Ric Developments trading as Lane Cove Poolmart v Muir [2008] NSWCA 155

Reported Decision: 71 NSWLR 593

New South Wales Court of Appeal

CITATION: Ric Developments trading as Lane Cove Poolmart v Muir [2008] NSWCA 155

HEARING DATE(S): 24 June 2008

JUDGMENT DATE: 4 July 2008

JUDGMENT OF: Basten JA at 1; Campbell JA at 5; Rein J at 54

DECISION: Appeal dismissed with costs.

CATCHWORDS: WORKERS COMPENSATION – entitlement to and liability for compensation – respondent worker injured right arm while employed by appellant as sales assistant and pool cleaner – worker suffered agreed 15% permanent loss of efficient use of right arm at or above elbow – appellant terminated worker's employment – worker obtained part-time work in supermarket – appellant's insurer paid worker weekly compensation to make up difference in pre- and post-injury wage – at request of appellant's insurer worker took vocational capacity tests – on basis of results of tests appellant's insurer reduced worker's weekly payments to nil on grounds that worker's ability to earn in some alternative employment was higher than average pre-injury wage – claim by worker for weekly payments during partial incapacity for work under s 40 Workers Compensation Act 1987 – claim for lump sum compensation brought under s 66 Workers Compensation Act 1987 settled – arbitrator of Workers Compensation Commission determined worker had no entitlement to weekly payments under s 40 – appeal – Commission constituted by Presidential member awarded worker weekly payments under s 40 – amount of entitlement subject to injured worker's ability to earn in "suitable employment" – s 40(3) and s 43A Workers Compensation Act 1987 – results of vocational capacity tests considered – appeal – proper question to be asked in deciding whether worker's earning capacity is diminished – whether proved incapacity reduced worker's earning capacity in the labour market as actually available to him below the earnings he would have made if uninjured – necessity of assessing practical realities of injured worker being able to get and keep employment in accordance with factors set out in s 40 and s 43A Workers Compensation Act - APPEAL – appeal to Commission constituted by Presidential member from determination of arbitrator – s 352(2) Workplace Injury Management and Workers Compensation Act 1998 – appeal to Court of Appeal from decision of Commission constituted by Presidential member – s 353(1) Workplace Injury Management and Workers Compensation Act – nature of appeal involved when right of appeal granted to a person "dissatisfied with" or "aggrieved by" a decision of a tribunal "in point of law" – whether powers of Commission constituted by Presidential member to revoke decision of arbitrator and substitute new decision exercisable only when demonstrated that decision of arbitrator affected by some legal, factual or discretionary error - STATUTORY INTERPRETATION – relationship between s 40 and s 66 Workers Compensation Act – entitlement to award of compensation under s 66 does not support inference of entitlement to weekly payments under s 40