Smith v OneSteel Ltd - [2009] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smith v OneSteel Ltd [2009] NSWWCCPD 4
APPELLANT:  OneSteel Ltd
RESPONDENT:  Matthew James Smith
INSURER:Self-insurer
FILE NUMBER:  A1-5029/08
DATE OF ARBITRATOR’S DECISION:          23 September 2008
DATE OF APPEAL DECISION:  15 January 2009
SUBJECT MATTER OF DECISION:                Adequacy of reasons; treatment of the evidence; causation; whether a non-work-related incident resulted from a work-related injury.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore Lawyers
Respondent:   Armstrongs Solicitors Pty Ltd

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 23 September 2008 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons.
There is no order as to the costs of this appeal.

BACKGROUND

On 20 October 2008, OneSteel Ltd (‘the Appellant’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 23 September 2008. Solicitors for the Respondent to the appeal, Matthew Smith, filed submissions opposing the appeal on 19 November 2008. OneSteel Ltd is a workers compensation self-insurer.

Mr Smith, who is aged 27, was employed by OneSteel Ltd as a Plant Labourer, commencing in 2001. On 16 May 2005, he was injured when shovelling loose waste from a scale box pit in the course of his employment. Mr Smith also claims to have injured his back and right leg as a result of the nature and conditions of his employment between 16 May 2005 and 15 March 2008, namely constant and repetitive bending, lifting, twisting and shovelling.

Mr Smith lodged a workers compensation claim in respect of the first injury on 18 May 2005, which was accepted by his employer. He was treated for this injury by Dr Matthew McDonald, general practitioner, the “works doctor”, who diagnosed “a strain of both sacroiliac joint ligaments” and said Mr Smith was “fit to return to work on suitable duties (avoid repeated bending or heavy lifting)” (report dated 18 May 2005). Consequently, Mr Smith was employed on light clerical work for about three months before returning to normal duties, although not exactly the same as those duties in which he had been employed prior to the injury.

Mr Smith claims that on Saturday 15 March 2008, he developed severe back pain while sitting watching a football match. The following Monday, he sought medical treatment from his general practitioner, Dr Paul Martin, who certified him unfit for work. Mr Smith has not worked since. On 10 April 2008, Mr Smith completed a report for his employer in respect of this incident and, on 22 April 2008, he completed a workers compensation claim. On 16 May 2008, OneSteel Ltd denied liability.

On 3 July 2008, the Commission registered Mr Smith’s ‘Application to Resolve a Dispute’ in respect of his claim under the Workers Compensation Act 1987 (‘the 1987 Act’) for weekly compensation of $1,100 per week from 15 March 2008 to 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.

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Details

Case: [2009] NSWWCCPD 4
Decision Date: 15 January 2009

CaseChat Overview and Summary

In the matter of Smith v OneSteel Ltd, the appellant, OneSteel Ltd, sought leave to appeal against the decision of an arbitrator dated 23 September 2008, which was granted. The appeal concerned the adequacy of reasons, treatment of evidence, causation, and whether a non-work-related incident resulted from a work-related injury. The appellant argued that the arbitrator erred in her analysis and interpretation of the evidence and in making findings that were not supported by logically probative evidence and were against the weight of evidence. The respondent argued that the arbitrator was correct in her findings, and the evidence was sufficient to support her findings. The Acting Deputy President of the Workers Compensation Commission reviewed the evidence before the arbitrator and her Statement of Reasons. The Acting Deputy President found that the arbitrator erred in relying on her general knowledge of such matters rather than on medical evidence and that the findings were not adequately supported by the evidence. The Acting Deputy President concluded that the appropriate course was for the decision to be revoked and the matter to be remitted to a different arbitrator for determination afresh. The final orders made on appeal were that the decision of the arbitrator dated 23 September 2008 is revoked and the matter is remitted to another arbitrator for determination afresh in accordance with these reasons. There was no order as to the costs of this appeal.

Orders