YKK Australia Pty Ltd v Skoric - [2008] NSWWCCPD 44

WORKERS COMPENSATION COMMISSION

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

CITATION:YKK Australia Pty Ltd v Skoric [2008] NSWWCCPD 44
APPELLANT:  YKK Australia Pty Ltd
RESPONDENT:  Marko Skoric
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC7143-07
DATE OF ARBITRATOR’S DECISION:          5 December 2007
DATE OF APPEAL DECISION:  14 April 2008
SUBJECT MATTER OF DECISION: Extending time to appeal; leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      McCulloch & Buggy
Respondent:   NSW Compensation Lawyers

ORDERS MADE ON APPEAL: Leave to appeal is refused.

The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND

This matter has a long and most unsatisfactory history in the Commission. Marko Skoric first filed an Application to Resolve a Dispute seeking compensation in matter No. 16815 of 2004. That Application alleged that Mr Skoric sustained injury to his cervical, thoracic and lumbar spines and his right shoulder while lifting a bobbin at work for YKK Australia Pty Ltd (‘YKK’) on 25 June 2002. The matter was referred to an AMS who assessed a nil whole person impairment. Mr Skoric’s attempt to appeal to a Medical Appeal Panel under section 327 of the 1998 Act did not proceed because the Registrar was not satisfied that at least one of the grounds for appeal specified in section 327(3) had been made out.

In 2007, Mr Skoric filed Application No. 454 of 2007 in the Commission alleging that he sustained injury in the course of his employment with YKK on 14 February 1999 and 25 June 2002. He again alleged injury to his cervical, thoracic and lumbar spines and right shoulder. Mr Skoric discontinued this application on 17 April 2007 when the Arbitrator refused his application to amend to allege injury to his left shoulder (in lieu of the right shoulder).

Mr Skoric filed a third Application (matter No. 3151 of 2007) alleging injury to his neck, back, left arm at or above the elbow, left leg at or above the knee as a result of the nature and conditions of his employment from 14 February 1999 until 15 April 2003, and as a result of injury on 25 June 2002. Mr Skoric discontinued these proceedings.

Mr Skoric filed his fourth Application (matter No. 7143 of 2007) on 19 September 2007. This is the Application currently before the Commission. He alleges injuries as a result of the nature and conditions of his employment from 14 February 1999 until 15 April 2003, lifting a bobbin on 14 March (sic, February) 1999 and 25 June 2002. This Application alleges the same injuries as before save that the injury to the left arm (shoulder) is substituted for the right arm (shoulder). Mr Skoric claims weekly compensation from 25 June 2002 to date and continuing, medical expenses, lump sum compensation under the Table of Disabilities in…

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.

Keep reading for free

Create a free CaseChat account to read YKK Australia Pty Ltd v Skoric and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWWCCPD 44
Decision Date: 14 April 2008

CaseChat Overview and Summary

In YKK Australia Pty Ltd v Skoric, the appellant, YKK Australia Pty Ltd, sought leave to appeal against an arbitrator's decision in a workers compensation matter. The respondent, Marko Skoric, claimed compensation for injuries sustained during his employment with YKK. The Arbitrator's decision involved remitting the matter to an Assessment Medical Specialist for further assessment of the respondent's whole person impairment and deferring the claim for weekly compensation. The appeal was filed one day outside the 28-day statutory limit, and YKK sought an extension of time to appeal, citing incorrect advice from the Commission's registry as the reason for the delay.

The primary legal issues were whether the Commission could extend the time to appeal under exceptional circumstances and whether the determination was appealable. The court examined whether YKK's reliance on incorrect advice from the registry constituted exceptional circumstances and if not extending the time would cause demonstrable and substantial injustice. It was also necessary to determine if the decision was an interlocutory order that did not permit an appeal.

The court found that while the incorrect advice from the registry constituted exceptional circumstances, it was not sufficient on its own to justify extending the time to appeal. The court emphasized that the appellant must also demonstrate that not extending the time would result in a demonstrable and substantial injustice. The court noted that the Arbitrator's decision was interlocutory, as it had not finally determined any liability issues but referred certain questions for assessment to an Assessment Medical Specialist. Under the relevant legislation, there was no right of appeal against such an interlocutory determination. Consequently, the court held that it would not be unjust to refuse the extension of time as YKK had no right of appeal in any event. The court also found the respondent's delay in serving the Notice of Opposition and the appellant's delay in responding did not prejudice the outcome.

Leave to appeal was refused, and the appellant was ordered to pay the respondent's costs of the appeal.

Orders