Smith v Pius X Aboriginal Corporation - [2007] NSWWCCPD 194

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Smith v Pius X Aboriginal Corporation [2007] NSWWCCPD 194
APPELLANT: Mark Anthony Smith

RESPONDENT:  Pius X Aboriginal Corporation
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC164-07
DATE OF ARBITRATOR’S DECISION:          17 April 2007
DATE OF APPEAL DECISION:  12 September 2007
SUBJECT MATTER OF DECISION: Section 40(2)(a) of the Workers Compensation Act 1987; meaning of “same or some comparable employment”; reasons; inconsistent findings
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      White Barnes
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s determination dated 17 April 2007 are revoked and the following orders made:
“1.The matter is remitted to a different Arbitrator to re-determine the Applicant Worker’s entitlement to weekly compensation in the period 20 March 2006 to 7 May 2006 in accordance with the reasons in this decision.
2.Award for the Respondent Employer in respect of the Applicant Worker’s claim for weekly compensation from 8 May 2006 to date.
3.The Respondent Employer is to pay the Applicant Worker’s costs of the arbitration.”

Each party is to pay his or its costs of the appeal.

BACKGROUND TO THE APPEAL

On or about 11 May 2000 Mark Anthony Smith (‘the Appellant Worker/Mr Smith’) injured his back in the course of his employment with Pius X Aboriginal Corporation (‘the Respondent Employer/the Corporation’). At that time the Corporation employed him as a Child Care Worker.

As a result of his injury he was off work for about two weeks and was paid compensation. When he returned to work he continued on full duties. A few months after the original injury he strained his back when he was moving and cleaning some mats and he was put off work for three weeks and again paid workers compensation. He experienced further pain in his back in May and June 2001 when he was put off for about two weeks. He returned to work on light duties for two weeks and then full duties. He was stood down in October 2000 because of reasons unrelated to his injury.

Since his injury in May 2000 Mr Smith has always noticed problems and pain with his back and has had to be careful with the way he moves.

It has been difficult to put together an accurate chronology of Mr Smith’s subsequent work history in this matter because of the way the case has been prepared and presented. Doing the best I can, the following appears from the evidence. In 2002 and 2003 (exact dates are not provided in the evidence) Mr Smith worked as a Youth Worker consulting and speaking with young people.

In 2003 Mr Smith made a claim in the Workers Compensation Commission (‘the Commission’) for lump sum compensation as a result of his May 2000 back injury. That claim was referred to an Approved Medical Specialist (‘AMS’), Dr Porges, who examined him on 23 July 2003 and issued a…

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: [2007] NSWWCCPD 194
Decision Date: 12 September 2007

CaseChat Overview and Summary

The appeal in Smith v Pius X Aboriginal Corporation was heard by Deputy President Bill Roche, who found that the Arbitrator's decision contained errors in law and fact. The decision was set aside in part and the matter was remitted to a different Arbitrator to re-determine the Applicant Worker's entitlement to weekly compensation for the period 20 March 2006 to 7 May 2006. The Deputy President held that the Arbitrator's failure to consider the worker's entitlement to weekly compensation for the first period constituted an error of law and the matter was not suitable for re-determination by the Deputy President. For the period 8 May 2006 to date, the Deputy President held that the Arbitrator's decision was correct and an award was made in favour of the Respondent Employer. The Deputy President also found that the worker was entitled to his costs of the arbitration. The worker was not entitled to his costs of the appeal as the quantum of his award did not meet the statutory threshold.

Orders