Webb v Western NSW Local Health Network - [2012] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Webb v Western NSW Local Health Network [2012] NSWWCCPD 49
APPELLANT:		Marilyn Webb
RESPONDENT:		Western NSW Local Health Network
INSURER:		Employers Mutual Limited – TMF
FILE NUMBER:		A1-10679/11
ARBITRATOR:	Ms Jennifer Scott
DATE OF ARBITRATOR’S DECISION:		25 May 2012
DATE OF APPEAL DECISION:		10 September 2012
SUBJECT MATTER OF DECISION:		Proper construction and application of ss 42 and 43 of the Workers Compensation Act 1987; determination of current weekly wage rate; calculation of average weekly earnings
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		3 September 2012
REPRESENTATION:		Appellant:	Messenger & Messenger
Respondent:	DLA Piper Australia
ORDERS MADE ON APPEAL:		1. The determination of the Arbitrator as found in paragraph one of the Certificate of Determination dated 22 May 2012 is revoked and the following order is made in its place: “1. Award of the Commission made 15 August 2005 is varied pursuant to s 55 of the Workers Compensation Act 1987 providing for an award in favour of the applicant from 1 January 2005 in the sum of $415.60 per week being the maximum statutory entitlement in respect of a totally incapacitated worker with a dependent spouse, pursuant to s 37 as adjusted to date and continuing.” 2. Paragraph two of the Certificate of Determination is confirmed. 3. The following further order is made: “3. The respondent is to have credit in respect of payments made to the applicant since 1 July 2005.” 4. The respondent is to pay the appellant’s costs of the appeal.

BACKGROUND

In proceedings conducted in 1999 before Bishop CCJ of the former Compensation Court of NSW, Marilyn Webb secured an award of compensation against her former employer, Central West Health Service, now known as Western NSW Local Health Network (the respondent). His Honour found that Ms Webb had received injury in the course of her employment to the right arm, and, as a result of different circumstances in the course of that work, to her left arm. The finding was also made that, as a result of those injuries, Ms Webb had experienced a depressive condition. His Honour found that Ms Webb was totally incapacitated for work.
The award made 30 June 1999 by Bishop CCJ made provision, inter alia, for an award for weekly payments pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) at the rate of $198.90 per week from 2 June 1997 to date and continuing. It is relevant to note that his Honour observed in the course of his reasons for judgment that “scant attention to economic aspects as far as the ascertainment of the current weekly wage rate and the like” had been given by the parties in the presentation of the case. A finding was made, notwithstanding the shortcomings in the evidence, that Ms Webb’s “current weekly wage rate and average weekly earnings” were each $221 per week.
Ms Webb, it is accepted by the respondent, has…

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: [2012] NSWWCCPD 49
Decision Date: 10 September 2012

CaseChat Overview and Summary

In the case of Webb v Western NSW Local Health Network, the dispute revolved around the proper interpretation and application of sections 42 and 43 of the Workers Compensation Act 1987, specifically in relation to the determination of the weekly wage rate and the calculation of average weekly earnings. The applicant, who had suffered an injury resulting in total incapacity, was seeking compensation from the respondent, the Western NSW Local Health Network. The primary focus of the court's consideration was the calculation of the current weekly wage rate, which was central to determining the compensation payable.

The court had to decide whether the Arbitrator's determination of the applicant's weekly wage was correct and if the calculation of the average weekly earnings was in accordance with the legislative provisions. This involved interpreting the statutory framework to ensure the applicant received the maximum statutory entitlement as a totally incapacitated worker with a dependent spouse, adjusted to date. The court had to examine the evidence presented regarding the applicant's employment history and earnings to determine if the statutory provisions had been properly applied.

The court found that the Arbitrator's determination was incorrect in calculating the applicant's weekly wage rate. The Arbitrator had not properly considered the evidence of the applicant's employment history and earnings, leading to an incorrect calculation. The court revoked the Arbitrator's determination and issued a new order, awarding the applicant the maximum statutory entitlement of $415.60 per week, adjusted to date and continuing. The court also confirmed that the respondent was to have credit for payments made to the applicant since 1 July 2005. The respondent was ordered to pay the appellant's costs of the appeal.

The final orders of the court were that the Arbitrator's determination was revoked, and a new order was made in its place. The new order provided for an award in favour of the applicant from 1 January 2005 in the sum of $415.60 per week, being the maximum statutory entitlement. The court also confirmed that the respondent was to have credit for payments made to the applicant since 1 July 2005. The respondent was further ordered to pay the appellant's costs of the appeal.

Orders

Orders of the court

1. The determination of the Arbitrator as found in paragraph one of the Certificate of Determination dated 22 May 2012 is revoked and the following order is made in its place:

“1. Award of the Commission made 15 August 2005 is varied pursuant to s 55 of the Workers Compensation Act 1987 providing for an award in favour of the applicant from 1 January 2005 in the sum of $415.60 per week being the maximum statutory entitlement in respect of a totally incapacitated worker with a dependent spouse, pursuant to s 37 as adjusted to date and continuing.”

2. Paragraph two of the Certificate of Determination is confirmed.

3. The following further order is made:

“3. The respondent is to have credit in respect of payments made to the applicant since 1 July 2005.”

4. The respondent is to pay the appellant’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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