Legal Research
Cases
Pond v WorkCover

Pond v WorkCover

Case [1999] SASC 362 24 September 1999

Civil Litigation & Procedure

Type to search within this case.

POND V WORKCOVER
[1999] SASC 362
Full Court: Millhouse, Lander and Williams JJ

MILLHOUSE J. I agree, for the reasons about to be given by our brother Lander that the appeal be allowed. I agree with the orders he proposes.
I also agree with the remarks of our brother Williams.
LANDER J. This is an appeal pursuant to leave granted to appeal to this Court by a Judge of this Court on 15 January 1999 against an order of the Workers Compensation Appeal Tribunal made on 10 December 1998.
The appellant, who was a worker, claimed to have suffered two work related injuries, one to his neck and one to his back.
On 1 February 1996, the WorkCover Corporation (the Corporation) by its agent, MMI Workers Compensation (SA) Ltd, determined that the appellant was not entitled to a lump sum payment under s43 of the Workers Rehabilitation and Compensation Act 1986 (the Act) in relation to any permanent or residual disability relating to his upper back/neck which he asserted had been injured by strain on 29 January 1993.
On the same day the same agent of the Corporation determined that the appellant was not entitled to any lump sum entitlement for any lower thoracic back disability which was alleged to have been sustained on 16 January 1995.
On 12 February 1996 the appellant applied to a Review Officer for a review of those determinations.
Those decisions were subject to a review determination by Review Officer Fitzgerald on 7 April 1997. The worker, being dissatisfied by that review determination, appealed from the Review Officer’s decision to the Workers Compensation Appeal Tribunal. The appeal was allowed by Deputy President Cawthorne and the matter was referred back to the Review Panel for re-hearing.
In the re-hearing before a different Review Officer, Review Officer Russell, the appellant maintained that he had permanent residual disability in respect of both of those injuries and that he was entitled to a lump sum in respect of both.
On 4 June 1998 the Review Officer determined first that the worker had no permanent disability as a result of the thoracic spine disability. Secondly, she determined that the decision dated 1 February 1996 concerning the worker’s neck disability should be set aside and she determined that the appellant had a 12 per cent loss of full and efficient use of the neck and cervical spine resulting from the compensable disability suffered in January 1993. She calculated that lump sum compensation at $9,024.
The appellant appealed from that decision by notice of appeal dated 6 July 1998.
The decision which he claimed to appeal against was said to be a decision made by the Review Officer on 5 June 1998.
The grounds of the appeal are not important but the orders which the appellant sought included an order:
“2.That the determination of the Review Officer be set aside in so far as it determines the worker’s entitlements pursuant to Section 43 for thoracic spine disability and incapacity for work…

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 Pond v WorkCover

Details

AGLC: Pond v WorkCover [1999] SASC 362
Case: [1999] SASC 362
Decision Date: 24 September 1999

CaseChat Overview and Summary

The appeal in Pond v WorkCover was heard by the Full Court of the Supreme Court of South Australia. The appellant, Pond, appealed against a decision of the Workers Compensation Appeal Tribunal, which had allowed a cross-appeal by the WorkCover Corporation (the respondent). Pond had originally appealed a Review Officer's decision, which determined that he was not entitled to lump sum payments for two work-related injuries. The Review Officer had found that Pond had a 12% loss of efficient use of his neck and cervical spine, resulting from a compensable disability suffered in January 1993. The Cross-appeal sought to challenge the Review Officer's findings regarding Pond's neck injury.

The court considered two main issues. First, whether the Deputy President of the Workers Compensation Appeal Tribunal erred in granting the respondent leave to file its cross-appeal when the respondent failed to lodge its appeal within the stipulated time. Second, whether the Deputy President erred in law in interfering with the primary findings of fact made by the Review Officer in relation to Pond's neck and cervical spine disability.

The court found that the Deputy President erred in exercising his discretion to grant the respondent leave to file its cross-appeal out of time. The court held that the Deputy President had erred in principle and had regard to irrelevant matters, such as the Tribunal's practice in granting extensions of time for cross-appeals. The court held that the Deputy President should have focused on whether it was in the interests of justice to grant an extension of time, rather than considering the Tribunal's past practice. The court concluded that the application for an extension of time should have been refused based on the unreasonable delay, lack of a satisfactory explanation for the delay, and the potential prejudice to Pond if the cross-appeal was allowed.

The court also found that the Deputy President erred in allowing the respondent's cross-appeal. The court held that the Review Officer had made an error in finding that there was no pre-existing neck disability. However, the court found that there was no reason to conclude that the matter needed to be referred back to a further review officer for a re-hearing. Instead, the court held that the appellant was entitled to succeed on the alternative ground, and the Deputy President should not have allowed the respondent an extension of time within which to appeal.

The final orders of the court were as follows:

1. The appeal from the Workers Compensation Appeal Tribunal to the Supreme Court was allowed.
2. The orders of the Workers Compensation Appeal Tribunal made on 10 December 1998 were set aside, including the order allowing the Corporation's appeal against the Review Officer's Section 43 determination of 12% loss of efficient use of the neck and cervical spine, and the order remitting the matter to a Review Officer.
3. The Corporation's application for an extension of time within which to appeal to the Workers Compensation Appeal Tribunal was dismissed.

Orders