Whaley v Upper Hunter Shire Council - [2016] NSWWCCPD 32

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Whaley v Upper Hunter Shire Council [2016] NSWWCCPD 32
APPELLANT:	Robert Whaley
RESPONDENT:	Upper Hunter Shire Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-6522/15
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	1 March 2016
DATE OF APPEAL DECISION:	8 June 2016
SUBJECT MATTER OF DECISION:	Previously unnotified matter – requirement for leave under s 289A(4) Workplace Injury Management and Workers Compensation Act 1998; procedural fairness
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The order in paragraph [1] of the Certificate of Determination dated 1 March 2016 is revoked. 2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 1 March 2016 are confirmed. 3. The matter is remitted to another Arbitrator, for re-determination of the issue of the quantum of the appellant’s weekly entitlement, from 6 March 2015.

INTRODUCTION

This appeal raises issues going to the circumstances in which leave is required to raise a ‘previously unnotified matter’, pursuant to s 289A(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and procedural fairness. The ‘previously unnotified matter’ involved the potential application of s 44D(2) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Robert Whaley (the appellant) was employed by the Upper Hunter Shire Council (the respondent) from about 2000. He was employed full-time as a stores and purchasing officer. Additionally, for about four years prior to an injury on 31 October 2014, he performed casual work with the respondent as a lifeguard, supervising a public swimming pool. He also, for about 10 years prior to the injury, worked as a “retained fire fighter”, with an entity other than the respondent. This involved, he said, receipt of a retainer, and of an “on call” rate if he was required to attend this employment.
The appellant suffered injury on 31 October 2014 when he slipped while descending steel steps on a fuel tanker. He said he “fell approximately 1.5 metres landing heavily on the right side of [his] body”. The appellant had a period off work, and returned “to light duties on 8 December 2014”. The respondent made voluntary payments of compensation to the appellant.
Prior to the appellant’s injury, changes had been foreshadowed to make his job, as stores and purchasing officer, a permanent part-time role (see his statement dated 27 July 2015 at [6]). Subsequent to his injury, the appellant was informed that this job would become one for 20 hours per week.
The respondent disputed liability to make payments as from 6 March 2015, in a s 74 notice of the same date. It raised issues going to ‘injury’, s 9A of the 1987 Act, incapacity, causation and the reasonable necessity of medical and related treatment. A review notice dated 3 September 2015 raised similar issues.

THE ARBITRAL PROCEEDINGS

Proceedings were commenced…

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] NSWWCCPD 32
Decision Date: 8 June 2016

CaseChat Overview and Summary

In the matter of Whaley v Upper Hunter Shire Council, the applicant, Mr. Whaley, sought judicial review of a decision made by an arbitrator regarding his workers' compensation claim. The dispute centred on the calculation of his weekly entitlement under the Workplace Injury Management and Workers Compensation Act 1998. The case was heard in the New South Wales Civil and Administrative Tribunal (NCAT).

The primary legal issue before the tribunal was whether the appellant was required to obtain leave under section 289A(4) of the Act to challenge the quantum of his weekly entitlement. Additionally, the tribunal needed to determine if the arbitrator's decision was procedurally fair, particularly whether Mr. Whaley was given an adequate opportunity to present his case.

The tribunal found that the appellant was not required to obtain leave to challenge the quantum of his weekly entitlement. It was held that the relevant section of the Act did not apply to the appellant's situation, as it pertained to cases where the quantum of weekly payments had been previously notified. Since Mr. Whaley's claim was previously unnotified, the requirement for leave did not apply. Furthermore, the tribunal found that the arbitrator had not afforded Mr. Whaley procedural fairness in determining the quantum of his weekly entitlement. As a result, the tribunal revoked the order pertaining to the quantum of weekly entitlement and remitted the matter to another arbitrator for re-determination.

The tribunal confirmed the other orders made by the arbitrator, which related to the assessment of Mr. Whaley's entitlement to weekly payments from a different date. The tribunal's final orders included revoking the order concerning the quantum of weekly entitlement, confirming the other orders, and remitting the matter to another arbitrator for re-determination of the quantum of the appellant's weekly entitlement from 6 March 2015.

Orders

Orders of the court

1. The order in paragraph [1] of the Certificate of Determination dated 1 March 2016 is revoked.

2. The orders in paragraphs [2] and [3] of the Certificate of Determination dated 1 March 2016 are confirmed.

3. The matter is remitted to another Arbitrator, for re-determination of the issue of the quantum of the appellant’s weekly entitlement, from 6 March 2015.

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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