ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 21 January 2008, is confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 15 February 2008 (‘the Appellant/Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 January 2008.
The Respondents to the Appeal are Dux Manufacturing Pty Ltd (‘the First Respondent/the Employer’) and Unidex Consulting Pty Ltd (‘the Second Respondent’), both of whom are represented by the one solicitor and have jointly filed a Notice of Opposition to the Appeal.
Mr Hartley was employed as a process worker/machine operator with the First Respondent from December 1993 until his employment terminated on or about 6 August 2004. He subsequently obtained work as a process worker with the Second Respondent in September 2004 and continued in the employ of the Second Respondent until his employment terminated on 22 March 2006.
The Worker filed an Application to Resolve a Dispute in the Commission on 27 September 2007. The injuries and compensation claimed in the Application as against the First Respondent were substantially amended at the arbitration hearing over objection from the First Respondent.
In the application, as against the First Respondent, the Worker claimed injury to his back from bending and lifting and psychological injury as a result of being sexually harassed by a co-worker. He claimed lump sum compensation under section 66 and section 67 of the Workers Compensation Act1987 (‘the 1987 Act’), for permanent impairment of the back and permanent loss of efficient use of both legs, together with compensation under section 67 for pain and suffering. He also brought a claim under section 60 for payment of $18,765.00 medical expenses. At the hearing the Worker amended the claim against the First Respondent, particularising the injury to his back on 30 August 2000 when he slipped moving a water heater onto a pallet and claiming psychological injury arising out of the incidents leading up to the termination of his employment on 6 August 2004. The Worker was refused leave to bring a claim against the First Respondent for weekly compensation payments under section 40 for the period 6 August 2000 to 6 September 2004 and from 3 July 2005 to 1 April 2007.
The incidents leading…
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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AGLC
Hartley v Dux Manufacturing Pty Ltd [2008] NSWWCCPD 55
Case
[2008] NSWWCCPD 55
Decision Date
CaseChat Overview and Summary
This appeal concerns a determination made by an arbitrator in the Workers Compensation Commission. The appellant, Paul Hartley, sought to appeal the arbitrator's decision which dismissed his claim for compensation for psychological injury sustained in the course of his employment. The respondents to the appeal were the employer, Dux Manufacturing Pty Ltd, and another employer, Unidex Consulting Pty Ltd. The appeal was brought against the arbitrator's decision of 21 January 2008. The appellant's grounds for appeal were that the arbitrator had fundamentally erred in interpreting the relevant legislation, in relying on hearsay evidence, and in not correctly dealing with expenses under section 60 of the Workers Compensation Act 1987. The appeal was heard on the papers. In dismissing the appeal, the President of the Commission found that the arbitrator had not erred in his interpretation of the legislation or in admitting evidence, and that the award of expenses was correctly made. The President concluded that the employer had acted reasonably in dismissing the appellant, and that the employer was entitled to a complete defence under section 11A of the Workers Compensation Act 1987.