Morall's Bakery Pty Ltd v Lewis - [2006] NSWWCCPD 210

WORKERS COMPENSATION COMMISSION

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

CITATION:Morrall’s Bakery Pty Ltd v Lewis & Anor [2006] NSWWCCPD 210
APPELLANT:  Morrall’s Bakery Pty Ltd
FIRST RESPONDENT:  Rhonda Joy Lewis
SECOND RESPONDENT:  Bourke District Hospital
INSURERS:GIO General Ltd
GIO Workers Compensation (NSW) Ltd
GIO Treasury Managed Fund

FILE NUMBER:  WCC 18526-03
DATE OF ARBITRATOR’S DECISION:          14 March 2005
DATE OF APPEAL DECISION:  30 August 2006
SUBJECT MATTER OF DECISION: Aggravation of disease: sections 4, 16 and 9A of the Workers Compensation Act 1987; incapacity.
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION:  Appellant:                  Edwards Michael,
Lawyers
First Respondent:      McCabe Partners,
Lawyers

Second Respondent: Rankin Nathan,
Lawyers;
Hunt & Hunt, Lawyers

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 14 March 2005 is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.

2. The second respondent, Bourke District Hospital, is to pay the costs of the appellant and first respondent of the appeal.

BACKGROUND TO THE APPEAL

Rhonda Joy Lewis (‘the worker’) was employed by Bourke District Hospital (‘the hospital’) for a considerable period from, it appears, 1977 up to October 1993. She was employed in the laundry of the hospital initially and later in the kitchen doing cooking, meal serving and cleaning. During that period she was admitted to the hospital as a patient on a number of occasions suffering from backache and on certain of those admissions was treated by traction. It is not clear that any claim for compensation was made by her in respect of any of the periods of incapacity which she had from 1984 to 1993.
The insurance situation of the hospital is somewhat complicated. It is stated in the Application to Resolve a Dispute lodged on 26 November 2003 that the first insurer was GIO General Ltd, the second GIO Workers Compensation (NSW) Ltd, and the third GIO Treasury Managed Fund. The first insurer was, it appears, on risk up to 30 June 1987, the second up to 30 June 1989, and the third thereafter. Replies were filed on behalf of the first and third insurers only, however, I think that nothing turns on this. It is puzzling that in the Reply filed on behalf of the first insurer, that insurer is stated to be GIO Workers Compensation (NSW) Ltd.
After leaving the employ of the hospital the worker obtained a number of casual positions for relatively short periods until she began work with Morrall’s Bakery Pty Ltd (‘the bakery’) on 3 September 1998 and worked in the bakery until 5 January 1999. (It should be noted that although the Arbitrator on 22 March 2004 gave a direction that the name of the appellant be changed to Morrall’s Bakery Pty Ltd instead of Alan Morrall trading as Morrall’s Bakery & Cafe, all documents filed thereafter still refer to Alan Morrall. There is a company search attached to the Application to Resolve a…

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 210
Decision Date: 30 August 2006

CaseChat Overview and Summary

The appeal was brought by Morrall's Bakery Pty Ltd against a decision of the Workers Compensation Commission that it was liable to pay Rhonda Joy Lewis compensation for aggravation of a degenerative condition of her back which was longstanding and constitutional in nature. The Arbitrator found that the condition had been aggravated by her work at both the hospital and the bakery and ordered the bakery to pay all the compensation awarded, including weekly compensation going back to 15 October 1993. The bakery sought leave to appeal by application lodged on 15 March 2005. The appeal was allowed and the decision of the Arbitrator revoked. The matter was remitted to the Arbitrator for determination in accordance with these reasons. The second respondent to the appeal, Bourke District Hospital, was ordered to pay the costs of the appellant and the respondent worker.

Orders