Westbus Pty Limited v Benjamin - [2006] NSWWCCPD 25

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Westbus Pty Limited v Benjamin [2006] NSWWCCPD 25
APPELLANT:  Westbus Pty Limited
RESPONDENT:  Lawrence Benjamin
INSURERS:(i)         QBE Workers Compensation Limited
on risk – 30.6.94 to 30.6.99.
(ii)Vero Workers Compensation
(formerly Royal & Sun Alliance Workers Compensation) NSW Limited) on risk – 30.6.99 – 30.6.02.

FILE NUMBER:  WCC17092-03
DATE OF ARBITRATOR’S DECISION:          8 October 2004
DATE OF APPEAL DECISION:  22 February 2006
SUBJECT MATTER OF DECISION: Injury/disease; application of sections 15, 16 and 22 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Hunt & Hunt Solicitors for
Vero Workers Compensation NSW Limited
Respondent:   Stormers Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed

The Appellant is to pay the costs of the appeal

BACKGROUND TO THE APPEAL

Lawrence Benjamin (‘the Respondent’) was employed by Westbus Pty Limited (‘the Appellant’) as a bus driver from 1989 to April 2001. He claimed that as a result of the nature and conditions of his employment with the Appellant from 1995 to April 2001, he suffered injuries to his back, neck and both arms.

The Appellant’s workers compensation insurers over this period were QBE Workers Compensation Limited (‘QBE’) from 30 June 1994 to 30 June 1999 and Vero Workers Compensation (formerly Royal & SunAlliance Workers Compensation (NSW) Limited) (‘Vero’) from 30 June 1999 to 30 June 2002.

The Respondent ceased work on 4 July 2000 and on 5 July 2000, lodged a claim against Vero. Under the heading “Accident Details” he stated:

“Re-occurrence of injury from 1995 in which I suffered muscle spasm in lower back (due to work place injury) after which I spent a week in hospital but did not claim workers compensation. Matter was reported to Phil Davies. Injury has progressively worsened. At time of original injury Phil Davies arranged for newer bus on shift to alleviate pain”.

It appears the Respondent remained off work for some months, eventually resuming selected duties in about November 2000 until his termination on 5 April 2001.

On 15 April 2003, the Respondent through his solicitors made a claim against Vero for lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

On 16 June 2003, Vero made an offer in respect of its period of risk, and noting “Kindly refer your claim to the previous insurer as your client’s symptoms commenced in 1995, which is prior to our period of risk”.

The Respondent rejected that offer, and on 31 October 2003, lodged an Application to Resolve a Dispute seeking permanent loss compensation for his injuries.

On 21 November 2003, the Appellant in the interests of Vero lodged a Reply disputing the extent of the losses claimed by the Respondent, denying that the Respondent suffered a disease, and relying on the provisions of sections 9A and 68A of the 1987 Act.

Following a teleconference on 4 March 2004,…

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 Westbus Pty Limited v Benjamin

Details

AGLC: Westbus Pty Limited v Benjamin [2006] NSWWCCPD 25
Case: [2006] NSWWCCPD 25
Decision Date: 22 February 2006

CaseChat Overview and Summary

The appeal in this matter was brought by Westbus Pty Limited, represented by Vero Workers Compensation, against a decision of the Arbitrator regarding the apportionment of compensation for an injury sustained by Lawrence Benjamin, the Respondent, while working as a bus driver for the Appellant. The Arbitrator had awarded compensation for Benjamin's injuries to his back, neck, and arms under sections 66 and 67 of the Workers Compensation Act 1987, and had ordered Vero to pay the compensation as the insurer on risk at the time of injury. Westbus appealed on the grounds that the Arbitrator had erred in finding only one date of injury, in not apportioning the award between the two insurers, in finding that section 15 was applicable, and in finding that neck impairment resulted from injury.

The court reviewed the submissions, evidence, and findings of the Arbitrator. The Arbitrator had concluded that the deemed date of injury was 5 July 2000, the date the claim was made, and that the injury to the back and neck resulted from the aggravation, acceleration, exacerbation, or deterioration of a disease. The Arbitrator had also found that the injury to the arms was the result of a disease process. The Appellant argued that there was ample evidence of an injury or injuries to the worker's back and arms prior to 30 June 1999, and that section 22 should have been applied for apportionment of liability between the two insurers. However, the court found that the Arbitrator's conclusion that there was insufficient evidence to demonstrate that the Respondent had suffered a 'frank injury' was open on the evidence, and that section 16 of the 1987 Act came into operation to exclude the operation of section 22.

The court also found that the Arbitrator's conclusion that the injury to the arms was the result of a disease process was open on the evidence and in accordance with the authorities. The court further found that there was sufficient evidence for the Arbitrator to make a finding of neck injury, and that the Arbitrator's reasons sufficiently demonstrated the grounds for the findings made.

In conclusion, the court confirmed the decision of the Arbitrator and ordered the Appellant to pay the costs of the appeal.

Orders