Fire & Rescue NSW v Hogrefe - [2012] NSWWCCPD 34

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Fire & Rescue NSW v Hogrefe [2012] NSWWCCPD 34
APPELLANT:		Fire & Rescue NSW
RESPONDENT:		Manfred Hogrefe
INSURER:		Employers Mutual Limited - TMF
FILE NUMBER:		A1-3119/11
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:		22 March 2012
DATE OF APPEAL DECISION:		29 June 2012
SUBJECT MATTER OF DECISION:		Schedule 6 Pt 18C cl 3 to the Workers Compensation Act 1987; determination of amount by which compensation payable is to be reduced
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Hicksons
Respondent:	Steve Masselos & Co
ORDERS MADE ON APPEAL:		1. The findings and orders made by the Arbitrator in paragraphs 1, 2 and 3 of the Certificate of Determination dated 22 March 2012 are confirmed. 2. The appellant is to pay the worker’s costs of the appeal.

BACKGROUND

Mr Manfred Hogrefe commenced employment with Fire & Rescue NSW (the appellant) as a firefighter in 1980. He remained so employed until 29 September 2006 following a recommendation by the then Brigade’s Medical Officer, Dr Catherine Field, that he be medically retired.
Mr Hogrefe had received various physical injuries and also had been exposed to a number of very distressing incidents in the course of his employment.
On 25 February 2006, Mr Hogrefe had experienced significant abdominal pain whilst on duty causing him to collapse. He was transferred from his station to Mt Druitt Hospital where he received treatment before discharge on that day. He ceased work and, it seems, was paid provisional weekly compensation for a period before return to suitable duties.
On 20 October 2006, he made a claim for workers compensation benefits. The injuries particularised in that claim were post traumatic stress, anxiety/depression and injuries to right knee and right elbow.
The appellant accepted liability for weekly compensation benefits and such have been paid to date.
In August 2009 Mr Hogrefe’s solicitors forwarded a workers compensation claim form to the appellant’s insurer. That form did not particularise the benefits claimed, however the injury alleged was particularised as “post traumatic stress disorder caused by the nature and conditions of employment (see Annexure 1)”. The annexure contained detail of seven very distressing and traumatic incidents to which Mr Hogrefe had been exposed in the course of his duties.
In correspondence dated 14 October 2009 Mr Hogrefe’s solicitors wrote to the insurer giving notice of a claim for lump sum compensation in respect of 20 per cent whole person impairment resulting from psychological injury together with lump sum compensation in respect of pain and suffering pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).
Liability for the lump sum claim was declined. That denial of liability was founded upon the provisions of cl 3(2) of Pt 18C to Sch 6 to the 1987 Act.
Mr Hogrefe registered an Application to Resolve a Dispute (the Application) with the Commission in April 2011. Part 4 of the…

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 Fire & Rescue NSW v Hogrefe

Details

AGLC: Fire & Rescue NSW v Hogrefe [2012] NSWWCCPD 34
Case: [2012] NSWWCCPD 34
Decision Date: 29 June 2012

CaseChat Overview and Summary

In the case of Fire & Rescue NSW versus Hogrefe, the dispute before the court involved the determination of a reduction in workers' compensation payable to the respondent. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The central issue revolved around the interpretation and application of Schedule 6 Part 18C clause 3 of the Workers Compensation Act 1987. Specifically, the court had to decide whether the Arbitrator's determination that the compensation payable should be reduced was correct. The appellant argued that the Arbitrator had misinterpreted the statutory provisions, while the respondent contended that the reduction was justified based on the applicable legal framework.

The court examined the statutory provisions and relevant case law to ascertain the correct interpretation. It found that the Arbitrator had correctly interpreted the relevant provisions of the Workers Compensation Act 1987. The court upheld the Arbitrator's findings and orders, confirming the reduction in compensation. The appellant's argument that the Arbitrator had misinterpreted the statutory provisions was rejected, as the court found that the Arbitrator's interpretation was consistent with the statutory language and purpose.

As a result of the court's decision, the findings and orders made by the Arbitrator were confirmed. The appellant was ordered to pay the respondent's costs of the appeal, reflecting the tribunal's view that the appeal was not well-founded. This decision clarifies the application of the statutory provisions in question and reinforces the authority of the Arbitrator's determination.

Orders

Orders of the court

1. The findings and orders made by the Arbitrator in paragraphs 1, 2 and 3 of the Certificate of Determination dated 22 March 2012 are confirmed.

2. The appellant is to pay the worker’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.