Issue 9: September 2010
On Appeal
Welcome to the ninth issue of ‘On Appeal’ for 2010.
Issue 9 – September 2010 includes a summary of the August 2010 decisions.
These summaries are prepared by the Presidential Unit and are designed to provide a
brief overview of, and introduction to, the most recent Presidential and Court of Appeal
decisions. They are not intended to be a substitute for reading the decisions in
full, nor are they a substitute for a decision maker’s independent research.
Please note that the following abbreviations are used throughout these summaries:
ADP
AMS
ARD
COD
Commission
DP
MAC
Reply
WPI
1987 Act
1998 Act
2003
Regulation
2006 Rules
Acting Deputy President
Approved Medical Specialist
Application to Resolve a Dispute
Certificate of Determination
Workers Compensation Commission
Deputy President
Medical Assessment Certificate
Reply to Application to Resolve a Dispute
Whole Person Impairment
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Regulation 2003
Workers Compensation Commission Rules 2006
Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia
Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au
Index
Presidential Decisions:
Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83 .......................................................... 4
Whether employment connected with New South Wales; s 9AA of the Workers
Compensation Act 1987; meaning of “usually works”, “usually based’, and “principal place of
business” ..............................................................................................................................4
Freeman v T H Freeman Pty Ltd [2010] NSWWCCPD 88 ..................................................... 7
Section 55 of the Workers Compensation Act 1987; s 74 of the Workplace Injury
Management and Workers Compensation Act 1998; application for increase in consent
award of weekly compensation; failure by insurer to issue a notice disputing claim; failure by
employer to file a wage schedule; failure by employer’s solicitor to address issues on appeal
.............................................................................................................................................7
Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92 ................................ 9
Lump sum compensation; two injuries; circumstances in which the effects of multiple injuries
can be aggregated to meet the threshold for compensation for pain and suffering in s 67 of
the 1987 Act; section 322 of the 1998 Act ; consideration of the principles in Department of
Juvenile Justice v Edmed [2008] NSWWCCPD 6; construction of complying agreement
under section 66A of the Workers Compensation Act 1987; principle of objectivity; relevance
of surrounding circumstances; application of principles in Toll (FGCT) Pty Ltd v Alphapharm
Pty Ltd and others [2004] HCA 52; 219 CLR 165..................................................................9
Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91.......................................... 12
Boilermaker’s deafness; whether impairments from separate claims can be aggregated to
meet the threshold for compensation for pain and suffering in s 67 of the Workers
Compensation Act 1987; s 322 of the Workplace Injury Management and Workers
Compensation Act 1998 ..................................................................................................... 12
Qantas Airways Limited v Watson (No 3) [2010] NSWWCCPD 86 .................................... 14
Reconsideration; s 350(3) Workplace Injury Management and Workers Compensation Act
1998 ................................................................................................................................... 14
Rail Corporation New South Wales v Crilly [2010] NSWWCCPD 84 ................................. 16
Psychological injury; expert evidence; ss 9A and 11A of the Workers Compensation Act
1987; adequacy of reasons, and disease. .......................................................................... 16
Haydar Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85 .............................................. 19
Section 319 of the 1998 Act; medical dispute; validity of Registrar’s referral of medical
dispute to an AMS; status of a MAC following invalid referral; determination of the
Commission operating as a res judicata. ............................................................................ 19
Falee v Harris Farm Markets Pty Ltd [2010] NSWWCCPD 82 ............................................ 22
Injury; claim for lump sum compensation; referral to Approved Medical Specialist .............. 22
Bozinovski v Sydney South West Area Health Service – Fairfield Hospital [2010]
NSWWCCPD 89 .................................................................................................................... 24
Failure to give reasons; failure to consider and analyse medical evidence; failure to consider
worker’s evidence of continuing symptoms ......................................................................... 24
Chhong Heng Taing t/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90 ............ 26
Proof of injury; evidence of disease; Part 18 Rule 4(4) of the Workers Compensation
Commission Rules 2006, substitution of party to proceedings. ........................................... 26
2
Mitchell v South West Area Health Service [2010] NSWWCCPD 87 ................................. 28
Nature of issues in dispute; whether insurer disputed injury; section 74 Workplace Injury
Management and Workers Compensation Act 1998; nature of pathology from injury ......... 28
Port Macquarie Hastings Council v Crowe [2010] NSWWCCPD 93 .................................. 30
Unreasonable rejection of suitable employment, s 40 (2A) and (2B) of the Workers
Compensation Act 1987; ability to earn in suitable employment, s 40(2)(d). ....................... 30
3
Martin v R J Hibbens Pty Ltd [2010] NSWWCCPD 83
Whether employment connected with New South Wales; s 9AA of the Workers Compensation
Act 1987; meaning of “usually works”, “usually based’, and “principal place of business”
Roche DP
4 August 2010
Facts:
Ms Bianca Martin worked for the respondent and other employers doing general forestry work
from the year 2000 to January 2006. She generally worked in southeast Queensland, northern
New South Wales and sometimes Victoria. It was the worker’s evidence that from the year
2000 she worked a number of broken periods of employment. She would work for the
respondent when it could offer her periods of work and between those periods of work any
other employer who was offering work.
A letter from the respondent dated 19 February 2008 identified Queensland work for the
worker from 19 January 2003 to 25 May 2003, Queensland work for the worker from the week
ending (w/e) 24 July 2005 to the w/e 11 December 2005, NSW work for the worker for the w/e
18 December 2005, Queensland work for the worker for the w/e 25 December 2005 to the w/e
30 December 2005 and NSW work for the worker for the w/e 8 January 2006 to 5 February
2006.
The worker gave evidence that her last period of work for the respondent was from
approximately November 2005 to early February 2006. That period involved both Queensland
work and New South Wales work. On 31 January 2006 the worker attended a property known
as “Sandilands” at Old Lawrence Way, Tabulam, in northern NSW in working for the
respondent. In the course of spraying designated areas she injured herself when she stepped
into a hole and fell.
The worker also gave evidence that when she worked for the respondent, all the equipment
she used would either be delivered on site, or collected by her, from the respondent’s principal
place of business in New South Wales.
The worker’s further evidence was that after the work at “Sandilands” had been completed,
and it was “nearly completed”, she was intending to work in Queensland for a short period and
then return to New South Wales where she believed she would “relocate” and work for the
respondent for a period of at least two years because of a lucrative contract this respondent
had obtained.
The Arbitrator found that the s 9AA(3)(a) test identified a state of connection of Queensland.
He found that the worker’s employment could be characterized as short periods with many
employers. He also found that the worker spent the majority of her time working in
Queensland with 64% of her total earnings coming from employment in Queensland, and 36%
coming from work in New South Wales. He considered that to be a good measure of the
“period of her employment and connection with the State”.
Held: Arbitrator’s determination revoked; remitted to Registrar for referral to an
Approved Medical Specialist for assessment.
1.
