Da Ros v Qantas Airways Limited (No. 2)

[2010] NSWWCCPD 55

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Determined on remitter: See Da Ros v Qantas Airways Limited [2010] NSWCA 89 and Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58
CITATION:		Da Ros v Qantas Airways Limited (No. 2) [2010] NSWWCCPD 55
APPELLANT:		Saverio Da Ros
RESPONDENT:		Qantas Airways Limited
INSURER:		Self insurer
FILE NUMBER:		A1-7547/08
DATE OF ARBITRATOR’S DECISION:		2 January 2009
DATE OF FIRST APPEAL DECISION:		27 May 2009
DATE OF COURT OF APPEAL DECISION:		28 April 2010
DATE OF SECOND APPEAL DECISION:		25 May 2010
SUBJECT MATTER OF DECISION:		Matter on remitter from the Court of Appeal to the Workers Compensation Commission.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman Lawyers
Respondent:	Moray & Agnew Solicitors
ORDERS MADE ON APPEAL:		1.       The appeal is upheld. 2.       The decision of the Arbitrator dated 2 January 2009 is revoked. 3.       The respondent is to pay the appellant’s costs of the arbitral hearing. 4.       The respondent is to pay the appellant’s costs of the original appeal in matter number A1-7547/08. 5.       The matter is remitted to the Registrar for referral to an Arbitrator for determination of the appellant’s claims for payment of weekly compensation, medical expenses and lump sum compensation. 6.       There is no order as to costs of the reconsideration of the appeal.

BACKGROUND TO THE APPEAL

1. On 9 September 2005, Mr Da Ros, then a long-haul flight attendant working with Qantas Airways Limited (‘Qantas’), suffered injury in Los Angeles, USA, whilst on ‘slip-time’ between flights.  He claimed workers compensation benefits on 23 September 2005. Qantas denied liability.

1. On 23 September 2008, Mr Da Ros brought proceedings in the Commission, claiming weekly benefits, medical expenses, lump sum compensation for whole person impairment, and compensation for pain and suffering.  

2. On 5 September 2008, the matter came before an Arbitrator for conciliation/arbitration.

3. On 2 January 2009, a Certificate of Determination was issued, accompanied by a Statement of Reasons, with the following determination:

   “1. There will be accordingly an award for the Respondent in respect of the Applicant’s claim for weekly compensation, medical expenses and lump sum compensation.

   2. There will be no order as to costs.”

1. Mr Da Ros sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission.  The issues before me on appeal were whether the Arbitrator erred in the following respects:

   1.In failing to make a determination as to whether Mr Da Ros suffered injury within the meaning of section 4 of the 1987 Act;

   2.In failing to correctly apply the provisions of section 9A to the facts concerning the circumstances of Mr Da Ros’ injury, and

   3.With respect to his findings of fact.

1. On 27 May 2009, I confirmed the Arbitrator’s decision contained in the Certificate of Determination (Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58).

2. Mr Da Ros appealed to the Court of Appeal. The appeal was heard on 16 April 2010 and judgment was delivered on 28 April 2010 (Da Ros v Qantas Airways Limited [2010] NSWCA 89).

3. The Court of Appeal made the following orders at [30]:

   “(1) Allow the appeal and set aside the decision of 27 May 2009 made by the

   Workers Compensation Commission constituted by Deputy President O’Grady.

   (2) Order that the Commission reconsider the appellant’s appeal against the decision of the Arbitrator according to law, on the basis that the appellant’s employment was a substantial contributing factor to the injury.

   (3) Order that the respondent pay the appellant’s costs of the appeal.”

4. Given the Court of Appeal’s orders, the appropriate orders on this reconsideration of Mr Da Ros’ appeal are to uphold the appeal, revoke the Arbitrator’s decision dated 2 January 2009 and to remit the matter to the Registrar for referral to an Arbitrator for the determination according to law of Mr Da Ros’ claims for weekly payments, medical expenses and lump sum compensation, and those are the orders I make.

1. The Arbitrator may make appropriate directions concerning the provision of supplementary evidence to enable a proper determination of the parties’ rights and liabilities.

DECISION

1. In accordance with the reasons and orders of the Court of Appeal in Da Ros v Qantas Airways Limited [2010] NSWCA 89, the following orders on reconsideration are made:

   1.The appeal is upheld.

   2.The decision of the Arbitrator dated 2 January 2009 is revoked.

   3.The respondent is to pay the appellant’s costs of the arbitral hearing.

   4.The respondent is to pay the appellant’s costs of the original appeal in matter number A1-7547/08.

   5.The matter is remitted to the Registrar for referral to an Arbitrator for determination of the appellant’s claims for payment of weekly compensation, medical expenses and lump sum compensation.

   6.There is no order as to costs of the reconsideration of the appeal.

Kevin O’Grady

Deputy President

25 May 2010

I, RAMON LOYOLA, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE