Mitchell v Fox Studios Australia Pty Limited - [2006] NSWWCCPD 142

WORKERS COMPENSATION COMMISSION

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

CITATION:Mitchell v Fox Studios Australia Pty Limited [2006] NSWWCCPD 142

APPELLANT: Donald Barry Mitchell

RESPONDENT: Fox Studios Australia Pty Limited

INSURER:QBE Workers Compensation ( NSW) Limited

FILE NUMBER:  WCC16424-04
DATE OF ARBITRATOR’S DECISION:          26 July 2005
DATE OF APPEAL DECISION:  7 July 2006
SUBJECT MATTER OF DECISION: Whether individual impairments/losses can be aggregated to permit an entitlement to benefits pursuant to section 67 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Proctor Willaws
Respondent: McCulloch & Buggy

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 26 July 2005 is revoked and the following decision made in its place:

(a) The Respondent pay to the Applicant as lump sum compensation under section 66 of the Workers Compensation Act 1987, $21,250.00 in respect of permanent loss of efficient use or impairment in respect of the date of injury of 25 July 2001, as set out in the ‘Medical Assessment Certificate’ of Dr James G
Bodel (‘AMS’) issued by the Commission, as follows:

·Neck  0%  $NIL
·Back  10%  $6000.00
·Right arm at or above the elbow        5%  $4000.00
·Left arm at or above the elbow          10%  $7500.00
·Right leg at or above the knee  5%  $3750.00
·Left leg at or above the knee             0%  $NIL

(b) That the Respondent pay to the Applicant as lump sum compensation pursuant to section 67 of the Workers Compensation Act 1987 the sum of $11,250.00
(c) That the Respondent pay the Applicant’s costs as agreed or assessed.

Fox Studios is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

Donald Barry Mitchell (‘Mr Mitchell’) was employed by Fox Studios Australia Pty Limited (‘Fox Studios’) as a hydraulic technician. On 25 July 2001 whilst at work, he tripped on some cabling and fell. As a consequence, he claimed he sustained injuries to his neck, back, both legs and both arms.

His claim for permanent impairment/pain and suffering compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) was referred to an ‘Approved Medical Specialist’, Dr Bodel, who issued a ‘Medical Assessment Certificate’ (‘MAC’) after examining Mr Mitchell on 30 March 2005. Dr Bodel certified Mr Mitchell as having the following losses/impairments as a result of the injury on 25 July 2001:

·Neck   0%
·Back   10%
·Right arm at or above the elbow   5%
·Left arm at or above the elbow   10%
·Right leg at or above the knee   5%
·Left leg at or above the knee   0%

No proportion of those losses or impairments was attributed to any pre-existing injury, abnormality or condition.

On 8 July 2005, the parties attended a conciliation/arbitration hearing. The principle issue in dispute was whether or not Mr Mitchell’s degree of permanent impairment/loss as assessed by Dr Bodel satisfied the threshold requirements of section 67 of the 1987 Act such as to entitle him…

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 142
Decision Date: 7 July 2006

CaseChat Overview and Summary

In the case of Mitchell v Fox Studios Australia Pty Limited, the applicant, Donald Barry Mitchell, sought to appeal a decision by the Workers Compensation Commission which had determined that he was not entitled to compensation for pain and suffering under section 67 of the Workers Compensation Act 1987. Mitchell had suffered injuries to his neck, back, and both arms and legs in a fall at work on 25 July 2001. The Arbitrator had found that the individual impairments/losses could not be aggregated to bring them above the threshold amount of $10,000.00 for the purpose of section 67 of the Workers Compensation Act 1987. The Arbitrator's determination was based on the interpretation that each of the losses must result from the same injury, and that the losses were not sufficient to entitle Mitchell to compensation under section 67. The Acting Deputy President, Deborah Moore, considered the legal issues in dispute and found that the Arbitrator had erred in law in his interpretation of section 67. The Acting Deputy President held that the significant words in section 67 were the entitlement to compensation “… for pain and suffering resulting from (my emphasis) the loss or all those losses.” The Acting Deputy President concluded that the more appropriate and commonsense approach was that described in Bates’ case: What has arisen as a consequence of the fall? The Acting Deputy President found that Mr Mitchell’s “losses” arose as a consequence of the fall. The Acting Deputy President revoked the Arbitrator's decision and made a new decision in its place, awarding Mitchell compensation for pain and suffering under section 67 of the Workers Compensation Act 1987 in the sum of $11,250.00. The costs of the appeal were to be paid by Fox Studios.

Orders