Mayne Group Limited v Gill - [2007] NSWWCCPD 183

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Mayne Group Limited v Gill [2007] NSWWCCPD 183
APPELLANT:  Mayne Group Limited
RESPONDENT:  Jeanette Gill
INSURER:Mayne Group Workers Compensation
FILE NUMBER:  WCC21066-04
DATE OF ARBITRATOR’S DECISION:          15 August 2006
DATE OF APPEAL DECISION:  23 August 2007
SUBJECT MATTER OF DECISION:                Evidence and weight of evidence; jurisdiction; injury; substantial contributing factor; burden of proof; failure to deal with a matter in dispute; adequacy of reasons.
PRESIDENTIAL MEMBER:  Acting Deputy President Joanne Muller
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   Steve Masselos & Co

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 15 August 2006 is confirmed.

The Appellant Employer is to pay Ms Gill’s costs of the appeal.

BACKGROUND

Ms Jeanette Gill, the Respondent Worker in this appeal, is 55 years of age. Ms Gill was employed as a courier by the Mayne Group Limited (‘the Appellant Employer’) at the relevant time. The Appellant Employer is self-insured.
Ms Gill was delivering pathology reports on behalf of her employer to the surgery of Dr Bruce McArthur (a local general practitioner) on 10 January 2003. It had been raining, the pebblecrete driveway was slippery and she slipped, falling forward and sliding on her stomach over an iron grate, across a footpath and onto the roadway. She suffered an injury to her right elbow and left ankle, which were treated by Dr McArthur soon after the fall and for some considerable time thereafter. The significant and extensive grazing to the left elbow became infected and required treatment by Dr McArthur. Ms Gill’s statement dated 23 January 2005 indicates that she still suffers difficulties with activities of everyday living due to pain in her elbow, upper arm and shoulder. However, the difficulties with her upper arm became manifest some time after the fall.

Ms Gill lodged a claim form with her employer in January 2004. The ‘Application to Resolve a Dispute’ (‘the application’) was lodged by Ms Gill with the Workers Compensation Commission (‘the Commission’) on 23 December 2004 claiming lump sum compensation for an injury to her “Right arm”. Ms Gill was referred to Dr W.G.D. Patrick for assessment prior to this application being lodged. The application gives the date of the injury as “Nature and conditions of employment from 1986 & 10 June 2003” and claims lump sum compensation in the sum of $8750 (being 7% of a Whole Person Impairment (‘WPI’) with respect to the right shoulder as assessed in Dr Patrick’s report dated 30 August 2004).
During the telephone conference on 3 March 2005, the solicitor for the Appellant Employer raised several matters in issue between the parties being ‘injury’, ‘causation’, ‘nexus’ and section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator noted that the claim was a nature and conditions claim and also for a frank injury to her elbow and shoulder on 10 January 2003. Directions were made regarding the filing…

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 Mayne Group Limited v Gill

Details

AGLC: Mayne Group Limited v Gill [2007] NSWWCCPD 183
Case: [2007] NSWWCCPD 183
Decision Date: 23 August 2007

CaseChat Overview and Summary

The matter before the court in Mayne Group Limited v Gill [2007] NSWWCCPD 183 involved an appeal by Mayne Group Limited against a decision of the Workers Compensation Commission that Jeanette Gill, a former employee, had suffered an injury to her right shoulder and elbow arising out of and in the course of her employment. The appeal raised multiple issues, including whether the Arbitrator properly considered the evidence, if the Arbitrator properly considered and determined a relevant jurisdictional issue, whether the Arbitrator reversed the onus of proof, if the Arbitrator erred in finding that employment was a substantial contributing factor to the alleged injury, if the Arbitrator failed to provide adequate reasons for the decision, and whether the Arbitrator wrongly stated that there was no dispute between the parties regarding an incident that occurred on 10 January 2003. The court found that the Arbitrator did not err in any of these respects, and therefore confirmed the Arbitrator’s decision. The court also ordered that Mayne Group Limited pay Jeanette Gill’s costs of the appeal.

Orders