Glemaro Pty Ltd v He - [2015] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Glemaro Pty Ltd v He [2015] NSWWCCPD 17
APPELLANT:	Glemaro Pty Ltd
RESPONDENT:	Huazhen (Linda) He
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-9325/13
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:	22 October 2014
DATE OF APPEAL DECISION:	3 March 2015
SUBJECT MATTER OF DECISION:	Appeal from interlocutory orders; leave to appeal; fresh evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; discretion to grant leave under s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998; application of the principles in House v The King [1936] HCA 40; 55 CLR 499 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
PRESIDENTIAL MEMBER:	Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sparke Helmore Lawyers
Respondent:	Young and Muggleton
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Arbitrator’s determination of 22 October 2014 is revoked. 3. The appellant employer is granted leave to dispute the alleged injury to the worker’s central nervous system. 4. The matter is remitted to the Arbitrator for further hearing on a date to be fixed. 5. No order as to costs.

INTRODUCTION

This matter concerns an appeal from an interlocutory decision of an Arbitrator. The Arbitrator refused leave to permit the employer to dispute an alleged injury to the worker’s central nervous system in circumstances where the alleged injury was not part of the initial dispute. The allegation of injury to the central nervous system arose by way of an amendment after the proceedings were well advanced in the Commission.
A dispute relating to a previously unnotified matter may only be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so (s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
For reasons which are explained below the Arbitrator’s decision is revoked and leave is granted to the employer to dispute the alleged injury.

BACKGROUND

The respondent worker, Ms Huazhen He, was employed by the appellant employer, Glemaro Pty Ltd (Glemaro), as a process worker.
On 27 February 2012, while at work for Glemaro, Ms He fell down a flight of stairs and suffered injuries to her neck, back, head and left arm.
Ms He’s initial injury claim form is not in evidence. However, on 29 February 2012, Dr Costa, Ms He’s nominated treating doctor, issued a WorkCover New South Wales medical certificate of capacity in which he recorded injuries to the head and neck, all three levels of the spine, the left forearm and hand, knees, nervous shock, haematoma to the forehead and disequilibrium secondary to head injury.
On 14 June 2013, Glemaro’s insurer, Employers Mutual NSW Ltd, issued a notice under ss 54 and 74 of the 1998 Act. Liability for weekly payments (which was initially accepted) was declined after…

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 Glemaro Pty Ltd v He

Details

AGLC: Glemaro Pty Ltd v He [2015] NSWWCCPD 17
Case: [2015] NSWWCCPD 17
Decision Date: 3 March 2015

CaseChat Overview and Summary

Glemaro Pty Ltd sought leave to appeal from the Arbitrator's determination that it was estopped from disputing the worker's claim of injury to his central nervous system. The Arbitrator's decision was based on the employer's conduct and communications. The Full Court of the Supreme Court of Victoria heard the appeal, considering the question of whether the employer should be granted leave to appeal and the implications for the proceedings.

The court had to determine whether the employer's appeal was an abuse of process and whether it should be granted leave to appeal. The court also considered whether the employer could introduce fresh evidence on appeal and whether the Arbitrator's decision was correct. The principles established in House v The King and Micallef v ICI Australia Operations Pty Ltd were applied in assessing whether the employer's appeal was an abuse of process.

The court found that the Arbitrator's decision did not take into account the possibility that the employer could dispute the alleged injury. The Arbitrator's decision did not address the merits of the employer's case and was based on a narrow view of the evidence. The court held that the employer was not abusing the process of the court and that it should be granted leave to appeal. The court also held that the employer could introduce fresh evidence on appeal and that the Arbitrator's decision was incorrect.

The court granted leave to appeal and revoked the Arbitrator's determination of 22 October 2014. The employer was granted leave to dispute the alleged injury to the worker's central nervous system. The matter was remitted to the Arbitrator for further hearing on a date to be fixed. No order was made as to costs.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The Arbitrator’s determination of 22 October 2014 is revoked.

3. The appellant employer is granted leave to dispute the alleged injury to the worker’s central nervous system.

4. The matter is remitted to the Arbitrator for further hearing on a date to be fixed.

5. No order as to costs.

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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