Shoalhaven City Council v Stevenson - [2013] NSWWCCPD 28

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Shoalhaven City Council v Stevenson [2013] NSWWCCPD 28
APPELLANT:	Shoalhaven City Council
RESPONDENT:	Samuel Stevenson
INSURER:	Self-insured
FILE NUMBER:	A1-6669/12
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	14 January 2013
DATE OF APPEAL DECISION:	23 May 2013
SUBJECT MATTER OF DECISION:	Challenge to factual findings; ss 61 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; requirements as to giving notice of injury and making of a claim; obligation to state reasons for decision.
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Gerard Malouf & Partners
ORDERS MADE ON APPEAL:	1. Paragraph one of the Arbitrator’s determination dated 14 January 2013 is revoked and the following findings are made in its place: “1. The applicant has complied with the requirements as to giving notice of injury and concerning the making of a claim as prescribed by ss 61 and 261 respectively of the Workplace Injury Management and Workers Compensation Act 1998.” 2. Paragraphs two, three and four are confirmed. 3. The appellant is to pay Mr Stevenson’s costs of this appeal.

BACKGROUND

Mr Samuel Stevenson alleged that he injured his right knee on 25 May 2000 whilst in the course of his employment performing parks and garden maintenance duties with Shoalhaven City Council (the appellant). A rung on a ladder had broken as he climbed into a tractor causing him to fall heavily on his right foot.
Mr Stevenson stated in evidence that he immediately reported the injury to his supervisor, who has been identified in oral evidence as being Mr Glen Elliott, using a two way radio. Mr Elliott came to Mr Stevenson’s workplace at that time. An incident report form which Mr Elliott had brought to the site was completed and signed by Mr Stevenson.
Some months later Mr Stevenson sought medical advice and was treated conservatively. He continued working with ongoing right knee symptoms. His employment with the appellant came to an end in February 2009. He has since worked in various capacities, with intervening periods of unemployment.
On 28 March 2012 Mr Stevenson, through his solicitors, claimed lump sum compensation of $7,500 in respect of 10 per cent permanent loss of efficient use of his right leg. Liability was declined by the appellant. A notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) addressed to Mr Stevenson’s solicitors particularised the reasons for denial of liability as follows:
“1.     Your client has not sustained injury with Shoalhaven City Council.
2.      Your client’s medical condition is not causally connected to any injury.
3.      Employment is not a substantial contributing factor to injury.
4. If your client has sustained injury (which is denied) it is in the nature of a disease process and Shoalhaven Council is not the last employer for whom your client has carried out work to…

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: [2013] NSWWCCPD 28
Decision Date: 23 May 2013

CaseChat Overview and Summary

In the case of Shoalhaven City Council v Stevenson, the dispute centred on the proper interpretation and application of sections 61 and 261 of the Workplace Injury Management and Workers Compensation Act 1998. The Council sought to challenge the factual findings of an arbitrator who had ruled in favour of the respondent, Mr Stevenson, concerning his compliance with statutory notice and claim requirements. The matter was brought before the court to review the arbitrator’s determination and the underlying statutory obligations.

The primary legal issue before the court was whether the arbitrator had erred in finding that Mr Stevenson had fulfilled the statutory obligations regarding notice of injury and the making of a claim under the Act. This involved an examination of the statutory provisions, the evidence presented, and the arbitrator’s interpretation of those provisions in the context of the facts as found. The court needed to determine whether the factual findings were supported by the evidence and whether they correctly applied the statutory requirements.

The court found that the arbitrator had correctly applied the statutory provisions and that the factual findings were adequately supported by the evidence. It was determined that Mr Stevenson had indeed complied with the requirements of sections 61 and 261 of the Act. The court held that the factual findings made by the arbitrator were not open to challenge and that the statutory obligations had been properly met. Consequently, the court revoked the initial paragraph of the arbitrator’s determination and substituted it with the appropriate finding that Mr Stevenson had complied with the statutory requirements. The remaining paragraphs of the arbitrator’s determination were confirmed.

The court further ordered that the appellant, Shoalhaven City Council, was to pay the respondent’s costs of the appeal. This comprehensive decision clarified the obligations under the Act and affirmed the importance of adhering to statutory notice and claim requirements in workers' compensation matters.

Orders

Orders of the court

1. Paragraph one of the Arbitrator’s determination dated 14 January 2013 is revoked and the following findings are made in its place:

“1. The applicant has complied with the requirements as to giving notice of injury and concerning the making of a claim as prescribed by ss 61 and 261 respectively of the Workplace Injury Management and Workers Compensation Act 1998.”

2. Paragraphs two, three and four are confirmed.

3. The appellant is to pay Mr Stevenson’s costs of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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