PCR Plaster Setting Pty Ltd v De Brito - [2007] NSWWCCPD 159

WORKERS COMPENSATION COMMISSION

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

CITATION:PCR Plaster Setting Pty Limited v De Brito [2007] NSWWCCPD 159

APPELLANT: PCR Plaster Setting Pty Limited

RESPONDENT: Manuel De Brito

INSURER:Employers Mutual Indemnity (Workers Compensation) Limited

FILE NUMBER:  WCC15597-06
DATE OF ARBITRATOR’S DECISION:          23 February 2007
DATE OF APPEAL DECISION:  18 July 2007
SUBJECT MATTER OF DECISION: Application of section 52A of the Workers Compensation Act 1987 where weekly payments made pursuant to section 53 of the 1987 Act; sections 54 and 55 of the 1987 Act.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Edwards Michael Moroney
Respondent: Joseph Capogreco & Associates

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 23 February 2007 is revoked.

2.The matter is remitted to another Arbitrator for redetermination in accordance with these reasons.
3.No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 22 March 2007 PCR Plaster Setting Pty Limited (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 23 February 2007.

The Respondent to the Appeal is Manuel De Brito (‘the Respondent’).

The Respondent is presently 50 years of age. On 2 September 2000, whilst working for the Appellant at a building site at Lidcombe, he sustained an injury to his left leg when a circular saw he was operating slipped and cut his left thigh.

On 4 February 2004, the Respondent received an award from the District Court (exercising the residual jurisdiction of the Compensation Court) pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) at the rate of $150.00 per week from 12 September 2002 to date and continuing.

In the same proceedings, the court determined that the Respondent’s incapacity was likely to be of a permanent nature and that, in accordance with the provisions of section 53 of the 1987 Act, he was entitled to receive the award notwithstanding that he had left Australia and returned to his native Portugal.

On 20 April 2005, the Appellant, by its insurer, Employers Mutual Indemnity (Workers Compensation) Limited (‘EMI’) served on the Respondent a Notice pursuant to section 54 of the 1987 Act advising him that the award of weekly payments would be discontinued as from 1 June 2005 pursuant to section 52A of the 1987 Act on the grounds that weekly payments of compensation had been made in excess of 104 weeks and that the Respondent was not suitably employed nor seeking suitable employment at the time the Section 54 Notice was given.

On 3 October 2006 the Respondent filed an ‘Application to Resolve a Dispute’ in the Commission seeking reinstatement of weekly payments.

The parties attended a conciliation/arbitration hearing on 1 February 2007. On 23 February 2007 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:

“1.That…

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.

Continue reading PCR Plaster Setting Pty Ltd v De Brito

Details

AGLC: PCR Plaster Setting Pty Ltd v De Brito [2007] NSWWCCPD 159
Case: [2007] NSWWCCPD 159
Decision Date: 18 July 2007

CaseChat Overview and Summary

PCR Plaster Setting Pty Limited appealed against an arbitrator's decision in the Workers Compensation Commission regarding the reinstatement of weekly compensation payments to Manuel De Brito. The Arbitrator had ruled that the insurer was precluded from terminating the payments under section 52A of the Workers Compensation Act 1987 (1987 Act) in circumstances where payments were made pursuant to an award. The Appellant argued that the Arbitrator erred in concluding that section 52A did not apply to an award and that the insurer should have sought a review under section 55 of the 1987 Act instead. The Appellant also contended that the Arbitrator failed to provide adequate reasons for her decision.

The appeal raised the issue of whether section 52A of the 1987 Act applies to a worker receiving payment pursuant to a determination under section 53 of the 1987 Act. The Appellant submitted that there is nothing in section 53 to suggest that a worker becomes exempt from the operations of the legislation as a whole merely because they cease to reside in Australia. The Respondent conceded that the existence of an award does not preclude termination of payment pursuant to section 52A of the 1987 Act.

The Acting Deputy President found that the Arbitrator erred in her determination regarding the applicability of section 52A of the 1987 Act. The Arbitrator had failed to determine the issues raised by the parties and simply concluded that the Appellant should have sought a review pursuant to section 55 of the 1987 Act. The Acting Deputy President concluded that section 52A of the 1987 Act is applicable where an award of compensation exists and may be invoked where an award of compensation is being paid pursuant to the provisions of section 53 of the 1987 Act.

The Acting Deputy President also found that the Arbitrator failed to provide adequate reasons for her decision and had not considered detailed submissions made by counsel for the Appellant. The decision of the Arbitrator was revoked, and the matter was remitted to another Arbitrator for redetermination in accordance with the reasons provided. No order was made as to costs of the appeal.

Orders