The purpose of the legislation that introduced s 9AA into the 1987 Act was to
“eliminate the need for employers to obtain workers compensation coverage for a
worker in more than one jurisdiction” and to ensure that workers “working temporarily
in another jurisdiction will only have access to the workers compensation entitlements
4
– and common law benefits – available in their home State or ‘State of Connection’
and to provide certainty for workers about their workers compensation entitlements
and ensure that each worker is connected to one jurisdiction or another””: The
Parliamentary Secretary, the Hon Ian MacDonald, second reading speech, NSW
Legislative Council, 4 December 2002.
2.
The terms of s 9AA(3) provide a series of cascading tests for determining the State
with which a workers’ employment is connected. If no answer is provided by
s 9AA(3)(a), one moves to the next test in s 9AA(3)(b) and so on. If no State is
identified by the three tests in s 9AA(3), a worker’s employment is connected with New
South Wales if he or she is in New South Wales when the injury happens and there is
no place outside Australia under the legislation of which the worker may be entitled to
compensation for the same injury (the ‘location’ test) (s 9AA(5)).
3.
In relation to s 9AA(3)(a) the import of the words “in that employment” in the phrase
“the State in which the worker usually works in that employment”, concentrating on the
provision and the provisions with which it interacts, means “in that [contract of]
employment”; not in that general area of employment such as a trade or profession,
such as forestry work. However, it extends to both a contract of service and the kind of
contract for services contemplated by Schedule 1 of the 1998 Act: at [63] to [65]
4.
The evidence was unsatisfactory when considering the contract of employment. From
the limited evidence available it appeared that there were at least three, and possibly
four, contracts of employment between the worker and the respondent. Alternatively
there was the possibility of two contracts of employment dividing the third contract.
5.
Given that s 9AA(3)(a) concerns where the worker usually works in that employment,
and as the injury occurred in the contract of employment between the worker and the
respondent that was existing from 20 November 2005 to 31 January 2006, the
question was where the worker usually worked for that contract of employment.
6.
At [62] the meaning of “usually” in “usually works” in keeping with Hanns v Greyhound
Pioneer Australia Ltd [2006] ACTSC 5 was adopted: it is where the worker “habitually
or customarily works”, or works “in a regular manner”. Even if it were open to have the
entire employment relationship between the worker and employer as a frame of
reference rather than just the employment contract during which the injury was
received, which was open to doubt, no one state could be identified as the one in
which the worker “usually worked” [62].
7.
Within the contract from 20 November 2005 to 31 January 2006, and for her other
contracts with this employer, there was no State or no one State “where [the worker]
habitually or customarily worked in her employment with R J Hibbens [or] in a regular
manner”. The only conclusion that was reasonable was that she worked in Queensland
for this employer for part of the time and in NSW for part of the time. Further, s 9AA(6)
provided no assistance on the facts. All that could be said about her relevant work
history was that she worked according to demand (at [71]). There was no probative
evidence of the parties’ intentions (at [72]); and there was no evidence of “temporary
arrangements” (at [73]) to disregard whatever assistance that could give.
8.
In relation to s 9AA(3)(b), the correct test for determining where a worker was “usually
based” is that set out in Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78,
considering factors including a camp site or accommodation provided by an employer;
and where a worker is usually based, may coincide with the place where the worker
usually works, but that need not be necessarily so. The evidence in this case was that
the worker’s base moved with her (at [79]). The lack of evidence made it impossible to
apply the test.
5
9.
In relation to s 9AA(3)(c), an employer’s principal place of business is not necessarily
the same as its principal place of business registered with ASIC under the
Corporations Act, as a business need not be a corporation and not be registered for
that reason. Rather, the employer’s principal place of business means “chief, most
important or main place of business from where the employer conducts most or the
chief part of its business”. Ms Martin’s evidence as to where she went to obtain
equipment and the address shown on the letter from the respondent indicated the main
place of the respondent’s business was in Kyogle in New South Wales.
10.
In relation to s 9AA(5), the location test, Ms Martin’s employment was arguably
connected with New South Wales as she was injured whilst working in New South
Wales and there was no place outside Australia under the legislation of which she may
be entitled to compensation.
11.
The following principles were extracted from the authorities (at [60]):
a. regard should always be had to the terms of the contract of employment;
b. “usually works” means the place where the worker habitually or customarily
works, or where he or she works in a regular manner (Hanns at [26]). It does
not mean the place where the worker works for the majority of time (Knight at
[76]) and is not simply a mathematical exercise (Avon Products Pty Ltd v Falls
[2009] ACTSC 141 (Falls) at [43]), though the time worked in a particular
location will naturally be relevant. It will also be relevant to look at where the
worker is contracted to work (Falls). Regard must be had to the worker’s work
history with the employer and the parties’ intentions, but “temporary
arrangements” for not longer than six months within a longer or indefinite
period of employment are to be ignored. Whether an arrangement is a
“temporary arrangement” will depend on the parties’ intentions, which will be
ascertained by looking at the worker’s work history and the terms of the
contract. A short-term contract of less than six months that is not part of a
longer or indefinite period of employment will not usually be a “temporary
arrangement” (Knight);
c. “usually based” can include a camp site or accommodation provided by an
employer (Knight at [83]). Where a worker is usually based may coincide with
the place where the worker usually works, but that need not necessarily be so.
In considering where a worker is “usually based”, regard may be had to the
following factors, though no one factor will be decisive: the work location in the
contract of employment, the location the worker routinely attends during the
term of employment to receive directions or collect materials or equipment, the
location where the worker reports in relation to the work, the location from
where the worker’s wages are paid, and
d. an employer’s “principal place of business” is the most important or main place
where it conducts the main part or majority of its business (Knight at [66]). It will
not necessarily be the same as its principal place of business registered with
ASIC.
6
Freeman v T H Freeman Pty Ltd [2010] NSWWCCPD 88
Section 55 of the Workers Compensation Act 1987; s 74 of the Workplace Injury Management
and Workers Compensation Act 1998; application for increase in consent award of weekly
compensation; failure by insurer to issue a notice disputing claim; failure by employer to file a
wage schedule; failure by employer’s solicitor to address issues on appeal
Roche DP
16 August 2010
Facts:
The worker, Mr Freeman, injured his left ankle in the course of his employment with the
employer in 1994. The employer was a family company that conducts an electrical contracting
business controlled by the worker. Mr Freeman also conducted his own business as a music
teacher and was a volunteer with the Rural Fire Service.
Mr Freeman settled proceedings in the Compensation Court of New South Wales in 1997 for
a 15 per cent permanent loss of use of his left leg at or above the knee, together with
compensation for pain and suffering. In 2003 there was an agreement for a further five per
cent permanent loss of efficient use of the left leg at or above the knee. The parties also
reached an agreement for weekly compensation under s 40 in the sum of $200 per week from
November 1999 to date and continuing.
Mr Freeman underwent surgery on his left ankle in November 2005 and was totally unfit for
work from 20 November 2005 until 28 February 2006. In July 2006, Mr Freeman claimed
weekly compensation at the maximum statutory rate for a worker with a dependent wife and
child.
In 2008, Mr Freeman made a claim in the Commission for additional lump sum compensation.
The Commission referred the application for assessment to an Approved Medical Specialist.
