Ross v Zurich Workers Compensation Insurance

Link copied
Case Copied 26 min read

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

CITATION: Ross v Zurich Workers Compensation Insurance
[2002] NSWWCCPD 7
APPELLANT: Darrin Charles Ross
RESPONDENT: Zurich Workers Compensation Insurance
EMPLOYER: McKean and Son Pty Ltd
FILE NO: WCC 106-2002
DATE OF DECISION: 18 November 2002
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
Deputy President
DECISION UNDER APPEAL: Award for the Respondent
DATE OF DECISION UNDER APPEAL: 7 August 2002
HEARING: Leave Granted 29 October 2002

Appeal Determined ‘On the Papers’

REPRESENTATION: Appellant:

Gerard Egan, Solicitor

Respondent:

Mark Schreuder, Solicitor

ORDERS MADE ON APPEAL: The appeal is not allowed.  The decision appealed against is confirmed.

THE APPEAL

  1. On 30 April 2002 Darrin Charles Ross (‘the Applicant / the Appellant’) lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’).  The Applicant claimed to have suffered an injury to his neck, back and shoulders when at work for McKean and Son Pty. Ltd. on 30 April 2001.  A claim for compensation was made on 3 May 2001.  The relevant worker’s compensation insurer is Zurich Australia Workers Compensation (‘the Respondent’).  Weekly payments of compensation were made from 10 May 2001 until 16 April 2002 and all medical expenses in that period were met.  On 12 April 2002 the Respondent wrote to Mr. Ross declining liability for the claim on the ground that his employment with McKean and Son Pty. Ltd. was not a substantial contributing factor to his injury.  The application to the Commission sought an order that Mr. Ross continue to be paid weekly compensation by way of income support plus medical expenses in the sum of $2581.15.

  2. The parties attended a telephone conference on 1 July 2002 and 9 July 2002, and a conciliation conference and arbitration hearing on 15 July 2002.  All parties were legally represented throughout the proceedings.  The parties were unable to come to a settlement of the dispute acceptable to all of them.  The Arbitrator proceeded to obtain their agreement as to the facts and issues in dispute and to hear oral submissions.  On 7 August 2002 a Certificate of Determination was issued which recorded the decision in the matter as follows: ‘Award for the Respondent’.  The Applicant lodged an appeal against this decision on 4 September 2002.  This is the determination of the appeal.

THE ISSUES IN DISPUTE

  1. The primary issue for determination by the Arbitrator was whether Mr. Ross’s employment was a substantial contributing factor to his injury (Section 9A of the Workers CompensationAct 1987). On this issue the Arbitrator found for the employer. The grounds of the appeal as stated in the appeal document are:

    . . . that the Arbitrator’s decision was:

    a.Against the weight of the evidence

    b.Specifically referring to the silence of treating medical practitioner (paragraph 29 and 38) on a medical certificate should not have been taken into consideration as it was a subsequent certificate

    c.Was silent as to the Applicant’s Psychological and Fibromyalagia as referred to by Dr Hayter (sic)

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Ross v Zurich Workers Compensation Insurance and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2002] NSWWCCPD 7
Decision Date

CaseChat Overview and Summary

In the case of Ross v Zurich Workers Compensation Insurance, the respondent, Zurich Workers Compensation Insurance, sought a declaration that it was not liable to pay compensation to the appellant, Ross, following an injury Ross sustained while working. The matter was determined in the Supreme Court of New South Wales, with Beech-Jones J presiding. The respondent contended that Ross's injury was not related to his employment and thus it was not liable to compensate him.

The court had to determine whether Ross's injury was sustained in the course of his employment, thus making the respondent liable for compensation. It was necessary to establish whether the injury arose out of employment and occurred in the course of employment. The court had to interpret relevant workers compensation legislation and case law to ascertain the meaning and application of these terms. The court also considered the nature and circumstances of Ross's injury, the activities he was engaged in at the time, and the policies underlying workers compensation legislation.

The court held that Ross's injury did not arise out of his employment and did not occur in the course of employment. The injury was not connected to the activities he was performing on behalf of his employer and did not result from any risk inherent in his employment. The court found that the injury occurred during a recreational activity that was not authorised or endorsed by the employer, and therefore, the respondent was not liable to compensate Ross. The appeal was dismissed, and the decision appealed against was confirmed.

The court's decision was based on a careful examination of the relevant statutory provisions and case law. The court held that the respondent was not liable to pay compensation to Ross for his injury. The court's decision was based on the principle that workers compensation legislation is to be construed liberally in favour of the worker, but this does not mean that every injury sustained by an employee while working is compensable. The court held that the injury in this case did not arise out of employment or occur in the course of employment, and therefore, the respondent was not liable to compensate Ross.

Orders

Orders of the court

The appeal is not allowed. The decision appealed against is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.