Formosa v Express Transport & Packaging Pty Ltd - [2009] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Formosa v Express Transport & Packaging Pty Ltd [2009] NSWWCCPD 21
APPELLANT:  Daniel Formosa
RESPONDENT:  Express Transport & Packaging Pty Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Ltd
FILE NUMBER:  A1-006955/08
DATE OF ARBITRATOR’S DECISION:          20 November 2008
DATE OF APPEAL DECISION:  27 February 2009
SUBJECT MATTER OF DECISION: Change of circumstances; section 40 of the Workers Compensation Act 1987; partial incapacity for work.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      C & M Lawyers
Respondent:   Workplace Law

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 November 2008 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons.

The Respondent, Express Transport & Packaging Pty Ltd, is to pay the costs of the Appellant, Mr Formosa in this appeal.

BACKGROUND

On 3 December 2008, Daniel Formosa sought leave in the Workers Compensation Commission to bring an appeal against the decision of an arbitrator dated 20 November 2008. The Respondent to the appeal is Express Transport & Packaging Pty Ltd (‘Express Transport’). The Respondent’s workers compensation insurer is Employers Mutual Indemnity (Workers Compensation) Ltd (‘EMI’).

Mr Formosa is aged 31 and without dependents. After leaving school at the age of 13, he worked in the chicken industry performing unskilled manual work. In 1995, he commenced employment with Red Lea Chickens, now Express Transport, and worked there until 5 December 2005, when he injured his back lifting tubs of chickens. On 3 October 2007, a Commission arbitrator determined that Mr Formosa was totally incapacitated for work and made an award of weekly compensation.

On 4 September 2008, the Commission registered an ‘Application to Resolve a Dispute’ filed by EMI on behalf of Express Transport seeking a review of weekly payments to Mr Formosa because of a claimed change of circumstances, pursuant to section 55 of the Workers Compensation Act 1987 (‘the 1987 Act’). EMI claimed that Mr Formosa was partially incapacitated and no longer totally incapacitated for work.

On 26 September 2008, Mr Formosa’s solicitors filed a ‘Reply’, contending that his condition remains the same. He claims to suffer persistent lumbar pain radiating into his right lower limb, aggravated by performing repetitive tasks, including walking for more than 20 minutes.

On 9 October 2008, the Arbitrator conducted a teleconference with the parties. On 6 November 2008, conciliation having proved unsuccessful, the Arbitrator conducted an arbitration hearing, at the conclusion of which he reserved his decision. A Statement of Reasons (‘Reasons’) for his decision were issued on 20 November 2008 with the Certificate of Determination.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 20 November 2008, records the Arbitrator’s orders as follows:

“1. That there has been a change in circumstances since the award on 3 October 2007 within the meaning of s 55 of the 1987 Act.
2. That the Applicant pay the Respondent weekly 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.

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Details

Case: [2009] NSWWCCPD 21
Decision Date: 27 February 2009

CaseChat Overview and Summary

The appeal in Formosa v Express Transport & Packaging Pty Ltd involved a dispute regarding the determination of workers compensation entitlements for Daniel Formosa, following a change in circumstances regarding his capacity for work. The appeal was heard by Acting Deputy President Robin Handley of the Workers Compensation Commission. The primary issue was whether the Arbitrator had erred in his application of section 40 of the Workers Compensation Act 1987 when determining Mr Formosa's entitlement to weekly compensation. The court found that the Arbitrator had indeed erred both in law and in fact.

In reaching his decision, the Arbitrator had considered evidence from various sources, including medical opinions and reports on Mr Formosa's physical condition and capacity for work. The Arbitrator concluded that Mr Formosa had improved to the point where he could undertake suitable duties, albeit with restrictions, and thus reduced his weekly compensation payments. However, the court found that the Arbitrator had incorrectly considered Mr Formosa's lack of cooperation with rehabilitation efforts when determining his capacity for work, which was a matter to be considered only at the final step of the compensation calculation process. Additionally, the court found that the evidence did not support the conclusion that Mr Formosa was capable of full-time work as of the date of the Arbitrator's decision.

As a result of these errors, the Acting Deputy President revoked the Arbitrator's decision and remitted the matter to another arbitrator for determination afresh. The court also ordered the Respondent, Express Transport & Packaging Pty Ltd, to pay the Appellant's costs in the appeal.

Orders