J Robins & Sons Group Pty Limited v Ly - [2006] NSWWCCPD 162

WORKERS COMPENSATION COMMISSION

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

CITATION:J Robins & Sons Group Pty Limited v Ly [2006] NSWWCCPD 162
APPELLANT:  J Robins & Sons Group Pty Limited
RESPONDENT:  Le Phoung Ly
INSURER:Allianz Workers Compensation (NSW) Limited
FILE NUMBER:  WCC1824-04
DATE OF ARBITRATOR’S DECISION:          8 July 2005
DATE OF APPEAL DECISION:  26 July 2006
SUBJECT MATTER OF DECISION:                Date of injury; ‘disease’; weekly benefits compensation; incapacity for work.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the Papers
REPRESENTATION:  Appellant:      Moroney Betts Solicitors
Respondent:   Gajic & Co. Lawyers

ORDERS MADE ON APPEAL: Leave to appeal is granted.
The decision of the Arbitrator, dated 8 July 2005, is revoked and the following decision is made in its place:
The matter is remitted to the Arbitrator for a determination of Ms Ly’s entitlement pursuant to section 40 of the Workers Compensation Act 1987, in accordance with these reasons.

BACKGROUND TO THE APPEAL

On 5 August 2005 J Robins & Sons 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 8 July 2005. The relevant workers compensation insurer is Allianz Workers Compensation (NSW) Limited. It acted for, and on behalf of, the Appellant Employer in the Commission proceedings.

The Respondent to the Appeal is Ms Le Phoung Ly, who worked as a process worker for the Appellant Employer from 1995 to 2003.

Ms Ly filed an ‘Application to Resolve a Dispute’ in the Commission on 29 January 2004. She sought weekly benefits compensation, lump sum compensation and section 60 expenses. She claims that she suffered an injury that arose out of and in the course of her employment with the Appellant Employer as a process worker in 1997. Ms Ly claims that the injury occurred when she was lifting a box of shoe soles from the factory floor and injured her neck and arms. She reported the injury to the Appellant Employer and to her General Practitioner the same day, 27 May 1997. She gradually returned to normal duties. She accepted a voluntary redundancy from the Appellant Employer on 9 May 2003.

The Appellant Employer denied liability for the claim for weekly benefits and medical expenses and the claim for lump sum compensation.

In relation to the claim for lump sum compensation, the ‘medical dispute’ was the subject of a Medical Assessment Certificate (‘MAC’) dated 1 September 2004, forwarded to the parties on 15 September 2004.

On 5 July 2005, the Applicant’s claim for weekly benefits and medical expenses was determined. The Commission issued a Certificate of Determination on 8 July 2005. It is this Certificate of Determination that is the subject of the appeal.

The Certificate of Determination dated 8 July 2005 also ordered that the matter be referred back to the Approved Medical Specialist for reassessment and a second MAC was issued on 20 July 2005. In a decision, dated 6 September 2005, the Arbitrator determined…

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: [2006] NSWWCCPD 162
Decision Date: 26 July 2006

CaseChat Overview and Summary

The appeal in this case involved J Robins & Sons Group Pty Limited, the appellant, and Ly, the respondent. The dispute centred on a workers' compensation claim, with the appellant challenging the compensation award made by an arbitrator under the Workers Compensation Act 1987. The case was heard by the Commission, which was constituted by a Presidential member, and had to decide whether to grant leave for the appeal against the arbitrator's decision. The appeal was filed within the 28-day period specified by section 352(4) of the Workers Compensation Act 1998, satisfying a critical procedural requirement. Furthermore, the amount of compensation in dispute was at least $5,000 and represented at least 20% of the amount awarded by the arbitrator, meeting the threshold criteria outlined in section 352(2) of the 1998 Act.

The primary legal issue before the Commission was whether the appellant was entitled to appeal the arbitrator's decision on the grounds that the appeal met the statutory criteria. This involved interpreting the relevant sections of the 1987 Act and the 1998 Act to determine the conditions under which leave to appeal could be granted. The Commission had to consider whether the compensation amount in dispute was sufficient to warrant an appeal and whether the appeal was lodged within the prescribed timeframe. Additionally, the Commission needed to assess the nature of the injury in question to understand the implications of the appeal on the determination of the date of injury and the liability of different employers.

The Commission, constituted by a Presidential member, granted leave to appeal. The decision was based on the fact that the appeal was lodged within the required timeframe and the compensation amount in dispute met the statutory thresholds. The Commission noted that the entire award of weekly benefits was in question, which satisfied the criteria set out in section 352(2) of the 1998 Act. Consequently, the appeal was permitted to proceed, and the matter was set for further review by the Commission. The Commission's decision to grant leave to appeal was grounded in the procedural compliance and the substantive criteria outlined in the legislation.

The final orders included granting leave to appeal and setting the matter for further review by the Commission. The Commission's decision allowed the appellant to challenge the arbitrator's determination on the merits, providing an opportunity to potentially alter the compensation award. The Commission's ruling ensured that the appeal process adhered to the statutory requirements, thereby upholding the integrity of the legislative framework governing workers' compensation claims in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act, which provides:“352 Appeal against decision of Commission constituted by Arbitrator(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both: (a)at least $5,000 (or such other amount as may be prescribed by the regulations), and(b)at least 20% of the amount awarded in the decision appealed against.(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.(4)An appeal can only be made within 28 days after the making of the decision appealed against.(5)An appeal under this section is to be by way of review of the decision appealed against.(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.” The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The whole of the award of weekly benefits to the worker is in issue. The appeal meets the threshold criteria in section 352(2) of the 1998 Act. Leave to appeal is granted. The definition of ‘injury’ in section 4 of the Workers Compensation Act 1987 (‘the 1987 Act’) Act gives rise to the distinction between a simple injury (‘injury simpliciter’), sometimes called a ‘frank’ injury, and a ‘disease’ injury. This distinction has particular relevance for the purpose of determining, by the application of sections 15 and 16 of the 1987 Act, the date on which the injury is deemed to occur. The date of injury will determine liability as between different employers and, in the case of lump sum compensation, the method of assessment of a worker’s entitlement. Section 4 of the 1987 Act provides as follows:“injury: (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, and (c) does not include (except in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act 1982 applies) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”

Ratio Decidendi

Legal Principle Established

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