PCR Plaster Setting Pty Ltd [No.2] v De Brito - [2008] NSWWCCPD 7

WORKERS COMPENSATION COMMISSION

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

CITATION:PCR Plaster Setting Pty Ltd [No.2] v De Brito [2008] NSWWCCPD 7
APPELLANT:  PCR Plaster Setting Pty Ltd
RESPONDENT:  Manuel De Brito
INSURER:Employers Mutual NSW Ltd
FILE NUMBER:  WCC15597-06
DATE OF ARBITRATOR’S DECISION:          24 September 2007
DATE OF APPEAL DECISION:  18 January 2008
SUBJECT MATTER OF DECISION: Whether a notice issued pursuant to section 54 of the Workplace Injury Management and Workers Compensation Act 1998 was properly served; adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      Edwards Michael Lawyers
Respondent:   Joseph G Capogreco & Associates, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 September 2007 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 16 October 2007, PCR Plaster Setting Pty Ltd (‘PCR’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 24 September 2007. The Respondent to the appeal is Manuel De Brito. PCR’s workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’).

Mr De Brito was born in Portugal on 27 July 1956 and is aged 51. On 2 September 2000, while working with PCR on a building site at Lidcombe, he injured his left leg when a circular saw he was operating slipped and cut his left thigh.

On 4 February 2004, Judge O’Toole of the District Court of NSW, exercising the residual jurisdiction of the Compensation Court, made an award in favour of Mr De Brito ordering: (1) the payment of $7,500 compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of a 10% permanent loss of efficient use of the left leg at or above the knee; (2) the payment of weekly compensation of $150 pursuant to section 40 of the 1987 Act in respect of partial incapacity from 12 September 2002 to date and continuing; and (3) the payment of medical and related expenses pursuant to section 60 of the 1987 Act. Her Honour also made a determination pursuant to section 53 of the 1987 Act that Mr De Brito’s “incapacity resulting from his employment is likely to be of a permanent nature”, and he was therefore entitled to receive weekly compensation notwithstanding that he had left Australia to live in Portugal.

On 20 April 2005, EMI served a Notice of Discontinuance of weekly compensation payments on Mr De Brito, pursuant to section 54 of the 1987 Act, addressed to 19 D’Arcy Avenue, Lidcombe, stating two grounds for discontinuing payment of weekly compensation from 1 June 2005: (1) that Mr De Brito had received weekly compensation for partial incapacity for more than 104 weeks, and (2) that he was not currently suitably employed nor seeking suitable employment.

On 3 October 2006,…

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.

Keep reading for free

Create a free CaseChat account to read PCR Plaster Setting Pty Ltd [No.2] v De Brito and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWWCCPD 7
Decision Date: 18 January 2008

CaseChat Overview and Summary

PCR Plaster Setting Pty Ltd sought leave to appeal a decision of an arbitrator regarding whether a notice issued under section 54 of the Workers Compensation Act 1987 was properly served, and if the reasons given were adequate. Manuel De Brito, who had been awarded compensation, sought reinstatement of weekly payments. The insurer, Employers Mutual NSW Ltd, argued the notice was validly served and the arbitrator's reasons were inadequate. The Acting Deputy President found the arbitrator's decision was flawed as it did not properly address the issue of notice service and did not provide adequate reasons. The Acting Deputy President concluded that the notice may have been properly served given the circumstances, but the lack of clear evidence made it impossible to determine definitively. Consequently, the decision was revoked, and the matter was remitted to a different arbitrator for redetermination. The Acting Deputy President also found the reasons provided by the arbitrator were inadequate, as they did not sufficiently explain the understanding of the applicable law or the reasoning process. As a result, the decision was revoked and the matter was to be redetermined afresh. No order was made regarding the costs of the appeal.

Orders