Warren Lang v Drury - [2004] NSWWCCPD 92

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Warren Lang v Drury [2004] NSW WCC PD 92
APPELLANT:  Warren Lang
RESPONDENT:  Henry McFadden Drury
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC6655-2003
DATE OF ARBITRATOR’S DECISION:          24 December 2003
DATE OF APPEAL DECISION:  21 December 2004
SUBJECT MATTER OF DECISION: Inadequacy of Reasons; ‘deemed worker’; Clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:20 December 2004
REPRESENTATION:  Appellant: QBE Workers Compensation (NSW) Limited In-House Legal

Respondent: Higgins & Higgins Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is revoked.

If the proceedings before the Arbitrator are not discontinued, the matter is remitted to the Arbitrator to be determined in accordance with these reasons.

Background

On 27 January 2004 Warren Lang filed an appeal in the Commission against the decision of an Arbitrator, made on 24 December 2003. The Respondent to the appeal is Henry Drury. The relevant insurer is QBE Workers Compensation (NSW) Limited.

On 11 June 1997 Mr Drury was working as a tree lopper on Mr Lang’s property when he fell from a ladder some twenty five to thirty feet to the ground. He injured his ankle and heel. The Arbitrator decided that Mr Drury was a ‘deemed worker’ and awarded him payment of weekly compensation, medical expenses and compensation for pain and suffering.

Leave to appeal was granted on 20 September 2004. The appeal has been expedited because Mr Drury is elderly.

Despite written submissions by Mr Lang’s legal representative that the decision was correct and should be confirmed, submissions were made at the hearing of the appeal that the Arbitrator’s decision should be revoked on the basis of the inadequacy of reasons.

QBE also submits that the Arbitrator has failed to provide adequate reasons and that this amounts to an error of law that should result in the Arbitrator’s decision being revoked. QBE also argued, in written submissions, that the Arbitrator’s decision is wrong because Mr Drury was a contractor, not his employee, and therefore he is not liable to pay him workers compensation benefits.

The Appeal

The parties have come to an agreement as to the appropriate outcome of the dispute and indicated at the hearing of the appeal that they wish to file an agreement pursuant to section 66A of the Workers Compensation Act 1987 (the 1987 Act). They have otherwise agreed as to costs and any ongoing entitlements to Mr Drury as a result of the injury.

However jurisdiction cannot be conferred upon a Presidential Member by consent. Nor is it possible for an Arbitrator or a Presidential Member to make an order for permanent impairment compensation that has not been the subject of, or is not consistent with, an assessment by an Approved Medical Specialist.

Appeal proceedings differ significantly from proceedings at first instance before an Arbitrator. On appeal there already exists a binding determination as to 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.

Continue reading Warren Lang v Drury

Details

AGLC: Warren Lang v Drury [2004] NSWWCCPD 92
Case: [2004] NSWWCCPD 92
Decision Date: 21 December 2004

CaseChat Overview and Summary

In Warren Lang v Drury, the appellant, Warren Lang, sought to appeal a decision made by an arbitrator concerning a workers' compensation claim filed by the respondent, Henry McFadden Drury. The dispute originated from an incident on 11 June 1997, where Mr. Drury, a tree lopper, fell from a ladder on Mr. Lang's property, resulting in injuries to his ankle and heel. The central issue in the appeal was whether Mr. Drury qualified as a 'deemed worker' under Clause 2 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 and whether the arbitrator's decision was supported by adequate reasons. The appeal was heard by Dr. Gabriel Fleming, Deputy President, on 20 December 2004, and a decision was rendered on 21 December 2004.

The legal issues before the court included whether the arbitrator's decision should be revoked due to the inadequacy of reasons provided for determining Mr. Drury as a 'deemed worker'. QBE Workers Compensation (NSW) Limited, the insurer, argued that the arbitrator's reasons were insufficient and that this constituted an error of law. The court examined whether the reasons disclosed the evidence upon which the findings were made, the understanding of the applicable law, and the reasoning process that led to the conclusion that Mr. Drury was a 'deemed worker'. The court also considered the arbitrator's failure to provide adequate reasons for the award of weekly compensation benefits.

The court found that the arbitrator's reasons did not sufficiently address the specific elements required under Clause 2 of Schedule 1, particularly whether Mr. Drury's work was incidental to a trade or business in his own name or under a business name. Additionally, the reasons did not adequately explain the basis for the award of weekly compensation. The court concluded that the failure to provide adequate reasons for the decision that Mr. Drury was a 'deemed worker' amounted to an error of law, necessitating the revocation of the arbitrator's decision. The matter was remitted to the arbitrator to be redetermined in accordance with the court's reasons.

The decision of the arbitrator was revoked, and if the proceedings were not discontinued, the matter was to be remitted to the arbitrator for redetermination. The court emphasized that the parties had agreed on the outcome of the dispute and the costs involved, but jurisdictional constraints meant that these agreements could not fully govern the appeal. The court's ruling underscored the importance of providing comprehensive reasons in workers' compensation appeals to ensure that decisions are fair, lawful, and transparent.

Orders