One Steel Reinforcing Pty Ltd v Sutton

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Appeal to the Court of Appeal dismissed – Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
CITATION:		One Steel Reinforcing Pty Ltd v Sutton [2011] NSWWCCPD 34
APPELLANT:		One Steel Reinforcing Pty Ltd
FIRST RESPONDENT: SECOND RESPONDENT:		Barry James Sutton ECA Personnel Pty Ltd t/as Action Workforce
APPELLANT’S INSURER:		One Steel Limited
SECOND RESPONDENT’S INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-8320/10
ARBITRATOR:	Mr Brett Batchelor
DATE OF ARBITRATOR’S DECISION:		8 March 2011
DATE OF APPEAL DECISION:		24 June 2011
SUBJECT MATTER OF DECISION:		Causation of injury; weight of expert medical evidence; challenge to exercise of Arbitrator’s discretion
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
First Respondent:	Koutzoumis Lawyers
Second Respondent:	Bartier Perry Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination made in Certificate of Determination dated 8 March 2011 is confirmed. The appellant is to pay Mr Sutton’s costs of the appeal.  No order as to the second respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mr Barry Sutton was employed by One Steel Reinforcing Pty Ltd (the appellant) as a machine operator between June 2004 and April 2008. Shortly after termination of that employment he commenced work as a machine operator with ECA Personnel Pty Ltd (the second respondent). Mr Sutton ceased that employment in September 2008 by reason of incapacitating pain in his back and right leg.

2. Mr Sutton alleged that the “nature and conditions” of his employment with both the appellant and the second respondent had caused injury to his back and associated sciatic pain. Claims in respect of compensation benefits were made on his behalf against both the appellant and the second respondent. Each of the employers denied liability.

3. The dispute concerning Mr Sutton’s entitlement to compensation benefits came before Arbitrator Brett Batchelor on 11 February 2011 at which time the matter proceeded to arbitration. The Arbitrator reserved his decision and a Certificate of Determination issued on 8 March 2011.

THE DECISION UNDER REVIEW

1. The Certificate of Determination dated 8 March 2011 records the Arbitrator’s orders as follows:

   “1.     The applicant suffered injury to his lumbar spine arising out of or in the course of his employment with the first respondent.

   2.     The applicant’s employment with the first respondent was a substantial contributing factor to such injury.

   3.     As a result of the injury the applicant was totally incapacitated for work from 16 September 2008 until 28 February 2009 and partially incapacitated for work from 1 March 2009 to date.

   4.     The first respondent is ordered to pay weekly compensation to the applicant for such periods of total and partial incapacity as follows:

   (a)16/09/08 – 28/02/09 – s 36 $858.69 per week;

   (b)01/03/09 – 31/03/09 – s 40 $542.10 per week;

   (c)01/04/09 – 30/09/09 – s 40 $553.10 per week;

   (d)01/10/09 – 31/03/10 – s 40 $563.00 per week;

   (e)01/04/10 – 30/09/10 – s 40 $573.40 per…