Walsh v Fortescue Metals Group Ltd - [2016] WADC 140

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WALSH -v- FORTESCUE METALS GROUP LTD [2016] WADC 140

CORAM: HERRON DCJ

HEARD: 27 MAY 2016

DELIVERED : 22 SEPTEMBER 2016

FILE NO/S: APP 14 of 2016

BETWEEN: GARY WALSH
Appellant
AND
FORTESCUE METALS GROUP LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKCOVER WA
Coram  :ARBITRATOR NUNN
Citation  :A26112

Catchwords:

Worker's Compensation - Section 61 Worker's Compensation and Injury Management Act 1981 - Nature and extent of s 61 application - Interim application - Cannot be used to determine whether worker has suffered a disability - Observations regarding nature of hearings before arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Appellant: Mr A Stewart
Respondent: Mr C Rimmer

Solicitors:

Appellant: Chapmans Barristers & Solicitors
Respondent: Jarman McKenna

Case(s) referred to in judgment(s):

Department of Education v Kenworthy (1990) 3 WAR 1
Glenn-Craig Villages Pty Ltd v Donaghy (1992) 7 WAR 122
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Napier v BHP Billiton (Worsley Alumina) Pty Ltd [2015] WASCA 230
Qantas Flight Catering v Joncevski [2004] WASCA 121
Vurlow v Leighton Nursing Home (1978) WAR 15

HERRON DCJ:

Introduction

On 24 March 2015 the appellant, Mr Walsh, suffered injuries to his left arm when he swung a tool bag to his shoulder during the course of his employment with the respondent, Fortescue Metals Group Limited. In his workers' compensation claim form signed by him on 27 March 2015 he described the injury as a strain to his left biceps while lifting a work tool bag. He was seen by Dr Hurworth who issued a first medical certificate dated 24 March 2015. She described the injury as a left arm injury and assessed Mr Walsh as suffering a ruptured long head of left biceps.
Dr Hurworth referred Mr Walsh to a surgeon, Dr Marchant. She certified Mr Walsh as having some capacity for work on the basis he was fit for modified or alternative duties.
By letter dated 7 April 2015 the workers' compensation insurer, GIO, informed the employer that liability was accepted in respect to weekly payments and medical expenses. The letter did not identify any specific injury, rather it referred to 'Nature of Incapacity – left biceps strain'.
By notice dated 26 June 2015 issued pursuant to s 61 of the Workers' Compensation and Injury Management Act 1981 (WCIM Act) the employer informed Mr Walsh it intended to discontinue his weekly payments of compensation. The s 61 notice was based upon two medical reports of Dr White dated 27 May 2015 and 18 June 2015. On 19 August 2015 Mr Walsh filed an application pursuant to s 61 challenging the employer's right to discontinue weekly payments.
An initial hearing was held to determine, 'as a preliminary issue', the validity of the s 61 notice and medical certification. The parties filed written submissions and the application was heard and determined on the papers. 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.

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Details

Case: [2016] WADC 140
Decision Date: 22 SEPTEMBER 2016

CaseChat Overview and Summary

The case of Walsh v Fortescue Metals Group Ltd was heard in the Industrial Court of Western Australia. The plaintiff, Mr. Walsh, sought compensation for injuries he sustained during his employment with the defendant, Fortescue Metals Group Ltd. The primary dispute centred on the interpretation and application of Section 61 of the Workers Compensation and Injury Management Act 1981, particularly in relation to determining whether Mr. Walsh had suffered a disability as a result of his injuries. The court was asked to consider an interim application brought by Mr. Walsh, which aimed to establish the extent of his disability for the purposes of calculating his compensation.

The legal issues before the court involved the scope and application of Section 61 of the Act, which pertains to the assessment of the nature and extent of a worker's disability. The court had to decide whether an interim application under Section 61 could be used to determine the extent of a worker's disability, and if so, how such a determination should be made. Additionally, the court was required to consider the appropriate procedural steps and the nature of hearings before an arbitrator, as well as the potential implications of these hearings on the overall compensation process.

The court held that an interim application under Section 61 could not be used to conclusively determine the extent of a worker's disability. The court emphasised that such applications were intended to address interim issues during the compensation process and not to make final determinations on disability. The court further noted that the nature of hearings before an arbitrator should be flexible and should aim to efficiently resolve interim issues without unduly delaying the overall compensation process. The court observed that hearings before an arbitrator should be tailored to the specific circumstances of the case and should not be overly formalised to ensure a timely and effective resolution of interim matters.

The court's decision clarified the limited scope of interim applications under Section 61 and provided guidance on the appropriate conduct of hearings before an arbitrator. The court's ruling ensured that interim applications would not be used as a means to determine the final extent of a worker's disability, thereby maintaining the integrity of the overall compensation process.

Orders