Labour Linq Pty Ltd v Mills - [2006] NSWWCCPD 316

WORKERS COMPENSATION COMMISSION

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

CITATION:Labour Linq Pty Ltd v Mills [2006] NSWWCCPD 316
APPELLANT:  Labour Linq Pty Ltd
RESPONDENT:  Robert Mills
INSURER:Vero Workers Compensation (NSW) Limited
FILE NUMBER:  WCC666-06
DATE OF ARBITRATOR’S DECISION:          26 April 2006
DATE OF APPEAL HEARING:  15 November 2006
DATE OF APPEAL DECISION:  22 November 2006
SUBJECT MATTER OF DECISION:                Reasons; nexus; incapacity
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      Mr J Dodd of counsel instructed by Hunt & Hunt
Respondent:   Mr P Perry of counsel instructed by Monaco

ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision dated 26 April 2006 are revoked and the following orders made in their place:

1. That the Respondent pay the Applicant weekly compensation at the rate of $547.20 per week from 18 June 2003 to 3 December 2003 under section 36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a worker with no dependants from 4 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.
Paragraphs three, four and five of the Arbitrator’s decision of 26 April 2006 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 22 May 2006 Labour Linq Pty Ltd (‘the Appellant Employer/ Labour Linq’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 April 2006.

The Respondent to the Appeal is Robert Mills (‘the Respondent Worker/Mr Mills’).

On 13 September 2000 Mr Mills injured his back while working for Labour Linq (a labour hire company) at the premises of LG Electronics (‘LG’) at Rydalmere. The injury initially required Mr Mills to take only two weeks off work. No radiological investigations were done until 30 June 2003 when a CT scan reveal an L4/5 disc bulge. Whilst it is not disputed that an incident occurred at work on 13 September 2000, it is disputed that that incident caused the disc bulge discovered on CT in 2003.

A detailed analysis of the history between 13 September 2000 and 30 June 2003 is set out below.

On 18 January 2006 an Application to Resolve a Dispute was registered in the Commission claiming weekly compensation from 1 October 2000 to date and continuing. That claim was heard by a Commission Arbitrator on 18 April 2006. In a reserved decision delivered on 26 April 2006 the Arbitrator found in favour of the Respondent Worker.

Labour Linq seeks leave to appeal that decision.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

The quantum in issue on the appeal is in excess of $5,000.00 and therefore…

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 316
Decision Date: 22 November 2006

CaseChat Overview and Summary

Labour Linq Pty Ltd appealed a decision of an arbitrator in the Workers Compensation Commission of New South Wales, who had found that Robert Mills was entitled to compensation for a back injury sustained at work on 13 September 2000. The issues in dispute were whether the arbitrator had erred in finding that the injury was causally related to the work incident, in failing to appreciate certain submissions of the appellant employer, in failing to give adequate reasons, and in failing to find that the injury did not result in any incapacity. The Acting Deputy President revoked certain paragraphs of the arbitrator's decision and confirmed others. The appellant employer was ordered to pay the respondent worker's costs of the appeal.

The Acting Deputy President found that the arbitrator had not confused the issue of injury and nexus, but had correctly found that the respondent worker's disc protrusion at L4/5 was causally related to the work incident. The Acting Deputy President also found that the arbitrator had not made any error of fact, law or discretion in her finding on nexus, and that her reasons were adequate. The Acting Deputy President did not accept that the arbitrator had failed to give adequate reasons as to why she found that employment was a substantial contributing factor to the respondent worker's disc pathology at L4/5. The Acting Deputy President found that the arbitrator had not made any error of fact, law or discretion in her finding on incapacity, and that the respondent worker was totally unfit for work.

Orders