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Snow Confectionary Pty Ltd v Askin

Snow Confectionary Pty Ltd v Askin

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Case Copied 20 August 2004 23 min read

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WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56
APPELLANT:  Snow Confectionary Pty Ltd
RESPONDENT:  Guldeniz Askin
INSURER:NRMA Workers Compensation (NSW) (No.2) Pty Ltd
FILE NUMBER:  WCC10103-2003
DATE OF ARBITRATOR’S DECISION:          18 September 2003
DATE OF APPEAL DECISION:  20 August 2004
SUBJECT MATTER OF DECISION: Application of sections 40 and 43A of the Workers Compensation Act 1987, Availability of work, Adequacy of reasons.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:27 July 2004
REPRESENTATION:  Appellant: Bartier Perry Solicitors

Respondent: Watson Stafford Solicitors,
Attorneys, Notary

ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked and the following decision is made in its place:
(1)That the Appellant pay the Respondent weekly compensation at the rate of $310.13 from 1 April 2003 to 19 August 2004 under section 40 of the Workers Compensation Act 1987.
(2)Such weekly payments to continue in accordance with the provisions of the Act.
(3)No order as to costs.

CONTENTS

THE APPEAL  PARAGRAPHS 1 - 8
ISSUES IN DISPUTE  PARAGRAPH 9
LEAVE  PARAGRAPH 10
BACKGROUND FACTS  PARAGRAPHS 11 - 14
THE RELEVANT LAW  PARAGRAPHS 15 - 18
DISCUSSION AND FINDINGS  PARAGRAPHS 19 - 47
DECISION  PARAGRAPH 48
COSTS  PARAGRAPH 49

THE APPEAL

On 13 October 2003 Snow Confectionary Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 18 September 2003.

The Respondent to the Appeal is Guldeniz Askin (‘the Respondent Worker/Ms Askin’). The Respondent Worker filed submissions in Reply to the appeal on 26 November 2003.

The relevant insurer is NRMA Workers Compensation (NSW) (No.2) Pty Ltd (‘NRMA’).

The appeal concerns a claim by Ms Askin for weekly compensation in respect of a lower back injury sustained on 15 July 1999, when employed by the Appellant Employer.

On 20 May 2003, Ms Askin lodged an ‘Application to Resolve a Dispute’ in the Commission. A teleconference was held between the parties on 12 August 2003, after which the matter proceeded to conciliation/arbitration on 9 September 2003. The parties were unable to reach an agreement; therefore the matter proceeded to arbitration before the same Arbitrator. Ms Askin gave oral evidence at the arbitration, which was sound recorded.

The ‘Certificate of Determination’ and attached ‘Statement of Reasons’ (‘the reasons’) dated 18 September 2003 records the Arbitrator’s decision, allegedly reached with the consent of the parties, as follows:
·“That the Respondent pay the Applicant weekly compensation at a rate equal to the amount that the worker was receiving as at and from the date weekly payments were stopped (1^st April, 2003) [sic] to date.
·Such weekly payments to continue in accordance with the Act.
·The Respondent is to pay the Applicant’s costs as agreed or assessed.”

The Appellant Employer submits that the decision of the Arbitrator should be revoked and a new decision, that the Worker is not entitled to weekly compensation, be made in its place. The…

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: [2004] NSWWCCPD 56
Decision Date: 20 August 2004

CaseChat Overview and Summary

The appeal in Snow Confectionary Pty Ltd v Askin was brought by the employer, Snow Confectionary Pty Ltd, against a decision of the Workers Compensation Commission. The decision, made by an arbitrator, was that the worker, Guldeniz Askin, was to be paid weekly compensation for her partial incapacity. The employer sought to have this decision revoked and replaced with a decision that Ms Askin was not entitled to weekly compensation. The primary issue in the appeal was whether the Arbitrator erred in applying section 40 of the Workers Compensation Act 1987 to the facts of the case, and whether the Arbitrator's reasons were adequate. The appeal was allowed on the basis that the Arbitrator had failed to consider the exercise of discretion under section 40(1) of the Act. The Arbitrator had not deducted the amount that the worker retained some ability to earn in suitable employment, as was appropriate in the circumstances. The Arbitrator's reasons were also found to be inadequate. The Arbitrator's decision was revoked and replaced with a decision that the employer should pay Ms Askin weekly compensation at a rate of $310.13 from 1 April 2003 to 19 August 2004 under section 40 of the Workers Compensation Act 1987. The weekly payments should continue in accordance with the provisions of the Act. The appeal was only partly successful and no order was made as to costs.

Orders