Malaquin v Cargill Meat Processors Pty Ltd - [2006] NSWWCCPD 156

WORKERS COMPENSATION COMMISSION

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

CITATION:Malaquin v Cargill Meat Processors Pty Ltd [2006] NSWWCCPD 156
APPELLANT:  Andrew Robert Malaquin
RESPONDENT:  Cargill Meat Processors Pty Ltd
INSURER:Allianz Australia Services Pty Ltd
FILE NUMBER:  WCC15550-04
DATE OF ARBITRATOR’S DECISION:          22 April 2005
DATE OF APPEAL DECISION:  19 July 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987 and weight of the evidence.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      Lee Same Egan, Solicitors
Respondent:   Messrs Walkom Lawyers

ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s decision dated 22 April 2005 is revoked and the following orders are substituted:

1. (a) That Cargill Meat Processors Pty Ltd pay Andrew Robert Malaquin weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 from 3 May 2004 to 16 November 2004 at the rate of $446.90.
(b)Credit to be given to Cargill Meat Processors Pty Ltd for payments made in the period 3 May 2004 to 16 November 2004.

2. Paragraphs 2 and 3 of the Arbitrator’s decision dated 22 April 2005 are confirmed.
3. Cargill Meat Processors Pty Ltd to pay Mr Malaquin’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 18 May 2005 Andrew Robert Malaquin (‘Mr Malaquin’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 April 2005.

The Respondent to the Appeal is Cargill Meat Processors Pty Ltd (‘Cargill Meat’).

Mr Malaquin was born on 29 August 1971 at Tamworth. He is married and has four dependent daughters, the eldest being 13 years old.

After completing year 11 at school, Mr Malaquin began working as an apprentice panel beater. He didn’t complete the apprenticeship and after several other jobs, commenced employment at Cargill Meat in June 1999. Cargill Meat is an abattoir based in Tamworth and Mr Malaquin was employed as a meat labourer.

On 23 October 2003, whilst working in the fat testing area, Mr Malaquin injured his back. The job involved stamping carcasses and in order to do this Mr Malaquin was working on a stand which was approximately 5 foot off the ground. He twisted to ink the stamp and on turning back to stamp the carcass felt a sharp pain in his low back and down his right leg.

Mr Malaquin attended the First Aid centre and the next day, 24 October 2003, consulted his general practitioner Dr Campbell. He was then off work and in receipt of weekly payments of compensation until 13 November 2003. At this time he returned to restricted duties with Cargill Meat until 23 January 2004 when he went back onto normal duties.

On 18 February 2004 Mr Malaquin re-injured his back at work when he was holding a 20kg weight on a set of scales. Whilst holding the weight it slipped and fell to the ground pulling Mr Malaquin to the right.…

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 156
Decision Date: 19 July 2006

CaseChat Overview and Summary

The appeal in this case was brought by Andrew Robert Malaquin against a decision of an Arbitrator in the Workers Compensation Commission. The dispute was over the amount of weekly compensation Malaquin should receive following a workplace injury. The Arbitrator had awarded a lump sum of compensation from 3 May 2004 to 16 November 2004, and the appeal was concerned with the adequacy of the reasons for this decision, the Arbitrator's failure to consider relevant legislation, and the correctness of the lump sum deduction. The key legal issues were whether the Arbitrator properly considered the evidence of Dr Searle, whether the Arbitrator erred in entering an award for the respondent from 17 November 2004, and whether the Arbitrator was correct in reducing Malaquin's entitlement by deducting voluntary compensation paid after 16 November 2004.

The court found that the Arbitrator had not adequately considered Dr Searle's evidence and had failed to provide sufficient reasons for rejecting it. However, the court found no error in the Arbitrator's conclusion that Malaquin's incapacity for work from 17 November 2004 was not the result of his workplace injuries. The court also found that the Arbitrator had erred in entering an award for the respondent from 17 November 2004 and in reducing Malaquin's entitlement by deducting voluntary compensation paid after 16 November 2004. The court found that the Arbitrator had not undertaken the required five-step process in awarding compensation, and that the deduction for overpayment should not have been made.

The court revoked the Arbitrator's decision and substituted a new decision in its place. The new decision found that Malaquin was entitled to weekly compensation from 3 May 2004 to 16 November 2004 at the rate of $446.90, with credit to be given to Cargill Meat for payments already made in that period. The court also confirmed the Arbitrator's decision that Cargill Meat should pay Malaquin's costs of the appeal.

Orders