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Conargo Shire Council v Quor

Conargo Shire Council v Quor

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Case Copied 14 December 2007 39 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

Reported Decision: Conargo Shire Council v Quor (2007) 6 DDCR 506

CITATION:Conargo Shire Council v Quor [2007] NSWWCCPD 245
APPELLANT:  Conargo Shire Council
RESPONDENT:  Mark Anthony Quor
INSURER:Statecover Mutual Limited
FILE NUMBER:  WCC18278-06
DATE OF ARBITRATOR’S DECISION:          26 September 2007
DATE OF APPEAL DECISION:  14 December 2007
SUBJECT MATTER OF DECISION: Section 329 of the Workplace Injury Management and Workers Compensation Act 1998; reasons; denial of procedural fairness
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Bartier Perry
Respondent:   White Barnes

ORDERS MADE ON APPEAL: Paragraphs one, two and four of the Arbitrator’s determination of 26 September 2007 are confirmed.

Paragraph three of the Arbitrator’s determination of 26 September 2007 is revoked and the assessment of the Respondent Worker’s entitlement to compensation under section 67 of the Workers Compensation Act 1987 Act is remitted to a different Arbitrator for re-determination.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mark Quor (‘the Respondent Worker’) started work with Windooran Shire Council in November 1994 and then with Conargo Shire Council (‘the Council/Appellant Employer’) in 2001, when the two councils amalgamated. He initially worked for the Appellant Employer as a loader driver for 12 months and then as a water cart driver.

On 23 February 2004 Mr Quor injured his back when he lifted a roller tyre onto the work utility in the course of his employment with the Council. The incident was reported but Mr Quor remained at work. He was off work on 26 February 2004 and saw his general practitioner, Dr Paul, on 27 February 2004. Dr Paul declared him to be unfit for work until 2 March 2004 when he declared him fit for modified duties for four hours per day five days per week lifting up to “10-15 kilos, walking up to one hour, sitting up to one hour, standing up to one hour, travelling up to one hour’. Mr Quor was also to avoid bending his spine and to have a 10-minute break every hour. He had chiropractic treatment on 5 and 10 March 2004. He saw Dr Paul on 12 March 2004 when he was working three days per week.

A CT scan on 19 March 2004 (referred to by Dr Isbister in his report of 8 August 2006, page five) revealed Mr Quor to have a bulge at the L5/S1 level of his spine.

Having further problems, Mr Quor again saw Dr Paul on 26 March 2004 when he was declared fit for “six hours duties on alternate days with same restrictions as per the last certificate”.

In late March 2004 Mr Quor was required to attend a training course as part of his duties. What then unfolded has assumed some significance in the matter and is set out at paragraphs 15 to 21 of his statement of 16 June 2004 where he said:

“15.On…

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: [2007] NSWWCCPD 245
Decision Date: 14 December 2007

CaseChat Overview and Summary

The Conargo Shire Council appealed a decision of the Workers Compensation Commission, seeking a further assessment of the respondent's injury. The respondent had sustained a back injury in the course of his employment, but the appellant argued that he had sustained further injuries on two subsequent dates. The appeal raised various issues, including whether the Arbitrator had erred in his assessment of the evidence, and whether the Arbitrator had failed to provide adequate reasons for his findings. The Court found that the Arbitrator had not erred in his assessment of the evidence, and that he had provided adequate reasons for his findings. However, the Court found that the Arbitrator had erred in failing to provide the parties with an opportunity to make submissions on the quantum of compensation payable under section 67 of the Workers Compensation Act. The Court revoked paragraph three of the Arbitrator's determination and remitted the assessment of the respondent's entitlement to compensation under section 67 of the Workers Compensation Act to a different Arbitrator for re-determination. The Court also ordered the appellant to pay the respondent's costs of the appeal.

Orders