Glavan Pty Limited v Isagon - [2006] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Glavan Pty Limited v Isagon [2006]
NSWWCCPD 12

APPELLANT:  Glavan Pty Limited
RESPONDENT:  Danilo Isagon
INSURER:Employers Mutual Indemnity Limited
FILE NUMBER:  WCC1962-2004
DATE OF ARBITRATOR’S DECISION:          17 August 2004
DATE OF APPEAL DECISION:  2 February 2006
SUBJECT MATTER OF DECISION: Partial incapacity; section 40 Workers Compensation Act 1987; ability to earn; specialist knowledge of the labour market.
PRESIDENTIAL MEMBER:  Acting Deputy President Lansdowne
HEARING:On the papers
REPRESENTATION:  Appellant: Nevill & Edwards
Respondent: Taylor & Scott

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator, dated 17 August 2004, is revoked and the following decision is made in its place:

(1)That Glavan Pty Ltd (‘the Employer’) pay Danilo Isagon (‘the Worker’) weekly compensation under section 40 of the Workers Compensation Act 1987 as follows:
(a)   from 24 October 2003 to 20 January 2004 at the rate of $150 per week;
(b)   from 21 January 2004 to 2 April 2004 at the rate of $60 per week;
(c)   from 3 April 2004 to 27 May 2004 at the rate of $150 per week; and
(d)   from 5 June 2004 to date and continuing at the rate of $150 per week.
(2)That the Employer pay the Worker’s expenses under section 60 of the Workers Compensation Act 1987 on production of accounts or receipts.
(3)That the Employer pay the Worker’s costs as agreed or assessed.

2. No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL

This appeal was filed by Employers Mutual Indemnity (Workers Compensation) Limited (‘the Insurer’ and ‘the Appellant’) on 13 September 2004. The appeal arises out of the decision of an arbitrator (‘the Arbitrator’) made ex tempore at the conclusion of an arbitration conducted on 17 August 2004. The Arbitrator made awards for weekly compensation for partial incapacity in favour of Danilo Isagon (‘the Worker’ and ‘the Respondent’) from the date the Insurer ceased payments, 24 October 2003, to the date of the arbitration and continuing. The effect of the awards is that with the exception of two periods during which the Worker was employed he is to be paid compensation at the rate of $230 per week, being the difference between what the Arbitrator found to be his probable earnings had he not been injured and his ability to earn. The decision was confirmed by Certificate of Determination issued 19 August 2004.

The Worker was employed by Glavan Pty Ltd (‘the Employer’) to sand wooden panels to be used in the construction of kitchen cupboards from 10 May 2001 to 19 January 2002. In September 2001 he suffered an injury to his right shoulder while assisting a fellow employee to lift a heavy drum of rubbish so that it could be tipped into the larger collection bin. The drum fell onto his right shoulder. He was subsequently diagnosed with an injury to the soft tissue of his shoulder, and underwent surgery. The medical evidence filed by both parties…

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 Glavan Pty Limited v Isagon

Details

AGLC: Glavan Pty Limited v Isagon [2006] NSWWCCPD 12
Case: [2006] NSWWCCPD 12
Decision Date: 2 February 2006

CaseChat Overview and Summary

The appeal was brought by the insurer, Employers Mutual Indemnity (Workers Compensation) Limited, against a decision of the arbitrator awarding weekly compensation for partial incapacity to Danilo Isagon. The sole issue in dispute was the arbitrator’s finding that the worker was able to earn $400 per week. The appeal was determined on the papers, and the Acting Deputy President found that the decision of the arbitrator was tainted by error and required redetermination. The Acting Deputy President found that the arbitrator had erred in failing to set out her reasons for her finding as to the worker’s ability to earn, and in failing to consider the general labour market reasonably accessible to the worker and the factors listed in section 43A of the Workers Compensation Act 1987. The Acting Deputy President substituted a decision that the worker’s ability to earn is $480 per week, and the result is that for all periods during which the worker was not or is not employed, his weekly payment of workers compensation for partial incapacity is $150 per week. The Acting Deputy President did not make an order as to the costs of the appeal.

Orders