Knight v Eyles Nominees Pty Ltd - [2004] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSW WCC PD 73
APPELLANT:  William John Knight
RESPONDENT:  Eyles Nominees Pty Ltd t/as Processed Forest Products
INSURER:Allianz Australia Workers’ Compensation (NSW) Limited
FILE NUMBER:  WCC7773-2003
DATE OF ARBITRATOR’S DECISION:          10 September 2003
DATE OF APPEAL DECISION:  27 October 2004
SUBJECT MATTER OF DECISION:                Interpretation and weight of evidence; Discretion of Arbitrator; Fitness for pre-injury employment.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the Papers
REPRESENTATION:  Appellant: David Weston & Co.

Respondent: Hicksons Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, namely: “Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation”, is revoked.

The parties are to submit draft orders to give effect to the findings set out in this decision, on or before 5 November 2004.

THE APPEAL

On 9 October 2003 William John Knight (the Appellant/ Mr Knight) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (the Commission) against a decision dated 10 September 2003.

The Respondent to the Appeal is Processed Forest Products (the Respondent). The Respondent filed submissions in Reply to the appeal on 15 December 2003.

The relevant insurer is Allianz Australia Workers’ Compensation (NSW) Limited (the insurer).

The appeal concerns a claim by Mr Knight for weekly compensation in respect of an injury to his left hand involving ‘Reflex Sympathetic Dystrophy’ or ‘Complex Regional Pain Syndrome’, sustained on 22 May 2002, when employed by the Respondent.

On 12 March 2003, Mr Knight lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held between the parties on 7 July 2003, and a second teleconference was held on 17 July 2003 at which the parties agreed that the matter could be determined on the papers. The Arbitrator gave directions extending time for the parties to file a ‘Statement of Agreed Facts and Issues’, and a ‘Statement of Past Benefits’. The Appellant was directed to file written submissions by 31 July 2003, and the Respondent by 8 August 2003.

The Appellant submits that the decision of the Arbitrator should be revoked and a new decision, that Mr Knight is entitled to weekly compensation, be made in its place. The Respondent submits the Arbitrator’s decision is correct and should be confirmed.

THE ARBITRATOR’S DECISION

The ‘Certificate of Determination’ and attached ‘Statement of Reasons’ (the reasons) dated 10 September 2003, record the Arbitrator’s decision as follows:

1.“Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.That the Respondent pay the Applicant’s expenses pursuant to section 60 of the Workers Compensation 1987 [sic] on production of accounts and or receipts, including but not limited to the following:
Delwood Medical Centre  $489.50
Dr Rodney Pattinson  $165.00
Kesby’s Pharmacy (paid by the Respondent) $ 10.55
Metropolitan Psychological Centre               $641.00

3.That the Respondent pay the…

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: [2004] NSWWCCPD 73
Decision Date: 27 October 2004

CaseChat Overview and Summary

William John Knight, the appellant, lodged an appeal against a decision of the Workers Compensation Commission's Arbitrator, seeking weekly compensation for an injury sustained at work. The injury, a left hand injury involving Reflex Sympathetic Dystrophy, was accepted as work-related. The issue before the Arbitrator was whether Mr Knight remained incapacitated for his pre-injury duties. The Arbitrator decided that Mr Knight had ceased to be incapacitated for work from 15 August 2002 as various medical professionals found him fit for pre-injury duties. Mr Knight appealed this decision, arguing that the Arbitrator had erred in finding him fit for pre-injury duties and had failed to continue weekly benefits. The court found that the Arbitrator's decision contained an error of law, fact, or discretion as it was against the weight of the evidence and failed to fairly and lawfully determine the dispute. The Arbitrator had not given a fair or accurate account of the evidence, particularly regarding the impact of Mr Knight's left hand pain on his ability to resume pre-injury duties. The Arbitrator's decision is revoked, and the parties are to submit draft orders to give effect to the findings set out in the reasons for decision, on or before 5 November 2004.

Orders