Legal Research
Cases
Waverley Council v Sheen

Waverley Council v Sheen

Case [2007] NSWWCCPD 127 31 May 2007

Workers Compensation Law

Type to search within this case.

WORKERS COMPENSATION COMMISSION

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

CITATION:Waverley Council v Sheen [2007] NSWWCCPD 127
APPELLANT:  Waverley Council
RESPONDENT:  Sydney Stewart Sheen
FIRST INSURER:  Allianz Australia Workers Compensation (NSW) Ltd
SECOND INSURER:  StateCover Mutual Ltd
FILE NUMBER:  WCC11503-06
DATE OF ARBITRATOR’S DECISION:          17 November 2006
DATE OF APPEAL DECISION:  31 May 2007
SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Bartier Perry
Respondent Worker: White Barnes
Respondent Insurer: Sparke Helmore

ORDERS MADE ON APPEAL: Leave to appeal is refused.

The Appellant Employer in the interests of StateCover is to pay the Respondent Worker’s costs of the appeal. Allianz is to pay its own costs of the appeal.

BACKGROUND TO THE APPEAL

On 15 December 2006 Waverley Council in the interests of StateCover Mutual Limited (‘StateCover’) (‘the Appellant Employer/Waverley Council’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 17 November 2006.

The Respondent to the Appeal is Sydney Stewart Sheen (‘the Respondent Worker/Mr Sheen’). Waverly Council’s first insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz/Respondent Insurer’) is also a party to the appeal and has filed a Notice of Opposition partly supporting and partly opposing the decision under appeal.

Mr Sheen worked for Waverley Council from 1985 until 7 December 2005 as a garbage collector. His Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 31 July 2006. The Application was amended at the arbitration to allege the following injuries:

a) injury to the left knee on 15 May 1998;
b) injury to the left knee as a result of the nature and conditions of employment from 15 May 1998 until 7 December 2005, the last day on which Mr Sheen worked for Waverley Council;

c) injury to left knee by way of aggravation, exacerbation or acceleration of a disease;

d) injury to the right knee in or about May 2002, and on 5 June 2003, 23 June 2003, in or about December 2003, 10 May 2004 and 25 October 2005;

e) injury to the right knee as a result of the nature and conditions of employment from 5 June 2003 to 7 December 2005, and

f) injury to the right knee by way of aggravation, exacerbation or acceleration of a disease.

The Application claimed lump sum compensation in respect of 12.5% permanent loss of efficient use of the left leg [at or above the knee] in respect of injuries to the left leg prior to 1 January 2002, 3% whole person impairment in respect of injuries to the left knee after 1 January 2002, and 6% whole person impairment in respect of injuries to the right knee after 1 January 2002. It also claimed weekly compensation under section 40 of the Workers Compensation Act

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 Waverley Council v Sheen

Details

AGLC: Waverley Council v Sheen [2007] NSWWCCPD 127
Case: [2007] NSWWCCPD 127
Decision Date: 31 May 2007

CaseChat Overview and Summary

The appeal in Waverley Council v Sheen concerned the determination of leave to appeal a decision made by an Arbitrator in the Workers Compensation Commission. The Appellant Employer, Waverley Council in the interests of StateCover Mutual Limited, sought leave to appeal the Arbitrator's decision regarding the Respondent Worker's claims for lump sum compensation. The primary issues in the appeal revolved around whether the Arbitrator correctly assessed the Respondent Worker's claims and whether the decision made by the Arbitrator constituted an interlocutory order, which would prevent leave to appeal.

The court considered whether the monetary thresholds for leave to appeal were met, noting that while the Appellant Employer satisfied the threshold of $5,000, the Respondent Worker did not contest this point. The court further examined whether the appeal was against a decision of an interlocutory nature, as defined by the amended section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998. The court found that the Arbitrator's determinations on whether the claims were duly made, the proportion of permanent impairment due to a previous injury, and the date of injury for the right knee were all interlocutory in nature. These rulings did not finally determine the parties' rights and were thus not appealable under the current provisions.

The court concluded that the appeal against the Arbitrator's decision was not permissible because the issues raised were interlocutory. Consequently, leave to appeal was refused, and the Appellant Employer was directed to pay the Respondent Worker's costs of the appeal, while the second insurer, Allianz, was to cover its own costs.

Orders