JM & DL McGregor Constructions Pty Limited v Hughes - [2006] NSWWCCPD 197

WORKERS COMPENSATION COMMISSION

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

CITATION:JM & DL McGregor Constructions Pty Limited v Hughes [2006] NSWWCCPD 197
APPELLANT:  JM & DL McGregor Constructions Pty Limited
RESPONDENT:  Ian Bruce Hughes
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC8091-05
DATE OF ARBITRATOR’S DECISION:          31 October 2005
DATE OF APPEAL DECISION:  23 August 2006
SUBJECT MATTER OF DECISION: Entitlement to two awards; deemed date of injury; sections 15 and 16 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Mulchay Lawyers
Respondent:   Lee Sames Egan

ORDERS MADE ON APPEAL: Paragraphs 1, 2, and 3 of the Arbitrator’s decision made on 31 October 2005 are revoked and the following order made:

“1. The Respondent is to pay the Applicant pursuant to section 40 of the Workers Compensation Act 1987 in the sum of $317.20 per week from 2 February 2004 to 31 March 2004 and thereafter in the sum of $323.00 per week from 1 April 2004 to date and continuing.”
Paragraphs 4, B and C of the Arbitrator’s decision made on 31 October 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 28 November 2005 JM & DL McGregor Constructions Pty Limited (‘the Appellant Employer/McGregor Constructions’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 31 October 2005.

The Respondent to the Appeal is Ian Bruce Hughes (‘the Respondent Worker/Mr Hughes’).

From 1992 until 12 December 2001 Mr Hughes worked for the McGregor Constructions as a carpenter. His duties required him to lift and carry equipment and materials, bend and squat, climb ladders, and use a wide range of hand tools. In about 1996 he noticed pain in his right elbow in the course of his normal duties but was able to continue working. In about May/June 1998 he injured his back while attempting to move a stack of timber at work. This injury put him off work for about five and a half months and resulted in a claim for weekly compensation and medical expenses being made in 1998. Those claims were paid by the insurer. Mr Hughes returned to work in late 1998 and continued his normal duties without restriction. He had no further time off work because of his back injury but still had back discomfort.

Mr Hughes ceased work for McGregor Constructions on 12 December 2001 because of an increase in his right elbow pain. A claim for weekly compensation was made and accepted. In 2004, while in receipt of voluntary compensation payments in respect of his right elbow claim, Mr Hughes filed an Application to Resolve a Dispute (‘the First Application’) in the Commission claiming lump sum compensation as a result of the following injuries (see Respondent Worker’s submissions paragraph 3.9):

“Hearing loss claim 1992 – 12/12/01 – Nature and Conditions of Employment

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 197
Decision Date: 23 August 2006

CaseChat Overview and Summary

In the case of JM & DL McGregor Constructions Pty Limited v Hughes, the Appellant Employer, JM & DL McGregor Constructions Pty Limited, appealed against a decision of the Workers Compensation Commission which had awarded two separate weekly compensation awards to the Respondent Worker, Ian Bruce Hughes. The Arbitrator's decision had awarded two separate weekly compensation payments, one for Hughes' back injury and another for his elbow injury. The Appellant Employer contested the decision, arguing that Hughes was not entitled to two separate awards. The appeal was heard by the Acting Deputy President Bill Roche, who found that the Arbitrator's decision contained several errors and that Hughes was only entitled to one weekly compensation award.

The Acting Deputy President found that the Arbitrator had erred in accepting that Hughes was entitled to two separate awards of compensation. The court found that there was only one injury, which was the aggravation of a disease in Hughes' back, knees, and elbows. The Arbitrator had failed to consider the relevant legislation and had misapplied the disease provisions in the Workers Compensation Act 1987. The Acting Deputy President also found that the Arbitrator's analysis of Hughes' entitlement to weekly compensation was incorrect. The Arbitrator had failed to properly consider Hughes' previous wage rate, and the total of the two awards would have left Hughes in a better position than if he had not been injured.

The Acting Deputy President recalculated Hughes' entitlement to weekly compensation and found that he was entitled to one award of $317.20 per week from 2 February 2004 to 31 March 2004 and thereafter in the sum of $323.00 per week to date and continuing. The Appellant Employer was ordered to pay Hughes' costs of the appeal.

Orders