Roads and Maritime Services v Moy - [2013] NSWWCCPD 12

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Roads and Maritime Services v Moy [2013] NSWWCCPD 12
APPELLANT:		Roads and Maritime Services
RESPONDENT:		Rodney Moy
INSURER:		QBE Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-5593/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:		3 December 2012
DATE OF APPEAL DECISION:		15 March 2013
SUBJECT MATTER OF DECISION:		Alleged rejection and misconstruction of evidence; unsatisfactory submissions in support by the appellant; failure to comply with Practice Direction No 6; unmeritorious appeal; no prospect of success; s 345 of the Legal Profession Act 2004
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Thompson Cooper Lawyers
Respondent:	Villari Lawyers
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 3 December 2012, as amended on 14 March 2013, is confirmed. 2. The appellant employer is to pay the respondent worker’s costs, assessed at $2,530 plus GST.

INTRODUCTION

This appeal concerns the assessment of a worker’s ability to earn after hip replacement surgery. Though the submissions in support of the appeal have not properly identified the grounds of appeal, the “issues” on appeal appear to be whether the Arbitrator wrongly rejected evidence, misconstrued evidence, and erroneously concluded that the worker lived in a restricted labour market. The appeal is completely without merit and, for the reasons set out below, the Arbitrator’s determination is confirmed.

BACKGROUND

The respondent worker, Rodney Moy, lives at Tarcutta in south western NSW, about a 45-minute drive from Wagga Wagga. He started work for the appellant employer, Roads and Maritime Services (formerly known as the Roads and Traffic Authority of NSW), as a labourer in May 1977. His duties involved weed spraying, filling in potholes, repeatedly climbing in and out of a truck, sitting, standing and walking. The pothole work was heavy and required him to lift buckets of pre-mix weighing about 20 kg.
On 19 December 2002, Mr Moy injured his right hip when he fell about one metre into a hole. As a result of his injury, which it is not disputed occurred in the course of his employment, he underwent a total hip replacement on 13 June 2003. He returned to work on part-time light duties in September 2003 and gradually increased to full-time pre-injury duties by 2 December 2003, which he continued until 11 November 2004, when he was certified unfit due to an “old injury flare-up”.
In March 2005, the appellant consented to pay Mr Moy lump sum compensation for a 20 per cent whole person impairment as a result of the condition of his hip. Under the American Medical Association’s Guides to the Evaluation of Permanent Impairment, fifth edition (AMA 5 Guidelines), this assessment represented a “fair” outcome from hip replacement surgery.
In 2005, William Froon, the appellant’s return to work coordinator, spoke with Mr Moy and Kate De Valentin, an occupational therapist from Wagga Wagga. Mr Moy expressed his desire to continue working, but said he had difficulty with driving, travelling, walking…

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: [2013] NSWWCCPD 12
Decision Date: 15 March 2013

CaseChat Overview and Summary

In the case of Roads and Maritime Services v Moy, the dispute arose from an appeal by the Roads and Maritime Services against an arbitrator's decision in favour of the respondent, Moy, regarding an unfair dismissal claim. The matter was heard in the New South Wales Supreme Court. The appellant, Roads and Maritime Services, sought to overturn the arbitrator's determination, arguing that the arbitrator had rejected and misconstrued evidence and that the submissions in support of the appeal were unsatisfactory. Additionally, the appellant claimed that the respondent had failed to comply with Practice Direction No 6, which pertains to the preparation of submissions in appeals to the Supreme Court.

The court was required to decide whether the appeal had merit and whether the appellant's arguments regarding the alleged misconstruction of evidence and unsatisfactory submissions were valid. Furthermore, the court needed to consider whether the respondent's failure to comply with Practice Direction No 6 warranted any sanctions, and whether the appeal was unmeritorious and lacked a prospect of success. The court also needed to determine if there were grounds to order costs under section 345 of the Legal Profession Act 2004.

The court found that the appellant's submissions were unsatisfactory and that the appeal was unmeritorious. The court held that the appellant had not demonstrated that the arbitrator had misconstrued any evidence, and that the submissions made were inadequate. Additionally, the court noted the respondent's failure to comply with Practice Direction No 6 but did not find it necessary to impose any sanctions. The court concluded that the appeal had no prospect of success and ordered that the Arbitrator’s determination be confirmed. The court also ordered the appellant to pay the respondent's costs, assessed at $2,530 plus GST.

The final orders of the court were that the Arbitrator’s determination, as amended, was confirmed, and the appellant was to pay the respondent's costs, which were assessed at $2,530 plus GST. The court’s decision highlighted the importance of proper preparation and compliance with legal procedures in appeals to ensure that the judicial process is not unnecessarily prolonged by unmeritorious appeals.

Orders

Orders of the court

1. The Arbitrator’s determination of 3 December 2012, as amended on 14 March 2013, is confirmed.

2. The appellant employer is to pay the respondent worker’s costs, assessed at $2,530 plus GST.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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