Scharrer v The RedRock Company Pty Limited

[2009] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Scharrer v The RedRock Company Pty Limited [2009] NSWWCCPD 73
APPELLANT:		Camilla Roslyn Scharrer
RESPONDENT:		The RedRock Co Pty Limited
INSURER:		GIO General Limited
FILE NUMBER:		A1-6788/08
ARBITRATOR:	Mr M. Oldfield
DATE OF ARBITRATOR’S DECISION:		4 March 2009
DATE OF APPEAL DECISION:		1 July 2009
SUBJECT MATTER OF DECISION:		Leave to appeal.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:		Lucas & Staggs Lawyers
Respondent:		Turks Legal
ORDERS MADE ON APPEAL:		Leave to bring the appeal is refused.
No order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. This is one of two applications seeking leave to appeal against the decision of an arbitrator made on 4 March 2009. This application was made by Camilla Roslyn Scharrer (‘the worker’) on 31 March 2009.

1. The Respondent to the Application is The RedRock Co Pty Ltd (‘the respondent’).

1. An Application seeking leave to appeal filed on behalf of the respondent was granted and I have today published a determination in respect of that appeal (‘the employer’s appeal’). Matters raised in the employer’s appeal challenged the Arbitrator’s findings concerning the primary question of liability to pay compensation benefits. It was determined in the employer’s appeal that the injury received by the appellant was not received in the course of her employment with the respondent. In the circumstances a determination was made revoking orders made by the Arbitrator and substitution of those orders with an award in favour of the employer.

1. This appeal is limited to a challenge of those findings by the Arbitrator made with respect to quantification of the appellant’s entitlement to weekly benefits and his alleged failure to address a matter in dispute between the parties, namely the question as the whether the appellant’s child was at all relevant times a dependant of the appellant within the meaning of the Workers Compensation Act 1987 (‘the 1987 Act’).

LEAVE

1. Having regard to the outcome of the employer’s appeal the worker has been found to be not entitled to an award in her favour. In the circumstances the only course appropriate is to refuse leave to proceed with the present appeal.

1. Having considered the appellant’s grounds of appeal and the Statement of Reasons, which accompanied the Arbitrator’s Certificate of Determination, I have concluded that it is arguable that the Arbitrator has erred concerning the application of the provisions of section 40 of the 1987 Act. It is further apparent that the Arbitrator has failed to make any finding concerning the alleged dependency of the appellant’s child. Having regard to the orders made in the employer’s appeal it is unnecessary to address those matters further. I make the foregoing observations should there be a challenge to my findings on the employer’s appeal elsewhere and it be found that I am in error. Should that be the case the question of the appellant’s weekly entitlement and dependency of the child would require review.

DECISION

1. Leave to bring the appeal is refused.

COSTS

1. No order as to costs of this appeal.

Kevin O’Grady

Deputy President  

1 July 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE