Reid v Yamma Pty Limited - [2006] NSWWCCPD 343

WORKERS COMPENSATION COMMISSION

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

CITATION:Reid v Yamma Pty Limited [2006] NSWWCCPD 343
APPELLANT: Anna Maria Reid
RESPONDENT: Yamma Pty Limited

INSURER:Employers Mutual Indemnity (Workers Compensation) Limited

FILE NUMBER:  WCC16386-05
DATE OF ARBITRATOR’S DECISION:          27 February 2006
DATE OF APPEAL DECISION:  15 December 2006
SUBJECT MATTER OF DECISION: Serious and wilful misconduct ; ‘under the influence of alcohol’; interruption to a journey and ‘the risk of injury’ within the meaning of section 10 of the Workers Compensation Act 1987; adequacy of reasons; findings of incapacity and weight of evidence; failure to apply the ‘five steps’ in Mitchell; adequacy of evidence in respect of section 60 award.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Paul J Keady & Associates
Respondent:    Dutton Lawyers

ORDERS MADE ON APPEAL: A. The decision of the Arbitrator dated 27 February 2006 is revoked and the following decision made in its place:

1. That the Respondent (Yamma Pty
Limited) pay the Applicant (Anna Maria Reid) weekly compensation at the rate of $494.36 for the period 25/6/03 to 8/9/03 under s.36 of the Workers Compensation Act 1987.
2. That the Respondent pay the Applicant weekly compensation at the rate of $103.16 for the period 9/9/03 to 26/10/04 and from 5/11/04 to 10/1/06 under s.40 of the Workers Compensation Act 1987.
3. That the Respondent pay the Applicant weekly compensation at the rate of $60.00 per week from 11/1/06 to date and continuing under s.40 of the Workers Compensation Act 1987.
4. That the Respondent pay the Applicant’s section 60 expenses pursuant to the provisions of the Workers Compensation Act 1987 on production of accounts or receipts.
5. That the Respondent pay the Applicant’s costs as agreed or assessed.
B.Yamma Pty Limited is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

On 10 March 2006 Anna Maria Reid (‘Ms Reid’) 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 27 February 2006.

On 20 March 2006 Yamma Pty Ltd (‘Yamma’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the same decision.

Ms Reid was employed by Yamma which traded as the Albemarle Hotel (‘the Hotel’) at Menindee in the far west of New South Wales. Ms Reid commenced employment on a casual basis in about December 2002 initially as a cleaner, but after approximately three weeks became the ‘cook’ after the existing cook left that employment.

There was conflicting evidence as to her hours of work, but it appears that she worked somewhere between 10 and 30 hours per week.

On Tuesday 24 June 2003 Ms Reid apparently completed her shift at approximately 9:00pm. On that particular day, she had worked both the lunch (12:00pm to 2:30pm) and dinner (6:00pm to 9:00pm) shifts.

At the completion of her evening shift, as was apparently her usual…

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.

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Details

Case: [2006] NSWWCCPD 343
Decision Date: 15 December 2006

CaseChat Overview and Summary

In the matter of Reid v Yamma Pty Limited, Acting Deputy President Deborah Moore of the Workers Compensation Commission reviewed an appeal against the decision of an arbitrator. The appeal was brought by Anna Maria Reid, who had been injured at work and was seeking compensation. Yamma Pty Limited, her employer, contested her claims. The Arbitrator had initially awarded Ms Reid compensation under certain sections of the Workers Compensation Act 1987, but both parties appealed the decision. Ms Reid argued that the Arbitrator had not properly considered her claims for ongoing weekly payments and medical expenses, while Yamma argued that the Arbitrator had erred in several respects, including his findings on serious and wilful misconduct, interruption of her journey home, and the adequacy of reasons for his decisions.

After reviewing the submissions and evidence, Acting Deputy President Moore found that while the Arbitrator's findings on serious and wilful misconduct and interruption of the journey home were open to him, the Arbitrator's reasoning process in relation to the section 40 award was flawed and amounted to an error of law. Moore noted that the Arbitrator had failed to properly address the "five step" process outlined in Mitchell v Central West Area Health Service and had not provided adequate reasons for his decision. The Acting Deputy President substituted the Arbitrator's decision with a new decision, awarding Ms Reid weekly compensation at different rates for different periods, as well as compensation for her medical expenses. Yamma was ordered to pay the costs of the appeal.

Orders