Eason v Bluescope Steel Ltd - [2006] NSWWCCPD 265

WORKERS COMPENSATION COMMISSION

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

CITATION:Eason v Bluescope Steel Ltd [2006] NSWWCCPD 265
APPELLANT:  Trevor Eason
RESPONDENT:  Bluescope Steel Ltd
INSURER:Self Insured
FILE NUMBER:  WCC19204-05
DATE OF ARBITRATOR’S DECISION:          11 April 2006
DATE OF APPEAL DECISION:  9 October 2006
SUBJECT MATTER OF DECISION: Serious and permanent disablement; section 65(13) Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Russell McLelland Brown
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision are revoked and the following order made:

“1. The matter is remitted to the original Arbitrator for the remaining issues in section 65(13) of the Workplace Injury Management and Workers Compensation Act 1998 to be determined and, if appropriate, for the matter to be referred to an Approved Medical Specialist for assessment of the impairment of the Applicant’s back and loss of efficient use of his right leg at or above the knee.”

Costs of the first Arbitration are to follow the event of the second Arbitration.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 10 May 2006 Trevor Eason (‘the Appellant Worker/Mr Eason’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 April 2006.

The Respondent to the Appeal is Bluescope Steel Ltd (‘the Respondent Employer/Bluescope’).

Mr Eason was born on 19 November 1969 and started work with the Respondent Employer as an electrician in January 1986. He worked with Bluescope until he accepted a voluntary redundancy on 26 July 2006. He alleges that he injured his back on two occasions with the Respondent Employer: first in April 2001 and second in July 2001. His symptoms increased significantly when he was at home in September 2001. Neither injury was reported until about 10 December 2001 when he took steps to submit Incident Report forms to Bluescope.

Mr Eason made no claim for compensation until 12 April 2005 when his current solicitor wrote to Bluescope claiming lump sum compensation in the sum of $9,000.00 in respect of a 15% permanent impairment of his back, $7,500.00 in respect of a 10% loss of efficient use of his right leg at or above the knee and $10,000.00 compensation for pain and suffering pursuant to section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). Liability for the claim was denied by Bluescope’s solicitor in a letter dated 29 August 2005.

On 10 November 2005 Mr Eason’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission. In the Application he claimed the same compensation set out in the letter of 12 April 2005 referred to above. In its Reply the Respondent Employer denied liability because, among other reasons, Mr Eason had not given notice of injury and had not claimed compensation within the time limits…

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: [2006] NSWWCCPD 265
Decision Date: 9 October 2006

CaseChat Overview and Summary

The appeal in Eason v Bluescope Steel Ltd concerned a worker's eligibility for compensation under the Workplace Injury Management and Workers Compensation Act 1998 after a delay in reporting an injury. The Arbitrator had found that the worker's injuries did not result in "serious and permanent disablement," a requirement for compensation when a claim is made beyond the statutory three-year limit. The worker, Trevor Eason, appealed this decision, arguing that the Arbitrator erred in various respects, including misinterpreting the meaning of "serious and permanent disablement" and failing to consider relevant evidence about the impact of his injuries on his capacity to work.

The court examined the meaning of "serious and permanent disablement" through relevant precedents, notably Broken Hill Proprietary Company Ltd v Kuhna and Gregson v L & M Dimasi Pty Ltd, which emphasize evaluating disablement in an employment context. The court found that the Arbitrator had misapplied the relevant legal principles by focusing on the potential need for surgery rather than considering the overall impact of the injuries on Eason's ability to work. The Arbitrator also failed to adequately consider evidence from Dr. Bodel and Eason himself, which indicated significant impairment and a change in career due to the injuries.

The court concluded that Eason's injuries did indeed result in serious and permanent disablement, as they significantly affected his capacity to work, a factor the Arbitrator had not sufficiently addressed. The Arbitrator's decision was thus revoked, and the matter was remitted to be reconsidered with appropriate focus on the worker's capacity to perform his previous and current employment duties. The Respondent Employer was ordered to pay the Appellant Worker’s costs of the appeal.

Orders