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Toll Pty Ltd v Bartimote

Toll Pty Ltd v Bartimote

Case [2007] NSWWCCPD 153 11 July 2007

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WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Toll Pty Limited v Bartimote [2007] NSWWCCPD 153
APPELLANT:  Toll Pty Limited
RESPONDENT:  Mark Bartimote
INSURER:Self insurer
FILE NUMBER:  WCC7814-06
DATE OF ARBITRATOR’S DECISION:          28 November 2006
DATE OF APPEAL DECISION:  11 July 2007
SUBJECT MATTER OF DECISION:                Report of injury and claim for compensation; review of factual errors; application of the ‘disease’ provisions
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   M J Duffy & Son

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 28 November 2006 is confirmed.
The referral to an Approved Medical Specialist provided for in that decision should be in accordance with these reasons.

The Appellant Employer is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL
1.On 22 December 2006 Toll Pty Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 November 2006.

2.The Respondent to the Appeal is Mark Bartimote (‘the Respondent Worker’).

3.The Respondent Worker was born on 7 February 1962, his wife works part-time as a teacher, and the Application to Resolve a Dispute (‘the Application’) claims weekly compensation on the basis he has four dependant sons. His statement dated 8 February 2006 describes him leaving school in 1978 at sixteen years, after completing the School Certificate. He completed an apprenticeship and qualified as a fitter and turner. He then worked variously as a fitter, truck driver, gymnasium manager, machinist, wool presser, and operator of haymaking equipment. This was punctuated by periods of study, youth work and counselling, in Tasmania and New Zealand, connected with his Christian beliefs. He commenced working as a truck driver with Finemores Pty Limited on about 18 May 1993, driving interstate vehicle transporters. He describes this as “hard physical work involving loading and unloading and driving for up to 10 hours per shift”. The statement describes Finemores Pty Limited as changing its name to Toll Pty Limited (the Appellant Employer) at an unspecified time. It is not suggested in these proceedings that anything flows from this name change (assuming that is what occurred).

4.The Application pleads an incident of 18 November 1998, when the Respondent Worker “fell from a Stinger car carrier”, allegedly injuring his left shoulder, neck and head. The Respondent Worker’s statement describes him being off work for approximately three weeks after this incident, and says his “claim was accepted”. The Application also pleads injury to the neck resulting from the “nature and conditions of employment as a Truck Driver” from November 1998 to 15 July 2004. It describes the date of this claim as 7 July 2003. The Respondent Worker’s statement says the Appellant Employer “initially accepted liability” for this claim. It says the Respondent Worker was placed on “restricted duties” from 4 July 2003, until 26 March 2004, when the Appellant Employer denied liability…

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 Bartimote

Details

AGLC: Toll Pty Ltd v Bartimote [2007] NSWWCCPD 153
Case: [2007] NSWWCCPD 153
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the matter of an appeal by Toll Pty Limited against a decision of an Arbitrator in the Workers Compensation Commission, the appeal concerns the determination of a claim for workers compensation by Mark Bartimote. The Arbitrator's decision was confirmed, with certain modifications, by Acting Deputy President Michael Snell. The appeal raised several issues, including the jurisdiction of the Commission, the validity of the claim, the findings on injury, and the application of the 'disease' provisions. The Acting Deputy President found that the Commission had jurisdiction over the claim, and that the findings of injury were adequately supported by evidence, though the reasons provided by the Arbitrator were insufficient. The Acting Deputy President concluded that the Respondent Worker's employment as a truck driver was a substantial contributing factor to the aggravation of his cervical disc disease. The referral to an Approved Medical Specialist (AMS) was modified to reflect the correct dates and injuries, and the Appellant Employer was ordered to pay the costs of the appeal.

Orders