Woodyard v MJ Hanna & Sons - [2008] NSWWCCPD 37

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF
THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Woodyard v M J Hanna & Sons [2008] NSWWCCPD 37
APPELLANT:  Walter Woodyard
RESPONDENT:  M J Hanna & Sons
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC10209-06
DATE OF ARBITRATOR’S DECISION:          19 November 2007
DATE OF APPEAL DECISION:  27 March 2008
SUBJECT MATTER OF DECISION:                Reasons or adequacy of reasons for decision; application of the steps in Mitchell v The Central West Health Service (1997) 4 NSWCCR 526; exercise of discretion under section 40(1) of the Workers Compensation Act 1987; difference between probable earnings and ability to earn.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant: Carroll & O’Dea Lawyers
Respondent: Lyons Barnett Kennedy

ORDERS MADE ON APPEAL: Paragraph 1 of the Arbitrator’s decision dated 19 November 2007 is revoked.

Paragraphs 2 and 3 are confirmed.
The matter is remitted to the Arbitrator concerned for determination afresh, in accordance with these Reasons.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.

BACKGROUND

On 21 December 2007, Mr Walter Woodyard, the Appellant Worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 19 November 2007.

The Respondent Employer to the Appeal is M J Hanna & Sons.

The Insurer is CGU Workers Compensation (NSW) Limited.

M J Hanna & Sons employed Mr Woodyard as a sales assistant on 5 March 1999. At the time of his injury he was working 26.5 hours per week, usually Monday to Wednesday, and four hours each Saturday.

On 30 August 1999, while walking upstairs to a storeroom to collect stock, Mr Woodyard slipped and fell, sustaining an injury to his back. He was off work for about one week. He made several attempts to return to work but on each occasion he could not do so because of pain.

He reported the injury on 31 August 1999 and submitted a ‘Workers Compensation Claim Form’ on 21 September 1999. The Insurer accepted the claim and commenced weekly payments of compensation.

On 6 April 2000 the Insurer wrote to Mr Woodyard informing him that liability was denied from that date, with weekly payments to be made until 19 April 2000.

On 6 July 2006 an ‘Application to resolve a Dispute’ was registered in the Commission, seeking payment of weekly benefits compensation from 20 April 2000 to date and continuing at the rate of $466.33 gross per week, together with medical expenses. The Application also identified a threshold dispute for work injury damages or commutation.

M J Hanna & Sons filed a Reply on 21 July 2006. A number of issues were put in dispute but the principal issue was incapacity.

The matter was listed for conciliation/arbitration before a Commission Arbitrator on 17 October 2006. The dispute could not be resolved and it proceeded to arbitration. At the hearing, the parties tendered a number of additional documents, in particular, extensive medical records…

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: [2008] NSWWCCPD 37
Decision Date: 27 March 2008

CaseChat Overview and Summary

The appeal in Woodyard v MJ Hanna & Sons, decided on 27 March 2008, concerns the assessment of weekly compensation for partial incapacity under section 40 of the Workers Compensation Act 1987. Walter Woodyard, the appellant, appealed against the decision of an arbitrator who had determined his entitlement to weekly payments following an injury sustained at work. MJ Hanna & Sons, the employer, and CGU Workers Compensation (NSW) Limited, the insurer, are the respondents. The appeal primarily revolves around the sufficiency of the reasons provided by the arbitrator for exercising his discretion under section 40(1) of the 1987 Act, the adherence to a structured approach in making the award, and the calculation of weekly compensation based on the mathematical difference between probable earnings and ability to earn.

The court found that the arbitrator's decision was flawed in two main respects. Firstly, the court determined that the arbitrator failed to provide adequate reasons for exercising his discretion under section 40(1) of the 1987 Act, specifically why he awarded less than the mathematical difference between the appellant's probable earnings and his ability to earn. The court noted that while the reasons for the exercise of discretion were mentioned, the reasoning process was not sufficiently disclosed, which was a critical error. Secondly, although the steps outlined in Mitchell v Central West Area Health Service were addressed in various parts of the arbitrator's reasons, the court suggested that a more systematic approach would have been preferable and potentially avoided the appeal. However, given the first error, the court did not find it necessary to delve into whether the second error was made.

As a result of these findings, the appeal was successful, and the matter was remitted to the original arbitrator for reconsideration in light of the court's reasons. The employer was ordered to pay the appellant's costs of the appeal. This decision underscores the importance of clear and comprehensive reasoning in exercising discretionary powers under workers' compensation legislation, ensuring that all relevant factors are adequately considered and explained.

Orders