Lithgow Services Pty Ltd v Walsh - [2011] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Lithgow Services Pty Ltd v Walsh [2011] NSWWCCPD 66
APPELLANT:		Lithgow Services Pty Limited
RESPONDENT:		Kim Marie Walsh
INSURER:		Cambridge Integrated Services t/as Xchanging
FILE NUMBER:		A1–3487/11
ARBITRATOR:	Ms J Scott
DATE OF ARBITRATOR’S DECISION:		23 August 2011
DATE OF APPEAL DECISION:		17 November 2011
SUBJECT MATTER OF DECISION:		Incapacity; aggravation of a disease; s 16 of the Workers Compensation Act 1987; sufficiency of reasons
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Astridge & Murray
Respondent:	McIntosh McPhillamy & Co
ORDERS MADE ON APPEAL:		The decision of the Arbitrator as set forth in Statement of Reasons – Extempore Orders dated 29 August 2011 is confirmed subject to amendment being the deletion of the words and figures “section 36” which appear at [2(b)] of the orders and substituting “section 37”. The appellant is to pay Ms Walsh’s costs of the appeal.

BACKGROUND

Ms Kim Walsh was employed as a cleaner by Lithgow Services Pty Limited (the appellant) on 18 December 1998. She remained in that employ until 18 December 2004 at which time the appellant terminated her employment.
It is not in dispute that Ms Walsh received an injury in the course of that employment on 4 February 2004. On that day she was carrying out her duties at Wallerawang power station when she fell down a set of metal stairs causing injury to her neck. Ms Walsh was transported to Nepean Hospital, Penrith, by helicopter where radiological investigations were conducted following which she was discharged. It seems that, as a result of painful symptoms, she remained absent from her work until 15 March 2004 on which date she was certified by her general practitioner, Dr C A Suresh, as being fit for suitable duties. Ms Walsh underwent physiotherapy treatment and rehabilitation. On 20 September 2004 a medical certificate was issued by Dr Suresh at Ms Walsh’s request which certified that she was fit for pre-injury duties from that date.
The appellant lost the cleaning contract concerning the Wallerawang power station. That contract was taken over by another contractor, Tempo Services Limited (Tempo). Ms Walsh was employed by Tempo one week after termination of her employment by the appellant. Initially she continued her duties at Wallerawang power station following which she was transferred to Mount Piper power station. Ms Walsh alleges that she experienced disabling symptoms at all times following the injury in February 2004. By reason of those symptoms she ceased work on 16 January 2006 at which time she was certified by Dr Suresh as being unfit for work. She has not returned to any employment since that time.
In August 2008 Ms Walsh made a claim against the appellant for lump sum entitlement pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). That claim was settled and an agreement pursuant to s 66A of the 1987 Act was entered into…

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.

Continue reading Lithgow Services Pty Ltd v Walsh

Details

AGLC: Lithgow Services Pty Ltd v Walsh [2011] NSWWCCPD 66
Case: [2011] NSWWCCPD 66
Decision Date: 17 November 2011

CaseChat Overview and Summary

The case involved Lithgow Services Pty Ltd, the appellant, and Ms Walsh, the respondent. The dispute arose from a workers' compensation claim, specifically focusing on the issue of whether Ms Walsh's incapacity was due to the aggravation of a pre-existing disease or an injury sustained at work. The case was heard in the New South Wales Court of Appeal.

The primary legal issues before the court were whether the Arbitrator had sufficient grounds to conclude that Ms Walsh's incapacity was due to the aggravation of a disease, as defined by section 16 of the Workers Compensation Act 1987, and whether the Arbitrator’s reasons were adequate to support the decision. The court had to determine if the Arbitrator's decision was legally sound and if the reasons provided were sufficient to justify the outcome.

In its reasoning, the court found that the Arbitrator had correctly applied the law in concluding that Ms Walsh’s incapacity was due to the aggravation of a disease. However, the court noted that the Arbitrator’s reasons could have been more detailed. Despite this, the court held that the reasons were sufficient to support the decision, and the Arbitrator's conclusion was not unreasonable. The court thus confirmed the Arbitrator's decision, subject to a minor amendment to the reference in the orders.

The final orders of the court confirmed the Arbitrator's decision with a minor amendment regarding the reference from section 36 to section 37. Additionally, the appellant was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The decision of the Arbitrator as set forth in Statement of Reasons – Extempore Orders dated 29 August 2011 is confirmed subject to amendment being the deletion of the words and figures “section 36” which appear at [2(b)] of the orders and substituting “section 37”.

The appellant is to pay Ms Walsh’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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