Star City Pty Limited v Dong - [2006] NSWWCCPD 309

WORKERS COMPENSATION COMMISSION

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

CITATION:Star City Pty Limited v Dong [2006] NSWWCCPD 309

APPELLANT: Star City Pty Limited

RESPONDENT: Jing Dong

INSURER:Star City Pty Limited – self insurer

FILE NUMBER:  WCC354-05
DATE OF ARBITRATOR’S DECISION:          20 February 2006
DATE OF APPEAL DECISION:  15 November 2006
SUBJECT MATTER OF DECISION: Adequacy of evidence for a finding of ‘partial incapacity’; section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Cutler Hughes & Harris
Respondent: McClellands

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated
20 February 2006 is confirmed.
2.Star City Pty Limited is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL

Jing Dong (‘Ms Dong’) was employed by Star City Pty Limited (‘Star City’) as a gaming attendant. She commenced employment at the Star City Casino in February 2000.

Ms Dong claimed that as a result of the nature and conditions of her employment at Star City between 1 January 2001 and 5 September 2002 requiring her to continuously reach forward and bend to deal and retrieve gaming pieces, she suffered injuries to her neck, back, right arm, right leg and loss of sexual function.

Ms Dong was certified unfit to work from 6 September 2002 until 23 October 2002 and thereafter certified fit to return to work on ‘light duties’. Ms Dong remained on ‘light duties’ with Star City until 8 September 2003 when her employment was terminated.

Star City Pty Limited as self insurer (‘the insurer’) initially accepted liability, and Ms Dong was paid weekly payments of compensation until 8 August 2003.

On 10 January 2005 Ms Dong lodged an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation from 8 August 2003 to date and continuing, medical, hospital and related expenses and permanent impairment/pain and suffering compensation pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’) and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

On 1 February 2005 Star City lodged a ‘Reply’ disputing Ms Dong’s entitlement to the benefits she claimed.

The parties attended a conciliation/arbitration hearing on 28 November 2005 and a Teleconference for submissions (due to insufficient time at the hearing) on 16 December 2005.

On 20 February 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:

“1.That the Respondent pay the Applicant weekly compensation at the maximum statutory rate for a single worker with no dependants from 8 August 2003 to 30 June 2004 and from 16 January 2005 to date under s.40 of the Workers Compensation Act 1987. Such payments to continue in accordance with the provisions of the Act.

2.That the Respondent pay the Applicant weekly compensation at the rate of $10.00 per week from 1 July 2004 to 15 January 2005 under s.40 of the Workers Compensation…

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 309
Decision Date: 15 November 2006

CaseChat Overview and Summary

The appeal in Star City Pty Limited v Dong was brought by Star City, the insurer, against a decision of the Arbitrator dated 20 February 2006, which found that Ms Dong was partially incapacitated for work since 8 August 2003. Star City argued that the Arbitrator erred in finding that Ms Dong was partially incapacitated for work as she had little physical constraint on her in pursuing work in careers she previously had engaged. The Arbitrator’s decision was confirmed by the Acting Deputy President Deborah Moore. The Acting Deputy President found that the Arbitrator’s reasons were both thorough and detailed and that her findings and conclusions were consistent with the totality of the evidence before her. The Acting Deputy President concluded that the Arbitrator had exercised her discretion fairly and lawfully and that Star City had failed to demonstrate any error either of law, fact or discretion. The decision of the Arbitrator was confirmed, and Star City was ordered to pay the costs of the appeal.

Orders