| WORKERS COMPENSATION COMMISSION | ||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||
| STATUS: Confirmed Court of Appeal - StateCover Mutual Ltd v Smith [2012] NSWCA 27 (5 March 2012) | ||||
| CITATION: | Smith v Parkes Shire Council [2010] NSWWCCPD 130 | |||
| APPELLANT: | Dennis Alfred Smith | |||
| RESPONDENT: | Parkes Shire Council | |||
| FIRST INSURER: | QBE Workers Compensation (NSW) Ltd | |||
| SECOND INSURER: | StateCover Mutual Ltd | |||
| FILE NUMBER: | A1-2597/10 | |||
| ARBITRATOR: | Ms A Simpson | |||
| DATE OF ARBITRATOR’S DECISION: | 10 September 2010 | |||
| DATE OF APPEAL DECISION: | 17 December 2010 | |||
| SUBJECT MATTER OF DECISION: | Injury; erroneous factual findings; assessment of evidence; weight of evidence; aggravation of disease; s 4(b)(ii) of the Workers Compensation Act 1987; inappropriate use of the term “nature and conditions of employment”; alleged denial of natural justice | |||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||
| HEARING: | On the papers | |||
| REPRESENTATION: | Appellant: | White Barnes | ||
| Respondent in the interests of the First Insurer: | Sparke Helmore Lawyers | |||
| Respondent in the interests of the Second Insurer: | Bartier Perry | |||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 10 September 2010 is revoked. The matter is remitted to another Arbitrator for determination of the outstanding issues of weekly compensation, hospital and medical expenses, apportionment, and remittal to the Registrar for referral to an Approved Medical Specialist. The respondent employer is to pay the appellant worker’s costs of the appeal and of the first arbitration, as agreed or assessed. Those costs are to be paid by the insurers in equal proportions. The first arbitration is certified as complex and each party is entitled to an uplift on those costs of 30 per cent. | |||
BACKGROUND TO THE APPEAL
The appellant worker, Dennis Smith, started work with the respondent employer, Parkes Shire Council (the Council), as a labourer in about 1992. His duties required him to perform a full range of heavy physical activities, including shovelling, lifting and squatting.
He alleges that he received three injuries in the course of his employment with the Council. First, he alleges that, on 11 April 2001, he suffered a twisting injury to his right knee and lower back when an industrial hose he was using to clean treatment tanks became jammed, causing his body to jerk. Second, he alleges that he injured his right knee again on 31 March 2005, when he was climbing from a drain. Last, he alleges that, as a result of the physical nature of his duties between “1991 [sic] and 1 March 2008”, he suffered an aggravation, exacerbation and acceleration of a disease in his right knee and lower back.
The Council was insured by GIO General Ltd (GIO) up to 30 June 2001 and thereafter by StateCover Mutual Ltd (StateCover). GIO’s potential liability in respect of the claim was “re-allocated” to QBE Workers Compensation (NSW) Ltd (QBE) on 23 March 2010.
Mr Smith continued with his normal duties until he ceased work on 12 March 2008. He did not submit a claim for compensation in respect of his right knee and lower back until 3 November 2008.
Mr Smith stopped work on…
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- Case
- [2010] NSWWCCPD 130
- Decision Date
CaseChat Overview and Summary
The primary legal issues for determination by the NCAT related to whether the Arbitrator had erred in making certain factual findings, whether the Arbitrator had given appropriate weight to the evidence, and whether the decision contained an alleged denial of natural justice. The appellant, Mr Smith, argued that the Arbitrator had failed to consider relevant evidence, had given insufficient weight to the evidence that was considered, and had failed to adequately address the issue of aggravation of his pre-existing disease in the course of his employment. The respondent, Parkes Shire Council, defended the Arbitrator's decision, arguing that it was open to the Arbitrator to make the findings that were made and that there had been no denial of natural justice.
The NCAT found that the Arbitrator had indeed erred in making certain factual findings, had given insufficient weight to relevant evidence, and had failed to adequately address the issue of aggravation of disease. The NCAT held that the Arbitrator's use of the term "nature and conditions of employment" was inappropriate in the context of this matter. The Tribunal also found that there had been an alleged denial of natural justice in that the Arbitrator had failed to adequately address the evidence presented by the appellant. As a result, the NCAT revoked the Arbitrator's determination and remitted the matter to another Arbitrator for determination of the outstanding issues of weekly compensation, hospital and medical expenses, apportionment, and remittal to the Registrar for referral to an Approved Medical Specialist. The respondent employer was ordered to pay the appellant's costs of the appeal and of the first arbitration, with the costs to be paid by the insurers in equal proportions. The first arbitration was certified as complex and each party was entitled to an uplift on those costs of 30 per cent.
Orders
Orders of the court
The Arbitrator’s determination of 10 September 2010 is revoked. The matter is remitted to another Arbitrator for determination of the outstanding issues of weekly compensation, hospital and medical expenses, apportionment, and remittal to the Registrar for referral to an Approved Medical Specialist.
The respondent employer is to pay the appellant worker’s costs of the appeal and of the first arbitration, as agreed or assessed. Those costs are to be paid by the insurers in equal proportions. The first arbitration is certified as complex and each party is entitled to an uplift on those costs of 30 per cent.
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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