The Commission issued consent orders on 14 August 2009 stating that Mr Freeman had no
further entitlement to lump sum compensation.
In an application filed on 6 January 2010, Mr Freeman sought a review under s 55 of the
consent award of $200.00 per week. He claimed weekly compensation in the sum of
$1,500.00 from 13 July 2006 to date and continuing and claimed a dependent wife and one
child.
The Arbitrator made an award for weekly payments of $200.28 from 13 July 2006 to 30 June
2007, together with the statutory rate for a dependant son; $222.15 from 1 July 2007 to 30
June 2008, together with the statutory rate for a dependant son; and $120.38 from 1 July 2008
to 30 June 2009, together with the statutory rate for a dependant son until 1 December 2008
and continuing.
Mr Freeman brought an appeal stating the Arbitrator had erred in reducing his weekly
compensation and in failing to properly assess his s 40 entitlements in circumstances where
the employer had not sought a reduction, the insurer had not served a s 74 notice and had not
filed a wage schedule.
Held: Arbitrator’s determination of 16 April 2010 revoked and the matter remitted to a
different Arbitrator for redetermination
1.
The employer conceded that the only application before the Commission was Mr
Freeman’s application for an increase in weekly compensation. [22]
7
2.
The change in circumstances sufficient to trigger a review under s 55 is not restricted to
a change in the worker’s medical condition but includes:
a)
Where a worker’s physical condition as a result of the injury has either
improved or deteriorated: Manly Municipal Council v Dodds [1961] WCR
212;
b)
Where there has been a change as to dependency: Edmunds v Hetton
Bellbird Collieries Ltd [1959] WCR 206;
c)
Where a worker’s earnings have changed: Englefield Collieries Ltd v
Roberts (1932) 25 BWCC 558;
d)
Where there has been a general rise in the level of wages prevailing in the
community: Producers Meat Supply Co Pty Ltd v McKinley [1950] WCR
149, and
e)
Any change in the criteria for entitlement to benefits under the legislation:
Powell v Metropolitan Coal Co Ltd [1966] WCR 213. (Workers
Compensation (New South Wales) 2nd edn, Butterworths, 1979, by CP Mills
at 481) [23]
3.
The Arbitrator did not err in relying upon a change in financial circumstances relative to
2003. The evidence clearly established that wage rates had moved since 2003. [24]
4.
The employer’s submissions failed to adequately address the issues. The submissions
that Mr Freeman’s application for an increase in weekly payments was “no more than
creative accountancy” and that the findings made were “consistent with the medical
evidence” were unhelpful.
5.
The employer failed to make submissions on the fact there was no s 74 notice or a
wages schedule from the employer. [25]-[27]
6.
The employer submitted that, though the difference between probable earnings and
ability to earn was $301 per week, there should have been an adjustment to Mr
Freeman’s award for the following discretionary factors: Mr Freeman’s income from his
music business was “probably greater than” shown in his tax return, and Mr Freeman
carried out activities with the Rural Fire Service.
7.
The employer’s submissions were untenable because:
a)
They incorrectly asserted that Mr Freeman earned the same from his music
business as he did from his electrical business;
b)
They wrongly suggested that Mr Freeman’s income from his music business
was a discretionary factor. It was a factor to take into account at step 1 of
Mitchell, and
c)
There was no evidence that Mr Freeman’s activities with the Rural Fire
Service reduced his ability to work. It was difficult to see that it was a
discretionary factor.
8
Warwar v Speedy Courier (Australia) Pty Ltd [2010] NSWWCCPD 92
Lump sum compensation; two injuries; circumstances in which the effects of multiple injuries
can be aggregated to meet the threshold for compensation for pain and suffering in s 67 of the
1987 Act; section 322 of the 1998 Act ; consideration of the principles in Department of
Juvenile Justice v Edmed [2008] NSWWCCPD 6; construction of complying agreement under
section 66A of the Workers Compensation Act 1987; principle of objectivity; relevance of
surrounding circumstances; application of principles in Toll (FGCT) Pty Ltd v Alphapharm Pty
Ltd and others [2004] HCA 52; 219 CLR 165
Roche DP
25 August 2010
Facts:
Mr Warwar, the appellant, started work with Speedy Courier (Australia) Pty Ltd, as a trolley
collector at a Bankstown shopping centre in early 2007. On 22 February 2007, he injured his
lower back closing a heavy door on a trailer. Mr Warwar did not return to work after his injury.
On 18 August 2008, whilst driving home after having received osteopathic treatment for his
back, Mr Warwar was involved in a car accident in which he injured his neck and experienced
increased symptoms in his lower back.
Dr Giblin examined Mr Warwar and assessed a 5% WPI as a result of the lumbar spine injury
on 22 February 2007 and 6% WPI as a result of the injury to the cervical spine and lumbar
spine on 18 August 2008 (5% WPI neck and 1% additional WPI for the lumbar spine).
Mr Warwar claimed compensation for an 11% WPI as a result of both injuries, together with
$25,000 for pain and suffering.
The respondent’s insurer, (QBE), in a letter dated 10 June 2009, offered to settle the claim for
lump sum compensation based on Dr Giblin’s assessments (5% WPI as a result of injury on
22 February 2007 and 6% WPI as a result of injury on 18 August 2008), but declined to make
an offer under s 67 because the claim did not meet the threshold for that compensation.
Mr Warwar accepted the s 66 offer but disputed that he had no entitlement under s 67.
The parties signed a s 66A Complying Agreement. This referred to a date of injury of 22
February 2007 and a WPI of 11%. It made no provision for the payment of compensation for
pain and suffering.
Mr Warwar filed an application in the Commission seeking compensation under s 67. The only
issue in dispute was whether the injuries could be aggregated to satisfy the 10% threshold in s
67.
The Arbitrator determined that Mr Warwar’s injuries could not be aggregated and he failed to
meet the s 67 threshold.
Mr Warwar argued on appeal:
a) the s 66A complying agreement was binding on the parties. It only referred
to the first injury and a WPI of 11% and the Commission must give effect to
its terms and therefore award s 67 compensation;
b) his permanent impairment assessment should be aggregated under s 322
of the 1998 Act, resulting in one whole person impairment of 11%, and
9
c) the injuries on 18 August 2008 were sustained when he was on a journey
under s 10(3) after having medical treatment for the first injury and
therefore these injuries resulted from the first injury.
Held: Arbitrator’s determination confirmed.
Section 66A
1.
In the absence of any exemptions as set out in s 66A(3), the complying agreement was
a written agreement and was to be interpreted according to the usual principles of
contract law. This is an exception to s 234 of the 1998 Act which prevents a party
contracting out of the terms of the 1987 and 1998 Acts.
2.
The principles relevant to the construction of a contract were set out by the High Court in
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and others [2004] HCA 52; 219 CLR 165 at
[40].
3.
The fundamental principle is what reasonable parties would take a clause to mean at the
time of making the contract, taking into account the text and structure of the written
agreement and content of the surrounding circumstances known to the parties (Synergy
Protection Agency Pty Ltd v North Sydney Leagues Club Limited [2009] NSWCA 140).
