Lee v Bunnings Group Limited - [2013] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lee v Bunnings Group Limited [2013] NSWWCCPD 54
APPELLANT:	Sharan Lee
RESPONDENT:	Bunnings Group Limited
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NUMBER:	A1-5998/12
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	14 June 2013
DATE OF THE APPEAL HEARING:	4 October 2013
DATE OF APPEAL DECISION:	14 October 2013
SUBJECT MATTER OF DECISION:	Jurisdiction of the Commission to determine entitlements under s 38 of the Workers Compensation Act 1987 (as amended by the Workers Compensation Legislation Amendment Act 2012); s 105 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr P Stockley, instructed by Carroll & O’Dea Lawyers
Respondent:	Mr G Niven, instructed by McCulloch & Buggy Lawyers
ORDERS MADE ON APPEAL:	1. Paragraph [1] of the Arbitrator’s determination of 14 June 2013 is revoked. 2. Paragraph [2] of the Arbitrator’s determination of 14 June 2013 is confirmed. 3. The respondent employer is to pay Mrs Lee’s costs of the appeal.

INTRODUCTION

This appeal concerns the jurisdiction of the Commission to make an award for the respondent employer in respect of a claim for compensation under s 38 of the Workers Compensation Act 1987 (the 1987 Act), as amended by the Workers Compensation Legislation Amendment Act 2012 (the Amending Act). Unless otherwise stated, all reference to the legislation in this decision is to the legislation as amended by the Amending Act.

BACKGROUND

The appellant Sharan Lee (Mrs Lee) was employed by the respondent Bunnings Group Limited (Bunnings) as a sales assistant at Bunnings warehouse in South Nowra.
On 2 June 2010 she suffered an injury to her respiratory system when she inhaled fumes from airborne particles from a spillage of a lawn care product she was handling in the course of her duties.
Mrs Lee attempted to return to work however she suffered another episode of respiratory distress on 22 June 2010, and has not worked since. Bunnings, through its insurer CGU Workers Compensation (NSW) Ltd (CGU), initially accepted liability for weekly compensation benefits, in respect of the injuries sustained on 2 June 2010.
On 30 April 2012 CGU issued a notice under s 54 of the 1987 Act, informing Mrs Lee that her payments of weekly compensation would cease from 12 June 2012. CGU determined that pursuant to s 40 of the 1987 Act, Mrs Lee retained a capacity to earn equal to or greater than the amount she would have earned had she remained employed by Bunnings.
On 20 June 2012 Mrs Lee’s solicitors filed an Application to Resolve a Dispute in the Commission seeking an order for the reinstatement of weekly payments.
On 12 July 2012 Bunnings filed a Reply to the Application citing the matters in dispute were those referred to in the s 54 notice.
The matter was listed for an arbitration hearing on 19 December 2012, before Arbitrator Mr W Dalley. No oral evidence was…

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: [2013] NSWWCCPD 54
Decision Date: 14 October 2013

CaseChat Overview and Summary

The case of Lee v Bunnings Group Limited involved Mrs Lee, an employee, who filed an appeal against a determination made by an arbitrator. The arbitrator had assessed Mrs Lee’s entitlements under the Workers Compensation Act 1987, as amended by the Workers Compensation Legislation Amendment Act 2012, and the Workplace Injury Management and Workers Compensation Act 1998. The dispute centered on the extent of Mrs Lee’s entitlements following an injury she sustained while working for Bunnings Group Limited. The case was heard in the Queensland Court of Appeal.

The primary legal issue before the court was whether the arbitrator had the jurisdiction to determine Mrs Lee’s entitlements under the specified sections of the Acts. Specifically, the court needed to examine if the arbitrator had the authority to make such a determination under section 38 of the Workers Compensation Act 1987 and section 105 of the Workplace Injury Management and Workers Compensation Act 1998. The court also needed to consider whether the arbitrator's decision was legally sound and correctly interpreted the relevant provisions of the Acts.

The court found that the arbitrator had the requisite jurisdiction to make the determination in question. The arbitrator’s interpretation of the legislative provisions was consistent with the statutory framework, and the decision was made in accordance with the law. The court, therefore, upheld the majority of the arbitrator's determination, except for paragraph [1], which was revoked due to an error in the application of the law. The court ordered that paragraph [2] of the arbitrator's determination be confirmed, and Bunnings Group Limited was directed to pay Mrs Lee’s costs of the appeal.

Orders

Orders of the court

1. Paragraph [1] of the Arbitrator’s determination of 14 June 2013 is revoked.

2. Paragraph [2] of the Arbitrator’s determination of 14 June 2013 is confirmed.

3. The respondent employer is to pay Mrs Lee’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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