Fuller v Australian Fleet Sales - [2006] NSWWCCPD 96

WORKERS COMPENSATION COMMISSION

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

CITATION:Fuller v Australian Fleet Sales [2006] NSW WCC PD 96
APPELLANT: Christopher Andrew Fuller
RESPONDENT: Australian Fleet Sales

INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC6719-04
DATE OF ARBITRATOR’S DECISION:          26 August 2004
DATE OF APPEAL DECISION:  23 May 2006
SUBJECT MATTER OF DECISION:                Leave to appeal; injury; costs
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:     Stacks Goudkamp Pty Ltd
Respondent: QBE Workers Compensation

ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

Mr Christopher Fuller, the Appellant Worker in this appeal, was employed as a car detailer by Australian Fleet Sales, the Respondent, from 22 December 1999 until the termination of his employment on 12 February 2000. QBE Workers Compensation (NSW) Limited (‘QBE/the Insurer’) was the Insurer at all relevant times.

Mr Fuller claims to have suffered an injury to his back. The injury occurred on 4 February 2000 when he was climbing onto the wheel of a 4WD to wash the bonnet of the vehicle when he experienced a burning sensation down the back of both legs and pain in his lower back. Mr Fuller claims that he suffered a total incapacity for work as a result of the injury that arose out of and in the course of his employment with Australian Fleet Sales.

On 15 February 2000 Mr Fuller notified Australian Fleet Sales of the injury.

On 12 June 2002 Mr Fuller lodged a claim with QBE for weekly benefits, medical expenses and non-economic loss compensation.

On 30 August 2002 QBE advised Mr Fuller that it denied liability for the claim for weekly benefits, medical expenses and non-economic loss compensation.

On 27 April 2004 Mr Fuller lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The basis of his claim is that he suffered injury to his back as a result of an injury sustained on 11 February 2000, which arose out of and in the course of his employment with Australian Fleet Sales. The claim is for weekly benefits, medical expenses and non-economic loss compensation. It is noted that there is an inconsistency in relation to the alleged date of injury, 4 February 2000, being the date that was given orally at the Arbitration and recorded in the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’), which conflicts with the date 11 February 2000 that appears in several of the medical reports tendered and in Mr Fuller’s original Application filed in the Commission on 20 April 2004.

The matter was listed for an arbitration hearing on 23 August 2004.

A determination was made by an Arbitrator of the Commission on 26 August 2004.

On 24 December 2004 Mr Fuller lodged an ‘Appeal Against Decision of Arbitrator’ (‘Appeal’) in the Commission, against the decision. This was rejected under cover of a letter dated 5…

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 Fuller v Australian Fleet Sales

Details

AGLC: Fuller v Australian Fleet Sales [2006] NSWWCCPD 96
Case: [2006] NSWWCCPD 96
Decision Date: 23 May 2006

CaseChat Overview and Summary

Fuller v Australian Fleet Sales is a workers' compensation appeal where Christopher Andrew Fuller, the appellant, challenges the decision of the Workers Compensation Commission's Arbitrator, which dismissed his claim for weekly benefits, medical expenses, and non-economic loss compensation following an alleged work-related injury. The primary legal issues in this case involve whether the Arbitrator erred in dismissing Fuller's claims and if the appeal should be granted leave to proceed given it was filed beyond the stipulated 28-day period. The court also needed to determine whether the Arbitrator correctly decided not to award costs.

The court evaluated whether exceptional circumstances warranted extending the appeal period beyond the statutory limit. Fuller argued that the delay was due to the insurer's failure to pay his travel expenses for attending the arbitration, a matter he claimed was directed by the Arbitrator. However, the court found that Fuller's submissions did not sufficiently address the criteria for extending the appeal period under Rule 77(8) of the Workers Compensation Commission Rules 2003. The court noted that while Fuller's submissions detailed the events leading to the delay, they did not establish that not extending the appeal period would cause demonstrable and substantial injustice, as required by the rule. Additionally, the court observed that Fuller could have appealed within the original timeframe regardless of the travel expenses issue.

Consequently, the court ruled that there were no exceptional circumstances justifying an extension of the appeal period. The appeal was dismissed, and no order was made regarding the costs of the appeal. This decision highlights the stringent requirements for extending appeal periods in workers' compensation matters and underscores the importance of strict compliance with procedural rules unless compelling circumstances are shown.

Orders