4.
The surrounding circumstances known to the parties included Dr Giblin’s report and
QBE’s letter dated 10 June 2009. On an objective view, the complying agreement
compensated Mr Warwar for separate injuries that resulted from separate and distinct
incidents. It was never the purpose or intention of the complying agreement to admit that
Mr Warwar had met the threshold for s 67 compensation. QBE had expressly declined
to make such an offer.
Section 322
5.
The principles discussed in Department of Juvenile Justice v Edmed [2008]
NSWWCCPD 6 at [26] and [27], namely that impairments that have resulted form “the
same injury” (same pathology) are to be assessed together to assess the degree of
permanent impairment, were applicable.
6.
The neck injury from the car accident was not the same injury as the low back injury
sustained in 2007 and could not be aggregated to the impairment for the 2007 back
injury.
7.
The worker’s complaints and the medical evidence established that the lower back injury
(pathology) in 2008 was an aggravation of the L4/5 disc protrusion caused in the first
incident. It was therefore appropriate to aggregate those impairments. Mr Warwar
suffered only a 1% impairment as a result of the injury to his lumbar spine in the car
accident in 2008. This together with the 5% from the 2007 injury did not exceed the s 67
threshold.
Results from
8.
Mr Warwar’s submission that the need to travel for medical treatment as a result of the
first injury exposed him to the risk of injury and he would not have been exposed to the
negligence of another driver if he had not required the treatment was rejected because it
applied the “but for” test of causation. This was not the correct test.
10
9.
The test of causation in workers compensation matters is the “commonsense test” (see
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-4; Zinc Corporation
Ltd & another v Scarce (1995) 12 NSWCCR 566 at 570-1; Badawi v Nexon Asia Pacific
Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 7 DDCR 75). The
question was whether, as a matter of commonsense and experience, the second injury
resulted from the earlier injury.
10.
Applying the “commonsense test” to the causal chain lead to the conclusion that Mr
Warwar’s injuries in the motor vehicle accident resulted from the negligence of a third
party and not from the first injury. There was no evidence that his employment made any
relevant contribution to the car accident. The test that “but for” the first incident Mr
Warwar would not have been receiving medical treatment did not establish causation
(Sarkis v Summitt Broadway Pty Ltd t/as Sydney City Mitsubishi [2006] NSWCA 358).
11
Lauda Enterprises Pty Ltd v Akkanen [2010] NSWWCCPD 91
Boilermaker’s deafness; whether impairments from separate claims can be aggregated to
meet the threshold for compensation for pain and suffering in s 67 of the Workers
Compensation Act 1987; s 322 of the Workplace Injury Management and Workers
Compensation Act 1998
Roche DP
24 August 2010
Facts:
Mr Laurie Akkanen was employed as a builder by the appellant employer, Lauda Enterprises
Pty Ltd (Lauda), from 1979 until he retired in February 2006. In the course of his employment,
he was exposed to loud noise generated by plant and equipment.
Mr Akkanen’s hearing loss resulted from two separate periods of exposure to noise, one up to
1996 and the other up to February 2006. There were two injurious events resulting in two
separate claims for compensation for noise induced hearing loss.
In 1996 he settled his first claim for an agreed 12% binaural hearing loss (which equalled a
6% WPI after applying the WorkCover Guides). In 2009 he made a further claim for noiseinduced hearing loss assessed at 22% total binaural hearing impairment (which equalled an
11% WPI under Table 9.1). The insurer paid the s 66 compensation due for the additional 5%
WPI.
The Arbitrator determined that Mr Akkanen had received one injury, namely, boilermaker’s
deafness, which resulted in 11% WPI therefore exceeding the threshold in s 67. The
Arbitrator awarded Mr Akkanen $8,750 as lump sum compensation in respect of s 67.
Lauda disputed Mr Akkanen’s entitlement to s 67 compensation on the ground that he was not
entitled to combine the s 66 compensation payments to exceed the s 67 threshold.
Held: Arbitrator’s determination confirmed save that paragraph 1 amended to delete
Allianz Australia Workers Compensation (NSW) Limited and insert GIO General Ltd; the
appellant employer to pay worker’s costs.
1.
Lauda submitted that Mr Akkanen’s exposure to noise in the second period up to
February 2006 gave rise to a “separate and distinct injury” which had not been
addressed by the amendments to the 1998 Act and, as the 1987 Act deemed that there
were two injuries, they were to be treated “separately and distinctly” in the absence of an
enabling provision such as the repealed s 71 of the 1987 Act.
2.
Lauda’s submissions were rejected. The submissions overlooked that the amendments
that introduced Chapter 7 to the 1998 Act in January 2002 established a new regime for
the assessment of claims for lump sum compensation. Previously workers received
compensation for “the loss of a thing”. Post January 2002 workers who suffered an
injury resulting in permanent impairment were entitled to compensation for that
permanent impairment (s 66(1)).
3.
Lauda’s argument ignored the effect of s 322 of the 1998 Act. This section was
considered in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 at [26]
and [27]:
“The expression ‘the same injury’ [in s 322(2)] is not defined but it follows that if
‘injury’ in s 322(3) means ‘pathology’ (as it must), then, for the section to be
logically consistent, it must mean the same in s 322(2). If ‘injury’ in s 322(2)
12
means ‘pathology’ then, for s 322(2) to be consistent with s 322(3),
impairments resulting from the ‘same injury’ (the same pathology) are to be
‘assessed together’ regardless of whether they arise from the same ‘incident’ or
separate incidents.”
4.
The Commission must read s 322 in the context of the legislation and must have regard
to the purpose of the legislation, which is to provide compensation to workers injured in
certain defined circumstances (see Project Blue Sky Inc v Australian Broadcasting
Authority [1998] HCA 28; 194 CLR 355; Wilson v State Rail Authority of New South
Wales [2010] NSWCA 198).
5.
Mr Akkanen’s impairments resulted from the “same injury” or, as discussed in Edmed,
the same pathology or pathological condition, namely, sensorineural hearing loss due to
industrial noise. The pathological condition was the same in 2006 as in 1996 even
though it resulted from exposure to additional noise.
6.
That Mr Akkanen’s injury resulted from two separate periods of noise exposure and was
the subject of two separate claims with two deemed dates of injury under s 17 of the
1987 Act did not detract from the fact that he only suffered one injury or pathological
condition. It is well established law that a loss can have multiple causes (ACQ Pty Ltd v
Cook [2009] HCA 28 at [25] and [27]).
7.
The above approach is consistent with Strasburger Enterprises Pty Ltd t/as Quix Food
Stores v Serna [2008] NSWCA 354 where it was held, in a case concerning the
threshold for injury damages, that an injury and an impairment can have multiple
causes.
13
Qantas Airways Limited v Watson (No 3) [2010] NSWWCCPD 86
Reconsideration; s 350(3) Workplace Injury Management and Workers Compensation Act
1998
Roche DP
11 August 2010
Facts:
Mr Watson received serious injuries in a car accident while returning to the crew hotel while
on ‘slip time’ in Los Angeles in February 2005. He had hired a car and visited friends with
whom he had a common interest in quarter horses, one hour twenty minutes drive from Los
Angeles.
