Dapto Leagues Club Ltd v O'Brien - [2006] NSWWCCPD 89

WORKERS COMPENSATION COMMISSION

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

CITATION:Dapto Leagues Club Ltd v O’Brien [2006] NSWWCCPD 89
APPELLANT:  Dapto Leagues Club Ltd
RESPONDENT:  Tracy O’Brien
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC15058-04
DATE OF ARBITRATOR’S DECISION:          1 March 2005
DATE OF APPEAL DECISION:  17 May 2006
SUBJECT MATTER OF DECISION: Procedural fairness; refusal to allow adjournment; credit; partial or total incapacity; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Diana Benk
Respondent:   Andrew Fegent & Co CMC Lawyers

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator's decision of 1 March 2005 is revoked and the following order made:

“The matter is remitted back to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to determine whether the Respondent Worker's entitlement to weekly compensation is under section 40 or under section 37 of the Workers Compensation Act 1987, and, if that entitlement is found to be under section 40, to assess the quantum of an award under that section.”
Paragraphs two and three of the Arbitrator's decision of 1 March 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.

BACKGROUND TO THE APPEAL

On 29 March 2005 Dapto Leagues Club Ltd (‘the Appellant Employer/the Club’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 March 2005.

The Respondent to the Appeal is Tracy O’Brien (‘the Respondent Worker/Mrs O’Brien’).

The Respondent Worker was born on 20 November 1963 and started work as a part time bar attendant with the Club on 26 November 2000. She worked about 20 hours per week though her hours fluctuated according to demand and her average weekly earnings were agreed at $331per week.

In 1990 she injured her back and neck in a motor vehicle accident. Her back injury deteriorated in about 1995 and in September 2001 she under went a laminectomy at the L5/S1 level. She returned to work with the Appellant Employer about eight weeks after that surgery feeling a lot better and was able to continue her usual duties but with the help of panadeine forte.

In about July 2002 she experienced an increase in back and leg pain while gardening at home. As a result of that increase in pain she rested for a few weeks. Her pain decreased to a manageable level and she was able to continue her usual duties until her work accident in January 2003.

On 24 January 2003 Mrs O'Brien slipped and fell at work in the Appellant Employer’s kitchen sustaining further injury to her low back with pain down her left leg and in her left hip. She ultimately ceased work and made a claim for compensation which was initially accepted with provisional weekly benefits being made until 30 April.2004.

In her Application to Resolve a…

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.

Keep reading for free

Create a free CaseChat account to read Dapto Leagues Club Ltd v O'Brien and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWWCCPD 89
Decision Date: 17 May 2006

CaseChat Overview and Summary

Dapto Leagues Club Ltd (the Club) appealed against an award of weekly compensation made in favour of Tracy O’Brien (Mrs O’Brien) by an Arbitrator of the Workers Compensation Commission. The Arbitrator awarded Mrs O’Brien weekly compensation under section 40 of the Workers Compensation Act 1987 (the 1987 Act). The Club argued that an award of total incapacity should have been made. The Club also challenged the Arbitrator’s refusal to grant an adjournment and the Arbitrator’s finding that Mrs O’Brien was a witness of good credit. Acting Deputy President Bill Roche considered the appeal and found that the Arbitrator had erred in making an award under section 40 when her findings supported an award for total incapacity under section 37. The Arbitrator’s refusal to grant an adjournment was not in error. The Arbitrator was also correct to find Mrs O’Brien to be a witness of good credit. The matter was remitted to the Arbitrator to reassess the issue of incapacity. The Club was ordered to pay Mrs O’Brien’s costs of the appeal.

Orders