Rocla Industries Pty Ltd v Seton - [2006] NSWWCCPD 43

WORKERS COMPENSATION COMMISSION

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

CITATION:Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43
APPELLANT:  Rocla Industries Pty Ltd
RESPONDENT:  Roderick Leslie Seton
INSURER:Self-insurer
FILE NUMBERS:  WCC9479-03 and WCC8730-04
DATE OF ARBITRATOR’S DECISION:          20 January 2005
DATE OF APPEAL DECISION:  16 March 2006
SUBJECT MATTER OF DECISION: Leave to appeal; extension of time to appeal; fresh or additional evidence; dispensing with requirements of the Rules; error of law; jurisdiction; admissibility and refusal to admit evidence; injury; incapacity; ability to earn; credit, and inadequacy of reasons for decision.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:     Leigh Virtue & Associates
Respondent: Messenger & Messenger,
Solicitors & Attorneys

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 20 January 2005, is revoked and the following decision is made in its place:
The matter is remitted to the Arbitrator concerned for consideration and determination afresh of the issues of ‘injury’ and ‘incapacity’, and what necessarily follows, in accordance with these reasons, and in accordance with the evidence and the weight of the evidence, including the medical evidence brought by both parties and the oral evidence of the Respondent worker. The Arbitrator is to seek and receive fresh written submissions from the parties within a time fixed by him, and thereafter proceed to consider and determine the matter afresh with or without holding any further conference or formal hearing, as the Arbitrator determines upon a consideration of section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998.

No order is made as to the costs of this appeal.

ALL MATERIAL IN RELATION TO THE DETERMINATION OF THREE
ASSOCIATED APPEALS, INCLUDING THIS APPEAL, IS SET OUT IN THIS APPEAL.
THE OTHER TWO APPEALS ARE:

Seton v Rocla Industries Pty Ltd No1 [2006] NSWWCCPD 44, and
Seton v Rocla Industries Pty Ltd No 2 [2006] NSWWCCPD 45.

BACKGROUND TO THE APPEAL(S)

Mr Roderick Leslie Seton, the Respondent worker in this appeal, was employed as a loader-driver and plant operator with Rocla Industries Pty Limited (‘Rocla’), the Appellant, in 1993 until 19 July 2001. He was made redundant on that date, after his union intervened following a misconduct action brought by Rocla against him. Mr Seton filed an unfair dismissal claim in the NSW Industrial Relations Commission, the date of the dismissal being 19 July 2001. It was withdrawn at some later time.

Mr Seton claims to have suffered an injury to his neck, and both arms at or above the elbow. It is alleged that the injury occurred as a result of the nature and conditions of his employment with Rocla in the period 1993 to July 2001, and principally as a result of carrying water pumps, and lifting blades and gear boxes.

On 14 August 2002 Mr Seton notified Rocla of the injury.

On 26 August 2002 Mr Seton lodged a claim with Rocla for weekly benefits.

On 22 October 2002 Rocla, as…

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 Rocla Industries Pty Ltd v Seton

Details

AGLC: Rocla Industries Pty Ltd v Seton [2006] NSWWCCPD 43
Case: [2006] NSWWCCPD 43
Decision Date: 16 March 2006

CaseChat Overview and Summary

The Workers Compensation Commission was presented with three appeals relating to the case of Roderick Leslie Seton, who sought compensation from Rocla Industries Pty Ltd for injuries he claimed to have sustained while employed as a loader-driver and plant operator. The primary dispute centred around the issues of injury, incapacity, and the validity of the compensation claim. Rocla appealed the decision of the Arbitrator, arguing various errors in the Arbitrator's decision, while Mr. Seton cross-appealed against the same decision, alleging procedural unfairness. The court was tasked with deciding on the validity of the appeals, the admissibility of certain evidence, and the correctness of the Arbitrator's findings.

The court granted leave for Rocla to appeal the decision of the Arbitrator, noting that Rocla had complied with the statutory requirements for such an appeal and that the amount of compensation at issue met the threshold for an appeal. The court also granted an extension of time for Mr. Seton to lodge his appeal, acknowledging that he had been unfairly delayed in receiving necessary documents from the Commission. The court rejected Rocla's request to adjourn the proceedings, finding that the Arbitrator had the discretion to do so and that Rocla had not demonstrated a substantial injustice resulting from the decision.

In evaluating the merits of the appeals, the court found that the Arbitrator had not erred in admitting multiple medical reports, as some were permissible under the regulations as 'claims management phase reports'. The court also upheld the Arbitrator's decision to reject certain evidence due to procedural non-compliance by Rocla. However, the court found that the Arbitrator had made an error in law by inadequately addressing the issues of injury and incapacity, resulting in insufficient reasons for his conclusions. Consequently, the court revoked the Arbitrator's decision on these points and remitted the matter for reconsideration, while confirming other aspects of the Arbitrator's decision.

The final orders included revoking the Arbitrator's decision in Rocla's appeal and remitting the matter for reconsideration of the issues of injury and incapacity, confirming the Arbitrator's decision in Mr. Seton's cross-appeal, and confirming the Arbitrator's decision in the interlocutory appeal. No costs were ordered for any of the appeals.

Orders