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Cottons Glass & Aluminium Pty Limited v Handsaker

Cottons Glass & Aluminium Pty Limited v Handsaker

Case [2006] NSWWCCPD 205 25 August 2006

Unconscionable Conduct

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:Cottons Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205
APPELLANT:  Cottons Glass & Aluminium Pty Limited
RESPONDENT:  Barry Handsaker
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC3978-06
DATE OF ARBITRATOR’S DECISION:          24 May 2006
DATE OF APPEAL DECISION:  25 August 2006
SUBJECT MATTER OF DECISION:                Duly making a claim; section 260 Workplace Injury Management and Workers Compensation Act 1998; Part 2 WorkCover Provisional Liability and Claims Guidelines
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore Lawyers
Respondent:   Bale Boshev Lawyers

ORDERS MADE ON APPEAL: The proceedings commenced by the Applicant in this matter were commenced in breach of the provisions of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Provisional Liability and Claims Guidelines December 2001, and, as a result, are a nullity as the Commission does not have jurisdiction to hear and determine the claim. The proceedings are struck out.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 24 May 2006 Cottons Glass & Aluminium Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 24 May 2006.

The Respondent to the Appeal is Barry Handsaker (‘the Respondent Worker/Mr Handsaker’).

The Respondent Worker was born on 22 April 1941 and is now 65 years old. On 4 November 1999 he was carrying large shop front window with a co worker when the co worker slipped and lost his grip causing the window to fall. As a result Mr Handsaker was left holding the whole of the heavy window. The window fell causing an abrasion to his right forearm and jarring his wrists. Whether the Respondent Worker also injured his shoulders in the accident or as a result of the nature and conditions of his employment is disputed.

He continued to work but had difficulty with increasing weakness in both wrists, his right wrist worse than the left. He ultimately stopped work and brought a claim for compensation in the Compensation Court of NSW (matter 5837/02) (‘the First Application’). That claim was settled on 24 June 2003 for a payment of $18,750.00 in respect of a 25% loss of use of the right arm below the elbow, $7,000.00 in respect of a 10% loss of use of the left arm below the elbow, $1,000.00 in respect of 2% severe bodily disfigurement and $8,250.00 in respect of pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The accident has been the subject of further applications in the Commission as follows: WCC7310-03, WCC875-05, WCC14680-04 and WCC15089-05. All of these claims have been discontinued. Before it was discontinued, Matter 7310-03 was the subject of two Medical Assessment Certificates (‘MACs’) prepared by Dr Ostinga. The first was after an examination on 8 September 2003 and…

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 Cottons Glass & Aluminium Pty Limited v Handsaker

Details

AGLC: Cottons Glass & Aluminium Pty Limited v Handsaker [2006] NSWWCCPD 205
Case: [2006] NSWWCCPD 205
Decision Date: 25 August 2006

CaseChat Overview and Summary

The appeal in Cottons Glass & Aluminium Pty Limited v Handsaker was brought before the Workers Compensation Commission in Australia, involving the employer, Cottons Glass & Aluminium Pty Limited, and the employee, Barry Handsaker. The central dispute revolved around the employer's contention that the employee's claim for workers' compensation was improperly filed, breaching the requirements of the Workplace Injury Management and Workers Compensation Act 1998 and the WorkCover Provisional Liability and Claims Guidelines December 2001. The employer argued that the claim was invalid because it was not 'duly made' as required by the legislation and the guidelines. The employer further alleged that the Arbitrator had erred in not dismissing the claim, amending the Reply to exclude the issue of injury, refusing to list the claim for an Arbitration hearing, and refusing to admit certain medical assessment certificates as evidence. The legal issues at the heart of the appeal were whether the Arbitrator made an error in not dismissing the claim for non-compliance with the statutory and guideline requirements, whether the Arbitrator was correct in deleting the issue of injury from the employer's Reply, whether the Arbitrator erred in not listing the claim for an Arbitration hearing, and if the Arbitrator wrongly refused to admit certain medical assessment certificates into evidence.

In addressing these issues, the Acting Deputy President Bill Roche examined the statutory provisions and guidelines that govern the making of claims for workers' compensation. The court found that the employee had not made a claim in accordance with the Act and the Guidelines, which are necessary preconditions for the Commission to have jurisdiction over the dispute. The court concluded that the Arbitrator erred in not dismissing the claim due to this non-compliance, rendering the proceedings a nullity. Consequently, the orders made by the Arbitrator were revoked, and the claim was struck out due to the failure to comply with the legal requirements for making a valid claim. The court did not find it necessary to address the other grounds of appeal as the central issue of non-compliance with the statutory and guideline requirements for making a claim was determinative. The Acting Deputy President Bill Roche ultimately ordered that the proceedings initiated by the employee were null and void, and as such, the Commission lacked jurisdiction to hear and determine the claim.

Orders