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Marcus v Ready Workforce Pty Limited

Marcus v Ready Workforce Pty Limited

Case [2007] NSWWCCPD 199 19 September 2007

Assessment of Ability to Earn

Workers Compensation Act 1987

Disease Provisions

Evidence

Expert Evidence

Arbitrator's Decision

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:Marcus v Ready Workforce Pty Limited [2007] NSWWCCPD 199
APPELLANT:  Mariam Marcus
RESPONDENT:  Ready Workforce Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18395-06
DATE OF ARBITRATOR’S DECISION:          2 May 2007
DATE OF APPEAL DECISION:  19 September 2007
SUBJECT MATTER OF DECISION: Assessment of ability to earn; sections 40(2)(b) and 43A of the Workers Compensation Act 1987; consideration of the evidence
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Galluzzo Andriano Solicitors
Respondent:   Holman Webb Lawyers

ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 2 May 2007 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Mariam Marcus (‘the Appellant Worker/Ms Marcus’) was born in Syria on 5 July 1965 and is currently 42 years old. She came to Australia in November 1987. In 1989 she started work as a Process Worker. This was her first job, as she had not been employed in her country of birth.

In October 2003 she started work with Ready Workforce Pty Limited (‘the Respondent Employer/Ready’), a labour hire company. That company hired her services as a Process Worker to Melosi’s, a company at Wetherill Park. Her duties involved packing and lifting meats, which required her to work in a refrigerated section. Between October and August 2004 she worked an average of 18.79 hours per week at Melosi’s.

On 22 June 2004, Ms Marcus was lifting 12-kilogram boxes of ham onto pallets when she felt her right shoulder click and then developed pain in the shoulder, neck and shoulder blade. Her injury was reported and she attended on her family doctor, Dr Nguyen, who referred her for investigations and specialist assessment with Dr Guirgis and Dr Rail.

Her claim for compensation was accepted and she was paid voluntary compensation until 9 February 2007.

On 27 December 2006 an Application to Resolve a Dispute (‘the Application’) was registered in the Workers Compensation Commission (‘the Commission’) in which Ms Marcus alleged injury to her right shoulder and neck, and carpal tunnel syndrome in her right hand as a result of the nature and conditions of her employment and as a result of lifting boxes of ham on 22 June 2004. She claimed weekly compensation from 22 June 2004 to date and continuing plus lump sum compensation.

The matter was listed for conciliation and arbitration before a Commission arbitrator on 28 March 2007. In a decision delivered on 2 May 2007 the Arbitrator accepted that Ms Marcus injured her right shoulder and neck on 22 June 2004 but found that her carpal tunnel syndrome was not work related. She ordered Ready to pay weekly compensation in the sum of $376.55 per week from 12 August 2004 to 8 February 2007 and in the sum of $35.15 per week from 9 February 2007 to date and continuing.

Ms Marcus seeks leave to appeal the Arbitrator’s findings and orders in respect of…

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 Marcus v Ready Workforce Pty Limited

Details

AGLC: Marcus v Ready Workforce Pty Limited [2007] NSWWCCPD 199
Case: [2007] NSWWCCPD 199
Decision Date: 19 September 2007

CaseChat Overview and Summary

Mariam Marcus, an appellant worker, appealed against the decision of the Workers Compensation Commission arbitrator that dismissed her claim for compensation related to her right carpal tunnel syndrome. The appeal was heard by Deputy President Bill Roche who found that the Arbitrator's decision was not affected by any legal, factual or discretionary error. The Arbitrator's decision that Marcus's carpal tunnel syndrome was not work-related was open on the evidence and disclosed no error. The Arbitrator had considered the evidence of three doctors and found that Marcus had not discharged the onus of proof to establish that her employment caused an aggravation, acceleration, exacerbation or deterioration of the disease of carpal tunnel syndrome. The Arbitrator's finding was open to her on the evidence and disclosed no error. The Arbitrator's decision dated 2 May 2007 was confirmed. No order as to costs of the appeal was made.

Orders