Star City Pty Ltd v Georgeson - [2007] NSWWCCPD 243

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE

COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Star City Pty Ltd v Georgeson [2007] NSWWCCPD 243
APPELLANT:  Star City Pty Ltd
RESPONDENT:  La-Or Georgeson
INSURER:Self Insured
FILE NUMBER:  WCC5004-07
DATE OF ARBITRATOR’S DECISION:          5 September 2007
DATE OF APPEAL DECISION:  12 December 2007
SUBJECT MATTER OF DECISION:                Injury; whether employment is a substantial contributing factor to injury; error of law; misdirection as to burden of proof; weight of evidence; error as to determination of period for payment of compensation not supported by the evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined ‘on the papers’
REPRESENTATION:  Appellant:      McLean Lawyers
Respondent:   Steve Masselos & Co

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 5 September 2007, is revoked and the following decision is made in its place:
Award for the Respondent Employer.

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

BACKGROUND

On 2 October 2007 Star City 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 5 September 2007.

The Respondent Worker in the Appeal is Ms La-Or Georgeson.

Star City Pty Ltd is self-insured.

Ms Georgeson was employed by Star City as a cleaner, and commenced that employment on 12 November 1999. She claims that she developed bi-lateral carpel tunnel syndrome and subsequently she was required to undergo surgery. She further claims that the condition arose from the nature and conditions of her employment.

Ms Georgeson made a number of written statements in support of her claim for payment of workers compensation. Her statements are dated 21 February 2007, 4 April 2007, 10 April 2007 and 21 June 2007.

Ms Georgeson states that her job as a cleaner at Star City involved working in all parts of the Casino. She said that she was “like a sort of floating cleaner who has to go to various places around the hotel.” (Paragraph 5, Statement of 21 February 2007). One of her main tasks was the cleaning of toilets. She said that she was required to return to the toilets every 30 to 40 minutes and continue to clean them. She maintained, “We would also remove bin liners from bins in the toilets and place in large bins outside. Sometimes they were heavy, sometimes they weren’t.” (Paragraph 8, Statement of 21 February 2007). In the course of carrying out her duties, Ms Georgeson describes carrying bins, placing them on trolleys, emptying the bins into a compactor, cleaning stainless steel surfaces twice each week, picking up debris from the floor of the theatre with a dustpan and broom, removing chewing gum from the carpet, and undertaking a lot of polishing “sometimes all day, sometimes for 2 weeks at a stretch, sometimes on the odd day” for as much as 3 hours at a time. This was amended to “up to 5 hours per week”, in a subsequent statement.

Ms Georgeson said…

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 243
Decision Date: 12 December 2007

CaseChat Overview and Summary

Star City Pty Ltd appealed against a decision of the Workers Compensation Commission in which the Arbitrator had ordered Star City to pay compensation to Ms La-Or Georgeson. The Arbitrator had found that Ms Georgeson had developed bilateral carpal tunnel syndrome and that her employment as a cleaner with Star City had been a substantial contributing factor to that injury. The Arbitrator ordered Star City to pay weekly compensation to Ms Georgeson from 17 January 2007 to 21 March 2007, as well as her reasonable medical expenses and costs. The appeal was determined on the papers, without a hearing, as sufficient information had been provided to the Commission to allow it to determine the appeal. The appeal was successful in part. The Arbitrator had erred in his consideration of the evidence of Ms Georgeson and her supervisor, Lorraine Shortland, and in the weight he attached to it. The Arbitrator also erred in his determination of the period for payment of compensation. The Arbitrator's decision was revoked and a decision was made in its place: award for the employer. No order was made as to the costs of the appeal.

Orders