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JD & PA Lowey v Campbell

JD & PA Lowey v Campbell

Case [2006] NSWWCCPD 248 28 September 2006

Claim Duly Made

Compensable Injury

Serious and Permanent Disablement

Worker Status

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:JD & PA Lowey v Campbell [2006] NSW WCC PD 248
APPELLANT: JD & PA Lowey
RESPONDENT: Glenn Perry Campbell

INSURER:GIO Australia Limited
FILE NUMBER:  WCC10699-03
DATE OF ARBITRATOR’S DECISION:          13 July 2004
DATE OF APPEAL DECISION:  28 September 2006
SUBJECT MATTER OF DECISION:                Extension of time to appeal; leave to appeal; whether claim duly made; injury; serious and permanent disablement; worker or deemed worker, and weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:     Turks Legal, Solicitors
Respondent: Brydens Law Office

ORDERS MADE ON APPEAL: 1. Leave to appeal is extended to 19 July
2005.

2. The decision of the Arbitrator, dated 19 July 2004, is revoked and the following decision is made in its place:

Award for the Appellant, JD & PA Lowey.

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

BACKGROUND TO THE APPEAL

Mr Glenn Campbell, the Respondent in this appeal, was employed by JD & PA Lowey (‘Lowey’), the Appellant at all relevant times.

Mr Campbell claims that on 12 December 1998 (originally said to be on 19 December 1999 but amended by the Arbitrator and acknowledged by the parties as 12 December 1998), he suffered an injury at work, which was caused when allegedly, a piece of hardwood timber fell from where it had been leaning against a wall and struck his right calf while he was laying bricks, causing him to fall onto the base of his spine.

Mr Campbell continued to work after the accident before taking three weeks leave during which time he claims that he was fired. Mr Campbell says that he was re-hired soon after, but that he was fired after three months as a result of struggling with the injury to his leg. Mr Campbell no longer works for Lowey, but continues to work as a bricklayer for other employers.

On 14 May 2002 Mr Campbell completed a workers compensation claim form in relation to the injury allegedly sustained.

On 7 January 2003 Mr Campbell lodged a claim with GIO Australia Limited, the Insurer (‘GIO’) for the injuries suffered, for which non economic loss compensation is payable, that arose out of and in the course of his claimed employment with Lowey as a bricklayer and the associated labourer. Mr Campbell claims compensation under section 66 and section 67 of the Workers Compensation Act 1987, and also section 60 benefits.

On 5 June 2003 Mr Campbell lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against Lowey. The injury to Mr Campbell is described in his Application as: “Injury to calf muscle of right leg and back”.

Several teleconferences and conciliation/arbitration conferences were held to determine issues of jurisdiction and other issues in dispute. On 17 December 2003, the Arbitrator issued a ‘Certificate of Determination’ following a conference, granting leave to amend the application…

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.

Continue reading JD & PA Lowey v Campbell

Details

AGLC: JD & PA Lowey v Campbell [2006] NSWWCCPD 248
Case: [2006] NSWWCCPD 248
Decision Date: 28 September 2006

CaseChat Overview and Summary

The case of JD & PA Lowey v Campbell is an appeal against a decision of an arbitrator made in the Workers Compensation Commission of New South Wales. The central issue in the case is whether the arbitrator's decision to award compensation to Mr Glenn Campbell, a former employee of JD & PA Lowey, was correct. The appeal focuses on several key points, including whether the claim was made in due time, the nature and seriousness of the injury, and whether Mr Campbell qualified as a worker or a deemed worker under the Workers Compensation Act. The Deputy President of the Workers Compensation Commission, Gary Byron, ultimately found in favour of the appellant, JD & PA Lowey, and revoked the arbitrator's decision.

The court examined whether the appellant's initial appeal, which was lodged in the name of the wrong entity, was still valid. The Deputy President found that extending the time for making the appeal was appropriate in this case due to the exceptional circumstances.

The court found that the appellant was correct in asserting that the claim was not made within the required time frame, and that there was no reasonable excuse for the delay. The court also found that the arbitrator erred in determining that Mr Campbell had suffered a compensable back injury, as there was insufficient evidence to support this claim. Furthermore, the court concluded that the injury to Mr Campbell's leg did not result in serious and permanent disablement, and that the arbitrator's decision was against the weight of the evidence.

As a result of these findings, the Deputy President revoked the arbitrator's decision and made an award in favour of the appellant, JD & PA Lowey. No order was made regarding the costs of the appeal.

Orders