Department of Education and Communities v Layton

The matter before the Court was an appeal by the Department of Education and Communities against a decision of an Arbitrator, who had determined that the worker, Layton, was entitled to certain workers compensation benefits. The dispute centred on the assessment of Layton’s ability to earn under section 40(2)(b) of the Workers Compensation Act 1987 and whether fresh evidence could be considered on appeal.

The primary legal issue before the Court was whether the Arbitrator had correctly assessed Layton’s ability to earn income in light of the principles outlined in Mitchell v Central West Health Service (1997) 14 NSWCCR 526. Additionally, the Court had to consider whether the Department had leave to appeal out of time under section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and whether fresh evidence could be admitted on appeal under section 352(6) of the same Act.

The Court found that the Arbitrator had erred in assessing Layton’s ability to earn income, as they had not properly applied the principles established in Mitchell. The Court held that the assessment of Layton’s ability to earn should be remitted to another Arbitrator for re-determination. Furthermore, the Court granted the Department leave to appeal out of time, as the delay in lodging the appeal was excusable. Finally, the Court determined that fresh evidence could be considered on appeal, as it was relevant and necessary to the determination of the appeal.

The Court made the following orders: the time to appeal was extended until 1 November 2011; the Arbitrator’s determination regarding the assessment of Layton’s ability to earn was revoked and remitted for re-determination; all other findings and orders of the Arbitrator were confirmed; and no order was made as to the costs of the appeal.