Smith v Racetrue Pty Ltd - [2006] NSWWCCPD 187

WORKERS COMPENSATION COMMISSION

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

CITATION:Smith v Racetrue Pty Ltd [2006] NSWWCCPD 187
APPELLANT:  Bruce John Smith
RESPONDENT:  Racetrue Pty Ltd
INSURER:Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:  WCC 18632-04
DATE OF ARBITRATOR’S DECISION:          22 March 2006
DATE OF APPEAL DECISION:  16 August 2006
SUBJECT MATTER OF DECISION: Whether compensation is payable separately in respect of loss of efficient use of the lower and upper arm arising from the same injury; section 66 of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:7 August 2006
REPRESENTATION:  Appellant: In person
Respondent: Ellison Tillyard Callanan, Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 22 March 2006 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 19 April 2006, Bruce John Smith sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 22 March 2006. The Respondent to the appeal is Racetrue Pty Ltd (‘Racetrue’). Racetrue’s workers compensation insurer is Allianz Australia Workers’ Compensation (NSW) Ltd (‘Allianz’).

Mr Smith was born on 4 September 1951 and is aged 54. Mr Smith worked as a panelbeater for Racetrue between 1995 and 28 April 1997. He subsequently commenced proceedings in the Compensation Court of NSW for weekly compensation from 4 September 2000 and for compensation for permanent loss. On 4 October 2001, Acting Judge Burke found that on the deemed date of injury (28 April 1997), Mr Smith “received injuries by way of hearing loss, tinnitus and to both lower arms”. His Honour said that the injuries to Mr Smith’s lower arms were as a result of his repetitive work as a panelbeater that resulted in tenosynovitis and bilateral carpal tunnel syndrome. Mr Smith had surgery for bilateral carpal tunnel release in early 2001.

His Honour found that Mr Smith had received all relevant entitlements in respect of his injuries up to and including 3 September 2000, and was totally incapacitated thereby on and from 4 September 2000. His Honour found Mr Smith suffered a “15 per cent permanent loss of efficient use of the right arm below the elbow, a 10 per cent permanent loss of efficient use of the left arm below the elbow and 50 per cent permanent loss of efficient use of sexual organs (penis)”. As a result, Mr Smith experiences “pain and suffering equivalent to 25 per cent of that of a most extreme case”. In addition, “[a]s a result of the general nature and conditions of his work the applicant suffers an 11.7 per cent binaural hearing loss”.

His Honour awarded Mr Smith:
(1) weekly compensation at the maximum statutory rate for a single man.
(2) compensation for permanent loss pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) as follows:
“a) $11,250 in respect of 15 per cent permanent loss of efficient use…

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: [2006] NSWWCCPD 187
Decision Date: 16 August 2006

CaseChat Overview and Summary

In the case of Smith v Racetrue Pty Ltd, Bruce John Smith sought compensation from Racetrue Pty Ltd, an employer in the panelbeating industry, for injuries he sustained during his employment. The dispute centered on whether Smith was entitled to separate compensation for the loss of efficient use of his lower and upper arms, as well as his right leg, arising from the same injury. The matter was initially decided by an arbitrator, whose decision was subsequently appealed by Smith. The appeal was heard by Acting Deputy President Robin Handley. The primary legal issue was whether Smith was entitled to separate compensation for loss of efficient use of his arms and leg under section 66 of the Workers Compensation Act 1987. The Arbitrator had found that Smith was not entitled to such compensation, relying on the High Court decision in KB Hutcherson Pty Ltd v Correia, which held that compensation for injuries arising from the same injurious events should not be assessed separately for different parts of the same limb. Acting Deputy President Handley reviewed the Arbitrator's decision and concluded that the Arbitrator had correctly applied the law and the relevant medical assessments. The decision of the Arbitrator was confirmed, and no order was made as to the costs of the appeal.

Orders