O'Neill v Star City Pty Ltd - [2006] NSWWCCPD 259

WORKERS COMPENSATION COMMISSION

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

CITATION:O’Neill v Star City Pty Ltd [2006] NSWWCCPD 259
APPELLANT:  Terrence O’Neill
RESPONDENT:  Star City Pty Ltd
INSURER:Self Insured
FILE NUMBER:  WCC3746-05
DATE OF ARBITRATOR’S DECISION:          7 March 2006
DATE OF APPEAL DECISION:  4 October 2006
SUBJECT MATTER OF DECISION: Procedural fairness; compensation for pain and suffering under section 67 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Jones Staff & Co
Respondent:   Cutler Hughes & Harris

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s decision of 7 March 2006 is revoked and the following order made:

“1.The Respondent is to pay the Applicant compensation in the sum of $12,500.00 in respect of pain and suffering pursuant to section 67 of the Workers Compensation Act 1987, representing 25% of a most extreme case.”
Paragraph two of the Arbitrator’s decision of 7 March 2006 is confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 4 April 2006 Terrence O’Neill (‘the Appellant Worker/Mr O’Neill’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 March 2006.

The Respondent to the Appeal is Star City Pty Ltd (‘the Respondent Employer/Star City’).

Mr O’Neill was born on 12 September 1944 and is now 62 years old. He started work with Star City as a part time floor attendant in about June 2000. On 13 September 2001 he fell down some stairs at work and injured his left shoulder/arm and his left knee/leg.

His Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 10 March 2005. In it he claimed lump sum compensation in respect of a permanent loss of efficient use of his left non dominant arm at or above elbow and his left leg at or above the knee. He also claimed compensation in the sum of $25,000.00 for pain and suffering under section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

His claim was referred to an Approved Medical Specialist (‘AMS’) for assessment under the Table of Disabilities applicable for injuries received before 1 January 2002. That assessment took place on 11 July 2005 and a Medical Assessment Certificate (‘MAC’) was issued on 19 July 2005 assessing Mr O’Neill to have a 10% permanent loss of efficient use of his left arm at or above the elbow and a 10% permanent loss of efficient use of his left leg at or above the knee as a result of his injury on 13 September 2001.

Star City unsuccessfully attempted to appeal against the MAC’s findings, but ultimately agreed to pay the section 66 compensation in the amounts certified by the AMS.

The matter was listed for teleconference on 6 February 2006 when negotiations took place in an attempt to resolve the Appellant Worker’s outstanding claim for compensation…

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 259
Decision Date: 4 October 2006

CaseChat Overview and Summary

The appeal in O’Neill v Star City Pty Ltd [2006] NSWWCCPD 259 was brought by Terrence O’Neill against a decision made by the Workers Compensation Commission’s Arbitrator. The appeal concerned the quantum of compensation awarded under section 67 of the Workers Compensation Act 1987 for pain and suffering. The Arbitrator had awarded Mr O’Neill $7,500.00. Mr O’Neill sought an increase to $12,500.00.

The issues in dispute were whether the Arbitrator had failed to act in accordance with equity and good conscience, whether the Arbitrator had applied the wrong legislation, whether the determination was unreasonable or plainly unjust, and whether the Arbitrator had failed to take into account relevant considerations.

The appeal was allowed on the basis that the Arbitrator had breached the principles of procedural fairness. The Arbitrator had indicated at a teleconference that the compensation for pain and suffering should be between $10,000 and $15,000. However, the Arbitrator then awarded only $7,500.00 without giving the parties any opportunity to be heard or to make further submissions. This was a breach of procedural fairness. The appeal was allowed and the Arbitrator’s decision was revoked. The appeal determination ordered that the Respondent pay $12,500.00 in compensation for pain and suffering.

Orders