DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Xue Xin Li v Almec Pty Ltd [2007] NSWWCCPD 72
APPELLANT: Xue Xin Li
RESPONDENT: Almec Pty Ltd
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC7226-03
DATE OF ARBITRATOR’S DECISION: 8 May 2006
DATE OF APPEAL HEARING: 20 February 2007
DATE OF APPEAL DECISION: 1 March 2007
SUBJECT MATTER OF DECISION: Reasons; Procedure when worker unrepresented on appeal.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:Oral
REPRESENTATION: Appellant: In person
Respondent: Mr Lowe instructed by Rankin & Nathan
ORDERS MADE ON APPEAL: For the reasons set out in this decision, the Arbitrator’s decision and orders are confirmed.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 2 June 2006 Xue Xin Li (‘the Appellant Worker/Mr Li’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 May 2006.
The Respondent to the Appeal is Almec Pty Ltd (‘the Respondent Employer/Almec’).
This matter was heard at first instance with two other matters (Xue XinLi v Precise Craft Pty Ltd WCC3760-02 and Xue XinLi v Dex Australia Pty Ltd WCC 4742-02). Although the three claims were heard together the Arbitrator prepared and issued three separate decisions. Mr Li has appealed all three decisions. As three decisions were issued under the three different matter numbers, I have considered and determined each appeal separately (see also Xue XinLi v Precise Craft Pty Ltd NSWWCCPD 70 and Xue XinLi v Dex Australia Pty Ltd NSWWCCPD 71).
Mr Li was born in the Peoples Republic of China on 9 April 1956. He left school at the age of 18 years and then worked in a department store where he became a section manager. He came to Australia in 1989 as an English language student. In 1991 he started work for Precise Craft as a sheet metal worker and spot welder.
On 17 March 1992 he was injured in the course of his employment with Precise Craft when metal sheets fell onto him causing a laceration to his left wrist and bruising to his right thigh. He was taken to Blacktown Hospital where his left wrist was sutured. He was off work for two and a half days and then returned to his normal duties until about February 1993.
In 1994 he commenced proceedings in the former Compensation Court of NSW (matter 6455 of 1995) seeking compensation as a result of the March 1992 injuries (pleaded as: “laceration of left hand and bruising of right thigh”). That claim was heard and determined by Commissioner Grayson on 24 April 1995. The Commissioner found that Mr Li had sustained injury “as alleged” but that he had no entitlement to lump sum compensation as a result of those injuries. Precise Craft was ordered to pay Mr Li’s reasonable section 60 expenses.
Mr Li appealed Commissioner Grayson’s decision to Justice Campbell (matter 8554…
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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AGLC
Xue Xin Li v Almec Pty Ltd [2007] NSWWCCPD 72
Case
[2007] NSWWCCPD 72
Decision Date
CaseChat Overview and Summary
Xue Xin Li appealed the Arbitrator's decision dated 8 May 2006 against Almec Pty Ltd in the Workers Compensation Commission. The appeal was heard by Deputy President Bill Roche on 20 February 2007, and the decision was issued on 1 March 2007. The appeal was confirmed, and the Arbitrator's decision and orders were upheld. The Deputy President found that the Arbitrator did not make any factual, legal, or discretionary errors in her decision. The Deputy President also found that the claims made by Mr Li regarding injuries sustained while working for Almec were unsubstantiated and that there was insufficient evidence to support the claims. Furthermore, the Deputy President determined that Mr Li's incapacity ended by 31 December 2003 and that there was no entitlement to further compensation. The costs of the appeal were not awarded to either party.
In addition to the appeal, Mr Li filed an Application for Reconsideration of Commission Decision on 15 March 2007. The application was opposed by Almec, and the matter was heard on the papers. The Deputy President found that the additional medical evidence presented in the application for reconsideration was not of sufficient persuasive value to warrant a reconsideration of the earlier decision. Therefore, the application for reconsideration was refused, and no costs were awarded to either party.