Scone Shire Council v Sullivan - [2007] NSWWCCPD 239

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Scone Shire Council v Sullivan [2007] NSWWCCPD 239
APPELLANT:  Scone Shire Council
RESPONDENT:  Colin Sullivan
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC18291-06
DATE OF ARBITRATOR’S DECISION:          20 June 2007
DATE OF APPEAL DECISION:  7 December 2007
SUBJECT MATTER OF DECISION: Section 40 of the Workers Compensation Act 1987; section 40 discretion
PRESIDENTIAL MEMBER:  President Greg Keating DCJ
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore
Respondent:   Firths

ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator dated 20 June 2007, is revoked and the matter is remitted to different arbitrator for determination afresh of the Worker’s entitlement to compensation pursuant to section 40 of the Workers Compensation Act 1987 in accordance with these reasons.

Paragraphs 2 to 4 of the Arbitrator’s decision dated 20 June 2007 were not the subject of appeal.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 18 July 2007 Scone Shire Council (‘the Council/Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 June 2007. The Respondent to the Appeal is Mr Colin Sullivan.

Mr Sullivan was born on 26 May 1966 and is 41 years old. Prior to commencing work with the Council he worked in various labouring jobs and later as a roustabout for ten years after which he commenced work with the Council as a driver/labourer/machine operator in or about 1993.

On 5 May 1998 during the course of his employment with the Council Mr Sullivan suffered injury to his neck and left shoulder when the vehicle in which he was a passenger struck a cattle grid and he was propelled forward into the windscreen and dashboard. At the time of the injury he was not wearing a seatbelt. He was treated at Scone hospital and underwent radiological investigations. There was a suggestion that it was initially thought that he had suffered a fracture to the C6 cervical vertebra that was later proved not to be the case, although he has continued to complain of neck pain and stiffness. He also experienced left shoulder pain that worsened in 2000 and he underwent arthroscopic acromioplasty and subacromial decompression at the hands of Dr Creer in August 2001.

Mr Sullivan initially brought proceedings in the Commission for lump sum compensation (WCC5910-2003). He was examined by an Approved Medical Specialist (‘AMS’), Dr Bates who issued a Medical Assessment Certificate and the claims settled with a Certificate of Determination issuing from the Commission on 27 November 2003, detailing an award in favour of Mr Sullivan pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of 8% permanent impairment of the neck, 10% permanent loss of efficient use of the left arm at or above the elbow and $9,300.00 pursuant to section 67 for pain and suffering.

The Council provided Mr Sullivan…

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: [2007] NSWWCCPD 239
Decision Date: 7 December 2007

CaseChat Overview and Summary

In the Workers Compensation Commission, the Scone Shire Council, as the appellant, brought an appeal against the decision of an arbitrator. The respondent, Mr. Colin Sullivan, had previously suffered an injury in the course of his employment with the Council. After undergoing treatment and rehabilitation, he was unable to return to his pre-injury duties, and his employment was terminated. Mr. Sullivan subsequently applied for weekly compensation and a review of his entitlement to compensation. The primary issue in this appeal was whether the arbitrator erred in the application of the discretion in section 40 of the Workers Compensation Act 1987 when determining the worker's entitlement to compensation.

The President found that the arbitrator had not properly considered and weighed the evidence relevant to determining the worker's ability to earn in suitable employment in step 2 before proceeding to consider the evidence relevant to the exercise of discretion in step 4. Additionally, the President found that the arbitrator had failed to correctly identify and apply the evidence that was relevant to the step 2 and step 4 test in Mitchell, or clearly articulate the reasoning process that led to the exercise of his discretion. Consequently, the decision of the arbitrator in relation to the calculation of, and award pursuant to, section 40 is revoked and the matter is remitted to a different arbitrator to determine afresh Mr. Sullivan's entitlement to compensation pursuant to section 40 of the Workers Compensation Act 1987. The appeal was allowed, and the matter was remitted for redetermination. No order as to costs of the appeal was made.

Orders