His claim for compensation was initially successful. On appeal, Deputy President Bryon
revoked the Arbitrator’s decision and made an award for the employer. On appeal to the Court
of Appeal, the decision of the Deputy President was set aside: Watson v Qantas Airways
Limited [2009] NSWCA 322 (Watson). The Court of Appeal held the Presidential Member had
failed to direct himself adequately by reference to Hatzimanolis v ANI Corporation Ltd [1992]
HCA 21; 173 CLR 473 (Hatzimanolis).
Following further submissions and a rehearing before Deputy President Roche, on 14 April
2010 in Qantas Airways Limited v Watson (No 2) [2010] NSWWCCPD 38 (Qantas No 2), the
Arbitrator’s award was revoked and an award made in favour of the employer on the ground
that, applying the principles in Hatzimanolis, Mr Watson had not received an injury in the
course of or arising out of his employment and, if he had received such an injury, his
employment had not been a substantial contributing factor to his injury. Further, Mr Watson
had not been injured in circumstances to which s 11 applied.
On 28 April 2010, the Court of Appeal delivered judgment in Da Ros v Qantas Airways Ltd
[2010] NSWCA 89 (Da Ros). Mr Da Ros received injuries whilst riding a bicycle during a lay
over in Los Angeles. Qantas conceded that Mr Da Ros was in the course of his employment
at the time of his injury. Deputy President O’Grady made an award in favour of Qantas on the
ground that employment had not been a substantial contributing factor. The Court of Appeal
held that the Deputy President had erred in his interpretation and application of the phrase
“substantial contributing factor” in s 9A of the 1987 Act. Qantas has filed an application for
special leave to appeal to the High Court.
Based on the Court of Appeal’s decision in Da Ros, Mr Watson sought a reconsideration of
the three findings in Qantas No 2 relating to “in the course of employment’, “arising out of” and
“substantial contributing factor”.
Held: Findings and orders confirmed and respondent worker’s application for
reconsideration dismissed
1.
There is power in s 350(3) of the 1998 Act, in an appropriate case, for the Commission
to reconsider its decision to correct factual or legal errors to do justice between the
parties (Maksoudian v J Robins & Sons Pty Ltd [193] NSWCC 36; (1993) 9 NSWCCR
642; Bluescope Logistics Co Pty Ltd (formerly BHP Transport & Logistics Pty Ltd) v
Finlow [2006] NSWWCCPD 338). However, the Commission should not lose sight of the
general rule that the public interest requires that litigation should not proceed
interminably (per Street CJ in Hilliger v Hilliger (1952) 52 SR (NSW) 105 at 108) [16],
[17].
14
2.
Mr Watson did not advance any persuasive reason in support of his assertion that the
Commission should reverse the factual findings in Qantas No 2. He did not tender any
fresh evidence and did not suggest any relevant change in the law. The issues of “in the
course of employment” and “arising out of employment’ were not argued in Da Ros. [19]
3.
Although there were similarities in Da Ros and Mr Watson’s case, as they were both
Qantas employees injured during ‘slip time’ in Los Angeles, there was no similarity
between the provision by Qantas of recreational equipment to members of its recreation
club (Da Ros), and the hiring by Mr Watson of a car at his own expense to visit friends
one hour and twenty minutes from Los Angeles. [22]
4.
There is nothing in paragraphs [8] and [22] of Da Ros that, even when read with [58] in
Watson, required or even suggested that the Commission should make different factual
findings. At [8] of Da Ros, Basten JA observed that the Court of Appeal in Watson
“dealt with factual circumstances not dissimilar to the present case” but focused on
whether the injury occurred “in the course of” his employment. It was Badawi v Nexon
Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; (2009) 7
DDCR 75 which dealt with s 9A, that was “of most direct relevance” in Da Ros. At [22] of
Da Ros, Basten JA stated “The activity in which a claimant may be involved when he or
she suffers an injury is either within the course of employment or it is not”. That question
is a question of fact. [23]
5.
In cases of this kind, the test to be applied is the test in Hatzimanolis. Firstly, the period
of work has to be characterised and the circumstances of what occurred analysed within
that framework. That test was applied in Qantas No 2. [24]
6.
The submission that, given the reasoning and facts in Da Ros, the decision in Qantas
No 2 on the “arising out of” issue should also be reversed was unsupported by any
reasoned argument. There was nothing in Da Ros that required or suggested a different
result on the factual question of “arising out of” in Qantas No 2. Da Ros dealt with the
application of s 9A in circumstances where Qantas conceded that the injury occurred in
the course of the worker’s employment. The Court of Appeal did not consider the
“arising out of” issue. [25]
7.
The submission that there has been a “quick development” of the law in this area
indicated by Da Ros related to the interpretation and application of s 9A, not the issues
of “in the course of” or “arising out of”. [26]
8.
The submission that the Commission’s decision that Mr Watson was not in the course of
his employment “must have been a very close run thing” was unhelpful and did not
advance any reason why a different result should have been reached following Da Ros.
[28]
9.
As there was no basis for reversing the “in the course of” and “arising out of” findings,
the “substantial contributing factor” issue did not arise.
15
Rail Corporation New South Wales v Crilly [2010] NSWWCCPD 84
Psychological injury; expert evidence; ss 9A and 11A of the Workers Compensation Act 1987;
adequacy of reasons, and disease.
Candy ADP
4 August 2010
Facts:
Mr Crilly was employed by Rail Corporation NSW. In May 2006 he made a claim for workrelated depression the liability for which was accepted after an initial declinature. In July 2006
he began a gradual return to work. He then suffered a left knee injury for which liability was
also accepted. On 18 April 2008, while at home, Mr Crilly was assaulted and suffered facial
and head injuries. He was admitted to hospital and later had plastic surgery. He was on leave
of various kinds, paid and unpaid, from that time until January 2009.
In January 2009 there were various communications between RailCorp and Mr Crilly. On 6
January 2009, Ms Stuardo wrote to Mr Crilly on behalf of the Human Resources Manager,
about his absence from work, allegedly without any advice, since 3 January 2009. He was
asked to contact Acting General Manager Presentation Services, Mr Jones, by telephone
upon receiving the letter in order to discuss his absence from work. The letter finished with
this statement: “Failure to do so may result in it being considered that you have abandoned
your employment with RailCorp”.
Mr Crilly responded to Ms Stuardo’s letter by email, saying he had submitted a medical
certificate by email to Mr Le Gallant on Sunday 4 January 2009.
RailCorp advised Mr Crilly in a further email that Mr Le Gallant was off duty for medical
reasons and other staff were unaware of emails and certificates sent by the worker to him.
Mr Crilly responded to the correspondence by emails to various members of RailCorp staff,
including the Chief Executive Officer, to whom he complained that he was being “targeted”.
He then made a claim for workers compensation on 19 March 2009 nominating the date of
injury as 6 January 2009 and describing the injury as; “received letter from RailCorp HR by
registered mail threatening to terminate me for ‘abandonment of employment’ for being one
day late with medical cert. when it was already supplied”. The injury was said to be
“stress/anxiety” and the date of previous similar injury was given as 25 May 2006.
