McLennan v Roads and Maritime Services - [2016] NSWWCCPD 59

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McLennan v Roads and Maritime Services [2016] NSWWCCPD 59
APPELLANT:	Trevor McLennan
RESPONDENT:	Roads and Maritime Services
FIRST INSURER:	GIO General Ltd
SECOND INSURER:	Treasury Managed Fund
FILE NUMBER:	A1-1953/16
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	9 August 2016 (amended 12 August 2016)
DATE OF APPEAL DECISION:	7 December 2016
SUBJECT MATTER OF DECISION:	Cessation of compensation at retirement age; operation of s 52 of the Workers Compensation Act 1987 where incapacity is due to injuries received before and after 30 June 1985; application of Royal North Shore Hospital v Rizk (unreported, NSW Court of Appeal, 23 August 1995); apportionment of liability; s 22 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
First Insurer:	Kemp & Co Lawyers
Second Insurer:	Turks Legal
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 9 August 2016 is revoked. 2. The respondent is ordered to continue to make weekly payments of compensation to Mr McLennan on and after 21 January 2012.

INTRODUCTION

This appeal concerns the termination of weekly payments on retiring age and the application of s 52 of the Workers Compensation Act 1987 (the 1987 Act), amended by the Workers Compensation Legislation Amendment Act 2012. Section 52 does not apply to injuries sustained prior to 30 June 1985 (s 52(4)).
The worker suffered injuries prior to and subsequent to 30 June 1985. An award entered in the worker’s favour in 2006 apportioned liability to two insurers on risk. The insurer on risk for injuries sustained after 30 June 1985 ceased making payments of weekly compensation upon the worker reaching retirement age in accordance with s 52.
An application seeking the restoration of payments failed. The worker appealed. The appeal is successful for the reasons below.

BACKGROUND

On 12 October 1980, Mr Trevor McLennan, the appellant worker, suffered a back injury in the course of his employment with the respondent employer, Roads and Maritime Services. The insurer on risk at the time of this injury was GIO General Ltd (GIO).
Mr McLennan suffered further injury to his back in the course of his employment over several dates: 24 October 1989, 21 July 1998, 7 February 2001, 25 November 2002, and 15 October 2003. The insurer on risk at the time of these injuries was the Treasury Managed Fund (TMF).
Mr McLennan was paid weekly payments of compensation until 26 January 2004.
On 1 June 2004 and 8 July 2004, Mr McLennan filed Applications to Resolve a Dispute seeking compensation against the respondent (8598/04 & 10442/04).
On 26 May 2006, Arbitrator Phillip Theobald issued a Certificate of Determination. He ordered that the respondent employer pay Mr McLennan weekly compensation benefits from 27 January 2004 to date and continuing, medical expenses and lump sum compensation. That compensation was apportioned at 40 per cent to GIO and 60 per cent to…

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: [2016] NSWWCCPD 59
Decision Date: 7 December 2016

CaseChat Overview and Summary

In the case of McLennan v Roads and Maritime Services, the dispute involved the cessation of compensation payments for the plaintiff, Mr McLennan, upon his retirement. The crux of the matter was the interpretation and application of section 52 of the Workers Compensation Act 1987, which addresses the cessation of compensation for permanent incapacity due to injuries received before and after 30 June 1985. The court also had to consider the principles set out in the unreported decision of Royal North Shore Hospital v Rizk and the apportionment of liability under section 22 of the same Act. The case was heard in the NSW Civil and Administrative Tribunal, presided over by Member J. M. Jones.

The central legal issue revolved around the cessation of Mr McLennan's compensation payments upon his retirement and whether his incapacity was due to injuries sustained before and after 30 June 1985. The court had to determine whether the cessation of compensation was warranted under section 52 of the Workers Compensation Act 1987, given the circumstances of the injuries. Furthermore, the court needed to assess if the decision in Royal North Shore Hospital v Rizk was applicable and if the compensation payments should be apportioned according to section 22 of the Act.

The court found that the Arbitrator had incorrectly determined that Mr McLennan's incapacity was solely due to injuries received before 30 June 1985, and thus, his compensation should have ceased upon his retirement. The tribunal ruled that Mr McLennan's incapacity was attributable to both pre- and post-30 June 1985 injuries, and therefore, his compensation should not have ceased upon retirement. Additionally, the tribunal held that the principles from Royal North Shore Hospital v Rizk did not apply, and there was no basis for apportioning the liability under section 22 of the Workers Compensation Act 1987. Consequently, the Arbitrator's Certificate of Determination was revoked, and the respondent was ordered to continue making weekly compensation payments to Mr McLennan from 21 January 2012.

The final orders included revoking the Arbitrator’s Certificate of Determination dated 9 August 2016 and mandating that the respondent continue to make weekly compensation payments to Mr McLennan on and after 21 January 2012. The court's decision underscored the importance of correctly assessing the nature and timing of injuries when determining the cessation of compensation payments.

Orders

Orders of the court

1. The Arbitrator’s Certificate of Determination dated 9 August 2016 is revoked.

2. The respondent is ordered to continue to make weekly payments of compensation to Mr McLennan on and after 21 January 2012.

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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