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W E Bromley Pty Ltd v Coggins

W E Bromley Pty Ltd v Coggins

Case [2006] NSWWCCPD 128 21 June 2006

Estoppel

Change of Circumstances

Weekly Compensation

Probable Earnings

Current Weekly Wage Rate

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

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

CITATION:W E Bromley Pty Limited v Coggins [2006] NSWWCCPD 128
APPELLANT:  W E Bromley Pty Limited
RESPONDENT:  Gary Allan Coggins
INSURER:NRMA Workers Compensation (NSW) (No 2) Ltd
FILE NUMBER:  WCC21127-04
DATE OF ARBITRATOR’S DECISION:          22 July 2005
DATE OF APPEAL DECISION:  21 June 2006
SUBJECT MATTER OF DECISION: Estoppel; sections 40, 42 and 55 Workers Compensation Act 1987; reasons, and current weekly wage rate.
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      McCulloch & Buggy
Respondent:    P K Simpson & Co

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s decision of 19 July 2005 is revoked and the following order made:

“The matter is remitted to the Arbitrator under section 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 for the Arbitrator to redetermine the Respondent Worker’s entitlements under section 40 of the Workers Compensation Act 1987 in accordance with the reasons in this decision.”
Paragraphs two and three of the Arbitrator’s decision dated 19 July 2005 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 19 August 2005 W E Bromley Pty Limited (‘the Appellant Employer/Bromley’s’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 22 July 2005.

The Respondent to the Appeal is Gary Allan Coggins (‘the Respondent Worker/Mr Coggins’).

Mr Coggins was born on 17 July 1958. In about 1975 he started work in produce markets as a labourer and truck driver. In 1986 he got involved in selling and buying produce (‘procuring’). This work involved travelling to farms Australia wide procuring produce and wholesaling it back from the market to retailers. On 12 September 1998 he started work as a salesman with the Appellant Employer. The work involved buying and selling produce as well as heavy physical stacking and sorting trays and boxes of fruit and vegetables.

On or about 9 February 1999 the Respondent Worker was required to drive a fork lift for the day and, as a result, he developed severe back and leg pain. On 11 February 1999 he was stacking fruit when he experienced increased back and leg pain. He attended at Auburn Hospital where x rays were done and he was given medication for his pain. After three weeks off he returned to work but was struggling to perform his duties. He continued to work with Bromley’s until the business was sold on 30 June 1999 to Metro Mushrooms Pty Ltd (‘Metro Mushrooms’). He was then employed by that company until 1 December 2000. That work was of a similar nature but he was given a chair and allowed to sit more often as the company had a full time labourer to assist him. From July 1999 until December 2000 Mr Coggins continued to have trouble with his back and was on…

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 W E Bromley Pty Ltd v Coggins

Details

AGLC: W E Bromley Pty Ltd v Coggins [2006] NSWWCCPD 128
Case: [2006] NSWWCCPD 128
Decision Date: 21 June 2006

CaseChat Overview and Summary

In the case of W E Bromley Pty Ltd v Coggins, the appellant employer appealed a decision by an arbitrator in the Workers Compensation Commission regarding the respondent worker's claim for ongoing weekly compensation and medical expenses after an injury sustained in February 1999. The employer contested the arbitrator's decision, which found the worker entitled to weekly compensation from 30 November 2002 onwards, along with medical expenses. The employer argued that the arbitrator erred in several respects, including the application of estoppel, the assessment of weekly compensation under section 40 of the Workers Compensation Act 1987, and the consideration of the worker's capacity to earn.

The appeal centered on whether the arbitrator properly applied the law, particularly concerning the principles of estoppel and the assessment of weekly compensation. The appeal also scrutinized the arbitrator's handling of evidence, including the admissibility of late-submitted documents and the weight given to medical evidence. The court considered whether the arbitrator correctly identified a change in circumstances warranting a review of the worker's entitlements and whether the arbitrator failed to provide adequate reasons for his decisions.

The court found that the arbitrator did not err in applying the principles of estoppel and that he correctly identified a change in circumstances relevant to the worker's entitlement to weekly compensation. Regarding the assessment of weekly compensation, the court determined that the arbitrator failed to properly apply section 40 of the 1987 Act, particularly in calculating the worker's probable earnings and in not considering the maximum rate of compensation under section 40(5). The court also noted that the arbitrator did not adequately address the worker's ability to earn during periods of unemployment and incorrectly assessed the worker's probable earnings.

Ultimately, the court concluded that the matter should be remitted to the arbitrator for redetermination of the worker's entitlements under section 40, with specific instructions on the proper assessment of probable earnings and the application of section 40(5). The court also confirmed the arbitrator's decision on medical expenses and costs, with the employer ordered to pay the worker's costs of the appeal.

Orders