Mr Crilly filed an Application to Resolve a Dispute in the Commission. Two dates of injury
were specified, namely 15 May 2006 and 23 February 2009. In relation to the first, the
particulars of the injury were given as “[d]ue to the nature and conditions of employment from
November 2005 to May 2006” and, in relation to the latter date, “the nature and conditions of
employment from November 2005 to February 2009”. The injury was described as
“Psychological/Psychiatric Injury – Major depressive episode”. He claimed weekly
compensation from 23 February 2009 onwards.
The Arbitrator found in favour of the worker. The claim for weekly compensation was limited to
the period up to 15 December 2009.
RailCorp appealed submitting that the Arbitrator has erred in:
a) failing to exclude from consideration the report of Dr Canaris on the basis of
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR
705; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16;
4 DDCR 421 and Hevi Lift (PNG) Ltd v Etherington (2005) 2 DDCR at 271
16
b) finding that the worker had suffered a psychological injury or injuries from which
his incapacity for work resulted;
c) failing to find that RailCorp had a defence under s 11A of the 1987 Act;
d) finding that the provisions of s 9A of the 1987 Act were satisfied;
e) finding, in the absence of a claim that his injury was the aggravation, acceleration,
exacerbation or deterioration of a disease that the worker had suffered an
aggravation, acceleration, exacerbation or deterioration of a disease, and
f)
failing to give adequate reasons for the findings made.
Held: Arbitrator’s decision confirmed.
1.
The Arbitrator did not err in declining to exclude Dr Canaris’ report in its entirety.
Although Dr Canaris, commented on matters outside his field of professional expertise
(the application of s 9A), this did not offend the principles which governed the
admissibility of expert evidence as expressed by the NSW Court of Appeal in Makita,
Edmonds and Hevi Lift such as to invalidate his opinion based on his professional
expertise. The Arbitrator placed no reliance on the expressions of opinion which went
beyond the doctor’s professional knowledge and judgment.
2.
The evidence established that Mr Crilly suffered a compensable psychological injury in
2006 and was vulnerable to suffer a relapse of that condition which occurred in January
2009. His psychological incapacity resulted from both the 2006 and 2009 injuries.
3.
Having made the finding in relation to injury in 2006, the correspondence on 6 January
2009 was not the whole or predominant cause of Mr Crilly’s psychological condition
under s 11A.
4.
Alternatively, if that was not correct, in considering whether the letter:
a)
went to retrenchment or dismissal, or
b)
related to the provision of employment benefits, being the benefits and
rights of the worker’s remaining in employment, such as superannuation
benefits and the right to challenge the termination of that employment.
c)
Was a reasonable action by the employer.
Held on appeal that:
a)
Even giving these terms a “wide application” (Davies AJA in Manly
Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSWWCCR 181
at [27]), Rail Corp’s submission that the letter was a step in the
process of dismissal was rejected.
b)
The letter related to the worker’s absence without a medical certificate,
his failure to resume his duties and the fact that he was not able to be
contacted on the telephone numbers of which RailCorp was aware and
was not a letter with respect to the provision of employment benefits.
c)
The sending of the letter on 6 January 2009 and the contents of that
letter were not reasonable in all the circumstances. These include the
fact that the worker had been absent from work for a considerable time
with a head injury and had been known to have had a prior episode of
17
work-related depression. The letter appeared to be premature and
unreasonable, given the time at which it was sent, and the confusion
on the part of some at RailCorp as to the true state of affairs. The
reference to abandonment of employment was unwarranted and
unreasonable and appears to have been the matter to which the
worker took particular objection.
5.
Section 354 of the 1998 Act requires the Commission to act according to “equity, good
conscience and the substantial merits of the case without regard to technicalities or
legal forms”. Notwithstanding the failure to refer to disease specifically, the parties
understood the case was about an aggravation of disease as evidenced by RailCorp’s
reliance on the payments of compensation made in 2006 to reduce its liability under s
36 of the 1987 Act. This suggested that RailCorp regarded the events of 2009 as being
a continuation of the same injury as that in 2006.
6.
The aggravation of the disease of major depression in 2009 was a separate injury. As
Hodgson JA said in Murray v Shillingsworth [2006] NSWCA 367; (2006) 4DDCR 313 at
[7]:
12.
7.
“…I think there may be cases where the question of whether the employment
was a substantial contributing factor is affected by whether one considers the
work occurrence as an injury simpliciter or as an aggravation of a pre-existing
condition. In some case at least, when an injury simpliciter can be considered
as having been contributed to by a pre-existing condition, the employment
contribution to the aggravation may not be diluted by the pre-existing condition
(although the compensation would then be strictly limited to the effects of the
aggravation).”
The Arbitrator’s reasons were adequate.
18
Haydar Al-Nouri v Al-Nouri Pty Ltd [2010] NSWWCCPD 85
Section 319 of the 1998 Act; medical dispute; validity of Registrar’s referral of medical dispute
to an AMS; status of a MAC following invalid referral; determination of the Commission
operating as a res judicata.
O’Grady DP
6 August 2010
Facts:
Mr Al-Nouri, alleges that he received injury in the course of his employment with Al-Nouri Pty
Ltd (‘his own company’). He was employed as a truck driver and his duties were to operate a
12 tonne truck delivering soft drink.
The injury alleged was particularised as being injury to “the neck, left shoulder, left elbow, left
wrist, upper back, lower back, both legs the left being worst”. The date of the injury was
particularised as being the nature and conditions of employment between November 2007
and May 2008.
In March 2009 the worker made a claim for lump sum compensation benefits under ss 66 and
67 of the 1987 Act in respect of 18% whole person impairment (‘WPI’) and $15,000 for pain
and suffering. The insurer disputed the claim.
Mr Al-Nouri filed an Application to Resolve a Dispute. And the respondent filed a Reply.
The matter was referred to an AMS, Dr Marsh who issued a MAC on 24 August 2009 in which
he assessed a 0% WPI in respect of the neck, back and left leg claims. The claim referred to
Dr Marsh had been amended to delete reference to the left upper extremity.
The worker did not appeal the MAC under s 327 of the 1998 Act nor did he seek a further
medical assessment under s 329 or a reconsideration under s 378 of the 1998 Act prior to
issue of the Certificate of Determination.
A Certificate of Determination issued, noting that the worker suffered 0% WPI and making no
order as to costs.
The worker then filed a second Application to Resolve a Dispute in essentially the same terms
as the first application. However, that Application contained two significant misstatements:
a.
denying the worker had been examined at any time by an AMS under Part 7 of
Chapter 7 of the 1998 Act, and
b.
denying proceedings had previously been taken in relation to the injury or any other
injury or condition.
In filing a Reply to the second Application, the respondent requested the matter be allocated
to an arbitrator rather than proceeding directly to an AMS. Despite this request the
Commission referred the worker to an AMS. The respondent’s solicitor did not receive
notification of the referral.
