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Stanton v Shoalhaven City Council

Stanton v Shoalhaven City Council

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Case Copied 16 June 2008 53 min read

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Stanton v Shoalhaven City Council [2008] NSWWCCPD 58
APPELLANT:  David George Stanton
RESPONDENT:  Shoalhaven City Council
INSURER:Self insured
FILE NUMBER:  WCC5620-07
DATE OF ARBITRATOR’S DECISION:          13 December 2007
DATE OF APPEAL DECISION:  16 June 2008
SUBJECT MATTER OF DECISION: Section 4 of the Workers Compensation Act 1987; adequacy of reasons for decision; fair climate for acceptance of expert medical evidence; inquisitorial powers of the Commission; procedural fairness; referral to Approved Medical Specialist.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      White Barnes
Respondent:   Astridge & Murray

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 13 December 2007 is confirmed.

No order is made as to the costs of this appeal.

BACKGROUND

On 9 January 2008 Mr David Stanton, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 13 December 2007.

The Respondent Employer to the Appeal is Shoalhaven City Council (‘the Council’). The Council is self-insured.

Mr Stanton commenced employment with the Council on 10 June 1997 and was employed as a Ranger. He claims to have suffered an injury to his right arm and shoulder at work on 9 April 2002 when he was holding the boom of a jet patcher (a street pavement repair apparatus) attached to the back of a vehicle, when the driver of the vehicle drove off resulting in a “wrenching” injury to his right arm, in particular the right elbow and right shoulder.

Mr Stanton made a claim for compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) claiming $6,250 lump sum compensation for 5% whole person impairment for the right upper extremity.

In the ‘Section 74 Notice’ issued by the Council on 1 February 2007, it accepted liability for injury to Mr Stanton’s right elbow but denied liability for the alleged injury to his right shoulder. The Council’s decision was based upon “medical certificates issued by your nominated treating doctor, your workers compensation claim form, incident report form and Dr Harbison’s reports of 17 May and 23 November 2006.” This decision was confirmed in the ‘Review – Dispute Notice pursuant to Section 287A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)’, dated 18 July 2007.

On 25 July 2007 Mr Stanton filed his ‘Application to Resolve a Dispute’ in the Commission. In due course the matter proceeded to a hearing before the Arbitrator on 25 October 2007 following which a ‘Certificate of Determination’ dated 13 December 2007, was issued, together with the Arbitrator’s ‘Statement of Reasons for Decision’ (‘Reasons’).

Mr Stanton has appealed the Arbitrator’s decision.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 13 December 2007 records the Arbitrator’s orders as follows:

“1.That there is an award to the Respondent for the Applicant’s claim for compensation for injury to his [the Applicant’s] right shoulder as 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: [2008] NSWWCCPD 58
Decision Date: 16 June 2008

CaseChat Overview and Summary

In the Workers Compensation Commission of New South Wales, Mr David George Stanton appealed the decision of an Arbitrator dated 13 December 2007. The Arbitrator had dismissed Mr Stanton’s claim for compensation for an injury to his right shoulder sustained during employment with Shoalhaven City Council on 9 April 2002. The Arbitrator ordered that the dispute concerning permanent impairment of Mr Stanton’s right upper extremity (excluding any loss of the right shoulder) be referred to an Approved Medical Specialist for assessment. Mr Stanton’s appeal was heard by Deputy President Gary Byron who confirmed the Arbitrator’s decision. Mr Stanton’s grounds of appeal were that the Arbitrator erred in law in failing to give proper reasons for his decision, in making a determination that Mr Stanton did not sustain an injury to his right shoulder in the course of his employment, and in denying Mr Stanton procedural fairness by not accepting him as a witness of truth, and by failing to avail himself of the inquisitorial powers of the Commission to test Mr Stanton’s assertions with respect to injury. In dismissing the appeal, Deputy President Byron found that the Arbitrator was not required to give lengthy reasons for decision, but it was necessary that the essential ground or grounds upon which the decision rests should be articulated. In this case, the Arbitrator had given sufficient reasons upon which to base his decision and had made no error in point of law. Furthermore, the Deputy President found that the Arbitrator had acted fairly, impartially and with due regard to the principles of procedural fairness.

Orders