Toll Pty Ltd v Quinn - [2007] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION

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

CITATION:Toll Pty Ltd v Quinn [2007] NSWWCCPD 63
APPELLANT:  Toll Pty Ltd
RESPONDENT:  Anthony Quinn
INSURER:Self-Insured
FILE NUMBER:  WCC2501-06
DATE OF ARBITRATOR’S DECISION:          4 August 2006
DATE OF APPEAL DECISION:  23 February 2007
SUBJECT MATTER OF DECISION:                Worker’s credit; reasons; weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent:   Bryden’s Law Office

ORDERS MADE ON APPEAL: For the reasons set out in this decision, the Arbitrator’s findings and orders dated 4 August 2006 are confirmed.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal at the maximum rate allowable under the costs regulations, Schedule 6, table 4 of the Workers Compensation Regulation 2003.

BACKGROUND TO THE APPEAL

On 22 June 2006 Toll Pty Ltd (‘the Appellant Employer/Toll’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, delivered on 25 May 2006 but not formally recorded in a Certificate of Determination until dated 4 August 2006.

The Respondent to the Appeal is Anthony Quinn (‘the Respondent Worker/Mr Quinn’).

Mr Quinn was born on 16 December 1957 and has worked with Toll as a driver/loader for approximately 28 years. His work required him to drive a large semi trailer fitted with large metal gates (‘the gates’), which were removed manually to allow access during loading and unloading. The gates were approximately 180cm high and weighed over 20 kilograms (see Mr Quinn’s statement 17 October 2005, paragraph six).

On 17 April 2003 Mr Quinn was lifting one of the gates on his truck when he alleges he sustained injury to his neck and left shoulder. He completed an ‘Early notification and register of injuries’ form (‘report of injury form’) on the same day and a compensation claim form on 13 May 2003. Both forms describe the cause of injury as “lifting gate onto semi-trailer” and identify the injury as being to the left neck and left shoulder. The report of injury form also noted “left index finger numb”.

He continued to work but predominantly on light and restricted duties. In May 2003 he was admitted to Bankstown Hospital for cervical traction and physiotherapy. After a period in hospital for traction, he underwent surgery to his left shoulder on 15 October 2003. On 18 December 2003 he underwent surgery to his neck. After a period off work to recover from that surgery he returned to work on light duties gradually returning to full duties though with some difficulty and restriction.

In his Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 February 2006, Mr Quinn sought lump sum compensation in respect of 25% whole person impairment as a result of the injuries sustained by him on 17 April 2003. By its Reply filed in March 2006 Toll identified the issues in dispute as being “all issues in…

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 Quinn

Details

AGLC: Toll Pty Ltd v Quinn [2007] NSWWCCPD 63
Case: [2007] NSWWCCPD 63
Decision Date: 23 February 2007

CaseChat Overview and Summary

This appeal concerns a decision of the Workers Compensation Commission in which the Arbitrator found in favour of the worker, Anthony Quinn. The employer, Toll Pty Ltd, appealed the Arbitrator's decision. The appeal was heard by Deputy President Bill Roche, who found that the Arbitrator's decision should be revoked and the matter redetermined. The Deputy President found that the Arbitrator had failed to provide adequate reasons for her decision, which was a ground to set aside the decision. The Deputy President found that Mr Quinn had suffered an injury to his neck and left shoulder in the course of his employment with Toll on 17 April 2003 and that his employment was a substantial contributing factor to that injury. The employer is to pay the worker's costs of the appeal.

The appeal concerned the Arbitrator's findings and reasons. The employer submitted that the Arbitrator had failed to properly consider the evidence and had not properly analysed Mr Quinn's credit. The employer also submitted that the Arbitrator had failed to properly consider the evidence of medical records and the video that the employer had tendered. The employer submitted that the Arbitrator had erred in failing to have regard to the onus of proof that Mr Quinn carried. The employer submitted that Mr Quinn had not discharged the onus of proof. The employer submitted that the Arbitrator had failed to address the issue of Mr Quinn's credit and whether his evidence could be accepted. The employer submitted that the Arbitrator had failed to have regard to the adverse inference against Mr Quinn by reason of his failure to call evidence to corroborate his allegations. The employer submitted that the Arbitrator had failed to have regard to the hospital and medical records admitted into evidence. The employer submitted that the Arbitrator had failed to address and determine the issue of Mr Quinn's credit. The employer submitted that the Arbitrator had failed to have regard to the provisions of section 9A of the Workers Compensation Act 1987. The employer submitted that the Arbitrator had failed to give any adequate reasons for any finding in respect of the section 9A issue. The employer submitted that the Arbitrator had failed to address and determine the issue of Mr Quinn's credit. The employer submitted that the Arbitrator had failed to have regard to the adverse inference against Mr Quinn by reason of his failure to call evidence to corroborate his allegations. The employer submitted that the Arbitrator had failed to have regard to the hospital and medical records admitted into evidence. The employer submitted that the Arbitrator had failed to address and determine the issue of Mr Quinn's credit. The employer submitted that the Arbitrator had failed to have regard to the provisions of section 9A of the Workers Compensation Act 1987. The employer submitted that the Arbitrator had failed to give any adequate reasons for any finding in respect of the section 9A issue.

The Deputy President found that the Arbitrator had failed to provide adequate reasons for her decision. The Deputy President found that the Arbitrator had failed to properly analyse or consider the evidence and had failed to reveal her process of reasoning to enable the parties to understand why she concluded that Mr Quinn injured his left shoulder and neck on 17 April 2003. The Deputy President found that it was not clear if the Arbitrator had accepted or rejected Mr Quinn's credit and it was not known which of the "contemporaneous and corroborative evidence" the Arbitrator had relied upon to ground her final conclusion. The Deputy President found that the Arbitrator had failed to properly exercise her statutory duty to fairly and lawfully determine the matter and the decision must be revoked.

The Deputy President found that Mr Quinn had suffered injury to his neck and left shoulder in the course of his employment with Toll on 17 April 2003 when he lifted a steal gate. The Deputy President found that that incident caused Mr Quinn to sustain "acute cervical disc rupture" and a left rotator cuff tendinitis with intra-substance tear and impingement. The Deputy President found that Mr Quinn's employment was a substantial contributing factor to his injuries. The Deputy President found that Mr Quinn had discharged the onus of proof on all issues including causation. The Deputy President confirmed the Arbitrator's findings and orders dated 4 August 2006.

Orders