Holroyd Bus Lines Pty Limited v Stanojevic - [2007] NSWWCCPD 169

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Holroyd Bus Lines Pty Limited v Stanojevic [2007] NSWWCCPD 169
APPELLANT:  Holroyd Bus Lines Pty Limited
RESPONDENT:  Milivoje Stanojevic
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC11069-06
DATE OF ARBITRATOR’S DECISION:          1 December 2006
DATE OF APPEAL DECISION:  1 August 2007
SUBJECT MATTER OF DECISION:                Errors in fact finding – failure to consider relevant evidence; medical evidence – bare ipse dixit; findings on credit; section 40 discretion.
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant: Ellison Tillyard Callanan
Respondent: White Barnes

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 1 December 2006 is revoked, and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 22 December 2006 Holroyd Bus Lines Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 1 December 2006.

The Respondent to the Appeal is Milivoje Stanojevic (‘the Respondent Worker’).

The Respondent Worker was born on 8 November 1948, and claimed a dependant wife. He was employed by the Appellant Employer as a bus driver from 12 November 1993. The proceedings related to injuries allegedly suffered in a motor vehicle accident on 5 February 2004, when the bus the Respondent Worker was driving collided with a police car. The injuries alleged in the Application to Resolve a Dispute, registered 21 July 2006, (‘ARD’) were “neck, back, depression, hernia, aggravation of obesity, sleeplessness”.

After the accident the Respondent Worker was admitted to the Liverpool Hospital from 5 February 2004 to 20 February 2004. He was then off work for a further period of two months (for which he was paid sick or other leave), before resuming his work as a bus driver. There was a dispute regarding whether his hours thereafter were reduced as a consequence of any injury sustained in the accident. Part of the operations of the Appellant Employer were sold to another company, Connex Pty Limited, as from 31 December 2004. From that date Connex Pty Limited became the Respondent Worker’s employer. He continued in this work until 13 May 2005, at which point his driving licence was suspended, following his conviction on charges arising from the accident of 5 February 2004. He said in one of his statements “I have not been able to work since 13 May 2005 as I have lost my licence.”

The Respondent Worker’s claim form is dated 30 September 2005, and described the parts of the body injured as “chest and ribs”. After some investigation, the Appellant Employer declined the claim.

The ARD claimed weekly compensation of $975.00 per week from 5 February 2004, medical and hospital expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sum compensation of $65,000.00…

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: [2007] NSWWCCPD 169
Decision Date: 1 August 2007

CaseChat Overview and Summary

The appeal was brought by Holroyd Bus Lines Pty Limited against a decision of the Arbitrator, who found Milivoje Stanojevic suffered injuries from a motor vehicle accident while working as a bus driver, and was entitled to compensation. The Arbitrator found the worker suffered ongoing back and neck symptoms, and awarded him compensation. The employer challenged the Arbitrator’s findings, arguing they were based on errors in fact finding, and the Arbitrator had failed to properly consider relevant evidence. The Arbitrator’s findings were flawed because they did not take account of other relevant evidence, inconsistent with the worker’s evidence, going to whether he suffered from neck and back symptoms prior to the motor accident, and whether (and when) he suffered from such symptoms thereafter. The Arbitrator’s acceptance of Dr Sanki’s view on causation of back and neck symptoms was in error, because the reasons given for preferring that medical evidence were inconsistent with, and involved a misstatement of, other evidence. The acceptance of Dr Sanki on the point was further in error, in that Dr Sanki’s views were deprived of weight, both by their failure to deal with prior back symptoms by way of history, and their failure to proffer more than a bare ipse dixit. The Arbitrator’s decision is revoked, and the matter is remitted to another Arbitrator for determination afresh.

Orders