DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Parramatta City Council v Harrison [2014] NSWWCCPD 2
APPELLANT:
Parramatta City Council
RESPONDENT:
Raymond Harrison
INSURER:
GIO General Limited
FILE NUMBER:
A1-015159/12
ARBITRATOR:
Mr D Nolan
DATE OF ARBITRATOR’S DECISION:
24 September 2013
DATE OF APPEAL DECISION:
21 January 2014
SUBJECT MATTER OF DECISION:
Section 4(b)(ii) of the Workers Compensation Act1987; aggravation of disease; s 9A of the Workers Compensation Act 1987; employment substantial contributing factor to injury; evidence of incapacity; duty to give reasons for decision
PRESIDENTIAL MEMBER:
Deputy President Kevin O'Grady
HEARING:
On the papers
REPRESENTATION:
Appellant:
Edwards Michael Lawyers
Respondent:
Carrol & O’Dea Lawyers
ORDERS MADE ON APPEAL:
1. Paragraphs 1, 2, 4, 5 and 6 of the Certificate of Determination (undated) which was issued following the hearing on 23 September 2013 are confirmed.
2. Paragraph 3 of the Certificate of Determination is revoked and the following findings and order are made:
“the applicant was, as a result of the injury, partially incapacitated for work between 28 November 2011 and 2 February 2012. The respondent failed to provide the applicant with suitable employment during that period. An award is made in favour of the applicant pursuant to s 38 of the Workers Compensation Act 1987 at the rate of $952.19 per week from 28 November 2011 to 2 February 2012.”
3. The appellant is to pay the respondent’s costs of the appeal.
BACKGROUND
This appeal concerns a challenge to an award entered by Arbitrator Denis Nolan in favour of Mr Raymond Harrison, an employee of Parramatta City Council (the appellant). It was Mr Harrison’s allegation that the duties performed by him in the course of his employment between 2007 and 2011 had aggravated a degenerative condition in his cervical spine, giving rise to incapacity. It is necessary that, by way of background, detail of Mr Harrison’s occupational history with the appellant is summarised.
Mr Harrison commenced employment with the appellant in 2001 as a casual cleaner/labourer and later as an offsider. He became a permanent employee in 2007. In that year, he commenced work as a truck driver, driving garbage trucks, street sweepers and rubbish trucks. Mr Harrison experienced neck pain when operating and driving a street sweeper. He had some short absences from work because of pain and discomfort. Thereafter, in 2007, he was absent from work for 16 weeks because of painful neck symptoms. He was examined by Dr Ahmed Saafan on behalf of the appellant and he sought treatment from his general practitioner, Dr H S Misra.
Upon his return to work, Mr Harrison performed duties picking up litter in Parramatta Mall for approximately two weeks, following which he went off work again, being absent between 20 September 2007 and 17 December 2007.
Upon his return to work, Mr Harrison resumed driving the street sweeper machine which had been equipped with a camera, the purpose of which was to eliminate some of the neck movements during…
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
AGLC
Diab v NRMA Ltd [2014] NSWWCCPD 2
Case
[2014] NSWWCCPD 2
Decision Date
CaseChat Overview and Summary
The matter of Diab v NRMA Ltd was heard by the Court of Appeal, which considered an appeal against a decision regarding workers' compensation. The primary dispute concerned the extent of the applicant's incapacity for work following an injury sustained during employment, as well as the employer's failure to provide suitable employment during the period of incapacity. The lower court had previously determined that the applicant was not incapacitated for work from 28 November 2011 to 2 February 2012, a finding which the applicant contested.
The legal issues before the Court of Appeal involved the interpretation of specific sections of the Workers Compensation Act 1987. The applicant argued that there was sufficient evidence to show that the injury had resulted in partial incapacity for work during the contested period and that the employer had not provided suitable employment as required by law. The Court had to determine whether the lower court's findings were correct and if the employer had breached its obligations under the Act.
The Court of Appeal found that the evidence did support the conclusion that the applicant was partially incapacitated for work from 28 November 2011 to 2 February 2012 and that the employer failed to provide suitable employment during that period. The Court emphasised that the employer had a duty to provide work that the applicant could perform given their medical condition. The Court also highlighted the importance of the employer providing reasons for their decisions regarding suitable employment, a requirement under the Workers Compensation Act 1987. Consequently, the Court set aside the lower court's findings and substituted its own, awarding compensation to the applicant for the period of incapacity.
The final orders of the Court of Appeal confirmed most of the lower court's decision but overturned the specific finding regarding the period of incapacity. An award was made in favour of the applicant for the period from 28 November 2011 to 2 February 2012, at a rate of $952.19 per week. The appellant was also ordered to pay the respondent's costs of the appeal.
Orders
Orders of the court
1. Paragraphs 1, 2, 4, 5 and 6 of the Certificate of Determination (undated) which was issued following the hearing on 23 September 2013 are confirmed.
2. Paragraph 3 of the Certificate of Determination is revoked and the following findings and order are made:
“the applicant was, as a result of the injury, partially incapacitated for work between 28 November 2011 and 2 February 2012. The respondent failed to provide the applicant with suitable employment during that period. An award is made in favour of the applicant pursuant to s 38 of the Workers Compensation Act 1987 at the rate of $952.19 per week from 28 November 2011 to 2 February 2012.”
3. The appellant is to pay the respondent’s costs of the appeal.