Recyclit Enviro Chutes Pty Ltd v Axisa - [2016] NSWWCCPD 41

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Recyclit Enviro Chutes Pty Ltd v Axisa [2016] NSWWCCPD 41
APPELLANT:	Recyclit Enviro Chutes Pty Ltd
RESPONDENT:	Tony Axisa
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-19/16
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:	10 May 2016
DATE OF APPEAL DECISION:	25 August 2016
SUBJECT MATTER OF DECISION:	Absence of transcript of extempore reasons for decision; statutory duty to give reasons; s 294 of the Workplace Injury Management and Workers Compensation Act 1998 and r 15.6 of the Workers Compensation Commission Rules 2011; constructive failure to give reasons
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Mulcahy Lawyers
Respondent:	Firths, The Compensation Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 10 May 2016 is revoked. 2. The matter is remitted to another Arbitrator for determination afresh.

INTRODUCTION

This matter concerns whether an appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) can proceed in the absence of a transcript of the Arbitrator’s extempore reasons for decision.

BACKGROUND

Mr Axisa, the respondent to the appeal, was employed by the appellant as a truck driver. On 7 December 2010, Mr Axisa was alighting from his truck when a gust of wind slammed the truck door closed crushing his hand and causing him to fall backwards onto the ground landing heavily.
Mr Axisa claimed lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $45,750 in respect of 22 per cent whole person impairment. The impairment, assessed by Dr Patrick in a report dated 23 August 2015, comprised of five per cent impairment in respect of the thoracic spine, 16 per cent impairment in respect of the lumbar spine and two per cent impairment in respect of the left upper extremity.
In a notice issued pursuant to s 74 of the 1998 Act, QBE Workers Compensation (NSW) Ltd (QBE), the employer’s insurer, denied liability for injury to the thoracic spine. QBE denied that the thoracic spine was injured in the incident on 7 December 2010. Among other reasons, it also denied that there had been any consequential injury to the thoracic spine or that it resulted in the contraction or aggravation of a disease to the thoracic spine.
On 6 January 2016, Mr Axisa lodged an Application to Resolve a Dispute in the Commission (the Application). He claimed lump sum compensation as described above.
On 22 January 2016, the employer filed a Reply to the Application denying liability for the reasons referred to in the s 74 notice.
On 18 April 2016, the matter came before a Commission Arbitrator for a conciliation and arbitration hearing. No oral evidence was called. The Arbitrator reserved his decision.
On 29 April 2016, the Arbitrator convened a telephone conference and delivered his reasons for decision orally. The Arbitrator found in favour of Mr Axisa in…

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 Recyclit Enviro Chutes Pty Ltd v Axisa 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: [2016] NSWWCCPD 41
Decision Date: 25 August 2016

CaseChat Overview and Summary

Recyclit Enviro Chutes Pty Ltd sought to appeal an Arbitrator's determination of a workers compensation claim brought by an employee, Axisa. The primary dispute centred on whether the Arbitrator had complied with statutory obligations to provide reasons for his decision. The matter was heard in the Workers Compensation Commission of Queensland. The crux of the legal issues revolved around the interpretation and application of sections 294 of the Workplace Injury Management and Workers Compensation Act 1998 and rule 15.6 of the Workers Compensation Commission Rules 2011, which mandate the provision of reasons for decisions. Specifically, the court had to determine if the absence of a transcript of the Arbitrator's oral reasons constituted a constructive failure to comply with the statutory duty.

The court found that the statutory duty to provide reasons for decisions was not merely procedural but substantive, integral to the fairness and transparency of the decision-making process. The Arbitrator had failed to provide a written transcript of his reasons despite the statutory requirement, which the court interpreted as a constructive failure to give reasons. This failure rendered the Arbitrator’s determination invalid as it did not meet the legislative standard. The court concluded that the matter must be remitted to another Arbitrator for determination afresh, ensuring full compliance with the statutory obligations.

The Arbitrator’s determination of 10 May 2016 was therefore revoked. The matter was to be remitted to another Arbitrator for determination afresh, ensuring that the statutory duty to provide reasons is fully met. This decision underscores the importance of adhering to legislative mandates for the provision of reasons in workers compensation matters.

Orders

Orders of the court

1. The Arbitrator’s determination of 10 May 2016 is revoked.

2. The matter is remitted to another Arbitrator for determination afresh.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.