O'Carroll Constructions Pty Ltd v Burgess - [2007] NSWWCCPD 224

WORKERS COMPENSATION COMMISSION

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

CITATION:O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224
APPELLANT:  O’Carroll Constructions Pty Ltd
RESPONDENT:  Adrian Barry Burgess
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC3702-07
DATE OF ARBITRATOR’S DECISION:          20 July 2007
DATE OF APPEAL DECISION:  13 November 2007
SUBJECT MATTER OF DECISION: Leave to appeal; section 57 of the Workplace Injury Management and Workers Compensation Act 1998; whether worker’s non-compliance with injury management plan was ‘unreasonable’.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Moray & Agnew
Respondent:   Marshall & Partners

ORDERS MADE ON APPEAL: Leave to appeal is refused.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Adrian Barry Burgess (‘the Respondent Worker/Mr Burgess’) was born on 27 September 1973 and is currently 34 years of age. On 15 January 2004 he injured his neck and right shoulder whilst working as an excavator operator with O’Carroll Constructions Pty Ltd (‘the Appellant Employer/O’Carroll’). Investigations revealed a right-sided C6/7 disc prolapse with nerve root compression. Surgery has been recommended but not undertaken.

Mr Burgess’ entitlement to lump sum compensation was settled on 4 October 2006 by agreement under section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) for a whole person impairment of 16% plus compensation for pain and suffering under section 67 of the 1987 Act.

It is not disputed that Mr Burgess is permanently unfit for his pre-injury duties as an excavator operator. As required by the legislation the Appellant Employer’s workers compensation insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), prepared an Injury Management Plan (‘the Management Plan’) to facilitate Mr Burgess’ return to suitable work. As part of that plan Mr Burgess had two job placements. First, as a trade’s assistant with a company that did subdivision work. That work required prolonged periods of extension and flexion of his neck and caused an increase in his right arm and neck pain resulting in him being unable to continue.

Second, having completed a “Certificate III” gym instructor’s course as part of his rehabilitation, Mr Burgess was placed with Viking Gym as part of a new Management Plan prepared by Linda Sheargold, QBE Connect Case Manager, on 5 December 2006 with the intention that he would be a gym instructor. The Management Plan required Mr Burgess to attend Viking Gym as part of a work trial between 26 February and 13 March 2007 and attend Castle Personnel for job placement in the same period, and a functional assessment on 13 March 2007.

Mr Burgess’ evidence is that the majority of his duties at Viking Gym involved labouring and maintenance work such as painting and repairing lighting and equipment. This work required him to extend his neck and caused an increase in his neck symptoms. After about three weeks Mr Burgess accepted a place in the Occupational Therapy Course at Newcastle University. On 20 February 2007 he…

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: [2007] NSWWCCPD 224
Decision Date: 13 November 2007

CaseChat Overview and Summary

In the case of O'Carroll Constructions Pty Ltd v Burgess, the appellant, O'Carroll Constructions Pty Ltd, sought leave to appeal a decision of the Workers Compensation Commission. The respondent, Adrian Barry Burgess, had sustained a workplace injury and was provided with an Injury Management Plan (IMP) by the insurer, QBE Workers Compensation (NSW) Limited. Mr Burgess failed to comply with the IMP and his weekly compensation payments were suspended. The Arbitrator subsequently determined that Mr Burgess' failure to comply with the IMP was not unreasonable and reinstated his weekly compensation payments.

The key issue in the appeal was whether the Arbitrator made errors of fact or discretion in determining that Mr Burgess' failure to comply with the IMP was reasonable. O'Carroll Constructions submitted that the Arbitrator's conclusions were erroneous, while Mr Burgess argued that the Arbitrator's decision was correct and disclosed no error. The Deputy President found that the Arbitrator had properly considered the relevant evidence and objectives of the legislation in determining that Mr Burgess' failure to comply with the IMP was reasonable. The Deputy President concluded that the appeal had no prospects of success and refused leave to appeal. The appellant was ordered to pay the costs of the appeal.

Orders