Magic Motorcycles Pty Ltd v Bartley - [2007] NSWWCCPD 122

WORKERS COMPENSATION COMMISSION

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

CITATION:Magic Motorcycles Pty Limited v Bartley [2007] NSWWCCPD 122
APPELLANT:  Magic Motorcycles Pty Limited
RESPONDENT:  Kerry Bartley
INSURER:Gallagher Bassett Services
FILE NUMBER:  WCC10853-06
DATE OF ARBITRATOR’S DECISION:          22 November 2006
DATE OF APPEAL DECISION:  24 May 2007
SUBJECT MATTER OF DECISION: Section 40 Workers Compensation Act 1987; calculation of probable earnings but for injury; application of Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; exercise of discretion
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Edwards Michael Moroney
Respondent:   Slater & Gordon

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s determination is revoked and the following order made:

“1.Award for the Applicant under section 40 of the Workers Compensation Act 1987 as follows:
a)   $146.00 per week from 12.3.2001 to 30.6.2001;
b)   $73.00 per week from 1.7.2001 to 30.6.2002;
c)   $3.00 per week from 1.7.2002 to 30.6.2003, and
d)   $176.00 per week from 1.7.2003 to 26.7.2004.”

Paragraph two of the Arbitrator’s determination is confirmed.
The Appellant Employer is to pay one half of the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 11 December 2006 Magic Motorcycles Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 November 2006.

The Respondent to the Appeal is Kerry Bartley (‘the Respondent Worker/Mr Bartley’).

Mr Bartley is a 55-year-old man who worked for several years in his own business as an electrical contractor. On 14 February 2000 he started work for 15 hours per week as a shop assistant with the Appellant Employer’s motorcycle sales business. On 20 August 2000 he was riding a motorcycle in the course of his employment when another bike collided with him. As a result he sustained a compound comminuted fracture of his right second metacarpal and a fractured scaphoid, with tendon and skin avulsion over the dorsum of the second metacarpal.

His injury was reported and compensation was paid for a period.

On 18 July 2006 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking weekly compensation from 20 April 2001 to date and continuing together with lump sum compensation and hospital and medical expenses.

Mr Bartley’s claim for lump sum compensation was settled for $22,500.00 in respect of 30% loss of efficient use of his right arm below the elbow and $17,500.00 for pain and suffering. The claim for medical expenses was discontinued by consent (T10.11).

The claim proceeded to arbitration hearing before a Commission Arbitrator on 14 November 2006. Ultimately the claim was reduced to a closed period from 12 March 2001 to 26 July 2004. After hearing submissions from both parties the Arbitrator delivered an ex tempore decision in favour of Mr Bartley.

The Appellant Employer seeks leave to appeal that decision.

LEAVE TO APPEAL

Monetary Threshold

Before proceeding to deal…

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 Magic Motorcycles Pty Ltd v Bartley

Details

AGLC: Magic Motorcycles Pty Ltd v Bartley [2007] NSWWCCPD 122
Case: [2007] NSWWCCPD 122
Decision Date: 24 May 2007

CaseChat Overview and Summary

The Workers Compensation Commission reviewed an appeal by Magic Motorcycles Pty Limited against a decision of an Arbitrator in favour of Kerry Bartley, a former employee who sustained an injury at work. The Arbitrator had ordered weekly compensation payments to Mr Bartley, which the Appellant sought to revise. The appeal centred on the calculation of probable earnings, the consideration of the employee's ability to earn post-injury, and the exercise of discretion in determining the award.

The Court found that the Arbitrator erred in calculating Mr Bartley's probable earnings, as he incorrectly included earnings from other employers not considered concurrent at the time of the injury. The Court also determined that the Arbitrator correctly assessed the probable earnings by reference to the employee's earnings from all sources at the date of injury and appropriately adjusted these earnings by 3% per annum for movements in the Consumer Price Index. In terms of the employee's ability to earn post-injury, the Court held that Mr Bartley's actual earnings were a proper reflection of his capacity, barring any evidence to the contrary. The Court found no merit in the Appellant's argument that the Arbitrator failed to exercise his discretion appropriately, noting that the Arbitrator had implicitly considered the proper factors in determining the compensation award.

Ultimately, the Court revoked the first part of the Arbitrator's determination and substituted it with a new order for weekly compensation payments to Mr Bartley. The Appellant was ordered to pay half of the Respondent's costs due to the unsuccessful nature of several of its arguments.

Orders