The AMS, Dr Assam, issued a MAC certifying a 12% WPI. That figure was determined having
regard to his assessment of 7% WPI cervical spine and 5% WPI lumbar spine. The certificate
certified 0% each in respect of the left upper extremity and the left lower extremity.
19
The respondent made an application for reconsideration/review on the basis it had bee denied
procedural fairness.
The matter was listed before an Arbitrator. The Arbitrator declined to order the Registrar
reconsider her decision on the basis he did not have jurisdiction. However he made a finding
that the medical referral was made without power due to the operation of s 321(4). Dr Assam’s
MAC was found to be a nullity. Further he remitted the matter for referral to another AMS for
assessment of the left upper extremity.
The worker filed an appeal challenging these orders.
Held: Arbitrator’s orders varied on appeal.
1.
Agreed with the Arbitrator’s conclusion that the referral to Dr Assem had been made by
the Registrar without power but for different reasons.
2.
The fundamental question raised on the facts was whether a dispute, being a medical
dispute within the meaning of s 319 of the 1998 Act, was in existence at the time of the
referral. That question necessarily required an identification of the ‘dispute’ in each
application.
3.
The dispute in each referral to the AMS was the same, namely a medical dispute within
the meaning of s 319 of the 1998 Act concerning WPI resulting from injury to body parts
cervical spine, lumbar spine and left lower extremity.
4.
The validity of the referral to Dr Marsh was not in question. Dr Marsh’s MAC is
conclusively presumed to be correct concerning the matters set forth in s 326(1) which
includes the question of the degree of permanent impairment of the worker as the result
of the injury. The Certificate of Determination issued by the Registrar reflected the
assessments made by Dr Marsh. That determination stands and is binding upon the
parties.
5.
The Certificate of Determination concluded the dispute which existed between the
parties. That determination operates as a res judicata.
6.
The effect in law of such determination was in no way lessened or qualified by reason of
the existence in the 1998 Act of a power granted to the Registrar to refer a matter for
further medical assessment (s 329); nor by the grant of a power to reconsider matters
dealt with by the Registrar, an AMS or an Appeal Panel (s 378). As was stated by
Neilson J concerning determinations of the former Compensation Court of New South
Wales in Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247 (‘Bruce’):
“Of course, the doctrine of res judicata, meaning cause of action estoppel, and
also the doctrine of issue estoppel can have no application in a claim for
reconsideration pursuant to section 17(4). It is to overcome such principles that
the power of reconsideration exists. That is what Rainbow J was referring to in
Humphreys v. Shell Co of Australia Ltd. However, in my view, absent an
application under section 17(4) of the Compensation Court Act 1984, any
determination made by this Court does create an issue estoppel: see Somodaj
v. Australian Iron & Steel Ltd (1963) 109 CLR 285. Therefore, there is no
reason in principle why a determination of this Court could not in appropriate
circumstances create a cause of action estoppel, absent an application under
section 17(4).” (at 264)
7.
The consequence of the issue of the Certificate of Determination following Dr Marsh’s
assessment is that there was no dispute in existence at the time of the commencement
20
of the second set of proceedings concerning such alleged entitlement. There being no
dispute there was no power to make the referral to Dr Assem. Any such referral made
by the Registrar was ultra vires. The assessment of Dr Assem came into being by
reason of an invalid referral and his MAC must be treated as a nullity.
8.
Any determination made by the Commission upon reliance of Dr Assem’s MAC would
be “infected with the error” which attended the Registrar’s referral (Jopa Pty Limited t/as
Tricia's Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321 at [37]).
9.
Given Dr Marsh did not asses the left upper extremity, the Arbitrator’s order remitting the
matter for AMS assessment of the left upper extremity was confirmed, subject to an
order clarifying that the forensic reports relied on by both parties complied with cl 43 of
the Regulation.
21
Falee v Harris Farm Markets Pty Ltd [2010] NSWWCCPD 82
Injury; claim for lump sum compensation; referral to Approved Medical Specialist
Roche DP
4 August 2010
Facts:
Mr Yar Mohammad Falee worked for the respondent employer from December 2005. On 10
January 2006, he injured his back, neck, left shoulder, bowel and liver as a result of lifting
boxes of fruit in the course of his employment with the respondent employer.
In earlier proceedings Mr Falee recovered compensation for 10 per cent whole person
impairment to the lumbar spine (in 2007) and an additional two per cent whole person
impairment as a result of injury to his lumbar spine (in 2009).
In February 2010, Mr Falee sought hospital and medical expenses, together with
compensation for whole person impairment to his lower digestive tract, cervical spine, and to
his left upper extremity. These impairments were alleged to have resulted from the incident on
10 January 2006.
At the conciliation and arbitration, Mr Falee’s counsel consented to an award being entered for
the respondent employer in respect of the alleged injury to the left shoulder, and withdrew the
claim for hospital and medical expenses. The respondent employer consented to a claim for
whole person impairment in respect of the lower digestive system being referred for
assessment by an AMS. The only matter disputed at the arbitration was whether or not Mr
Falee had injured his neck.
The employer argued that, though the worker complained of upper cervical pain in February
2006, there were no further complaints of cervical pain until September 2008. Radiological
evidence in 2008 revealed minor bulging in the lower thoracic region and a cyst at C6/7.
The Arbitrator resolved that issue in favour of the employer on the grounds of insufficient
evidence to establish even a minor injury to the neck.
Held: Arbitrator’s determination revoked; remitted to Registrar for referral to an
Approved Medical Specialist for assessment.
1.
The respondent employer’s submissions failed to properly address the issue in dispute –
being whether Mr Falee injured his neck at work on 10 January 2006. Its submissions
went to the consequences of the injury, not its occurrence. There was no dispute that Mr
Falee injured his low back and no dispute that he complained of neck symptoms to Dr
Salem in early February 2006. Dr Salem’s later report stated Mr Falee’s symptoms
arose from his duties.
2.
It may be that Mr Falee’s current neck symptoms were due to the cyst at C6/7. However,
the issue before the Commission was whether Mr Falee injured his neck while lifting
boxes on 10 January 2006. His assertion that he did, was supported by Dr Salem’s
clinical notes and report. Dr Salem based his opinion on the nature of the duties
undertaken by Mr Falee. Dr Salem’s conclusion was perfectly logical and consistent
with the history. It provided a fair climate for the acceptance of the doctor’s conclusion:
Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; (1995) 59
ALJR 844; [1985] HCA 58. That the worker injured his neck was also supported by Dr
Stephen, who stated that the worker had not sustained any “significant neck injury”.
22
3.
In a case where the only compensation claimed is lump sum compensation, the
question of assessment of whole person impairment is exclusively a matter for an AMS:
Haroun v Rail Corporation NSW & Ors [2008] NSWCA 192; (2008) 7 DDCR 139. It may
be that Mr Falee’s neck symptoms have resulted from the C6/7 cyst. However, as injury
is established, the only remaining issue is quantum of the whole person impairment as a
result of that injury.
