Galea v Galaxy Rooflite Pty Ltd - [2009] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Galea v Galaxy Rooflite Pty Ltd [2009] NSWWCCPD 1
APPELLANT:		John Galea
RESPONDENT:		Galaxy Rooflite Pty Ltd
INSURER:		GIO Workers Compensation (NSW) Limited
FILE NUMBER:		WCC3921-08
DATE OF ARBITRATOR’S DECISION:		26 August 2008
DATE OF APPEAL DECISION:		7 January 2009
SUBJECT MATTER OF DECISION:		Partial incapacity; section 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Eugene Lepore & Associates
Respondent:	Sparke Helmore
ORDERS MADE ON APPEAL:		Paragraphs one and three of the Arbitrator’s determination of 26 August 2008 are revoked and the follow orders made: “1. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the following amounts: (a) $25.00 per week from 9 September 2004 to 30 June 2005; (b) $45.00 per week from 1 July 2005 to 30 June 2006; (c) $65.00 per week from 1 July 2006 to 30 June 2007, and (d)$85.00 per week from 1 July 2007 to date and continuing. 3. The respondent employer is to pay the applicant worker’s costs of the arbitration, as assessed or agreed. 4. Award for the applicant worker in the sum of $6,250 in respect of a 5% whole person impairment as a result of injury to his thoracic spine on 1 May 2003. 5. Award for the respondent employer in respect of the claim for compensation under section 67 of the 1987 Act.” Paragraph two of the Arbitrator’s determination of 26 August 2008 is confirmed.
The respondent employer is to pay the appellant worker’s costs of the appeal.

BACKGROUND

The appellant, Mr Galea, alleges that he injured his thoracic spine and right upper extremity at work for the respondent, Galaxy Rooflite Pty Ltd (‘Galaxy’), on or about 1 May 2003, while lifting and carrying six to 10 sheets of polycarbonate with a co-worker. After a few days off, he returned to work performing suitable duties on reduced hours. He gradually returned to full-time hours, but continued to have restrictions on his ability to lift and carry.

Mr Galea remained on suitable duties until the insurer denied liability by letter dated 5 July 2004 on the basis of evidence from Dr Carr, rheumatologist, that his problem and pain was substantially due to his pre-existing Scheuermann’s disease. By letter dated 16 August 2004, Galaxy invited Mr Galea to provide evidence of his fitness for work. Mr Galea provided certificates that he was unfit for any work from 24 July 2004 until 11 September 2004. In the absence of any evidence of Mr Galea’s fitness for work, Galaxy terminated his employment on or about 9 September 2004.

By a document headed “Notice of Claim” dated 23 August 2007, Mr Galea claimed weekly compensation in the sum of $570.00 per week from 9 September 2004 to date and continuing, lump sum compensation in respect of 14% whole person impairment, $30,000 in respect of pain and suffering…

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 Galea v Galaxy Rooflite Pty Ltd

Details

AGLC: Galea v Galaxy Rooflite Pty Ltd [2009] NSWWCCPD 1
Case: [2009] NSWWCCPD 1
Decision Date: 7 January 2009

CaseChat Overview and Summary

In the case of Galea v Galaxy Rooflite Pty Ltd, the applicant, Mr. Galea, sought a review of a decision made by an arbitrator regarding his entitlement to workers’ compensation. The dispute centred around the degree of partial incapacity Mr. Galea suffered as a result of an injury to his thoracic spine, and the compensation he was entitled to under section 40 of the Workers Compensation Act 1987. The case was heard in the Workers’ Compensation Commission of Queensland.

The legal issues that the court had to resolve involved the interpretation of section 40 of the Workers Compensation Act 1987 and the appropriate level of compensation for Mr. Galea's partial incapacity. The court was tasked with examining the evidence provided to the arbitrator and determining whether the degree of incapacity and the corresponding compensation were properly assessed. The court also needed to consider the evidence regarding the 5% whole person impairment that Mr. Galea sustained as a result of the injury.

The court found that the arbitrator had erred in the assessment of Mr. Galea's degree of incapacity and the corresponding compensation. The court determined that the Arbitrator had applied an incorrect methodology in calculating the compensation and had not adequately considered the evidence provided by the medical experts. The court subsequently revoked paragraphs one and three of the Arbitrator’s determination and made new orders for compensation. These new orders increased the weekly compensation amounts and included a lump sum payment for the 5% whole person impairment. The court confirmed paragraph two of the Arbitrator’s determination, which pertained to the employer's claim for compensation under section 67 of the 1987 Act, as it was not contested in this review.

Orders

Orders of the court

Paragraphs one and three of the Arbitrator’s determination of 26 August 2008 are revoked and the follow orders made:

“1. Award for the applicant worker under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) in the following amounts:

(a) $25.00 per week from 9 September 2004 to 30 June 2005;

(b) $45.00 per week from 1 July 2005 to 30 June 2006;

(d)$85.00 per week from 1 July 2007 to date and continuing.

3. The respondent employer is to pay the applicant worker’s costs of the arbitration, as assessed or agreed.

4. Award for the applicant worker in the sum of $6,250 in respect of a 5% whole person impairment as a result of injury to his thoracic spine on 1 May 2003.

5. Award for the respondent employer in respect of the claim for compensation under section 67 of the 1987 Act.”

Paragraph two of the Arbitrator’s determination of 26 August 2008 is confirmed.

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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