Richardson v Warrie Grazing Pty Ltd - [2006] NSWWCCPD 159

WORKERS COMPENSATION COMMISSION

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

CITATION:Richardson v Warrie Grazing Pty Ltd [2006] NSWWCCPD 159
APPELLANT:  Paul Anthony Richardson
RESPONDENT:  Warrie Grazing Pty Ltd
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC11381-04
DATE OF ARBITRATOR’S DECISION:          17 August 2005
DATE OF APPEAL DECISION:  21 July 2006
SUBJECT MATTER OF DECISION: Sections 66 and 67 Workers Compensation Act 1987; effect of multiple pre 2002 injuries on right to lump sum compensation.
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Adams Leyland
Respondent:    Sparke Helmore

ORDERS MADE ON APPEAL: Time to appeal is extended to 29 September 2005.

Paragraphs 1 and 2 of the Arbitrator’s decision dated 17 August 2005 are revoked and the following orders made:
“1. Award for the Applicant in the sum of $15,000.00 pursuant to section 66 of the Workers Compensation Act 1987 in respect of a 20% permanent loss of use of the Applicant’s right leg at or above the knee.
2. Award for the Applicant in the sum of $15,000.00 pursuant to section 67 of the Workers Compensation Act 1987.
3. Award for the Respondent in respect of the claim for compensation for the Applicant’s right arm.”
Paragraph 3 of the Arbitrator’s decision dated 17 August 2005 is confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 16 September 2005 Paul Anthony Richardson (‘the Appellant Worker/Mr Richardson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 August 2005.

The Respondent to the Appeal is Warrie Grazing Pty Ltd (‘the Respondent Employer/Warrie Grazing’).

Mr Richardson was born on 19 September 1963 and is now 42 years old. After completing year 10 in 1979 he worked as a drover for two years, a station hand for three years, a silo worker for five years and then a mill hand for a similar period until he started work for Warrie Grazing in mid 1995 as a farm manager.

He continued that work without mishap until 6 October 2000. On that day he was riding a four wheel motor bike when he ran over a piece of wood which broke and penetrated his work boot and punctured the skin on his right foot causing a significant wound. His wife drove him to Bourke District Hospital where he was given a tetanus injection and the wound was dressed. No sutures were needed and he was allowed to go home.

He was off work for two days and then performed lighter duties for about two or three weeks before resuming full duties. The wound took about six months to properly heal. In that time it became ulcerated and he was forced to walk on the lateral side of the foot. Mr Richardson describes his foot as feeling numb and being sensitive to temperature changes. He continued to walk on the lateral aspect…

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 159
Decision Date: 21 July 2006

CaseChat Overview and Summary

In the case of Richardson v Warrie Grazing Pty Ltd, the Worker, Paul Anthony Richardson, appealed a decision of the Workers Compensation Commission regarding his entitlement to compensation for two injuries to his right leg. The Arbitrator had found that the Worker was entitled to two separate awards under section 66 of the Workers Compensation Act 1987 for 10% loss of efficient use of the right leg at or above the knee for each injury, but not entitled to compensation for pain and suffering under section 67 of the same Act as the threshold of 10% loss of efficient use was not met. The Worker argued that the injuries should be considered cumulatively, resulting in a 20% loss of efficient use of the right leg at or above the knee, entitling him to compensation for pain and suffering.

The court considered the relevant legislation and authorities, including Pride v Glebe Rowing Club, Sidiropoulos v Able Placements Pty Ltd, and Pickles v Staples Waste Removals Pty Ltd. The court found that the correct approach was to determine if the Worker's injuries resulted in one loss or two, and if the cumulative effect of the injuries met the threshold for compensation under section 67. The court held that the Arbitrator erred in finding two separate losses, and that the Worker had only suffered one loss resulting from the two injuries. As a result, the Worker was entitled to an award for 20% loss of efficient use of the right leg at or above the knee, and compensation for pain and suffering under section 67.

The court revoked paragraphs 1 and 2 of the Arbitrator's decision and made the following orders:

1. Award for the Applicant in the sum of $15,000.00 pursuant to section 66 of the Workers Compensation Act 1987 in respect of a 20% permanent loss of use of the Applicant’s right leg at or above the knee.
2. Award for the Applicant in the sum of $15,000.00 pursuant to section 67 of the Workers Compensation Act 1987.
3. Award for the Respondent in respect of the claim for compensation for the Applicant’s right arm.

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

Orders