Toll Pty Limited v Jensen - [2006] NSWWCCPD 298

WORKERS COMPENSATION COMMISSION

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

CITATION:Toll Pty Limited v Jensen [2006] NSWWCCPD 298
APPELLANT:  Toll Pty Limited
RESPONDENT:  Christian Arthur Jensen
INSURER:Toll NSW
FILE NUMBER:  WCC 10611-05
DATE OF ARBITRATOR’S DECISION:          11 November 2005
DATE OF APPEAL DECISION:  8 November 2006
SUBJECT MATTER OF DECISION: Section 9A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   Anthony Scarcella Lawyer

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 11 November 2005 is confirmed.

2. Toll Pty Limited to pay Christian Arthur Jensen’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 25 November 2005 Toll Pty Limited (‘Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 November 2005.

The Respondent to the Appeal is Christian Arthur Jensen (‘Mr Jensen’) who was born on 30 July 1968 and is 38 years of age. He is married and his wife and four children are dependent on him.

After completing Year 11 at school, Mr Jensen joined the army where he became a truck driver until he was discharged in July 1989. Thereafter he worked mainly as a truck driver and commenced employment with Toll in 2002 as a petrol tanker driver.

On 3 December 2004 Mr Jensen injured his right knee whilst climbing out of the cabin of his truck at a Shell Service Station. He finished work early and attended the Emergency Department of the Westmead Hospital. He remained off work, except for a period of 3 or 4 weeks of light duties, until 21 March 2005 when he returned to normal duties with Toll.

Compensation was paid on a provisional basis, however liability was declined on 31 January 2005. Mr Jensen commenced proceedings in the Commission on 4 July 2005 and an arbitration hearing took place on 12 October 2005 with a second day on 9 November 2005 when an ex tempore decision was handed down. Toll have appealed from the decision of the Arbitrator.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 11 November 2005 records the Arbitrator’s orders as follows:

“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s.36 of the Workers Compensation Act 1987 for the period from 4/12/2004 to 20/3/2004 [sic 2005]. The Respondent is to reinstate the Applicant’s holiday and sick leave entitlements used during this period.
2.There is an award for the Applicant, in relation to the Applicant’s claim for medical costs incurred to date, pursuant to s.60 of the Workers Compensation Act 1987.

3.The Respondent is to pay the Applicant’s costs as agreed or assessed.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are that the Arbitrator erred:

·in finding that Mr Jensen was injured in the course of his employment;
·in finding that employment was…

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 Toll Pty Limited v Jensen

Details

AGLC: Toll Pty Limited v Jensen [2006] NSWWCCPD 298
Case: [2006] NSWWCCPD 298
Decision Date: 8 November 2006

CaseChat Overview and Summary

The Workers Compensation Commission was called upon to review a decision made by an arbitrator in the case of Toll Pty Limited versus Christian Arthur Jensen. The key issues in dispute were whether the injury sustained by Mr Jensen was in the course of employment, if the employment was a substantial contributing factor to the injury, and if the Arbitrator provided adequate reasons for the decision. The appeal was lodged within the required time frame and met the monetary threshold, granting leave to appeal. The court reviewed the matter on the papers, finding sufficient information to proceed without a formal hearing. The Arbitrator's decision on the injury was upheld, as there was adequate evidence to support the finding that Mr Jensen's injury arose from his employment. The Arbitrator's interpretation of the substantial contributing factor was initially flawed but later corrected, taking into account the relevant factors set out in the Workers Compensation Act 1987. The Arbitrator also considered the medical evidence and provided adequate reasons for the decision. The Arbitrator's decision to confirm the award, dated 11 November 2005, was upheld. Toll Pty Limited was ordered to pay Christian Arthur Jensen's costs of the appeal.

Orders