Rivera v KU Children's Services - [2007] NSWWCCPD 217

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Rivera v KU Children’s Services [2007] NSWWCCPD 217
APPELLANT:  Silvia Rivera
RESPONDENT:  KU Children’s Services
INSURER:Employers Mutual NSW Ltd
FILE NUMBER:  WCC2946-07
DATE OF ARBITRATOR’S DECISION:          24 July 2007
DATE OF APPEAL DECISION:  30 October 2007
SUBJECT MATTER OF DECISION: Whether injury received on a journey to work; section 10 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      PK Simpson & Co, Solicitors
Respondent:   Edwards Michael Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 24 July 2007 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL
1.On 14 August 2007, Silvia Rivera sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 24 July 2007. The Respondent to the appeal is KU Children’s Services (‘KU’). KU’s workers compensation insurer is Employers Mutual NSW Ltd (‘EMI’).
2.Mrs Rivera was born on 20 June 1962 and is aged 45. She claims that on 25 February 1991, while working for KU as a childcare worker at its childcare centre in Enmore, she fell and injured her left wrist while taking her son to a different childcare centre in Waterloo, near where she lived, en route for work. Mrs Rivera recalls being paid workers compensation for about six weeks after the accident.
3.On 23 January 2007, Mrs Rivera’s solicitors made a claim against KU for compensation for permanent impairment in respect of a 12% loss of efficient use of the left arm below the elbow amounting to $8,400, together with medical expenses. By letter dated 22 February 2007, EMI denied liability on the ground that Mrs Rivera was not on a journey to which section 10 of the Workers Compensation Act 1987 (‘the 1987 Act’) applies.
4.On 27 April 2007, the Commission registered Mrs Rivera’s ‘Application to Resolve a Dispute’ in respect of the above claim for compensation. On 24 May 2007, EMI lodged a ‘Reply’. On 1 June 2007, the Arbitrator conducted a teleconference with the parties. On 21 June 2007, conciliation having proved unsuccessful, he conducted an arbitration hearing, at the conclusion of which he reserved his decision. On 24 July 2007, the Arbitrator issued his decision in the terms set out below.

THE DECISION UNDER REVIEW
5.The ‘Certificate of Determination’, dated 24 July 2007, records the Arbitrator’s orders as follows:
“1. Award for the Respondent.
2. There is no order as to costs.”

6.In the Statement of Reasons for his decision, the Arbitrator identified two issues for determination: first, was Mrs Rivera on a journey to which the 1987 Act applied, and if so, second, was there an interruption or deviation? The Arbitrator discussed the evidence as to the time of the accident and the time Mrs Rivera was due to start work. He found the probable time of the accident,…

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 Rivera v KU Children's Services

Details

AGLC: Rivera v Ku Children's Services [2007] NSWWCCPD 217
Case: [2007] NSWWCCPD 217
Decision Date: 30 October 2007

CaseChat Overview and Summary

Silvia Rivera sought to appeal a decision made by an arbitrator in the Workers Compensation Commission regarding her claim for compensation for an injury she sustained. KU Children’s Services, her employer, and its insurer, Employers Mutual NSW Ltd, opposed the appeal. The central issue was whether Rivera was on a journey to work, as defined in section 10 of the Workers Compensation Act 1987, when she was injured. Rivera argued that she was on her way to work when she fell and injured her left wrist while dropping her son at a different childcare centre in Waterloo. The Arbitrator determined that Rivera was not on a journey to work at the time of the injury, given the improbability of her having proceeded directly to her place of employment after the incident, and concluded that she was not entitled to compensation.

The appeal raised two primary issues: first, whether the Arbitrator's findings on the timing of the injury and Rivera's journey were ambiguous; and second, whether the Arbitrator erred in not considering whether dropping her son at the childcare centre constituted a deviation under section 10(2) of the 1987 Act. Rivera’s solicitors argued that the Arbitrator's findings were ambiguous and that he failed to adequately consider the deviation issue. However, the Arbitrator's decision was based on a comprehensive review of the evidence, including hospital records and statements from relevant individuals. The Acting Deputy President found no legal, factual, or discretionary error in the Arbitrator’s reasoning and concluded that Rivera had not discharged the onus of proving she was on a compensable journey at the time of the injury.

The Acting Deputy President confirmed the Arbitrator's decision, finding no grounds for appeal. Consequently, Rivera’s claim for compensation was denied. No order regarding the costs of the appeal was made.

Orders