Frost v JJP Vineyard Contractors Pty Ltd - [2008] NSWWCCPD 128

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Frost v JJP Vineyard Contractors Pty Ltd [2008] NSWWCCPD 128
APPELLANT:		Anthony Frost
RESPONDENT:		JJP Vineyard Contractors Pty Ltd
INSURER:		GIO General Ltd
FILE NUMBER:		WCC3610-08
DATE OF ARBITRATOR’S DECISION:		30 June 2008
DATE OF APPEAL DECISION:		31 October 2008
SUBJECT MATTER OF DECISION:		Section 52A of the Workers CompensationAct 1987; whether the worker was seeking suitable employment.
PRESIDENTIAL MEMBER:		Acting Deputy President Deborah Moore
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bale Boshev Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator dated 30 June 2008 is revoked and the following orders are made: (1) The Respondent to recommence weekly payments of compensation pursuant to section 40 of the Workers Compensation Act 1987 from 11 March 2008 at a rate to be determined. (2) .The matter is remitted to the Arbitrator at first instance to calculate Mr Frost’s entitlements in accordance with these reasons. (3) The Respondent is to pay the Applicant’s costs of the proceedings before the Arbitrator. 2. The Respondent is to pay the Appellant’s costs of the appeal

BACKGROUND TO THE APPEAL

On 23 July 2008 Anthony Frost (‘the Appellant / Mr Frost’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 30 June 2008.

The Respondent to the appeal is JJP Vineyard Contractors Pty Ltd (‘the Respondent / JJP’).

Mr Frost injured his left foot and ankle when a tractor ran over it at work on 26 January 2006.

Liability was accepted by JJP’s insurer, GIO General Ltd (‘GIO’), and weekly benefits and medical expenses were paid to Mr Frost accordingly.

On 29 January 2008, GIO wrote to Mr Frost advising him that his weekly benefits were to be discontinued pursuant to section 52A of the Workers Compensation Act 1987 (‘the 1987Act’) as from 14 February 2008, [later agreed to be from 10 March 2008] principally on the basis that he was not suitably employed nor seeking suitable employment.

On 14 May 2008 Mr Frost filed an ‘Application to Resolve a Dispute’ (‘Application’) in the Commission seeking re-instatement of those benefits.

On 26 June 2008 the parties attended a conciliation/arbitration hearing. The Arbitrator gave an ex tempore decision recorded in the transcript of that date. The Arbitrator found that, although there was evidence that Mr Frost was seeking employment, it was not ‘suitable’ within the meaning of the Act, and entered an award in favour of JJP accordingly.

It is from this decision that Mr Frost seeks leave to appeal.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Both parties submit that the matter is suitable for a determination ‘on the papers’. Having regard…

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: [2008] NSWWCCPD 128
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case involved a dispute between Frost, an employee, and JJP Vineyard Contractors Pty Ltd, an employer, regarding workers' compensation entitlements. Frost claimed that he was entitled to ongoing compensation under Section 52A of the Workers Compensation Act 1987, which provides for compensation to be paid to an injured worker who is unable to work in suitable employment. The dispute was heard by the Arbitrator, whose decision was appealed to the court.

The central legal issues before the court were whether Frost had taken all reasonable steps to find suitable employment and whether the Arbitrator had correctly exercised their discretion in determining his entitlements. The court needed to assess whether the Arbitrator's findings of fact were supported by the evidence and whether those findings were sufficient to conclude that Frost was not entitled to ongoing compensation. Additionally, the court had to determine if the Arbitrator had applied the correct legal principles in their assessment.

The court found that the Arbitrator had erred in their interpretation of the evidence and the applicable law. The Arbitrator had incorrectly assumed that Frost's job search efforts were inadequate without proper consideration of the specific circumstances. The court held that Frost had indeed taken reasonable steps to secure suitable employment, and thus, the Arbitrator's decision to cease compensation payments was flawed. The court revoked the Arbitrator's decision and ordered the employer to resume compensation payments at the appropriate rate. The matter was remitted to the Arbitrator to recalculate Frost's entitlements based on the court's findings. The court also ordered the employer to pay Frost's costs incurred during the arbitration process and the appeal.

Orders

Orders of the court

1. The decision of the Arbitrator dated 30 June 2008 is revoked and the following orders are made:

(1) The Respondent to recommence weekly payments of compensation pursuant to section 40 of the Workers Compensation Act 1987 from 11 March 2008 at a rate to be determined.

(2) .The matter is remitted to the Arbitrator at first instance to calculate Mr Frost’s entitlements in accordance with these reasons.

(3) The Respondent is to pay the Applicant’s costs of the proceedings before the Arbitrator.

2. The Respondent is to pay the Appellant’s costs of the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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