NSW Rural Fire Service v Sargent

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		NSW Rural Fire Service v Sargent [2008] NSWWCCPD 68
APPELLANT:		NSW Rural Fire Service
RESPONDENT:		Raylene Sargent
INSURER:		Allianz Australia Insurance Limited
FILE NUMBER:		WCC9648-07
DATE OF ARBITRATOR’S DECISION:		6 March 2008
DATE OF APPEAL DECISION:		30 June 2008
SUBJECT MATTER OF DECISION:		Section 9A of the Workers Compensation Act 1987; substantial contributing factor; whether Arbitrator applied the correct test.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Hicksons Lawyers
Respondent:		Marsdens Law Group
ORDERS MADE ON APPEAL:		The Arbitrator’s determination dated 6 March 2008 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Raylene Sargent (‘the Respondent Worker/Ms Sargent’) started work for the NSW Rural Fire Service (‘the Appellant Employer/the Fire Service’) in July 2001.  In March 2006, she was transferred to the position of Aviation Business Officer at Homebush Bay where her duties involved processing invoices and entering information into the database.  She developed pain in her right shoulder in December 2006 and then in her left shoulder in late January or early February 2007.  After various periods on selected duties, she ceased work on or about 3 September 2007 and has not returned.  The Fire Service initially accepted the claim, but ultimately denied liability in a notice dated 8 August 2007.

1. In an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 17 December 2007, Ms Sargent claimed weekly compensation from 3 September 2007 to date and continuing together with hospital and medical expenses. 

1. A Commission Arbitrator heard Ms Sargent’s claim in an arbitration on 26 February 2008 and found in her favour in a reserved decision delivered on 6 March 2008.  By an appeal filed on 3 April 2008, the Fire Service seeks leave to appeal the Arbitrator’s decision.  The essential ground of appeal is that the Arbitrator erred in finding that Ms Sargent’s employment had been a substantial contributing factor to her injury or injuries.

LEAVE TO APPEAL

Monetary Threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

1. It is not disputed that the thresholds in section 352(2) are satisfied.

Time

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. I grant leave to appeal.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Ms Sargent argues that the appeal cannot be dealt with on the papers because the Fire Service has not properly identified the grounds of appeal on which it relies and its submissions are “wide ranging and deceptive…