Mistral Plantations Pty Ltd v McIntyre - [2005] NSWWCCPD 65

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mistral Plantations Pty Ltd v McIntyre [2005] NSWWCCPD 65
APPELLANT:  Mistral Plantations Pty Ltd
RESPONDENT:  Patricia McIntyre
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC18995-03
DATE OF ARBITRATOR’S DECISION:          2 June 2004
DATE OF APPEAL DECISION:  13 July 2005
SUBJECT MATTER OF DECISION:                Two separate unrelated injuries resulting in partial incapacity
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: In-House Legal Department, QBE Workers Compensation (NSW) Ltd
Respondent: Lee Sames Egan, Solicitors

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 2 June 2004, is revoked and the following decision is made in its place.
(1)   The Appellant, Mistral Plantations Pty Ltd, is to pay the Respondent, Ms McInytre, weekly compensation for partial incapacity arising from the injury to her back and leg, commencing from 25 October 1999, the deemed date of injury.
(2)   The matter is remitted to the Arbitrator at first instance to determine the rate of weekly compensation payable in accordance with this decision and the provisions of the Workers Compensation Act 1987.
(3)   No order is made as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 25 June 2004, Mistral Plantations Pty Ltd (‘Mistral’), the Appellant, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) in respect of a decision dated 2 June 2004.

The Respondent to the Appeal is Patricia McIntyre.

Ms McIntyre was born in Brisbane on 1 March 1951 and is aged 54. After having three children, she remained at home until the youngest was aged about 2, in 1983. From then until 1994, she worked in a bakery packing bread rolls. However, from April 1991, she also worked casually for Mistral as a nut picker on its macadamia plantation during the season from about April to October each year. As a result, from 1991 until 1994, her work at the bakery was on the night shift from about 11pm to about 3am five days a week. Then from July 1997, Ms McIntyre also worked casually during the season for Agrimac International Enterprises Pty Ltd (‘Agrimac’), a macadamia processing and export facility, sorting macadamia nuts during processing. While working for both Mistral and Agrimac, she worked for Mistral from 6.30am until 2.30pm, finishing 30 minutes earlier than the usual 3pm finishing time, in order to start her shift at Agrimac at 3pm where she worked until 8pm.

Ms McIntyre’s work for Mistral mainly involved picking up nuts left on the ground by the mechanical harvester, putting them into a bucket, and carrrying the bucket to and emptying it into a large orange box called a lug. The bucket of nuts could be quite heavy, weighing up to about 20 kilograms. The farm hands collected the lugs and took them to the dehusking and sorting shed.

Ms McIntyre’s evidence is that by November 1998, she was experiencing increasing low back pain…

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: [2005] NSWWCCPD 65
Decision Date: 13 July 2005

CaseChat Overview and Summary

Mistral Plantations Pty Ltd appealed against a decision of the Workers Compensation Commission made by an Arbitrator, in which the Arbitrator found Patricia McIntyre to be totally incapacitated for work as a result of two separate injuries sustained in the course of her employment. The Arbitrator found that Ms McIntyre’s back and leg injury, which arose out of and in the course of her employment with Mistral, was the second injury she received during the course of her employment. The first injury was a frank injury to her left shoulder and neck. The Arbitrator awarded Ms McIntyre weekly compensation for her total incapacity for work from 23 July 1999. Mistral submitted that Ms McIntyre was not entitled to a second payment of weekly compensation as she was totally incapacitated for work as a result of the injury to her back and leg, and that Ms McIntyre had already been paid her full entitlement at the maximum rates applicable. Alternatively, Mistral submitted that if Ms McIntyre was to be found partially incapacitated for work as a result of the injury to her back and leg, then Mistral should be credited for the weekly compensation already paid to Ms McIntyre in respect of her shoulder and neck injury. Mistral submitted that no adequate reasons had been given for the Arbitrator’s decision and that the Arbitrator overlooked the real issues that were raised by the parties. Mistral submitted that, in any event, Ms McIntyre was not entitled to be in a better financial position than she would have been had she not been injured. In response, Ms McIntyre submitted that the overwhelming balance of the medical evidence supported the contention that she was partially incapacitated as a result of her shoulder and neck injury. The Appealing party submitted that no such payments had been made to Ms McIntyre in respect of the injury to her back and leg.The Acting Deputy President concluded that the Arbitrator had erred in finding that Ms McIntyre was totally incapacitated for work as a result of her back and leg injury. The Acting Deputy President concluded that the medical evidence, while establishing that Ms McIntyre was not fit for her pre-injury employment with Mistral, indicated that she may be capable of suitable light work. The Acting Deputy President concluded that the appropriate course was to remit the matter to the Arbitrator to determine the weekly compensation payable to Ms McIntyre in respect of the partial incapacity arising from the injury to her back and leg. The Acting Deputy President revoked the decision of the Arbitrator and remitted the matter to the Arbitrator to determine the weekly compensation payable in accordance with the Workers Compensation Act 1987.

Orders