Macroyannis v MAC Tipping Pty Ltd - [2021] NSWPIC 263

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Macroyannis v MAC Tipping Pty Ltd [2021] NSWPIC 263
APPLICANT:	Harry Macroyannis
RESPONDENT:	MAC Tipping Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	27 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum and section 60 expenses; owner/operator of truck driving business injured whilst purchasing goods from Coles; whether applicant had finished work for the day, or had another job to do; applicant alleged a further job in later statements, with a corroborative statement; further job was for nephew; evidentiary lacuna suggestive of recent invention; applicant in cross-examination produced contemporaneous email to investigator regarding the further job; whether section 11 applied; Held-contemporaneous email confirmed no recent invention; applicant on a section 11 recess; Britt v Coady considered and applied.
DETERMINATIONS MADE:	1. I amend the Application to Resolve a Dispute form to delete the date of injury there pleaded and substitute therefore “2 October 2018.” 2. The respondent will pay the applicant’s s 60 expenses on production of accounts, receipts and/or HIC notice of charge. 3. I remit this matter to the President for referral to a Medical Assessor for a whole person impairment assessment on the following bases: (a) Date of injury: 2 October 2018. (b) Matters for assessment: Thoracic spine, lumbar spine, TEMSKI/scarring. (c) Evidence: (i) Application to Resolve a Dispute and attached documents, and (ii) Reply and attached documents. (d) I exclude from the remittal the following documents: (i) Application to Admit Late Documents (ALD) dated 15 June 2021 (admitted during the hearing); (ii) ALD dated 10 June 2021, and (iii) Email dated 10 September 2019 from the applicant to the insurer’s investigator – exhibit A.

STATEMENT OF REASONS

BACKGROUND

Harry Macroyannis, the applicant, brings an action for lump sum compensation and payment of s 60 expenses against MAC Tipping Pty Ltd, the respondent, regarding an injury he suffered when shopping at Coles Supermarket in Chipping Norton on 2 October 2018.
Dispute notices were issued on 15 November 2019 and 12 June 2020.
The Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:

(a) Whether the applicant was temporarily absent from his place of employment on an authorised absence pursuant to s 11(a) of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

This matter was heard on 16 June 2021 via video link. The applicant was represented by
Ms Silva Ishak from Messrs Brydens Lawyers instructing Mr Ross Stanton of counsel. The respondent was represented by Ms Alice Davis of Gair Legal solicitors instructing Mr Paul Stockley of counsel. Also present was Ms Anna Venardos from EML. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that…

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: [2021] NSWPIC 263
Decision Date: 27 July 2021

CaseChat Overview and Summary

The applicant in Macroyannis v MAC Tipping Pty Ltd, brought a claim before the Court for a lump sum and section 60 expenses under the Workers Compensation Act. The applicant, who was the owner and operator of a truck driving business, was injured while purchasing goods from Coles. The dispute centred on whether the applicant had finished work for the day or had another job to do, which would affect the eligibility of the claim. The applicant alleged in later statements that there was a further job for his nephew. However, there was an evidentiary gap that suggested the further job was a recent invention.

The legal issues before the Court included whether the applicant had finished work for the day and whether the further job was a recent invention. The Court also needed to determine whether section 11 of the Act applied. In cross-examination, the applicant produced a contemporaneous email to an investigator regarding the further job, which helped to confirm that it was not a recent invention. The Court considered the case of Britt v Coady and applied it to the facts of this case. The Court found that the contemporaneous email confirmed that the applicant was on a section 11 recess and therefore eligible for the claim.

The Court held that the applicant was entitled to the lump sum and section 60 expenses under the Workers Compensation Act. The Court found that the applicant had finished work for the day and that the further job was not a recent invention, as confirmed by the contemporaneous email. The Court applied the case of Britt v Coady and held that the applicant was on a section 11 recess, which entitled him to the claim. The Court made orders for the applicant to be paid the lump sum and section 60 expenses.

Orders