K-Mart Australia Limited v Falzon - [2006] NSWWCCPD 283

WORKERS COMPENSATION COMMISSION

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

CITATION:K-Mart Australia Limited v Falzon [2006] NSWWCCPD 283
APPELLANT:  K-Mart Australia Limited (in its interests as a self-insurer)
FIRST RESPONDENT:  Carmen Falzon
SECOND RESPONDENT:  K-Mart Australia Limited (in the interests of Allianz Australia Workers Compensation (NSW) Limited)
INSURERS:Allianz Australia Workers Compensation (NSW) Limited
Self-insurer

FILE NUMBER:  WCC2391-06
DATE OF ARBITRATOR’S DECISION:          18 May 2006
DATE OF APPEAL DECISION:  25 October 2006
SUBJECT MATTER OF DECISION:                Absence of transcript/Reasons for decision
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant:                  Lander & Rogers
`  First Respondent:     Peter Erman
Second respondent:   Hicksons

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 18 May 2006, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
Costs of the original conciliation/arbitration hearing, and of the appeal, to follow the final costs order when the matter is determined afresh.

BACKGROUND TO THE APPEAL

On 14 June 2006 K-Mart Australia Limited (‘K-Mart’), in its interests as a self-insurer (‘the self-insurer’), sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 May 2006.

The Respondents to the appeal are the worker, Carmen Falzon (‘Ms Falzon’) and Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), which was the other relevant insurer of K-Mart. Allianz had insured K-Mart at relevant times up to 17 February 2002, and K-Mart had been a self-insurer thereafter.

Ms Falzon’s claim relied upon alleged injuries to her neck on 20 July 2000 and 21 February 2001, together with the “nature and conditions of employment” from 1 January 1998 to 25 April 2003. She also relied upon the ‘disease’ provisions of the Workers Compensation Act 1987 (‘the 1987 Act’). She claimed injury to the neck and left shoulder. She sought weekly compensation at the rate of $180.00 per week from 17 June 2005 to date and continuing, medical expenses pursuant to section 60 of the 1987 Act, and lump sum compensation pursuant to sections 66 and 67 of the 1987 Act.

THE DECISION UNDER REVIEW

The matter was listed for conciliation/arbitration hearing on 17 May 2006. Ms Falzon, and the two insurance interests, were legally represented. The Arbitrator recorded “…the offers which had been made were within the ballpark of being reasonable and that the disagreement at that stage, or the dispute at that stage was as between the two insurers as to what was the appropriate apportionment or if there was any appropriate apportionment. So that I indicated that the issues of the nature of the injury and the date of the injury would be determined and we would then take a break and see if there was any utility in further discussions at that stage.” (T1.55 to 2.5). Consistent with this, the Arbitrator proceeded to deal with questions of ‘injury’ as a preliminary matter, without embarking on a consideration of quantum. No…

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 283
Decision Date: 25 October 2006

CaseChat Overview and Summary

K-Mart Australia Limited, in its capacity as a self-insurer, sought to appeal a decision made by an arbitrator regarding a workers' compensation claim made by Carmen Falzon. The claim was for alleged injuries to her neck and left shoulder, with the date of the injury being disputed between the two insurers, K-Mart (as a self-insurer) and Allianz Australia Workers Compensation (NSW) Limited. The primary issue was whether the Arbitrator had made an error in her determination regarding the nature of the injury and the date of the injury.

The appeal was focused on the lack of a transcript or reasons for the Arbitrator's decision, which made it difficult to determine the stance taken by the parties and the Arbitrator's reasoning. The absence of a transcript and reasons led to the conclusion that there was a constructive failure to give reasons, amounting to an error of law. The court referred to previous cases, such as Fraternity Bowling & Recreation Club Limited v Sartor and Thompson v Expamet Pty Ltd, to support the decision that the matter should be remitted to another Arbitrator for a fresh determination.

The Acting Deputy President Michael Snell concluded that there was no decision to review due to the absence of reasons and transcript. The appropriate course was to revoke the Arbitrator's decision and remit the matter to another Arbitrator for a fresh determination. Costs of both the original conciliation/arbitration hearing and the appeal were to follow the final costs order when the matter was determined afresh.

The final orders of the appeal were that the decision of the Arbitrator dated 18 May 2006 was revoked, and the matter was remitted to another Arbitrator for determination afresh in accordance with the reasons provided. The costs of both the original conciliation/arbitration hearing and the appeal were to follow the final costs order when the matter was determined afresh.

Orders