Draca v Formtec Group (NSW) Pty Limited - [2016] NSWWCCPD 53

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Draca v Formtec Group (NSW) Pty Limited [2016] NSWWCCPD 53
APPELLANT:	Dragoslav Draca
RESPONDENT:	Formtec Group (NSW) Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-2096/15
ARBITRATOR:	The Honourable L Ashford
DATE OF ARBITRATOR’S DECISION:	1 July 2016
DATE OF APPEAL DECISION:	7 November 2016
SUBJECT MATTER OF DECISION:	Application of Schedule 8, clause 11 of the Workers Compensation Regulation 2016
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	NSW Compensation Lawyers
Respondent:	Kemp & Co Lawyers
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated I July 2016 is revoked. 2. In substitution the following orders are made: “1. The respondent is to pay the following sums to the applicant, by way of additional lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, resulting from injury on 28 November 2001: (a) $2,000 in respect of an additional five per cent permanent impairment of the neck, and (b) $3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.”

INTRODUCTION

This appeal involves s 66(1A) of the Workers Compensation Act 1987 (the 1987 Act) and Sch 8, cl 11 of the Workers Compensation Regulation 2016 (The Regulations), (formerly Sch 8, cl 11A of the Workers Compensation Regulation 2010 [the 2010 Regulations]), where claims for lump sum compensation were made both prior to, and on or after, 19 June 2012. The former cl 11A was inserted into the 2010 Regulations by the Workers Compensation Amendment (Lump Sum Compensation Claims) Regulation 2015, which commenced from 13 November 2015.

BACKGROUND

Dragoslav Draca (the appellant) suffered injury (the occurrence of which is not in dispute) in the course of his employment with Formtec Group (NSW) Pty Limited (the respondent), on 28 November 2001.
The appellant attached a chronology to his Application to Appeal, which recites various claims for lump sum compensation over the years since the injury, and the events leading to their resolution. The respondent, in its Notice of Opposition, did not attach a competing chronology, and stated that it did “not wish to add to the Appellant’s chronology”. The appellant lodged an amended chronology on 23 August 2016. The respondent lodged no document that competed with the amended chronology. The chronologies describe various claims for lump sum compensation and the basis on which they were dealt with:
25 January 2006 Letter of claim for lump sums in respect of the back, neck, left arm, left leg and right leg.
29 August 2006 Settled by way of s 66A agreement for 10% permanent impairment of the back, 9% permanent loss of the left leg at or above the knee and 9% permanent loss of the left arm at or above the elbow, together with a sum pursuant to s 67 of the 1987 Act.
27 July 2007 Letter of claim for additional compensation…

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.

Continue reading Draca v Formtec Group (NSW) Pty Limited

Details

AGLC: Draca v Formtec Group (NSW) Pty Limited [2016] NSWWCCPD 53
Case: [2016] NSWWCCPD 53
Decision Date: 7 November 2016

CaseChat Overview and Summary

Draca sought to have additional compensation for injuries sustained in a workplace incident in 2001. The dispute centred on the application of the relevant provisions of the Workers Compensation Regulation 2016. The case was heard in the New South Wales Civil and Administrative Tribunal. The central issue was whether the tribunal had the authority to grant the additional compensation under Schedule 8, clause 11 of the regulation, which provides for compensation adjustments where there is a change in the worker's condition. Draca argued that the tribunal had the necessary jurisdiction, while the respondent contended that the tribunal lacked the authority to award additional compensation based on the new regulation. The tribunal found that it did have the jurisdiction to make such adjustments under the regulation and was not precluded from doing so by the relevant provisions of the Workers Compensation Act 1987. The tribunal revoked the previous certificate of determination and substituted it with an order that the respondent pay the applicant additional compensation in respect of the injuries sustained. The tribunal emphasised that the application of the regulation was consistent with the statutory scheme and did not conflict with any other provisions of the Act.

Orders

Orders of the court

1. The Certificate of Determination dated I July 2016 is revoked.

2. In substitution the following orders are made:

“1. The respondent is to pay the following sums to the applicant, by way of additional lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987, resulting from injury on 28 November 2001:

(a) $2,000 in respect of an additional five per cent permanent impairment of the neck, and

(b) $3,750 in respect of an additional five per cent permanent loss of use of the right leg at or above the knee.”

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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