McAllister v Central West Group Apprentices - [2006] NSWWCCPD 243

WORKERS COMPENSATION COMMISSION

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

CITATION:McAllister v Central West Group Apprentices [2006] NSWWCCPD 243
APPELLANT:  Lee Brendon McAllister
RESPONDENT:  Central West Group Apprentices
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 20744-04
DATE OF ARBITRATOR’S DECISION:          14 November 2005
DATE OF APPEAL DECISION:  22 September 2006
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      Messenger & Messenger
Respondent:   Turkslegal

ORDERS MADE ON APPEAL: 1. Paragraphs 1, 2 and 4 of the Arbitrator’s Decision dated 14 November 2005 are revoked and the following orders are substituted:

“1.That Central West Group Apprentices pay Lee Brendon McAllister weekly compensation pursuant to section 40 of the Workers Compensation Act 1987 as follows:
(a)$148.10 per week from 12 October 2004 to 3 September 2005;
(b)$173.60 per week from 4 September 2005 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
2.That Central West Group Apprentices pay Lee Brendon McAllister’s reasonable and necessary section 60 expenses on production of accounts and receipts.
4.That Central West Group Apprentices pay Lee Brendon McAllister’s costs as agreed or assessed.”

2.Paragraph 3 of the Certificate of Determination of 14 November 2005 is confirmed.
3.Central West Group Apprentices is to pay Lee Brendon McAllister’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 9 December 2005 Lee Brendon McAllister (‘Mr McAllister’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 November 2005.

The Respondent to the Appeal is Central West Group Apprentices (‘Central West’).

Mr McAllister was born on 12 April 1984 and is 22 years of age. He claims no dependents.

On 13 May 2002 Mr McAllister commenced a 12 month traineeship with Central West as a landscape gardener.

On 9 December 2002 whilst operating a ride-on lawnmower, Mr McAllister struck his head on the branch of a tree, thereby injuring his neck and back. He stopped work and consulted a general practitioner and remained off work and in receipt of payments of weekly compensation.

In April 2003 Mr McAllister returned to work on and off for approximately three months in total, after which time he stopped working due to the pain. He continued to be off work at the time of the Arbitration hearing.

On 27 August 2004 the insurer of Central West wrote to Mr McAllister denying liability and advising that medical benefits will cease on 31 August 2004 and weekly benefits will cease on 12 October 2004.

Proceedings were commenced in the Commission on 17 December 2004 for weekly benefits, medical expenses and lump sum compensation for permanent impairment.

As a result of a teleconference on 13 April 2005, Mr McAllister was referred to Dr John Matheson, Approved Medical Specialist, on 25 July 2005 who certified that the injury to Mr McAllister resulted in no impairment.

An Arbitration hearing took…

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 243
Decision Date: 22 September 2006

CaseChat Overview and Summary

In the appeal of McAllister v Central West Group Apprentices, the central dispute involved the assessment of weekly compensation for Lee Brendon McAllister, who sustained injuries during his employment as a trainee landscape gardener. The appeal was brought against a decision made by an arbitrator, who had ruled in favor of the respondent, Central West Group Apprentices, denying McAllister's claims for weekly benefits, medical expenses, and lump sum compensation for permanent impairment. The legal issues in dispute centered on whether the arbitrator erred in not properly considering the medical evidence, particularly a supplementary report by Dr. Stephenson, and whether the arbitrator adequately justified his decisions on various aspects of McAllister's claims.

The court found that the arbitrator's decision contained errors in the assessment and consideration of the medical evidence, particularly the supplementary report of Dr. Stephenson, which had not been appropriately considered. The arbitrator's ultimate finding that McAllister was capable of returning to pre-injury duties was deemed to be manifestly against the weight of the evidence. As such, the court revoked the arbitrator's decision and substituted new orders. The court determined that McAllister remained partially incapacitated for work due to the injuries he sustained and ordered that Central West Group Apprentices pay McAllister weekly compensation as per the stipulated schedule, along with reasonable and necessary section 60 expenses and costs associated with the appeal. The decision underscored the importance of accurately considering all relevant evidence and providing clear justification for the findings in workers' compensation cases.

Orders