Ranvet Pty Ltd v Vasilevski

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WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81
APPELLANT: Ranvet Pty Ltd
RESPONDENT: Vlado Vasilevski
INSURER: Employers Mutual NSW Limited
FILE NUMBER: WCC8963-07
DATE OF ARBITRATOR’S DECISION: 29 February 2008
DATE OF APPEAL DECISION: 31 July 2008
SUBJECT MATTER OF DECISION: Nature of a ‘review’ under section 352 of the Workplace Injury Management and Workers Compensation Act 1998; credit findings; whether the principle in Abalos v Australian Postal Commission (1990) 171 CLR 167 applies to reviews under section 352; assessment of ability to earn; section 40(2)(b) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING: On the papers
REPRESENTATION: Appellant: Edwards Michael Lawyers
Respondent: Eugene Lepore & Associates
ORDERS MADE ON APPEAL:

Paragraphs one and two of the Arbitrator’s determination of 29 February 2008 are revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Applicant Worker’s entitlement, if any, under section 40 of the Workers Compensation Act 1987 to be re-determined in accordance with the reasons in this decision.”

Paragraphs three, four, and five of the Arbitrator’s determination are confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

  1. This appeal raises two issues. First, the Commission’s approach to credit issues on appeal to a Presidential member and, second, the proper approach to the calculation of a worker’s ability to earn under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).

  1. Vlado Vasilevski started work for Ranvet Pty Ltd, a veterinary pharmaceuticals manufacturer, as a process worker in late 2002 or early 2003.  His duties required him to operate machinery and manually handle heavy containers of liquids and powders.

  1. He injured his low back whilst performing his usual duties on 1 October 2004.  Employers Mutual NSW Limited, Ranvet’s workers compensation insurer, initially accepted his claim and established an injury management plan.  After being off work for about three weeks, Mr Vasilevski return to work on light duties on 12 November 2004, working two hours per day, five days per week with a lifting restriction of five kilograms, and gradually returned to his pre-injury duties and hours on or about 11 April 2005.

  1. For reasons that are disputed, Ranvet terminated Mr Vasilevski’s employment on 20 May 2005.  On 10 June 2005, Mr Vasilevski’s solicitor wrote to the insurer asserting that he “appears to be entitled to weekly payments”.  The insurer declined liability by letter dated 14 June 2005.

  1. On 15 August 2006, Mr Vasilevski obtained employment as a casual process worker fixing computers with a company identified only as “D-Link”, where he earned an average of $392.00 gross per week.  The evidence is that D-Link terminated his employment on 1 June 2007 because he was unable to do the work.

  1. On 23 November 2007, Mr Vasilevski filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking weekly compensation from 20 May 2005 to date and…

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Details
Case
[2008] NSWWCCPD 81
Decision Date

CaseChat Overview and Summary

In the case of Ranvet Pty Ltd v Vasilevski, the court was tasked with examining a dispute involving the interpretation of a 'review' under section 352 of the Workplace Injury Management and Workers Compensation Act 1998. The case also involved credit findings and the applicability of the principle established in Abalos v Australian Postal Commission to reviews under section 352. The assessment of the worker's ability to earn, as per section 40(2)(b) of the Workers Compensation Act 1987, was another significant legal issue.

The court addressed the nuances of the review process and the extent to which a Commissioner's decision could be displaced by incontrovertible evidence. It explored the extent to which the Compensation Court and the Commission should adhere to the principle in Abalos, which mandates that the court must base its decision on the merits of the case and not be swayed by informality or procedural defects. The court also considered the legislative intent behind section 354, which seems to codify existing practices and obligations of the Compensation Court and the Commission. The court examined whether the principle in Abalos applies to reviews under section 352 and whether the Commission is bound by this principle when determining credit issues without oral evidence.

The court ruled that the Arbitrator's determination regarding the worker's entitlement to compensation under section 40 of the Workers Compensation Act 1987 needed to be re-evaluated by a different Arbitrator, considering the reasons outlined in the decision. The court confirmed the other aspects of the Arbitrator's determination, indicating that while the Commissioner is not bound by strict legal precedent, it must still apply rules of law in its decision-making process. The court emphasised that the Commission, like the Compensation Court, is obligated to base its decisions on the merits of the case and cannot be influenced by procedural informalities.

The final orders of the court involved revoking specific paragraphs of the Arbitrator's determination and remitting the case to a different Arbitrator for reassessment of the worker's entitlement to compensation. The other aspects of the Arbitrator's decision were upheld, highlighting the importance of adhering to legal principles and the merits of the case in workers' compensation reviews.

Orders

Orders of the court

Paragraphs one and two of the Arbitrator’s determination of 29 February 2008 are revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Applicant Worker’s entitlement, if any, under section 40 of the Workers Compensation Act 1987 to be re-determined in accordance with the reasons in this decision.”

Paragraphs three, four, and five of the Arbitrator’s determination are confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In a dissenting judgment, Kirby P (as his Honour then was) held that Judge Burke’s approach was consistent with the principles in Watson, namely, having reviewed the case he substituted his own conclusion for the Commissioner’s. However, Kirby P added (at 622E) that the Commissioner’s decision was “displaced by incontrovertible evidence indicating that the Commissioner was mistaken” (emphasis added). In Davies, the worker succeeded before a Commissioner. The employer sought a review on the ground that there were inconsistencies between the worker’s complaints of pain and disability, and the written assessment of the worker’s work behaviour by prison staff. The Compensation Court dismissed the review application and the Court of Appeal dismissed the further appeal. Clarke JA (Meagher and Handley JJA agreeing) said at 322D: In Atamian, the worker succeeded before the Commissioner on the basis of a credit finding and, on that basis, the review was unsuccessful. The Court of Appeal dismissed the employer’s appeal. Clarke JA held, at 124B: His Honour added, at 126A: And, at 127D: Meagher JA said, at 132C (after referring to Clarke JA’s decision in Davies): Handley JA said, at 134G: Returning to Duinker, Hodgson JA also observed, without deciding the issue, that it was doubtful whether section 354 is consistent with an obligation on a Presidential member, as a matter of law, to apply the principle of Abalos. So far as is relevant, section 354 provides: Whilst the new scheme is different from the previous scheme, in considering the impact of section 354 on the nature of a ‘review’ under section 352 it is instructive to consider the decision of Mahoney JA in Switzerland Insurance Workers’ Compensation (NSW) Ltd v Burley, Court of Appeal, No. 40408, 5 December 1996, unreported, where his Honour said, at 18: Given the above statement, it seems arguable that section 354 merely codified what, largely, was already the practice in the Compensation Court and what was, in part, expressed in section 17 of the Court Act. Section 17 of the Court Act provided, so far as is relevant: Thus, like the Commission, the Compensation Court had a statutory duty to base its decisions upon the merits of the case. Its decisions were not to be vitiated by reason of any informality or want of form. Whilst the Compensation Court was not bound to follow strict legal precedent, as a matter of practice, it invariably did. Like the Compensation Court before it, the Commission is bound to apply “rules of law” in arriving at its decisions and section 354 has not “released” it from that obligation (per McColl JA (with whom Giles JA and Tobias JA agreed) in SouthWestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [88], (2007) 4 DDCR 421). One of the main differences between proceedings in the Compensation Court and the Commission is that many of the cases determined by the Commission are determined without oral evidence being called. In that situation, a Presidential member will often be in as good a position as an Arbitrator to determine all issues, including credit issues.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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