Sutherland Shire Council v Turner - [2006] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION

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

CITATION:Sutherland Shire Council v Turner [2006] NSWWCCPD 37
APPELLANT:  Sutherland Shire Council
RESPONDENT:  Pauline Norah Turner
FILE NUMBER:  WCC11226-04
DATE OF ARBITRATOR’S DECISION:          15 December 2004
DATE OF APPEAL DECISION:  3 March 2006
SUBJECT MATTER OF DECISION: Weight of Evidence: ‘Injury’, section 4’ of the Workers Compensation Act 1987: ‘Substantial Contributing Factor’, section 9A of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION:  Appellant:      Vardanega Roberts Solicitors
Respondent:   White Barnes Solicitors

ORDERS MADE ON APPEAL: Leave to appeal is granted.

The decision of the Arbitrator is confirmed.

The Appellant is to pay the costs of the appeal.

BACKGROUND

Pauline Turner has worked within a library operated by Sutherland Shire Council since November 1988. Her current job is Technical Services Co-ordinator. She claims to have suffered an injury to her back, at work, on 4 September 2002, when working on a hole-punching machine in the library. Ms Turner made a claim for weekly benefits compensation, medical expenses and lump sum compensation for permanent impairment. The Council denied liability for the claim and, on 22 July 2004, Ms Turner brought the dispute to the Workers Compensation Commission for resolution.

THE ARBITRATOR’S DECISION

A Commission Arbitrator made an award in Ms Turner’s favour of weekly compensation for the periods 5 to 9 September 2002 and 17 February 2003 to 11 April 2003, and medical expenses in the sum of $22,554.64. The Arbitrator gave the award, and reasons for the decision, orally on 11 November 2004. A ‘Certificate of Determination’, setting out these orders, was issued on 15 December 2004. The Council appeals against that award.

LEAVE TO APPEAL

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides as follows:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution…

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 37
Decision Date: 3 March 2006

CaseChat Overview and Summary

This case involved an appeal by the Sutherland Shire Council against a decision of the Arbitrator in a workers compensation matter. The respondent was Ms Turner, who had claimed compensation for an injury sustained while working. The appeal was heard by the Commission, constituted by a Presidential member, to determine whether the application for appeal met the statutory requirements and if leave should be granted.

The central legal issues were whether the amount of compensation at stake met the statutory thresholds and whether the appeal was filed within the prescribed time frame. The appeal also considered whether the application complied with the procedural requirements, including the provision of sufficient information to the Commission and the absence of fresh evidence.

The Commission determined that the appeal met the statutory criteria for leave. The amount at issue exceeded the minimum threshold of $5,000 and constituted at least 20% of the compensation awarded. The appeal was filed within the 28-day period, and no fresh evidence was presented. The Commission concluded that it had sufficient information to decide the appeal without holding a conference or formal hearing, as both parties had provided all relevant submissions and the transcripts were available.

The final orders of the Commission were that leave to appeal was granted, and the appeal was to be determined on the papers. The Commission was satisfied with the procedural fairness and completeness of the submissions, thus adhering to the statutory and practice directives.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides as follows:“352 Appeal against decision of Commission constituted by Arbitrator(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both: (a)at least $5,000 (or such other amount as may be prescribed by the regulations), and(b)at least 20% of the amount awarded in the decision appealed against.(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.(4)An appeal can only be made within 28 days after the making of the decision appealed against.(5)An appeal under this section is to be by way of review of the decision appealed against.(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.” The appeal meets the threshold requirements of section 352. It was filed within time and the amount at issue in the appeal is more than $5,000 and 20% of the amount awarded in the decision appealed against. Leave to appeal is granted. There is no ‘fresh evidence’ on the appeal. Section 354(6) of the 1998 Act provides:“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.” The Council and Ms Turner consent to the determination of the appeal on the papers. I have before me all the evidence and submissions that were before the Arbitrator, the transcript of the arbitration on 9 November 2004, the transcript of the oral reasons given on 11 November 2004 and the parties’ submissions on the appeal. The transcript was sent to the parties and they were given additional time to make submissions on any issues arising from it. Both parties made further submissions; Ms Turner on 15 February 2006 and the Council on 22 February 2006. I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the 1998 Act; Practice Direction No. 1).

Ratio Decidendi

Legal Principle Established

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