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Toll Pty Ltd v Ballantyne

Toll Pty Ltd v Ballantyne

Case [2008] NSWWCCPD 46 18 April 2008

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46
APPELLANT:  Toll Pty Ltd
RESPONDENT:  Glyn Charles Ballantyne
INSURER:Self-insured
FILE NUMBER:  WCC5398-06
DATE OF ARBITRATOR’S DECISION:          26 October 2007
DATE OF APPEAL DECISION:  18 April 2008
SUBJECT MATTER OF DECISION: Weight of medical evidence; weight and relevance of a Medical Assessment Certificate in a claim for weekly compensation; calculation of compensation and exercise of discretion under section 40 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   Slater & Gordon

ORDERS MADE ON APPEAL: The Arbitrator’s determination of 26 October 2007 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Glyn Ballantyne is currently 61 years of age. On 31 January 2002 he sustained multiple injuries when a car struck him on Military Road Mosman. At the time he was acting in the course of his employment as a courier with Toll Pty Ltd (‘the Appellant Employer/Toll’). He was taken to Royal North Shore Hospital where he was admitted until 2 February 2002.

Toll accepted liability for his claim and paid weekly compensation and medical expenses until 15 March 2005. By an Application to Resolve a Dispute (‘the Application’) filed in the Commission on 5 April 2006, Mr Ballantyne alleged that he sustained injuries to his head, neck, ears, shoulders, left knee and lower back in his accident. He sought weekly compensation in the sum of $1,200.00 per week from 15 March 2005 to date and continuing together with medical expenses and compensation for whole person impairment said to have resulted from his injuries.

At an arbitration on 23 June 2006, a Commission Arbitrator (‘the first Arbitrator’) determined that Mr Ballantyne injured his cervical spine, lumbar spine and head in the accident, but did not injure his shoulders or left knee. The Arbitrator referred Mr Ballantyne’s claim for lump sum compensation to two Approved Medical Specialists (‘AMSs’) for assessment, Dr Matheson and Dr Niall. Dr Matheson assessed the impairment resulting from the injury to the cervical spine and lumbar spine, and Dr Niall assessed the impairment resulting from the head injury (alleged to be hearing loss, tinnitus and vertigo).

Dr Matheson issued a Medical Assessment Certificate (‘MAC’) on 29 August 2006 certifying Mr Ballantyne to have a 10% whole person impairment in respect of his lumbar spine, but deducted 100% under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) for a pre-existing condition. He assessed Mr Ballantyne to have a 0% whole person impairment in respect of his cervical spine.

Dr Niall also issued a MAC on 29 August 2006 in which he certified Mr Ballantyne to have certain losses as a result of his head injury. Toll appealed against this MAC to a Medical Appeal Panel and on 18 December 2006 the Appeal…

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 Ltd v Ballantyne

Details

AGLC: Toll Pty Ltd v Ballantyne [2008] NSWWCCPD 46
Case: [2008] NSWWCCPD 46
Decision Date: 18 April 2008

CaseChat Overview and Summary

Toll Pty Ltd appealed against a decision of the Workers Compensation Commission, seeking to overturn an Arbitrator’s decision awarding Glyn Charles Ballantyne weekly compensation. The appeal raised four issues: whether the Arbitrator erred in failing to consider video evidence; failing to properly consider and weigh the competing medical evidence; assessing Mr Ballantyne’s ability to earn and, as a consequence, erred in calculating his entitlement under section 40 of the Workers Compensation Act 1987; and failing to have regard to Mr Ballantyne’s non work-related medical conditions and his failure to seek any employment as discretionary considerations in the assessment of any section 40 entitlement. The appeal was dismissed with costs. The Arbitrator’s decision was affirmed, and the employer was ordered to pay the worker’s costs of the appeal.

The Deputy President of the Workers Compensation Commission, Bill Roche, considered the issues raised by the appeal. Firstly, while the Arbitrator did not refer to the video evidence in her Reasons, the Deputy President found that the video corroborated Mr Ballantyne’s complaints in several respects and did not undermine his claim. Therefore, the omission did not constitute an appealable error.

Secondly, the Deputy President examined the Arbitrator’s assessment of the competing medical evidence. The Arbitrator had carefully considered and weighed the evidence, including Mr Ballantyne’s evidence, which was tested in cross-examination. The Arbitrator’s conclusions were open to her and disclose no error. The Deputy President agreed with the Arbitrator’s findings.

Thirdly, regarding the section 40 assessment, the Arbitrator had carefully considered the whole of the evidence and reached a conclusion that struck a fair balance between the competing views. Her analysis of the evidence and conclusions were open to her and disclose no error. The Deputy President agreed with the Arbitrator’s assessment of Mr Ballantyne’s ability to earn.

Lastly, concerning the exercise of discretion, the Deputy President found that the Arbitrator had adopted the approach urged by Toll before the Arbitrator, isolating the incapacity resulting only from relevant injuries and assessing Mr Ballantyne’s ability to earn. The Deputy President rejected Toll’s arguments for further reduction in the exercise of the discretion, as there was no evidence of the impact of Mr Ballantyne’s non-work-related medical conditions on his ability to earn. Furthermore, the submission that the discretion should be exercised in circumstances where a worker is not seeking employment is incorrect and contrary to the Court of Appeal’s decision.

In conclusion, the Arbitrator’s determination of 26 October 2007 was confirmed, and the Appellant Employer was ordered to pay the Respondent Worker’s costs of the appeal.

Orders