Formica v DJ Batchen Pty Limited - [2007] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION

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

CITATION:Formica v D J Batchen Pty Limited [2007] NSWWCCPD 5
APPELLANT:  Bruno Formica
RESPONDENT:  D J Batchen Pty Limited
INSURER:GIO Australia
FILE NUMBER:  WCC16118-04
DATE OF ARBITRATOR’S DECISION:          2 March 2005
DATE OF APPEAL DECISION:  8 January 2007
SUBJECT MATTER OF DECISION:                Adequacy of reasons; evidence; procedural fairness
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      S P Nasti & Co., Solicitors
Respondent:   Rankin Nathan Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 2 March 2005 is confirmed.
No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Bruno Formica (‘the worker’) was employed by D J Batchen Pty Limited (‘the employer’) as a fitter and turner for a number of years. On 14 February 1996 he suffered a head injury at work at 10.30 a.m. He continued at work; however he was absent the next day and has not returned to work since. He attended doctors and obtained certificates in relation to his absences with which I will deal in greater detail later.
On 26 April 1996 the worker attempted suicide by hanging but was found before he had accomplished his purpose. Following this he was initially admitted to Liverpool District Hospital and later Royal Prince Alfred Hospital (‘RPAH’). He has been substantially incapacitated since the attempted suicide and suffered a left-sided stroke on 7 June 1997. A claim for compensation was lodged by the worker with his employer and the date of this is unclear, however it was signed on behalf of the employer on 15 March 1996. The account of injury is as follows:
“While I was removing the shavings from under the drill machine I got up and bumped my head. As soon as I stood up I felt very strong pain to the right side of my head. 3 p.m. I felt dizzy and couldn’t keep my balance and fell down.”
He said that he had seen Dr Reddy and had stopped work on 15 February 1996.
The employer’s report of injury is also dated 15 March 1996. It refers to an attached letter which is not in evidence. In its absence there is very little factual content in the Employer’s Report of Injury. A claim for weekly compensation from 14 February 1996 onwards was made on 16 June 2004. I infer that the claim was not accepted and accordingly an ‘Application to Resolve a Dispute’ was lodged with the Worker’s Compensation Commission (‘the Commission’) on 8 October 2004. In that the injury is described as follows: “Psychiatric, psychological, stroke, arms legs back and neck”. The circumstances of the injury are described as follows:
“On 14 February 1996, the Applicant struck his head at his place of work which led to him suffering dizziness. This injury led to the Applicant suffering anxiety, a major depressive illness, consequential attempt at suicide, dizziness and sequelae leading to stroke…

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: [2007] NSWWCCPD 5
Decision Date: 8 January 2007

CaseChat Overview and Summary

In the Workers Compensation Commission, the appeal of Bruno Formica against a decision of the Commission constituted by an Arbitrator was considered. The Arbitrator had determined that the employer, DJ Batchen Pty Limited, was liable to pay weekly compensation to the worker for a limited period and section 60 expenses also for a limited period. The appeal raised issues concerning the adequacy of reasons, evidence, and procedural fairness. The Acting Deputy President, Anthony Candy, reviewed the decision on the papers and determined that the appeal did not meet the criteria for leave as the Arbitrator's findings were supported by evidence and the worker's arguments did not demonstrate any legal, factual, or discretionary error. The Acting Deputy President confirmed the Arbitrator's decision and made no order as to the costs of the appeal.

Orders