The Bright Group Pty Ltd v Akdeniz - [2009] NSWWCCPD 113

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		The Bright Group Pty Ltd v Akdeniz [2009] NSWWCCPD 113
APPELLANT:		The Bright Group Pty Ltd
RESPONDENT:		Sabire Akdeniz
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-5986-08
ARBITRATOR:	Mr D Minus
DATE OF ARBITRATOR’S DECISION:		30 March 2009
DATE OF APPEAL DECISION:		14 September 2009
SUBJECT MATTER OF DECISION:		Mistreatment of the evidence; partial incapacity, section 40 award
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	QBE In House Legal
Respondent:		Thomas Booler and Co
ORDERS MADE ON APPEAL:		1. Time to appeal is extended to 30 April 2009. 2. The Arbitrator’s decision dated 30 March 2009 is confirmed.
3. The Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 30 April 2009 The Bright Group Pty Ltd (‘the Appellant/Bright Group’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 March 2009.

The Respondent to the appeal is Ms Akdeniz (‘the Respondent/Worker’).

Ms Akdeniz commenced proceedings in the Commission on 31 July 2008, filing an Application to Resolve a Dispute. She alleged injury as a result of using a press machine on 4 September 2003 and as a result of the nature and conditions of employment for an unspecified period. She claimed weekly compensation payments of $601.57 from 1 October 2004 to date and continuing and lump sum compensation under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’), in respect of 35% whole person impairment (‘WPI’), compensation for pain and suffering under section 67, calculated at 90% of a most extreme case ($45,000.00), and a general order under section 60.

On 4 September 2008, Bright Group filed an Application to Admit Late Documents, annexing its Reply. It denied Ms Akdeniz had a whole person impairment as a result of injury on 4 September 2003, or as a result of the nature and conditions of her employment. It denied that she had, or would suffer pain, commensurate with 90% of a most extreme case. Bright Group alleged that Ms Akdeniz had refused to return to work despite her doctor certifying she was fit to do so for restricted hours, or restricted days per week, and that she had a “significant residual earning capacity”.

The matter was listed for a conciliation/arbitration hearing on 3 October 2008, after which a ‘Certificate of Determination – Consent Orders’ issued dated 9 October 2008. This included orders and directions in relation to the filing and issuing of Directions for Production, and the filing and serving of additional evidence and wage schedules. The following injuries were referred to the Registrar for referral to an Approved Medical Specialist (‘AMS’), to assess WPI:

“8. The Applicant suffered injury to her Cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder), as a result of the nature and conditions of her employment from 11/9/1998 to 12/9/2003…

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: [2009] NSWWCCPD 113
Decision Date: 14 September 2009

CaseChat Overview and Summary

In The Bright Group Pty Ltd v Akdeniz, the dispute arose from a decision by an arbitrator who awarded the respondent, Akdeniz, compensation under section 40 of the relevant legislation. The Bright Group Pty Ltd contested the decision, arguing that the arbitrator had mishandled the evidence and that the award was inappropriate given the respondent’s partial incapacity. The case was heard in the court, which was required to determine the validity of the arbitrator’s decision and whether the evidence was correctly interpreted.

The court was tasked with examining whether the arbitrator had acted within their jurisdiction, whether the evidence was appropriately assessed, and if the section 40 award was justified considering the respondent’s partial incapacity. The primary focus was on the procedural fairness of the arbitration process and the substantive correctness of the award.

In delivering its judgment, the court found that the arbitrator’s decision was made in accordance with the applicable legal framework. The evidence presented was thoroughly reviewed, and it was concluded that the arbitrator had not mishandled it. The court also determined that the section 40 award was appropriate given the circumstances of the respondent’s partial incapacity. As a result, the arbitrator’s decision was upheld, and the appeal time was extended to allow for any potential appeal to be lodged.

The orders made by the court included an extension of time for an appeal to 30 April 2009, and confirmation of the arbitrator’s decision dated 30 March 2009. The court’s decision effectively affirmed the arbitrator’s judgment and provided clarity on the procedural and substantive correctness of the award.

Orders

Orders of the court

1. Time to appeal is extended to 30 April 2009.

2. The Arbitrator’s decision dated 30 March 2009 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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