IF & LM Smith v Barrass

[2008] NSWWCCPD 143

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		IF & LM Smith v Barrass[2008] NSWWCCPD 143
APPELLANT:		IF & LM Smith
RESPONDENT:		Andrew Noel Barress
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC A1-003441-08
DATE OF ARBITRATOR’S DECISION:		25 July 2008
DATE OF APPEAL DECISION:		5 December 2008
SUBJECT MATTER OF DECISION:		Absence of the transcript of arbitral proceedings; analysis and consideration of evidence; credit issues.
PRESIDENTIAL MEMBER:		President, Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:		Ellison Tillyard Callaman
Respondent:		Adams Leyland Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 25 July 2008, is revoked and the matter is remitted to a different Arbitrator for determination afresh.
The costs of the original conciliation/arbitration hearing and the appeal, to follow the final costs orders after the remitter to, and hearing by, a different Arbitrator.

INTRODUCTION

1. This appeal concerns inter alia the approach to be taken where error is alleged in the Arbitrator’s determination and where the arbitration proceedings, which included lengthy oral evidence and raised significant credit issues, have not been transcribed.

BACKGROUND TO THE APPEAL

1. On 19 August 2008, IF & LM Smith (‘the Smiths/Appellant/Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 25 July 2008.

1. The Respondent to the appeal is Andrew Barrass (‘the Respondent/Worker’).

1. Mr Barrass is a 33 year old wool classer/presser who was working casually for the Appellant in late 2004.  He alleges that on 20 October 2004 (incorrectly pleaded as 13 October 2004), whilst he was penning sheep, a sheep ran into his right knee causing injury to his right knee.

1. Mr Barrass claims that he was again injured in a similar incident on 3 November 2004, when a sheep, weighing approximately 90 kg, charged and struck the back of his right knee. 

1. It would appear that Mr Barrass’ claim in respect of injury on 20 October 2004, was initially accepted and he received weekly compensation payments under section 38 of the Workers Compensation Act 1987 (‘the 1987 Act’) for 52 weeks, and thereafter under section 40 of the 1987 Act.

1. On 27 June 2007, Allianz declined liability by way of a section 74 notice, on the basis that the injury did not occur as alleged or, in the alternative, that Mr Barrass had recovered and was able to earn in excess of his pre-injury earnings, and/or that under section 9A of the 1987 Act his employment was not a substantial contributing factor to the injury.

1. On 16 January 2008, Mr Barrass lodged a claim with Allianz, for weekly compensation payments from 6 January 2007, as a result of injury to his right knee sustained on 20 October 2004.  He also claimed lump sum compensation under section 66 in respect of 21% whole person impairment and compensation for pain and suffering under section 67. 

1. Allianz declined the claim and issued a section 74 notice on 10 March…