NCMC Butchering Pty Ltd v Anderson - [2006] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:NCMC Butchering Pty Ltd v Anderson and others [2006] NSWWCCPD 41
APPELLANT:  NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd)
FIRST RESPONDENT:  Darren Anderson
SECOND RESPONDENT:  Northern Co-Operative Meat Company Ltd
THIRD RESPONDENT:  NCMC Butchering Pty Ltd (in the interests of both CGU Workers Compensation (NSW) Ltd and Allianz Australia Workers Compensation (NSW) Ltd)
INSURERS:
(1) CGU Workers Compensation (NSW) Ltd (at risk from 1993 to 28 September 1997 in respect of Northern Co-Operative Meat Company Ltd)
(2) CGU Workers Compensation (NSW) Ltd (at risk from 29 September 1997 to 29 September 1999 in respect of NCMC Butchering Pty Ltd)
(3) Allianz Australia Workers Compensation (NSW) Ltd (at risk from 30 September 1999 to 31 January 2003 in respect of NCMC Butchering Pty Ltd)
(4) Self Insured Services Australia Pty Ltd (at risk from 1 February 2003 to date in respect of NCMC Butchering Pty Ltd)

FILE NUMBER:  WCC 12330-05
DATE OF ARBITRATOR’S DECISION:          22 November 2005
DATE OF APPEAL DECISION:  10 March 2006
SUBJECT MATTER OF DECISION: Deemed date of injury for claim for compensation for permanent impairment in respect of a disease: section 15(1)(a)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Eakin McCaffery Cox, Solicitors (for Self Insured Services Australia Pty Ltd)
First Respondent: Bourke Love McCartney Young, Solicitors (for Darren Anderson)

Second Respondent: Moray & Agnew, Solicitors (for CGU Workers Compensation (NSW) Ltd)
Third Respondent: Goldbergs, Lawyers (for Allianz Australia Workers Compensation (NSW) Ltd)

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 November 2005 is confirmed.

The Appellant, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd), is to pay the costs of the Respondents in this appeal.

BACKGROUND TO THE APPEAL

On 23 December 2005, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd, at risk from 1 February 2003 to date) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 22 November 2005.

The First Respondent to the appeal is Darren Anderson. Mr Anderson was born on 21 September 1971 and is aged 34. On 25 July 2005, he lodged an ‘Application to Resolve a Dispute’ with the Commission in respect of a claim for medical, hospital or related expenses, and compensation for permanent impairment and pain and suffering, for injuries to his left and right arms and left and right shoulders arising from the nature and conditions of his employment at the Casino Abattoir between 1 January 1995 and 2 December 2003. Mr Anderson was employed by the Northern Co-Operative Meat Company Ltd (‘the Northern Co-Op’) from approximately 1986 to 28 September 1997, and by NCMC Butchering Pty Ltd (‘NCMC’) from 29 September 1997 to date.

The workers compensation insurers involved in these proceedings are: (1) CGU…

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 41
Decision Date: 10 March 2006

CaseChat Overview and Summary

The appeal in the matter of NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd) v Anderson and others was heard by the Workers Compensation Commission, constituted by Acting Deputy President Robin Handley, on the basis of written submissions and relevant documents. The matter concerns the deemed date of injury for the purpose of compensation for permanent impairment in respect of a disease, specifically, a claim for workers compensation by Mr Darren Anderson in respect of injuries to his shoulders. The issue was whether the deemed date of injury for Mr Anderson's right shoulder was February 1999, as submitted by Self Insured Services Australia Pty Ltd (SISA), or 7 February 2005, as submitted by Allianz and CGU Workers Compensation (NSW) Ltd.

The court considered the relevant provisions of the Workers Compensation Act 1987 and the submissions of the parties. SISA argued that the deemed date of injury should be the date when Mr Anderson made a claim for compensation in respect of the right shoulder in February 1999. In contrast, Allianz and CGU submitted that the deemed date of injury should be the date Mr Anderson made a claim for compensation for permanent impairment, which was 7 February 2005. The Arbitrator had determined that the deemed date of injury was 7 February 2005, in line with the submissions by Allianz and CGU.

The court discussed the relevant statutory provisions and relevant case law, specifically citing the NSW Court of Appeal decisions in Alto Ford Pty Ltd v Antaw and Stone v Stannard Brothers Launch Services Pty Ltd. These cases established that different dates can be determined for incapacity and impairment injuries, with the latter date being the date of claim. The court found that the Arbitrator correctly applied the principles set forth in Alto Ford and Stone, and therefore the deemed date of injury for Mr Anderson's right shoulder was indeed 7 February 2005.

The appeal was dismissed, and the decision of the Arbitrator dated 22 November 2005 was confirmed. The court ordered that the Appellant, NCMC Butchering Pty Ltd (in the interests of Self Insured Services Australia Pty Ltd), was to pay the costs of the Respondents in this appeal.

Orders