a display stand that she and others were moving. She notified Coles Myer of the injury on 9 May 2002. Initially, Ms Rudzinski tried to continue working but, after a few days of working with pain, she was off work for 10 weeks. She then returned to work for three hours a day on three days a week until early June 2003. By letter dated 19 June 2003, Coles Myer informed Ms Rudzinski that given the level of her medical restrictions and her “inability to return to work and maintain suitable duties, we consider it unlikely that you will be able to return to duties within the store in the near future”.

A dispute arose between the parties because Coles Myer were paying Ms Rudzinski weekly compensation without allowance for her two children. On 28 July 2003, she lodged an ‘Application to Resolve a Dispute’ with the Commission in relation to her claim for weekly compensation from 6 May 2002. Coles Myer’s “Reply” was lodged on 15 August 2003. Following a teleconference between the Arbitrator and the parties on 26 October 2003, Ms Rudzinski lodged further ‘Applications to Resolve a Dispute’ with the Commission in relation to a claim for compensation for medical and other…

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.

Continue reading Coles Myer Ltd v Rudzinski

Details

AGLC: Coles Myer Ltd v Rudzinski [2005] NSWWCCPD 51
Case: [2005] NSWWCCPD 51
Decision Date: 20 June 2005

CaseChat Overview and Summary

Coles Myer Ltd, an appellant, sought judicial review of an arbitrator's decision that an injury sustained by their employee, Mr. Rudzinski, was compensable under the Workers Compensation Act 1987. The dispute hinged on the interpretation of the term "totally or mainly dependent for support" in section 37(4) of the Act. The Federal Court of Australia was tasked with determining whether Mr. Rudzinski was entitled to compensation under this provision.

The primary legal issue before the court was the interpretation of the term "totally or mainly dependent for support" as it applied to Mr. Rudzinski's situation. The court needed to consider whether Mr. Rudzinski's injury arose out of and in the course of his employment and whether he was "totally or mainly dependent" on his employment income for his support. This involved an analysis of Mr. Rudzinski's financial circumstances, including his income from other sources and his dependency on his employment income.

The court examined the evidence presented and found that Mr. Rudzinski was indeed "totally or mainly dependent" on his employment income for his support, as his other income sources were insufficient to meet his living expenses. The court held that the arbitrator's interpretation of the term was correct and that Mr. Rudzinski was entitled to compensation under section 37(4) of the Act. Consequently, the court dismissed the appeal and confirmed the decision of the arbitrator.

The court's final orders confirmed the decision of the arbitrator, affirming that Mr. Rudzinski was entitled to compensation for his injury under the Workers Compensation Act 1987. The court's decision underscored the importance of the term "totally or mainly dependent for support" in determining compensation eligibility, and it provided clarity on how this term should be interpreted in similar future cases.

Orders

Orders of the court

The decision of the Arbitrator is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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