Vucic v Baiada Select Poultry Pty Limited - [2006] NSWWCCPD 190

WORKERS COMPENSATION COMMISSION

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

CITATION:Vucic v Baiada Select Poultry Pty Limited [2006] NSWWCCPD 190
APPELLANT:   Marijan Filip Vucic
RESPONDENT:   Baiada Select Poultry Pty Limited
INSURER: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC 4930-05
DATE OF ARBITRATOR’S DECISION:          12 September 2005
DATE OF APPEAL DECISION:  18 August 2006
SUBJECT MATTER OF DECISION: Sections 4, 9A and 66 of the Workers Compensation Act 1987; Estoppel; Referral of medical disputes to an AMS for assessment.
PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION:  Appellant:      PK Simpson and Co
Respondent:   Goldbergs

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 12 September 2005 is confirmed.

No order is made as to the costs of the appeal.

BACKGROUND TO THE APPEAL

On 4 October 2005 Marijan Filip Vucic (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 12 September 2005.

The Respondent to the Appeal is Baiada Select Poultry Pty Limited (‘the Respondent’).

The Appellant commenced employment as a Process Worker with the Respondent on or about 1 February 1994. The Appellant sustained an injury on 20 April 1994 arising out of and in the course of his employment with the Respondent when his right hand was caught in a boning and mincing machine. The occurrence of that injury is not in dispute.

The Appellant suffered incapacity as a result of the injury aforesaid and received benefits pursuant to the Workers Compensation Act 1987 (‘the 1987 Act’). In 1997 the Appellant made application to the Compensation Court of New South Wales (‘the Court’) seeking weekly benefits and lump sums as well as medical and hospital expenses pursuant to the provisions of the 1987 Act.

The Application for Determination filed with the Court was heard by his Honour Judge Walker following which an award was entered in favour of the Appellant. The original award of the Court, dated 9 February 1998, made orders with respect to payment of weekly compensation on a continuing basis pursuant to section 40 of the 1987 Act, together with payment to the Appellant of lump sums pursuant to sections 66 and 67 of the 1987 Act, together with hospital and medical expenses and interest. That award was, by consent, amended by order of the Court on 21 May 1998. It appears that the variation, reducing the entitlement to lump sums, was made having regard to the fact that the Respondent had lodged an Appeal with the NSW Supreme Court, Court of Appeal. The variation provided, inter alia, that the matter be stayed in all respects “save as for weekly compensation”.

The Respondent’s Appeal was heard by the NSW Court of Appeal on 5 July 1999. Judgment was delivered by the Court on 22 July 1999, the order being that the Appeal be dismissed with costs.

The Appellant remained in the employment of the Respondent following the…

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: [2006] NSWWCCPD 190
Decision Date: 18 August 2006

CaseChat Overview and Summary

The appeal in Vucic v Baiada Select Poultry Pty Limited was brought by the Appellant, Marijan Filip Vucic, against the decision of an Arbitrator of the Workers Compensation Commission. The Respondent was Baiada Select Poultry Pty Limited. The Appellant had originally commenced employment with the Respondent in 1994 and sustained an injury to his right hand during employment, for which he had received compensation. He subsequently alleged further injuries in a second employment and sought further compensation. The Arbitrator's decision, rendered on 12 September 2005, dismissed the Appellant's claims against the First Respondent and no order was made as to costs. The issues in dispute in the appeal were whether the Arbitrator erred in law in her application of the provisions of section 9A of the Workers Compensation Act 1987, whether the doctrine of Res Judicata and the principles of Estoppel operated with respect to the Compensation Court’s findings of fact, and whether the Arbitrator erred in failing to refer the question of the “extent of the loss of efficient use of sexual organs to an AMS to assess what portion relates to the physical and psychological injuries as already determined, and what portion relates to any other abnormality or condition.” The appeal was dismissed and the Arbitrator's decision was confirmed.

Orders