Dickson v Olympic Aluminium Co Pty Ltd - [2007] NSWWCCPD 96

WORKERS COMPENSATION COMMISSION

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

CITATION:Dickson v Olympic Aluminium Co Pty Ltd [2007] NSWWCCPD 96
APPELLANT:  Raymond Dickson
RESPONDENT:  Olympic Aluminium Co Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC11216-05
DATE OF ARBITRATOR’S DECISION:          23 March 2006
DATE OF APPEAL DECISION:  18 April 2007
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; onus of proof
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Marsdens Law Group
Respondent:   Goldbergs

ORDERS MADE ON APPEAL: The Arbitrator’s determination dated 23 March 2006 is revoked and the following determination made:
“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 in the sum of $326.30 per week from 30 March 2005 to date and continuing.
2.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 19 April 2006 Raymond Dickson (‘the Appellant Worker/Mr Dickson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 23 March 2006.

The Respondent to the Appeal is Olympic Aluminium Co Pty Ltd (‘the Respondent Employer/Olympic’).

Mr Dickson was born on 10 November 1961. He left school in 1977 after attaining his school certificate. Apart from obtaining a fork lift driver’s licence, he has no other tertiary qualifications.

His work career has always been in areas that required physical exertion: brickies’ labourer, dock hand, machine operator, packer, factory worker, warehouse manager/storeman and driver. On 4 December 2002 he started work with Olympic as a storeman/driver. This job required him to pick orders, load the company truck and deliver the load.

On 16 December 2002 he was required to lift sheets of mesh and aluminium frames in the course of his employment. Whilst performing this work he injured his back. His claim was accepted and he was paid voluntary weekly compensation until 29 March 2005 when liability was denied on the ground that his condition was no longer related to his injury in December 2002.

On 11 July 2005 an Application to Resolve a Dispute (‘the Application’) was registered in the Commission seeking weekly compensation from 30 March 2005, lump sum compensation and medical expenses.

By its Reply filed on 20 September 2005 Olympic disputed every aspect of Mr Dickson’s claim.

The claim for lump sum compensation was referred to an Approved Medical Specialist (‘AMS’) for assessment. The AMS (Dr Beer) examined Mr Dickson on 28 November 2005 and issued a Medical Assessment Certificate (‘MAC’) assessing him to have 12 % whole person impairment as a result of his work injury. That assessment was accepted by Olympic and the appropriate compensation paid.

A Commission Arbitrator heard the remaining claims in an Arbitration hearing on 21 February 2006. The only issued argued by Olympic at the hearing was the extent of Mr Dickson’s incapacity on the…

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 Dickson v Olympic Aluminium Co Pty Ltd 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: [2007] NSWWCCPD 96
Decision Date: 18 April 2007

CaseChat Overview and Summary

The case of Dickson v Olympic Aluminium Co Pty Ltd involved an appeal by the worker, Raymond Dickson, against a decision of the Workers Compensation Commission Arbitrator. Dickson sought to overturn the Arbitrator's decision which had awarded him a weekly compensation of $103.30 from 29 March 2005, rather than the maximum statutory rate. The Arbitrator had concluded that Dickson could still work as a storeman, which led to the lower award.

The legal issues before the Deputy President were whether the Arbitrator had correctly identified the onus of proof, properly considered all evidence, correctly assessed Dickson's ability to work as a storeman, and provided sufficient reasons for the decision. The Deputy President found that the Arbitrator had erred in several respects. Firstly, the Deputy President rejected the worker's argument that the onus of proof lay with the employer to limit the compensation award. Instead, the Deputy President held that in a primary claim for weekly compensation, the worker bears the burden of proof to establish their incapacity.

Secondly, the Deputy President found that the Arbitrator had failed to properly consider evidence from CRS Australia which outlined significant barriers to Dickson returning to work. Thirdly, the Deputy President held that the Arbitrator's finding that Dickson could work as a storeman was inconsistent with the medical evidence and an error of law. The Deputy President re-determined the matter and found that Dickson could earn $300 per week performing part time light process work or work as a casual driver. The difference between this and his pre-injury earnings of $626.30 per week was $326.30. Therefore, the Arbitrator's decision was revoked and replaced with an award of $326.30 per week from 30 March 2005 to date and continuing.

Orders