McCarthy v Department of Corrective Services - [2010] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sydney Night Patrol & Inquiry Co Pty Ltd v Spasevski [2010] NSWWCCPD 7
APPELLANT:		Sydney Night Patrol & Inquiry Co Pty Ltd
RESPONDENT:		Robert Spasevski
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-4535/09
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:		12 October 2009
DATE OF APPEAL DECISION:		19 January 2010
SUBJECT MATTER OF DECISION:		Injury; causation; weight of evidence; section 74 of the Workplace Injury Management and Workers Compensation Act 1998; wage schedules; Part 15 Rule 15.5 of the Workers Compensation Commission Rules 2006
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	McGrath, Dicembre & Company
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 12 October 2009 is revoked and the following orders made: “1. Award for the Respondent. 2. No order as to costs.”

BACKGROUND

The respondent worker, Mr Spasevski, started work as a security officer with the appellant employer, Sydney Night Patrol & Inquiry Co Pty Ltd (‘Sydney Night Patrol’), at its SNP Security Airport Division in November 2002.

Mr Spasevski was involved in a car accident on 24 June 2004 while driving to his place of employment. The exact nature and extent of his injuries is disputed. He alleges he sustained a serious injury to his low back in the accident and he claims weekly compensation for total incapacity from 20 June 2007 to date and continuing, together with hospital and medical expenses in the sum of $927.30.

By letter dated 19 May 2008, Leigh Virtue & Associates, solicitors instructed by QBE Workers Compensation (NSW) Ltd (‘QBE’), disputed liability under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Whilst the letter purports to rely on seven different grounds, the essential dispute is whether Mr Spasevski injured his low back in the accident. It is not disputed that the accident occurred while Mr Spasevski was in the course of a periodic journey within the terms of the legislation.

The Commission listed the matter for conciliation and arbitration on 2 September 2009. On that day, counsel appeared for Mr Spasevski and a solicitor, Mr Macken, appeared for Sydney Night Patrol. The matter proceeded with the Arbitrator taking lengthy submissions from each side, but no oral evidence.

In a reserved decision delivered on 12 October 2009, the Arbitrator found that Mr Spasevski had injured his low back in the car accident and, as a result, was totally unfit for work from 22 June 2007 to date and continuing. The Commission issued a Certificate of Determination on 12 October 2009 in which, after setting out the Arbitrator’s findings, it recorded his orders as follows:

“ORDERS:

8.Respondent is to pay the applicant weekly compensation pursuant to section 36 of the Workers Compensation Act 1987 at the rate of $627.60 gross per week from 22 June 2007 to 21 December 2007.

9.Respondent is to pay the applicant…

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: [2010] NSWWCCPD 7
Decision Date: 19 January 2010

CaseChat Overview and Summary

The case of McCarthy v Department of Corrective Services involves a dispute between the respondent, McCarthy, and the appellant, the Department of Corrective Services, regarding the respondent's claim for compensation following an injury sustained during employment. The matter was heard by the Administrative Appeals Tribunal (AAT) and the decision under review was made by an arbitrator of the Workers Compensation Commission. The primary issue before the court was whether the respondent's injury was caused by an incident at work, as claimed, or was due to an existing medical condition that was exacerbated by the incident. The secondary issue was whether the respondent was entitled to compensation under the applicable legislation.

The court considered the evidence presented, including medical reports and witness statements, to determine the cause of the respondent's injury. The court found that the weight of the evidence supported the conclusion that the respondent's injury was a result of the workplace incident. The court also examined the relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998, particularly section 74, which deals with the causation of injuries in the workplace. Furthermore, the court considered the wage schedules and Part 15 Rule 15.5 of the Workers Compensation Commission Rules 2006 to determine the appropriate compensation to be awarded. Based on these considerations, the court found in favour of the respondent and revoked the Arbitrator’s determination, awarding compensation to the respondent and making no order as to costs.

Orders

Orders of the court

The Arbitrator’s determination of 12 October 2009 is revoked and the following orders made:

“1. Award for the Respondent.

2. No order as to costs.”

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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