Severino v Turner - [2009] NSWWCCPD 144

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Severino & anor v Turner [2009] NSWWCCPD 144
APPELLANT:		Alba and Santo Severino
RESPONDENT:		Ryan Christopher Turner
INSURER:		Employers Mutual NSW Ltd
FILE NUMBER:		A1-1637/09
ARBITRATOR:	Mr G McIlwaine
DATE OF ARBITRATOR’S DECISION:		23 July 2009
DATE OF APPEAL DECISION:		12 November 2009
SUBJECT MATTER OF DECISION:		Section 40(2)(a) of the Workers Compensation Act 1987; probable earnings in the same or some comparable employment for a labourer aged 18 at the time of accident
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stephen Lee Legal
Respondent:	Rishworth Dodd & Co
ORDERS MADE ON APPEAL:		Paragraph 5 of the Arbitrator’s determination of 23 July 2009 is revoked and the assessment of the worker’s entitlement to weekly compensation from 15 June 2008 to date and continuing is remitted to a different Arbitrator for re-determination. Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Arbitrator’s determination of 23 July 2009 are confirmed.
Each party is to pay his or their own costs of the appeal.

BACKGROUND

On 5 May 2005, Ryan Turner was working as a labourer on the construction of the Miramare Gardens Conference and Event Centre at Terrey Hills, a site owned by the appellant employers, Alba and Santo Severino. In the course of his duties, Ryan fell three metres through a hole on the first floor of the building under construction and sustained a serious closed head injury with a right temporal bone fracture and a left anterior temporal lobe contusion.

At the time of the accident, Ryan was 18 years old. His father, Christopher Turner, a qualified carpenter, also worked on the project as the site foreman.

As a result of his injuries, Ryan has a loss of hearing in his right ear, loss of balance, memory impairment, tinnitus and vestibular disequilibrium preventing him from climbing ladders, facial nerve weakness, loss of smell and loss of taste. It is not disputed that he is unfit for his pre-injury employment in the building industry.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 3 March 2009, Ryan sought weekly compensation from 5 May 2005 to date and continuing in the sum of $606.00 together with lump sum compensation in the sum of $32,500.00 in respect of a 22 per cent whole person impairment. In a Reply filed on 24 March 2009, the Severinos disputed liability on the ground that Ryan was not a worker or a deemed worker within the terms of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and that his capacity to earn was equal to or greater than $606.00 per week.

The matter was listed for conciliation and arbitration on 29 May and 23 June 2009. In respect of the claim for weekly compensation, the parties agreed (see Arbitrator’s Statement of Reasons (‘Reasons’) at [89]) that:

(a) average weekly earnings at the date…

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 Severino v Turner

Details

AGLC: Severino v Turner [2009] NSWWCCPD 144
Case: [2009] NSWWCCPD 144
Decision Date: 12 November 2009

CaseChat Overview and Summary

The case of Severino v Turner involved a claim for workers' compensation brought by the applicant, Severino, against the respondent, Turner. The dispute centred around the assessment of probable earnings for the purpose of calculating weekly compensation payments. Severino, who was 18 years old at the time of the accident, sought compensation for injuries sustained during his employment as a labourer. The matter was referred to the Supreme Court of Victoria for review of an Arbitrator’s determination.

The key legal issue before the court was the proper application of Section 40(2)(a) of the Workers Compensation Act 1987 in assessing the probable earnings for Severino in the same or comparable employment. The court had to determine whether the Arbitrator’s assessment of Severino’s probable earnings was correct and if the calculation of weekly compensation was appropriately made. The court also needed to consider the evidence and arguments presented regarding the appropriate comparable employment and the age-related factors influencing earnings.

In reaching its decision, the court examined the evidence and the reasoning of the Arbitrator. The court found that the Arbitrator had erred in the calculation of probable earnings, particularly in relation to the consideration of the age of the worker at the time of the accident. The court concluded that the Arbitrator had not properly applied Section 40(2)(a) by failing to adequately consider the probable earnings in the same or comparable employment for a labourer aged 18. As a result, the court revoked the relevant paragraph of the Arbitrator’s determination and remitted the assessment of Severino's entitlement to weekly compensation to a different Arbitrator for re-determination. The rest of the Arbitrator’s determination was confirmed by the court.

The final orders of the court were that the relevant paragraph of the Arbitrator’s determination was revoked and the assessment of weekly compensation was remitted for re-determination. The remaining paragraphs of the Arbitrator’s determination were upheld, and no further changes were made to the compensation entitlements.

Orders

Orders of the court

Paragraph 5 of the Arbitrator’s determination of 23 July 2009 is revoked and the assessment of the worker’s entitlement to weekly compensation from 15 June 2008 to date and continuing is remitted to a different Arbitrator for re-determination.

Paragraphs 1, 2, 3, 4, 6, 7, 8 and 9 of the Arbitrator’s determination of 23 July 2009 are 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.