WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Garcia v Sydcon Pty Ltd [2008] NSWWCCPD 4
APPELLANT: Manuel Garcia
RESPONDENT: Sydcon Pty Ltd
INSURER:GIO Insurance Ltd
FILE NUMBER: WCC2541-07
DATE OF ARBITRATOR’S DECISION: 14 September 2007
DATE OF APPEAL DECISION: 15 January 2008
SUBJECT MATTER OF DECISION: Treatment of the evidence
PRESIDENTIAL MEMBER: Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION: Appellant: Villari & Co Lawyers
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 14 September 2007 is revoked and the following order made:
“1. Award for the Respondent.
2. No order as to costs.”
There is no order as to the costs of this appeal.
BACKGROUND TO THE APPEAL
On 11 October 2007, Manuel Garcia sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 14 September 2007. The Respondent to the appeal is Sydcon Pty Ltd (‘Sydcon’) whose workers compensation insurer is GIO Insurance Ltd (‘GIO’).
Mr Garcia was born in Spain on 30 April 1943 and is aged 64. He migrated to Australia in April 1968 and was employed by various employers before commencing employment as a rigger for Sydcon from 27 August 1997. Mr Garcia claims that because of the heavy nature of the work, he began to experience back and neck pain, although he claims to have coped with this until about April 2002, when he began experiencing difficulty in straightening up after working in a crouching position and also began limping. Mr Garcia claims that he was retrenched in September 2002 because of the difficulty he was having carrying out his normal duties. He first consulted his solicitors about the possibility of claiming workers compensation in February 2005.
On 7 April 2005, Mr Garcia’s solicitors notified Sydcon of his claim for compensation specifying the date of injury as September 2002. GIO denied liability. On 22 January 2006, Sydcon was deregistered. On 13 April 2007, after further correspondence between Mr Garcia’s solicitors and GIO, the Commission registered Mr Garcia’s ‘Application to Resolve a Dispute’. GIO lodged a ‘Reply’ on 4 May 2007. On 18 May 2007, the Arbitrator conducted a teleconference with the parties. On 8 August 2007, conciliation having proved unsuccessful, she conducted an arbitration hearing. On 14 September 2007, the Arbitrator’s decision was issued in the terms set out below.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 September 2007, records the Arbitrator’s orders as follows:
“1. An award for the Respondent in respect of the claim for weekly compensation and medical expenses.
2. An award for the Respondent in respect of the claim for lump sum compensation for permanent impairment.
3. No order as to costs.”
In the Statement of Reasons for her decision, the Arbitrator noted, at paragraph 36:
“36. As stated above there is no dispute that the Applicant has a multi-level degenerative disc disease. The nature of the work performed…
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- AGLC
- Garcia v Sydcon Pty Ltd [2008] NSWWCCPD 4
- Case
- [2008] NSWWCCPD 4
- Decision Date
CaseChat Overview and Summary
The case underscores the importance of contemporaneous medical evidence in workers compensation claims, and the need for claimants to discharge the onus of proof to establish that their injury arose out of or in the course of their employment. The decision also highlights the role of the Arbitrator in evaluating the evidence and exercising her discretion in determining whether a claimant has sustained an injury arising out of or in the course of their employment.
Orders
Orders of the court
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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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