Xue Xin Li v Precise Craft Pty Ltd - [2007] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION

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

CITATION:Xue Xin Li v Precise Craft Pty Ltd [2007] NSWWCCPD 70
APPELLANT:  Xue Xin Li
RESPONDENT:  Precise Craft Pty Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC3760-02
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: Leave to appeal; threshold in section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      In person
Respondent:   Mr Moore, solicitor, Goldbergs

ORDERS MADE ON APPEAL: Leave to appeal is refused.
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 Precise Craft Pty Ltd (‘the Respondent Employer/Precise Craft’).

This matter was heard at first instance with two other matters (Xue Xin Li v Dex Australia Pty Ltd WCC4742-02 and Xue Xin Li v Almec Pty Ltd WCC 7226-03). 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 Xin Li v Dex Australia Pty Ltd NSWWCCPD 71 and Xue Xin Li v Almec Pty Ltd NSWWCCPD 72).

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…

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 70
Decision Date: 1 March 2007

CaseChat Overview and Summary

Xue Xin Li sought leave to appeal against a decision of an arbitrator in the Workers Compensation Commission of New South Wales, who had dismissed his claim for compensation from Precise Craft Pty Ltd. The appeal was heard by Deputy President Bill Roche. The primary issue was whether Mr Li's appeal met the monetary threshold for leave to appeal under section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998. The Arbitrator had dismissed Mr Li's claim for lump sum compensation and ordered the employer to pay $130 for section 60 expenses. Mr Li's claim for compensation was based on injuries sustained in 1992, 2002, and from his employment with Dex Australia Pty Ltd and Almec Pty Ltd. Two Approved Medical Specialists assessed that Mr Li had no permanent impairment as a result of any of his work incidents. The Commission found that the only compensation "at issue" on appeal was Mr Li's claim for section 60 expenses, which did not meet the $5,000 threshold. Consequently, leave to appeal was refused. Mr Li also sought reconsideration of the appeal decision, relying on additional medical evidence. However, the Deputy President found that none of the fresh evidence was relevant to the appeal decision and refused the application for reconsideration.

Orders