Garcia v Sydcon Pty Ltd - [2008] NSWWCCPD 4

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…

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 Garcia v Sydcon Pty Ltd

Details

AGLC: Garcia v Sydcon Pty Ltd [2008] NSWWCCPD 4
Case: [2008] NSWWCCPD 4
Decision Date: 15 January 2008

CaseChat Overview and Summary

Manuel Garcia appealed against a decision of the Workers Compensation Commission, arguing that the Arbitrator erred in law, made factual errors, and failed to properly consider the evidence in reaching her decision that he did not sustain an injury arising out of his employment with Sydcon Pty Ltd. The appeal was heard on the papers, and the Acting Deputy President, Robin Handley, reviewed the Arbitrator's decision as a whole. He considered whether the Arbitrator had made any legal, factual, or discretionary error in reaching her decision. The Acting Deputy President found that the Arbitrator's decision was not affected by any error and dismissed the appeal. He noted that Mr Garcia had failed to discharge the onus of proof in the original proceedings, and Sydcon was therefore entitled to an award in its favour on all issues. The formal orders made by the Arbitrator did not reflect this outcome, and the Acting Deputy President substituted the order to read "Award for the Respondent" with no order as to costs.

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