DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Rinker Group Limited v Mackell [2008] NSWWCCPD 100
APPELLANT:
Rinker Group Limited
RESPONDENT:
Kathleen Ellen Mackell
INSURER:
Self Insured
FILE NUMBER:
WCC2717-07
DATE OF ARBITRATOR’S DECISION:
8 May 2008
DATE OF APPEAL DECISION:
19 September 2008
SUBJECT MATTER OF DECISION:
Evidence; leave to call oral evidence from lay and expert witnesses; estoppel; effect of consent orders; notice of claim; deemed date of injury; refusal of adjournment; inappropriate conduct by employer’s solicitor.
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
Leigh Virtue & Associates
Respondent:
Somerville Laundry Lomax
ORDERS MADE ON APPEAL:
The Arbitrator’s decision of 8 May 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration are to follow the result of the second arbitration.
No order as to costs of the appeal.
BACKGROUND
As the worker has not filed a statement, I have taken the following background summary from the medical reports in evidence, mainly Dr Maxwell, dated 13 July 2006, and Dr Wallace, dated 8 November 2005. Kathleen Mackell (‘the Respondent Worker/Ms Mackell’) started part time work as an administrative assistant for Readymix Concrete (now known as Rinker Group Limited, ‘the Appellant Employer/Rinker’) in about 1990. After a period off work to have her second child, she returned to work for Readymix, at its request, in about 1993. In 1995 her duties increased, as two other employees were made redundant. At that stage, she spent about 99% of her time doing data entry work. In 2004 the company purchased three more plants resulting in the workload increasing. Ms Mackell worked from 8.00am until 4.30pm with only 10 minutes for lunch.
Ms Mackell developed pain in her right arm and shoulder in the course of her employment in either 2001 or 2002. She reported her symptoms to her employer in or about May 2005. On 12 May 2005, she attended her local general practitioner, Dr Reid, who diagnosed her to have “tendonitis of the right upper arm” and certified her fit for suitable duties (keying up to one hour at a time with 15 minute breaks) from 13 May 2005. She lost no time from work at this stage. She underwent physiotherapy and, on 19 May 2005, an ultrasound, which revealed “calcific calcification in the anterior part of the supraspinatus tendon near its insertion consistent with calcific tendinosis”.
In July 2005, Dr Stabler, orthopaedic surgeon, examined Ms Mackell and arranged for two corticosteroid injections into her right shoulder. As the injections only gave temporary relief, he recommended surgery for the removal of the calcium deposit at her right rotator cuff. In Dr Stabler’s opinion, Ms Mackell’s condition was not work related.
Also in July 2005, Melanie Mott, occupational therapist from CSR Australia, conducted an assessment of Ms Mackell’s workstation at the request of Rinker. Before and after this assessment she…
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 Rinker Group Limited v Mackell
Sign in free to access the full text
Details
AGLC
Rinker Group Limited v Mackell [2008] NSWWCCPD 100
Case
[2008] NSWWCCPD 100
Decision Date
CaseChat Overview and Summary
Rinker Group Limited sought to overturn an Arbitrator's decision in the Federal Circuit Court, arguing that the Arbitrator had misapplied the law in relation to the admissibility of evidence and the application of estoppel. The dispute arose from a claim by Mackell, who alleged that he had sustained an injury at work, leading to an ongoing disability. The central issues before the court included whether the Arbitrator had correctly exercised their discretion in refusing leave to call oral evidence, the proper interpretation of consent orders, the significance of the deemed date of injury, and the propriety of the employer’s solicitor's conduct during the proceedings.
The court examined the Arbitrator's decision to refuse leave to call oral evidence from lay and expert witnesses, noting that the Arbitrator had not adequately justified this decision. The court held that the Arbitrator had erred by not allowing the evidence, which could have been crucial to resolving the matter. Additionally, the court found that the consent orders had been misapplied by the Arbitrator, leading to an incorrect interpretation of the deemed date of injury. The court also criticised the conduct of the employer's solicitor, which it deemed inappropriate and prejudicial. These findings led the court to conclude that the Arbitrator had made significant legal errors.
Consequently, the court revoked the Arbitrator’s decision and remitted the matter to a different Arbitrator for re-determination. The court emphasised that its decision was based on the errors identified in the Arbitrator's handling of evidence, consent orders, and the deemed date of injury. The court ordered that the costs of the first arbitration would follow the result of the second arbitration. This ruling underscored the importance of proper legal reasoning and conduct in arbitration proceedings.
Orders
Orders of the court
The Arbitrator’s decision of 8 May 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. Costs of the first arbitration are to follow the result of the second arbitration.