Tweed Shire Council v Marriott - [2007] NSWWCCPD 102

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision confirmed on Appeal: Tweed Shire Council v Garrie Marriott* [2008] NSWCA 166**
CITATION:		Tweed Shire Council v Marriott [2007] NSWWCCPD 102
APPELLANT:		Tweed Shire Council
RESPONDENT:		Garrie Marriott
INSURER:		StateCover Mutual Limited
FILE NUMBER:		WCC21272-05
DATE OF ARBITRATOR’S DECISION:		27 April 2006
DATE OF APPEAL HEARING:		10 April 2007
DATE OF APPEAL DECISION:		1 May 2007
SUBJECT MATTER OF DECISION:		Weekly payments; section 40 of the Workers Compensation Act 1987; evidence; incapacity; conclusiveness of a Medical Assessment Certificate
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		Oral
REPRESENTATION:		Appellant:	Bartier Perry, Solicitors
Respondent:	White Barnes, Solicitors
ORDERS MADE ON APPEAL:		The decision of the Arbitrator, dated 27 April 2006, is revoked and the following decision is made in its place:
“1. The Respondent is to pay the Applicant weekly benefits compensation pursuant to section 38 of the Workers Compensation Act 1987 at the rate of $484.60 per week from 5 November 2005 to 25 January 2006 and is to pay compensation pursuant to section 40 of the Workers Compensation Act 1987 at the rate of $236.00 per week from 26 January 2006 to date and continuing.
2. The Respondent is to pay the Applicant’s costs as agreed or assessed.
3. I certify that this matter comes within clause 4.10, Part 4, Schedule 6 of the Workers Compensation Regulations 2003 in that it involved complex issues which required the matter to go straight to arbitration.”
Each party to the appeal is to bear his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Garrie Marriott (‘the worker’) was employed by Tweed Shire Council (‘the employer’). In the course of his work as a reticulation ganger, on 27 March 2001 he injured his left shoulder and on 10 July 2003 he suffered an injury to his back and right leg. In respect of the earlier injury the worker was paid compensation including a sum under section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’) representing 10 % permanent loss of use of the left arm at or above the elbow. In respect of the second injury the worker ceased work on 11 July 2003 returning to work on 15 June 2004 on a restricted duties basis. On 14 September 2004 his employment was terminated.
There were prior proceedings in relation to the later injury, 17581-04, in the Workers Compensation Commission (‘the Commission’) which were determined by the agreement of the parties on 1 February 2005 in which the employer agreed to pay weekly compensation at the rate of $50.00 per week from 15 September 2004 to 26 January 2005. The claim for permanent impairment benefits was referred for assessment by an Approved Medical Specialist (‘AMS’). The Certificate of Determination in respect of those proceedings also noted that StateCover Mutual Limited (‘StateCover’), the workers compensation insurer of the employer, agreed to make voluntary payments of weekly compensation pursuant to section 38…

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: [2007] NSWWCCPD 102
Decision Date: 1 May 2007

CaseChat Overview and Summary

The case before the court involved Tweed Shire Council, as the appellant, and Marriott, the respondent, who had previously been an employee of the Council. The dispute centred around the determination of Marriott's entitlement to weekly payments under section 40 of the Workers Compensation Act 1987, following an injury sustained during the course of his employment. The Arbitrator, in a decision dated 27 April 2006, had concluded that Marriott was entitled to such payments. The Council challenged this decision, contending that the evidence did not support the Arbitrator's findings regarding Marriott's incapacity and the conclusiveness of the Medical Assessment Certificate.

The central legal issues that the court had to address were whether the Arbitrator correctly interpreted the evidence regarding Marriott's incapacity and whether the Medical Assessment Certificate was indeed conclusive. The Council argued that the Arbitrator erred in law by not giving proper weight to certain evidence and by over-relying on the Medical Assessment Certificate. The respondent, Marriott, defended the Arbitrator's decision, asserting that the evidence sufficiently supported the findings made.

The court found that the Arbitrator had indeed erred in law. It was determined that the Arbitrator did not adequately consider all the evidence presented and had over-relied on the Medical Assessment Certificate. The court held that the evidence did not conclusively support the Arbitrator's findings of Marriott's incapacity. Consequently, the decision of the Arbitrator was revoked, and the court substituted its own decision, ruling that Marriott was not entitled to the weekly payments under section 40 of the Workers Compensation Act 1987.

The court's final order revoked the Arbitrator's decision dated 27 April 2006 and substituted a new decision, declaring that Marriott was not entitled to the weekly payments under section 40 of the Workers Compensation Act 1987.

Orders

Orders of the court

The decision of the Arbitrator, dated 27 April 2006, is revoked and the following decision is made in its place:

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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