Wilson v Warrigal Care Ltd - [2007] NSWWCCPD 108

WORKERS COMPENSATION COMMISSION

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

CITATION:Wilson v Warrigal Care Ltd [2007] NSWWCCPD 108
APPELLANT:  Deanne Wilson
RESPONDENT:  Warrigal Care Ltd
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER:  WCC8450-06
DATE OF ARBITRATOR’S DECISION:          21 September 2006
DATE OF APPEAL DECISION:  4 May 2007
SUBJECT MATTER OF DECISION: Whether the worker was partially or totally incapacitated for work; Sections 37, 40 and 43A of the Workers Compensation Act 1987; application of the principles in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Nikolovski Lawyers
Respondent:   Edwards Michael Moroney Lawyers

ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s determination dated 21 September 2006 is revoked and the following order substituted:

“That the Respondent pay the Applicant weekly compensation at the rate of $474.10 per week from 1 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987.”
Paragraphs 2 and 3 of the Arbitrator’s determination of 21 September 2006 are confirmed.
The order contained in paragraph 4 of the Arbitrator’s decision has already been executed and does not need to be confirmed or revoked.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 18 October 2006 Deanne Wilson (‘the Appellant Worker/Ms Wilson’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 21 September 2006.

The Respondent to the Appeal is Warrigal Care Ltd (‘the Respondent Employer/Warrigal’).

Ms Wilson is a married woman who was born on 28 October 1966. She has five children, four of whom are dependent on her for support. On completion of her school certificate in 1981 she started work at the Australian Taxation office as a clerk in February 1982 where she worked full time until the birth of her first child in January 1984. After six months leave she returned to work for a further short period on a casual basis before stopping work altogether.

In 1993 her husband commenced a truck bodybuilding business and she assisted in that business by performing administrative and bookkeeping duties. In about 1999 Ms Wilson and her family moved to Oak Flats near Wollongong and later that year she started a traineeship as a casual with Warrigal, an aged care facility, as an assistant-in-nursing. In June 2000 she successfully completed a Certificate III course in Care Support Services. At about the same time she was made permanent.

On 1 November 2001 she sustained injury to her back in the course of her employment with Warrigal when she was pushing a resident down a hallway in a wheelchair and the patient unexpectedly put his feet down to stop the chair resulting in Ms Wilson jerking her body and sustaining a significant injury to her back. The incident was reported and a claim form submitted. Apart from attempting a return…

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: [2007] NSWWCCPD 108
Decision Date: 4 May 2007

CaseChat Overview and Summary

Deanne Wilson, the appellant worker, appealed a decision of the Workers Compensation Commission of New South Wales (the Commission) to the Deputy President of the Commission, Bill Roche, regarding her entitlement to workers compensation. The Commission had determined that Ms Wilson was partially incapacitated for work as from 18 July 2006, and she argued that she was totally incapacitated for work as from that date. The issues before the Deputy President were whether the Arbitrator’s decision was affected by an error of fact, law or discretion. The Deputy President found that the Arbitrator’s determination contained several errors and revoked the Arbitrator’s decision, substituting his own determination that Ms Wilson was totally incapacitated for work from 18 July 2006 to date and continuing. He ordered the employer to pay Ms Wilson weekly compensation at the rate of $474.10 per week from 1 December 2003 to date and continuing under section 37 of the Workers Compensation Act 1987. The employer was ordered to pay the appellant worker’s costs of the appeal.

Orders