Smith v Davies & Cannington Pty Ltd

[2005] NSWWCCPD 20

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Smith v Davies & Cannington Pty Ltd [2005] NSWWCCPD 20

APPELLANT:  Frank Smith

RESPONDENT:  Davies & Cannington Pty Ltd

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC2817-2004

DATE OF ARBITRATOR’S DECISION:          20 September 2004

DATE OF APPEAL DECISION:  24 March 2005

SUBJECT MATTER OF DECISION: Claim “not properly made”; power of Arbitrator to ‘strike out’ proceedings pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President.

HEARING:24 March 2005

REPRESENTATION:  Appellant:       Whitelaw McDonald Solicitors

& Attorneys

Respondent:    Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator “that the date of injury is deemed to be 3 June 2003” is confirmed.

The decision of the Arbitrator to “strike out” the matter pursuant to Rule 6(4) of the Workers Compensation Commission Rules 2003 is revoked and the following decision is made in its place:

1.The Respondent is granted leave to issue Directions to Produce, upon the Department of Education and the NSW Treasury Managed Fund.  The Directions must be issued within 3 days of the date of this decision.

2.The parties are each granted leave to file and serve one medical report in relation to a “whole person impairment” assessment of Mr Smith, on or before 5 May 2005.

3.The matter is to be referred to the Registrar to be listed before a different Arbitrator on or around 19 May 2005, in order that liability be determined.

4.Following the determination of liability, the matter is to be referred to an Approved Medical Specialist for an assessment of permanent impairment.

5.The Respondent is to pay the costs of the appeal.

THE APPEAL

1. Mr Smith has appealed against the decision by a Commission Arbitrator, dated 20 September 2004, to strike out his ‘Application to Resolve a Dispute’.  The Arbitrator also made a decision that the date upon which Mr Smith had been injured, in accordance with the Workers Compensation Act 1987, was 3 June 2003.

1. At the hearing of the appeal on 24 March 2004, Mr Smith conceded that the Arbitrator had not erred in determining that the date of injury was 3 June 2003.  I agree with this submission.

1. I gave my decision in this matter and more comprehensive reasons for the decision, orally at the hearing.  A transcript can be made available to the parties if they wish.

1. The Arbitrator erred in purporting to strike out the application, pursuant to Rule 6 of the Workers Compensation Commission Rules 2003, without making a finding of ‘nullity’ or ‘non-compliance’ with the Commissions Rules (Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83).

1. The Arbitrator also erred in finding that Mr Smith’s claim for compensation was ‘not properly made’. 

1. The issue of liability for the injury, in relation to this particular employer, remains to be determined.  If the parties are unable to come to an agreement that is acceptable to both of them, the dispute must be referred to an Approved Medical Specialist.

1. I make the following orders:

   The decision of the Arbitrator “that the date of injury is deemed to be 3 June 2003” is confirmed.

   The decision of the Arbitrator to “strike out” the matter pursuant to Rule 6(4) is revoked and the following decision is made in its place:

   1.   The Respondent is granted leave to issue Directions to Produce upon the Department of Education and the NSW Treasury Managed Fund.  The Directions must be issued within 3 days of the date of this decision.

   2.   The parties are granted leave to file and serve one medical report in relation to a “whole person impairment” assessment of Mr Smith, on or before 5 May 2005.

   3.   The matter is to be referred to the Registrar to be listed before a different Arbitrator on or around 19 May 2005, in order that liability be determined.

   4.   Following the determination of liability, the matter is to be referred to an Approved Medical Specialist for an assessment of permanent impairment.

5.   The Respondent is to pay the costs of the appeal.

Dr Gabriel Fleming

Deputy President  

24 March 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE