Jenkins v Franklins Limited - [2006] NSWWCCPD 252

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Jenkins v Franklins Limited [2006] NSWWCCPD 252
APPELLANT  Lorraine Stella Jenkins
RESPONDENT:  Franklins Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18010-04
DATE OF ARBITRATOR’S DECISION:          10 March 2005
DATE OF APPEAL DECISION:  29 September 2006
SUBJECT MATTER OF DECISION: Partial incapacity; Exercise of discretion under section 40(1) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the Papers
REPRESENTATION:  Appellant: Thomson Bentley & Partners
Respondent: Sparke Helmore

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s decision of 10 March 2005 is revoked and the following order made:

“That the Respondent pay the Applicant the sum of $271.70 per week from 10 November 2004 to date and continuing under section 40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the provisions of the Act.”

Paragraph two of the Arbitrator’s decision dated 10 March 2005 is confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND

On 8 April 2005 Mrs Lorraine Stella Jenkins (‘Mrs Jenkins’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 10 March 2005. The Respondent to the appeal is Franklins Limited (‘Franklins’). Mrs Jenkins submits on appeal that the Arbitrator erred in the exercise of his discretion in reducing the award of weekly compensation payable to Mrs Jenkins pursuant to section 40 of the Workers Compensation Act 1987.

Mrs Jenkins is a 59 year old shop assistant who worked for Franklins for approximately 21years. During her employment she sustained injury to her right arm whilst ticketing on 2 September 1996 and injury to her left elbow and right wrist whilst ticketing and packing on 23 January 1998, resulting in bilateral epicondylitis. Mrs Jenkins was unable to return to her pre injury ticketing duties and was transferred to full time packing duties. After the injury in 1998, and in accordance with restrictions specified in a WorkCover certificate, she continued to work full time in lighter duties. She was moved to the dock and also worked in the store packing smaller items weighing less than 10 kilograms. She continued in this full time position until 29 May 2002 when the store’s new owners terminated her employment on the basis that they could no longer provide suitable duties. She was paid voluntary weekly compensation at the maximum rate until 10 November 2004 when payments ceased on the basis of a section 40 assessment prepared by Inergise Australia Pty Ltd (‘Inergise’) on behalf of Franklins which suggested that she was capable of earning at least $535.48 per week and therefore had no entitlement to compensation. On 15 November 2004 Mrs Jenkins obtained part time work with another company as a merchandiser, working about 20 hours per week and earning substantially less than she had been earning at Franklins.

On 4 November 2004 Mrs Jenkins’…

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 252
Decision Date: 29 September 2006

CaseChat Overview and Summary

The appellant, Lorraine Stella Jenkins, appealed against a decision of the Workers Compensation Commission constituted by an arbitrator. The central issue in the appeal was whether the Arbitrator erred in law in the application of the five steps set out by the Court of Appeal in Mitchell v Central West Health Services (1997) in his calculation of the award pursuant to section 40 of the Workers Compensation Act 1987, and particularly if the Arbitrator failed to properly exercise his discretion pursuant to section 40(1) of the 1987 Act. Additionally, the appeal questioned whether Mrs Jenkins was denied procedural fairness due to the Arbitrator not inviting and hearing submissions on the exercise of his discretion under section 40(1) of the 1987 Act.

The Arbitrator had correctly identified the five steps required to determine the award under section 40 of the 1987 Act. However, in the exercise of his discretion, the Arbitrator erred by reducing the difference arrived at in step three. The Arbitrator had found that Mrs Jenkins’ ability to earn under section 40(2)(b) was $240.00 per week, which was a correct assessment. The Arbitrator then incorrectly found in step four that her ability to earn was $386.70, which was not permissible. The exercise of the discretion does not permit the recalculation of the figure arrived at in step two. The Arbitrator’s error in this regard led to an under-award of Mrs Jenkins’ compensation. The court found that the figure of $271.70 per week was the proper award under the circumstances.

The appeal against the procedural fairness issue was not necessary to determine in light of the findings made above. The Arbitrator was in error when he reduced Mrs Jenkins’ entitlement to compensation in the exercise of his discretion under step four. There were no grounds to reduce the difference arrived at in step two and that is the amount Mrs Jenkins is entitled to receive as her award under section 40.

The Arbitrator's decision was revoked, and a new order was made that Franklins Limited pay Mrs Jenkins the sum of $271.70 per week from 10 November 2004 to date and continuing under section 40 of the Workers Compensation Act 1987. The second paragraph of the Arbitrator's decision was confirmed. The costs of the appeal were awarded to Mrs Jenkins.

Orders