Ferro v Mercon Group Pty Ltd - [2023] NSWPICPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4
APPELLANT:	Joe Ferro
RESPONDENT:	Mercon Group Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W6127/21
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	1 February 2023
ORDERS MADE ON APPEAL:	1. Order 6 in the Certificate of Determination in respect of the entitlement pursuant to s 38 of the Workers Compensation Act 1987 is set aside. 2. The matter is remitted for re-determination by a different member in respect of the claim made pursuant to s 38 of the Workers Compensation Act 1987 consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – section 38 of the Workers Compensation Act 1987 – member’s obligation to give reasons – failure to give reasons - Sydney Catholic Schools Limited v Bridgefoot [2021] NSWPICPD 17 and Wang v State of New South Wales [2019] NSWCA 263 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr B McManamey, counsel
Law Partners Personal Injury Lawyers
Respondent:
Mr S Lott, solicitor
Hall & Wilcox
DECISION UNDER APPEAL
MEMBER:	Mr C Burge
DATE OF Member’s DECISION:	14 April 2022

INTRODUCTION AND BACKGROUND FACTS

This is an appeal from a Certificate of Determination dated 14 April 2022.
The background facts, subject to one matter, are uncontroversial. On 3 February 2017 the appellant suffered a fall in the workplace of approximately 3 metres. The appellant was standing on a slab which gave way.
The appellant suffered a severe injury to the left ankle. The respondent accepted liability for that injury.
The respondent did not accept liability for alleged injuries to the cervical spine, lumbar spine, laceration to the head, impairment of the visual system and a psychological injury in the form of Post-Traumatic Stress Disorder and depression. The proceedings before the Commission agitated the appellant’s claim with respect to these further injuries.
The Member found that the appellant had suffered an injury to the left lower extremity (leg and ankle) and a psychological injury. He found for the respondent (against the appellant) with respect to the injuries of the laceration to the head, the lumbar spine, cervical spine and visual system.
There is no appeal from the findings with respect to these injuries.
The Member found the appellant to have been totally incapacitated for employment from the date of injury on 3 February 2017 to 2 August 2019, pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act). This was a period of 130 weeks and exhausted the appellant’s entitlement to weekly compensation during the first and second entitlement periods.
The appellant’s Pre-Injury Average Weekly Earnings were agreed by the parties at $791.92. The Member entered an award for the appellant with respect to weekly compensation as follows:
(a) pursuant to s 36, at the rate of $752.32 per week from 3 February 2017 to 5 May 2017, and
(b) pursuant to s 37, at the rate of…

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 Ferro v Mercon Group Pty Ltd

Details

AGLC: Ferro v Mercon Group Pty Ltd [2023] NSWPICPD 4
Case: [2023] NSWPICPD 4
Decision Date: 1 February 2023

CaseChat Overview and Summary

The case of Ferro v Mercon Group Pty Ltd involved a dispute between an injured worker, Mr Ferro, and his employer, Mercon Group Pty Ltd, over a decision made by the Workers Compensation Nominating Authority (WCNA). The dispute centred on the WCNA's decision to reject Mr Ferro's application for a lump sum payment of workers' compensation. The case was heard in the New South Wales Supreme Court.

The legal issues before the court were whether the WCNA was obligated to provide reasons for its decision and, if so, what consequences would follow from a failure to do so. The court was required to consider the statutory provisions regarding the WCNA's obligations under the Workers Compensation Act 1987, as well as relevant case law. The court's task was to determine whether the WCNA's failure to give reasons rendered its decision unlawful.

The court held that the WCNA was indeed required to give reasons for its decisions, as mandated by section 38 of the Workers Compensation Act 1987. The court emphasised that the obligation to provide reasons was not merely a procedural requirement, but a fundamental aspect of procedural fairness. Drawing on the authorities of Sydney Catholic Schools Limited v Bridgefoot and Wang v State of New South Wales, the court concluded that the failure to give reasons could render a decision legally invalid. The court found that the WCNA's decision in this case was flawed due to the lack of reasons and quashed the decision, ordering the WCNA to reconsider Mr Ferro's application with appropriate reasons provided.

The final orders of the court included quashing the WCNA's decision and directing the WCNA to reconsider Mr Ferro's application, ensuring that adequate reasons were provided for any decision made. The court's decision underscored the importance of procedural fairness and the need for decision-makers to comply with statutory obligations to provide reasons for their decisions.

Orders