Marra v Siena Function Centre Pty Ltd - [2016] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Marra v Siena Function Centre Pty Ltd [2016] NSWWCCPD 44
APPELLANT:	Mario Marra
RESPONDENT:	Siena Function Centre Pty Ltd
INSURER:	CGU Workers Compensation (NSW) Pty Ltd
FILE NUMBER:	A1-7278/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	11 April 2016
DATE OF APPEAL DECISION:	12 September 2016
SUBJECT MATTER OF DECISION:	Entitlement to weekly benefits and medical expenses in respect of lumbar spine and right hip; whether these body parts injured as a result of a fall in which the left wrist was injured as a matter of common ground between the parties
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	NSW Compensation Lawyers
Respondent:	Moray and Agnew
ORDERS MADE ON APPEAL:	1. Leave to extend time to appeal is granted. 2. The Arbitrator’s decision of 11 April 2016 is confirmed. 3. Appeal dismissed.

INTRODUCTION AND BACKGROUND

This is an appeal from a determination of an Arbitrator dated 11 April 2016. Before the learned Arbitrator was a dispute about the extent of injury suffered by the appellant in the employ of the respondent on 21 May 2011. There was no dispute that on that day he suffered a fall on the tiled kitchen floor of the respondent’s premises. Nor was there dispute that in the fall he fractured his left wrist for which he was treated by Dr Chin, an orthopaedic surgeon. That treatment involved open reduction and internal fixation on 27 May 2011.
The dispute between the parties was about whether, in addition to the left wrist injury, the appellant also suffered injury to his lower back and right hip as a result of the fall.
The Arbitrator was not satisfied that the appellant had made out a connection between problems for which he subsequently had medical treatment and lost time from work in respect of his low back and right hip.

LEAVE

Monetary threshold and time

There is no dispute between the parties that the quantum in issue on the appeal satisfies the relevant monetary threshold under s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). There is no point taken about the timing of the appeal by the respondent pursuant to s 352(4).
The appeal was lodged on 13 May 2016, outside the 28 day period provided in s 352(4) of the 1998 Act. The appellant stated that the appeal had been filed within time. On 20 May 2016, the Registrar’s delegate issued a Direction directing the appellant to lodge an amended appeal application that, amongst other things, attaches:
“detailed reasons for the appeal Application being lodged out of time, full details of the arguments in favour of granting an extension of time for the making of an appeal, and the demonstrable and substantial injustice that losing the right to appeal would allegedly cause.”
On 27 May 2016, an amended appeal application was lodged. The amended appeal made…

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 Marra v Siena Function Centre Pty Ltd

Details

AGLC: Marra v Siena Function Centre Pty Ltd [2016] NSWWCCPD 44
Case: [2016] NSWWCCPD 44
Decision Date: 12 September 2016

CaseChat Overview and Summary

Marra, the applicant, sought review of an Arbitrator’s decision which had dismissed his claim for weekly benefits and medical expenses in respect of his lumbar spine and right hip. The respondent, Siena Function Centre Pty Ltd, opposed the application. The dispute arose from a fall that occurred at the respondent’s premises on 18 December 2013, in which the applicant injured his left wrist. Both parties agreed that the applicant injured his left wrist as a result of the fall, but disagreed as to whether the lumbar spine and right hip were injured in the same incident. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue was whether the injuries to the lumbar spine and right hip were sustained in the fall in which the left wrist was injured. The applicant argued that the injuries to his lumbar spine and right hip were caused by the fall, and that there was no evidence to the contrary. The respondent, on the other hand, maintained that the applicant’s lumbar spine and right hip injuries were not caused by the fall, and that the applicant had not provided sufficient evidence to support his claim. The respondent also argued that the applicant’s claim for weekly benefits and medical expenses was not supported by the evidence.

The Tribunal found that the applicant’s claim for weekly benefits and medical expenses in respect of his lumbar spine and right hip was not supported by the evidence. The Tribunal held that the applicant had not provided sufficient evidence to establish that his lumbar spine and right hip injuries were caused by the fall. The Tribunal further held that the applicant’s claim for weekly benefits and medical expenses was not supported by the evidence, and that the Arbitrator’s decision was correct. The Tribunal confirmed the Arbitrator’s decision of 11 April 2016, and dismissed the applicant’s appeal. Leave to extend time to appeal was granted.

Orders

Orders of the court

1. Leave to extend time to appeal is granted.

2. The Arbitrator’s decision of 11 April 2016 is confirmed.

3. Appeal dismissed.

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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