Sutherland Shire Council v Webb - [2007] NSWWCCPD 238

WORKERS COMPENSATION COMMISSION

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

CITATION:Sutherland Shire Council v Webb [2007] NSWWCCPD 238

APPELLANT:  Sutherland Shire Council
RESPONDENT:  John Patrick Webb
INSURER:Self-insured
FILE NUMBER:  WCC12823-06
DATE OF ARBITRATOR’S DECISION:          16 February 2007
DATE OF APPEAL DECISION:  4 December 2007
SUBJECT MATTER OF DECISION:                Leave to appeal; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; section 60 of the Workers Compensation Act 1987; error as to cause of injury
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION:  Appellant:      Vardanega Roberts
Respondent:   White Barnes

ORDERS MADE ON APPEAL: Leave to appeal is refused
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal

BACKGROUND

Mr John Webb, the Respondent Worker, commenced employment with the Appellant Employer, Sutherland Shire Council, (‘the Council’) as a plant/diesel mechanic on 8 November 1968. The Council is self insured.

Mr Webb states that his duties with the Council involved heavy, physical labouring work including bending, twisting and lifting as well as climbing in and out of plant and equipment. This activity allegedly placed a constant strain on his knees. Mr Webb states that he had an onset of pain in his knees in about March 2003 at which time he consulted with his general practitioner, Dr Lucre. He was referred to a Dr Rowden who performed an arthroscope on 21 June 2003.

Mr Webb commenced proceedings in relation to other injuries, in the Compensation Court of New South Wales (matter no. 9079 of 2002), which settled. The following ‘Short Minutes of Orders’ were entered on 17 July 2003:

“…
2.That the Respondent pay the Applicant as lump sum compensation under section 66 –
(1) $10,000 in respect of 25% permanent impairment of the Applicant’s neck
(2) $3,750 in respect of 5% loss of use of the Applicant’s left arm at or above the elbow.
3.That the Respondent pay the Applicant, as lump sum compensation under section 67, $8,250 in respect of pain and suffering.

…..”

On 27 April 2005 a ‘Certificate of Determination’ was issued by the Commission in a related matter, WCC7671-04, in which the following orders were issued:

“1.Application amended to include a claim for hearing aids pursuant to section 60 of the Workers Compensation Act, 1987.
2.Award for the Applicant in respect of bilateral hearing aids up to a maximum sum of $3,200 upon production of accounts or receipts.
3.Award for the Applicant in the sum of $1,737.50 in respect of further hearing loss (1.37%).
4.The requirement to file a Notice of Discontinuance in respect of all Respondents [sic] under Rule 74 is dispensed with.

5. Respondent pay the Applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
The parties will file an agreement under section 66A of the 1987 Act by 15 February 2005.”

On 16 August 2005 Mr Webb provided the Council with an…

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.

Continue reading Sutherland Shire Council v Webb

Details

AGLC: Sutherland Shire Council v Webb [2007] NSWWCCPD 238
Case: [2007] NSWWCCPD 238
Decision Date: 4 December 2007

CaseChat Overview and Summary

The Workers Compensation Commission was asked to determine an appeal brought by the Sutherland Shire Council against an arbitrator's decision that ordered the Council to pay John Patrick Webb $4,782.20 in medical expenses under section 60 of the Workers Compensation Act 1987. The Council's appeal was lodged outside of the 28-day period prescribed by section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998. The Council argued that it was unable to lodge the appeal within the prescribed period as the sum in issue was less than $5,000, which would have been prohibited by section 352 of the 1998 Act. The Council also sought leave to appeal on the basis that the amount of compensation at issue in the appeal was at least $5,000 and at least 20% of the amount awarded in the decision appealed against. The Commissioner found that the Arbitrator's decision was made when the Commission issued a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act. The Commissioner found that the amount of compensation at issue in the appeal did not meet the monetary threshold requirements of section 352(2)(a) and (b) of the 1998 Act, and therefore leave to appeal could not be granted. The Commissioner also found that it was not necessary to determine the application to extend time for making the appeal. The Commissioner ordered that the Council pay Mr Webb's costs of the appeal.

Orders