Hamilton v Sydney Water Corporation - [2008] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSIONCONSTITUTED BY AN ARBITRATOR

CITATION:Hamilton v Sydney Water Corporation [2008] NSWWCCPD 5
APPELLANT:  Bruce Hamilton
RESPONDENT:  Sydney Water Corporation
INSURER:Sydney Water Corporation – Self Insurer
FILE NUMBER:  WCC5102-07
DATE OF ARBITRATOR’S DECISION:          19 September 2007
DATE OF APPEAL DECISION:  15 January 2008
SUBJECT MATTER OF DECISION: Leave to appeal; Section 11A of the Workers Compensation Act 1987; inadequate reasons for decision; findings not based on the evidence.
PRESIDENTIAL MEMBER:  Acting President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION:  Appellant:      Slater & Gordon Limited
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator dated 19 September 2007 is refused.

No order is made as to the costs of this appeal.

BACKGROUND

On 18 October 2007 Mr Bruce Hamilton, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 September 2007.

The Respondent to the Appeal is the Sydney Water Corporation (‘Sydney Water’).

Sydney Water is, and was at all material times, self-insured.

The background information is set out in some detail in the Arbitrator’s ‘Statement of Reasons for Decision’ dated 19 September 2007 (‘Reasons’), at [5] to [29]. The information was largely, but not exclusively taken from a “succinct statement of his evidence” provided by Mr Hamilton.

Mr Hamilton, who is 55 years of age, has worked for Sydney Water since 1973, apart from a period of around 4 years from 1994. He has held a number of positions with Sydney Water, including a promotion to Level D Production Officer 22 August 2006, and since 9 October 2007, a Water Restriction Patrol Officer.

Mr Hamilton has had some significant, physical health issues over the years. In 2002 he was diagnosed with emphysema. It was necessary for him to use a portable oxygen cylinder, and he was able to continue to work. In 2003 he was found to be suffering from depression and anxiety. In October 2005, Mr Hamilton underwent surgery for a double lung transplant and was absent from work for 5 months. In June 2006 he had an operation for a stomach disorder and was off work for 6 weeks.

Notwithstanding the emphysema, Mr. Hamilton was able to carry out his duties, apart from underground work, but in any event, this was of little importance according to him, as it was being phased out.

Mr Hamilton claims that in 2003 he felt that he was being excluded from meetings concerning plant upgrade. This upset him and caused him depression. However, he says that he accepted the explanation that another employee of the same seniority was attending these meetings. Sydney Water filed a memorandum dated 6 September 2006, from a Production Officer, Mr. Greg Melville, which stated that the reason that Mr Hamilton had not been included in production meetings was simply that he was not the person nominated by the members of his work team to…

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.

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Details

Case: [2008] NSWWCCPD 5
Decision Date: 15 January 2008

CaseChat Overview and Summary

The appeal in Hamilton v Sydney Water Corporation was brought by Mr Bruce Hamilton against the Sydney Water Corporation, a self-insured entity, challenging the Arbitrator's decision dated 19 September 2007. The Arbitrator had determined that the Respondent's claim of a defence pursuant to Section 11A of the Workers Compensation Act 1987 succeeded. Mr Hamilton’s appeal centred on three issues: the Arbitrator's application of Section 11A, the adequacy of the reasons provided for the decision, and whether certain findings were supported by the evidence. Specifically, Mr Hamilton argued that the Arbitrator erred in concluding that his psychological injury fell within Section 11A and in failing to provide adequate reasons for his decision. He also contested the Arbitrator’s findings that the Respondent's actions were reasonable.

The court examined the procedural requirements for leave to appeal, noting that the appeal was lodged within the prescribed time and that the monetary threshold for leave to appeal was not met. The Arbitrator’s decision was reviewed on the papers, as both parties agreed that sufficient information was available to proceed without a formal hearing. The court concluded that the amount claimed by Mr Hamilton did not meet the $5,000 threshold required for leave to appeal under Section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998. The court rejected Mr Hamilton’s attempt to introduce fresh evidence to meet this threshold, holding that such evidence could not be admitted to elevate the amount in dispute. Consequently, the court found that the appeal did not meet the monetary threshold, and leave to appeal was refused.

The court did not make any order as to the costs of this appeal. The decision was recorded and certified as a true and accurate account of the reasons for the determination by Acting President Gary Byron on 15 January 2008.

Orders