Russell v Labourforce Solutions Pty Limited - [2006] NSWWCCPD 330

WORKERS COMPENSATION COMMISSION

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

CITATION:Russell v Labourforce Solutions Pty Limited [2006] NSWWCCPD 330
APPELLANT:  Joan Maree Russell
RESPONDENT:  Labourforce Solutions Pty Limited
INSURER:GIO General Ltd
FILE NUMBER:  WCC21608-05
DATE OF ARBITRATOR’S DECISION:          6 June 2006
DATE OF APPEAL DECISION:  1 December 2006
SUBJECT MATTER OF DECISION: Reasons; injury; disease; section 16 Workers Compensation Act 1987; application of Rail Services Australia v Dimovski & anor [2004] NSWCA 267
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Robb & Associates
Respondent:   Edwards Michael Moroney

ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 6 June 2006 is revoked and the following order made:

“The matter is remitted to a different Arbitrator for the Appellant Worker’s claim to be redetermined in accordance with the reasons in this decision.”

The Respondent Employer is to pay the Appellant Worker’s costs of the appeal. Costs of the first Arbitration are to follow the event of the second Arbitration.

BACKGROUND TO THE APPEAL

On 3 July 2006 Joan Maree Russell (‘the Appellant Worker/Ms Russell’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 6 June 2006.

The Respondent to the Appeal is Labourforce Solutions Pty Limited (‘the Respondent Employer/Labourforce’).

Ms Russell was born on 23 April 1965. She started work with Labourforce, a labour hire company, on 1 November 2004. In the course of that employment she was placed with Gordon and Gotch as a packer and sorter. Her duties were heavy and repetitive, requiring her to sort books and magazines.

On 8 February 2005, whilst working for Gordon and Gotch, Ms Russell developed symptoms in her right shoulder. The exact sequence of events after 8 February 2005 is the subject of conflicting evidence which is set out below. After various periods away from work she ultimately resumed her normal duties until no further work was available and she was retrenched on 6 May 2005.

Ms Russell found alternative employment with a Valentine’s Bakery (‘Valentine’s’) in Wodonga, Victoria on 8 July 2005. As a result of her right shoulder symptoms she ceased that job in late October or early November 2005.

Compensation was paid for her initial period away from work but her subsequent claim for ongoing compensation was denied. On 21 December 2005 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking weekly compensation from 9 September 2005 to date and continuing. A claim was also made for the cost of ongoing medical treatment.

The Application alleged injury to the right shoulder on 8 February 2005. At the hearing on 26 May 2006 the Application was amended by consent to include a claim “for nature and conditions in respect of the period of 1 November 2004 to 6 May 2005” and to allege “aggravation or acceleration of a degenerative disease or change in the right shoulder” pursuant to section 16 of…

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: [2006] NSWWCCPD 330
Decision Date: 1 December 2006

CaseChat Overview and Summary

In the case of Russell v Labourforce Solutions Pty Limited, the appeal was brought against the decision of the Arbitrator in the Workers Compensation Commission of New South Wales. The Appellant Worker, Joan Maree Russell, sought leave to appeal the decision of the Arbitrator dated 6 June 2006, which dismissed her claim for workers' compensation. The issues in dispute involved the Arbitrator's findings of fact, reasons, and application of the relevant legislation, specifically section 16 of the Workers Compensation Act 1987. The appeal was allowed, and the decision was revoked. The matter was remitted to a different Arbitrator for a rehearing in accordance with the reasons set out in this decision.

The court identified several errors in the Arbitrator's decision. The Arbitrator made inconsistent findings of fact, failed to make necessary findings regarding the nature and extent of the injuries sustained, and did not provide adequate reasons for rejecting the Appellant Worker's claim. Additionally, the Arbitrator misapplied the relevant legislation by not considering the possibility of an aggravation, acceleration, or exacerbation of a disease as a result of the nature and conditions of employment.

The court emphasised the importance of Arbitrators providing adequate reasons for their decisions and applying the law correctly. In this case, the Arbitrator did not make sufficient findings on the medical evidence presented, and his reasoning demonstrated an error in the application of the law. Consequently, the Arbitrator's decision was revoked, and the matter was remitted to a different Arbitrator for a rehearing. The Respondent Employer was ordered to pay the Appellant Worker's costs of the appeal, with the costs of the first Arbitration to follow the event of the second Arbitration.

Orders