Dizon v HPM Industries Pty Limited - [2010] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: This decision has been the subject of a reconsideration in Dizon v HPM Industries Pty Limited (reconsideration)* [2010] NSWWCCPD 23**
CITATION:	Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15
APPELLANT:	Josephine Dizon
RESPONDENT:	HPM Industries Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: ARBITRATOR:	A1-4386/09 Mr P Molony
DATE OF ARBITRATOR’S DECISION:	25 September 2009
DATE OF APPEAL DECISION:	18 February 2010
SUBJECT MATTER OF DECISION:	Nature of ‘review’ pursuant to section 352 Workplace Injury Management and Workers Compensation Act 1998; application of Jones v Dunkel (1959) 101 CLR 298.
PRESIDENTIAL MEMBER:	Acting Deputy President Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gerard Malouf & Partners
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:	The decision of the Arbitrator dated 25 September 2009 is revoked, and the following decision is made in its place: (i) Award for the Appellant Worker in a sum of $116.24 per week from 10 November 2008 to date and continuing pursuant to section 40 of the 1987 Act. (ii) The Respondent Employer is to pay the Appellant Worker’s medical and related expenses pursuant to section 60 of the 1987 Act in respect of her neck and upper limbs. (iii) The matter is to be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb. (iv) The approved medical specialist is to have access to the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents lodged 22 July 2009,18 August 2009 and 27 August 2009, including the material attached to those documents. (v) The Respondent Employer is to pay the Appellant Worker’s costs.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.

BACKGROUND TO THE APPEAL

On 23 October 2009 Josephine Dizon (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 September 2009.

The Respondent to the Appeal is HPM Industries Pty Limited (‘the Respondent Employer’).

The Appellant Worker is now forty-two years of age, and is right hand dominant. She is married without children. She was educated in her native country, the Philippines, where she attended college and obtained qualifications in marketing and finance. She worked in the Philippines as a bank teller, and as a clerk with a company run by her sister, before coming to Australia with her family in 1995. In the same year she commenced working with the Respondent Employer as a process worker at its factory premises at Alexandria. Her statement describes the duties as “extremely repetitive”.

The Appellant Worker states she commenced to suffer…

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 15
Decision Date: 18 February 2010

CaseChat Overview and Summary

In the case of Dizon v HPM Industries Pty Limited, the Appellant, Dizon, sought a review of an arbitrator's decision under section 352 of the Workplace Injury Management and Workers Compensation Act 1998. The dispute centred around compensation for injuries sustained by Dizon during her employment with HPM Industries, specifically regarding the extent and nature of her injuries and the associated entitlements. The matter was heard in the Administrative Appeals Tribunal.

The primary legal issues before the court were the proper application of the review provisions in section 352 of the Act, the interpretation of Jones v Dunkel (1959) 101 CLR 298 in the context of workers' compensation, and the determination of appropriate compensation and medical expenses. The court needed to assess whether the arbitrator's decision was legally sound, and if not, what modifications were necessary to ensure the Appellant received fair and just compensation.

The tribunal found that the arbitrator's decision did not adequately address the Appellant's claims and entitlements under the relevant legislation. In particular, the tribunal noted that the application of Jones v Dunkel required a more nuanced approach to the Appellant's compensation, taking into account the totality of her injuries and their impact on her life. The tribunal revoked the arbitrator's decision and substituted its own, awarding Dizon compensation at a rate of $116.24 per week from 10 November 2008, ongoing medical expenses, and ordering a reassessment of her whole person impairment. Additionally, the tribunal mandated that the Respondent pay Dizon's costs.

The tribunal's final orders included the revocation of the arbitrator's decision, the award of weekly compensation to Dizon, the requirement for the Respondent to cover her medical expenses, the referral to an approved medical specialist for reassessment of her whole person impairment, and the instruction that the Respondent pay Dizon's costs. This decision underscored the importance of a comprehensive review process in workers' compensation cases to ensure claimants receive appropriate and fair outcomes.

Orders

Orders of the court

The decision of the Arbitrator dated 25 September 2009 is revoked, and the following decision is made in its place:

(i) Award for the Appellant Worker in a sum of $116.24 per week from 10 November 2008 to date and continuing pursuant to section 40 of the 1987 Act.

(ii) The Respondent Employer is to pay the Appellant Worker’s medical and related expenses pursuant to section 60 of the 1987 Act in respect of her neck and upper limbs.

(iii) The matter is to be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb.

(iv) The approved medical specialist is to have access to the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents lodged 22 July 2009,18 August 2009 and 27 August 2009, including the material attached to those documents.

(v) The Respondent Employer is to pay the Appellant Worker’s costs.

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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