Woodbury v Miles - [2006] NSWWCCPD 5

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Merriman v Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway [2006] NSWWCCPD 5
APPELLANT:  Ciaro Merriman
RESPONDENT:  Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway
INSURER:CGU Workers Compensation Ltd
FILE NUMBER:  WCC 19187-03
DATE OF ARBITRATOR’S DECISION:          7 May 2004
DATE OF APPEAL DECISION:  24 January 2006
SUBJECT MATTER OF DECISION: Restrictions on Commission’s jurisdiction pursuant to section 289 of the Workplace Injury Management and Workers Compensation Act 1998, application of section 53 of the Workers Compensation Act 1987, effect of recipient of weekly compensation paid voluntarily ceasing to reside in Australia.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Steve Walker & Associates, Lawyers
Respondent: Sparke Helmore, Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 May 2004 is revoked and the matter is remitted to the Registrar for referral to a different arbitrator for determination of Ms Merriman’s application.

The Respondent, Anaco Holdings Pty Ltd, is to pay the Appellant, Ms Merriman’s costs in this appeal.

BACKGROUND TO THE APPEAL

On 31 May 2004, Ciara Merriman sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 7 May 2004. The Respondent to the Appeal is Anaco Holdings Pty Ltd t/as Paddington Fresh Foods & Broadway (‘Anaco’), whose workers compensation insurer is CGU Workers Compensation Ltd (‘CGU’).

Ms Merriman was born in Ireland on 8 March 1981 and is aged 24. While visiting Australia, she obtained casual employment with Anaco at its premises in Paddington. On 13 October 2003, while walking to work, she slipped and fell in Bondi Junction injuring her back. She was admitted to St Vincent's Hospital, where she underwent surgery and was not discharged until 20 November 2003. She returned to Ireland on 10 December 2003.

On 23 October 2003, Ms Merriman lodged a claim for workers compensation, liability for which was accepted by CGU on 1 December 2003, which advised that Ms Merriman “is not entitled to be paid compensation when she leaves Australia”. CGU paid weekly compensation and medical expenses for the period 13 October 2003 to 12 December 2003.

On 5 December 2003, Ms Merriman’s solicitor lodged an ‘Application to Resolve a Dispute’ with the Commission. The application was registered by the Commission on 9 December 2003. A file note made by Anaco’s solicitor on 16 December 2003, of her telephone conversation with Ms Merriman’s solicitor on that day, records:

“We discussed the matter generally. I noted s60s [the claim for medical expenses] weren’t declined, reasonableness etc needs to be considered.”

Anaco’s ‘Reply’ was filed on 17 December 2003. This stated:
“Liability has been accepted and weekly compensation and medical expenses paid for the period 13 October 2003 to 12 December 2003.”

The Commission was asked to expedite the matter because of Ms Merriman’s return to Ireland and, on 18 December 2003, an Arbitrator…

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: [2006] NSWWCCPD 5
Decision Date: 24 January 2006

CaseChat Overview and Summary

Woodbury v Miles is a case in which the Workers Compensation Commission was required to decide on the jurisdiction of the Commission under the Workplace Injury Management and Workers Compensation Act 1998, the application of section 53 of the Workers Compensation Act 1987, and the effect of the recipient of weekly compensation ceasing to reside in Australia. The central issue was whether the Commission had jurisdiction to hear Ciara Merriman's application, given that her weekly compensation payments ceased when she left Australia, and whether she was entitled to ongoing weekly payments after returning to Ireland.

The court found that the Commission did indeed have jurisdiction to hear the matter, as the dispute existed prior to the referral of the application to the Commission. This finding was based on the fact that the insurer had already disputed liability for ongoing payments if Merriman left Australia, which was communicated to her prior to the registration of her application with the Commission. Additionally, the court determined that section 53 of the 1987 Act did not apply to Merriman because she was not receiving weekly compensation under an award when she left Australia. Therefore, the court revoked the Arbitrator's decision and remitted the matter to the Registrar for referral to a different arbitrator for determination of Merriman's application.

In conclusion, the Workers Compensation Commission had jurisdiction to hear Merriman's application concerning the dispute over the cessation of her weekly compensation on her departure for Ireland. The Arbitrator's decision was revoked, and the matter was remitted to the Registrar for referral to a different arbitrator for determination of Merriman's claim. The Respondent, Anaco Holdings Pty Ltd, was ordered to pay the Appellant, Merriman's costs in this appeal.

Orders