Dizon v HPM Industries Pty Limited - [2010] NSWWCCPD 23

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
*STATUS: Reconsideration: This decision is a reconsideration of the decision in Dizon v HPM Industries Pty Limited* [2010] NSWWCCPD 15**
CITATION:			Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 23
APPELLANT:			Josephine Dizon
RESPONDENT:			HPM Industries Pty Limited
APPLICANT FOR RECONSIDERATION:			HPM Industries Pty Limited
INSURER:			Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:			A1-4386/09
ARBITRATOR:	Mr P Moloney
DATE OF ARBITRATOR’S DECISION:			25 September 2009
DATE OF APPEAL DECISION:			18 February 2010
DATE OF RECONSIDERATION DECISION:		10 March 2010
SUBJECT MATTER OF DECISION:			Reconsideration; section 350(3) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	Gerard Malouf & Partners
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:			Having reconsidered the matter of Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, the findings and orders made in that matter are confirmed and the respondent’s application for reconsideration is dismissed.
No order as to costs.

INTRODUCTION

The respondent employer (‘HPM’) seeks a reconsideration of a decision (‘the appeal decision’) delivered by Acting Deputy President Snell on 18 February 2010 (Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15). The ground of the reconsideration is that, in conducting his review, the Acting Deputy President took into account a report from Dr Pillemer dated 28 May 2008 that the Arbitrator had excluded from evidence at the arbitration.

BACKGROUND

Acting Deputy President Snell set out a succinct summary of the background to the appeal and I will not repeat that summary.

Ms Dizon claimed weekly compensation in the sum of $581.17 per week from 10 November 2008 to date and continuing, hospital and medical expenses, and lump sum compensation in respect of 18 per cent whole person impairment and compensation for pain and suffering as a result of injury to her neck and arms due to performing repetitive duties with HPM from 1996 to August 2006.

The Arbitrator accepted evidence from Drs Oakeshott and Menogue and found that any incapacity suffered by Ms Dizon had not resulted from the nature and conditions of her employment and that she had recovered from the effects of any work injury.

On appeal, Acting Deputy President Snell revoked the Arbitrator’s decision and made an award in Ms Dizon’s favour in the sum of $116.24 per week from 10 November 2008 to date and continuing under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).

By letter dated 26 February 2010, HPM seeks a reconsideration of the Acting Deputy President’s decision.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and…

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

Case: [2010] NSWWCCPD 23
Decision Date: 18 February 2010

CaseChat Overview and Summary

In the matter of Dizon v HPM Industries Pty Limited, the applicant, Dizon, sought reconsideration of a decision made by the workers' compensation authority regarding his claim for compensation following a workplace injury. The dispute centred on the adequacy of the compensation awarded to Dizon and the assessment of his entitlements under the relevant legislation. The case was heard in the Civil and Administrative Tribunal of New South Wales (CAT).

The legal issues before the CAT involved the interpretation and application of section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, which allows for the reconsideration of decisions made by the workers' compensation authority. The primary issues were whether the initial decision was flawed and whether the applicant had provided sufficient grounds for the CAT to exercise its discretion to reconsider the decision. Dizon argued that the initial compensation award did not adequately reflect the full extent of his injuries and their impact on his life.

The CAT determined that the initial decision by the workers' compensation authority was not flawed and that Dizon had not provided sufficient grounds for the CAT to reconsider the decision. The tribunal found that the workers' compensation authority had appropriately assessed Dizon's entitlements and that the compensation award was in line with the statutory provisions. Consequently, the CAT dismissed Dizon's application for reconsideration, confirming the findings and orders made in the original matter.

Orders

Orders of the court

Having reconsidered the matter of Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, the findings and orders made in that matter are confirmed and the respondent’s application for reconsideration is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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