23
Bozinovski v Sydney South West Area Health Service – Fairfield Hospital [2010]
NSWWCCPD 89
Failure to give reasons; failure to consider and analyse medical evidence; failure to consider
worker’s evidence of continuing symptoms
Roche DP
18 August 2010
Facts:
The appellant worker, Ms Bozinovski, commenced work with the employer in February 1988
as a full-time cleaner. She developed pain in her neck, arms and shoulders in 2003 or 2004.
She had a few weeks off work before she returned on light duties, and then resumed her
normal duties. Her symptoms increased and she sought treatment from Dr Aran.
In March 2005, Ms Bozinovski slipped at work and experienced neck and back pain. She had
a few days off work before returning to work on her normal duties. However, her pain
increased and she again saw Dr Aran. In 2007 the pain became “particularly bad”.
On 17 October 2007, Ms Bozinovski experienced back and right knee pain whilst mopping at
work. Dr Aran certified her unfit for work and she has not returned to work.
The employer’s insurer accepted liability and commenced voluntary payments of
compensation. On 18 December 2009, the insurer gave notice that it would stop weekly
compensation payments on 1 February 2010. The s 54 notice stated that Ms Bozinovski no
longer suffered the effects of any injury nor was she incapacitated for work. The notice also
stated that employment was “no longer a substantial contributing factor to any injury” to the
worker’s “condition”.
Ms Bozinovski filed an application with the Commission on 17 February 2010 claiming weekly
compensation in the sum of $589.92 from 2 February 2010 to date and continuing. She also
claimed hospital and medical expenses in the sum of $4,092.45 and lump sum compensation
in the sum of $143,000 in respect of 55 per cent whole person impairment for injuries to the
back, neck, right shoulder, left shoulder and left knee. An amendment made to the application
deleted the reference to left knee and inserted right knee.
The Arbitrator found that Ms Bozinovski injured her back (lumbar spine) and right knee, and
that her employment had been a substantial contributing factor to those injuries. The Arbitrator
made an award for the respondent employer in respect of the claim for injury to the cervical
spine and upper extremities. Ms Bozinovski received an award for s 60 expenses in respect
of the lumbar spine and right lower extremity. The Arbitrator found, on the basis of the
evidence of Dr Stephenson, that Ms Bozinovski was fit for work without restriction from 17
October 2008. She referred the matter to an Approved Medical Specialist for an assessment
of whole person impairment.
Ms Bozinovksi lodged an appeal in respect of the findings on incapacity. There was no
challenge to the Arbitrator’s finding that she received no injury to her neck or shoulders.
Held: Arbitrator’s award in respect of weekly payments revoked; matter remitted to a
different Arbitrator for redetermination in accordance with this decision.
1.
It is not necessary for a party appealing under s 352 of the 1998 Act to establish error
before a Presidential member may intervene (Sapina v Coles Myer Limited [2009]
24
NSWCA 71; 7 DDCR 54). In any event, the Arbitrator erred in her approach and
conclusions. [31]
2.
The Arbitrator accepted that Ms Bozinovski injured her back and right knee in the course
of employment. It was clear the injury was in the nature of aggravation of degenerative
changes in the lumbar spine and right knee. The Arbitrator ordered the payment of
medical expenses under s 60 without restriction to any particular period indicating that
she considered the effect of the injury was continuing. [32]
3.
The Arbitrator stated that, based upon Dr Stephenson’s report, the worker had been fit
for work without restrictions since 17 October 2008. However, she did not analyse Dr
Stephenson’s evidence nor did she give any reason or explanation for accepting it and
rejecting other evidence. She did not consider the worker’s evidence of continuing
symptoms. The Arbitrator did not refer to the worker’s statement, but merely referred to
the medical certificates and medical reports. This did not involve a consideration of the
issues. [33]-[34]
4.
The Arbitrator repeated the error in the insurer’s s 54 notice of requiring that there be a
“substantial connection” between the incapacity and the injury. To succeed in
establishing an entitlement to weekly compensation, a worker must establish that his/her
incapacity has resulted from the relevant injury. It is not necessary to prove that
employment was a substantial contributing factor to the incapacity.
5.
The reports of Dr Stephenson were inconsistent. His report of February 2008 supported
the worker on injury, incapacity and the need for continuing treatment as he found there
was an aggravation of degenerative changes in the lumbar spine and right knee. [36]
His October 2008 report stated that he “did not achieve a diagnosis of a musculoskeletal
condition”. [43] He had already made a diagnosis: aggravation of degenerative changes.
That diagnosis was consistent with the radiological evidence, the commencement of
symptoms at work, and the nature of the duties. [53] He did not explain why any
aggravation at work had ceased.
6.
Matter remitted to a different Arbitrator for redetermination of the extent of any incapacity
resulting from the back and right knee injuries.
25
Chhong Heng Taing t/as The Arcade Pharmacy v Gauci [2010] NSWWCCPD 90
Proof of injury; evidence of disease; Part 18 Rule 4(4) of the Workers Compensation
Commission Rules 2006, substitution of party to proceedings.
O’Grady DP
24 August 2010
Facts:
This is the second of two appeals brought by the employer against orders made concerning
the worker’s entitlement to a lump sum in respect of whole person impairment (left and right
upper extremities)
The worker alleged injury in the course of employment on 4 November 2004. The
proceedings were initially taken against an entity described as The Arcade Pharmacy Pty
Limited. That was a mis-description of the employer and correction of the employer’s title was
made by consent many months after the institution of the proceedings.
The worker was examined by Dr Harvey-Sutton, an AMS. A MAC issued on 10 December
2008 which certified whole person impairment of 9 per cent. The employer brought an appeal
against the assessment by the AMS. The AMS’s findings were confirmed by the appeal panel
on 20 March 2009. On 22 April 2009 a Certificate of Determination issued from the
Commission making orders concerning payment to the worker of lump sum calculated in
accordance with Dr Harvey-Sutton’s MAC.
An appeal was brought by the employer against that determination. That appeal (matter A17914/2008) was upheld and the orders made in the determination dated 22 April 2009 were
revoked. It was further ordered that the matter be remitted to an Arbitrator for determination of
any application the employer may wish to bring pursuant to s 289A(4) of the 1998 Act. That
direction enabled the employer to seek leave of the Commission to rely on any previously
unnotified matter or matters in its defence of the worker’s claim.
The matter subsequently came before an Arbitrator and the subject of the correct description
of the employer was raised however was not, at first, resolved. A number of directions were
made. The application was the subject of arbitration on 19 February 2010 it was on that
occasion that the employer was identified as Mr Taing. By consent Mr Taing was named as
the respondent to the application.
A certificate of determination was issued on 9 April 2010 which ordered the employer to pay a
lump sum calculated in accordance with Dr Harvey-Sutton’s MAC.
Held: Arbitrator’s determination confirmed; appellant employer to pay worker’s costs.
1.
2.
The employer disputed the Arbitrator’s finding of injury. The employer’s arguments
concerning the worker’s credit were rejected. The employer’s argument concerning a
suggested “reversal” of the onus of proof concerning the occurrence of injury were
rejected. No evidence had been called by the employer to dispute the worker’s
evidence concerning a contemporaneous report to the employer of the occurrence of
injury. An inference that any evidence from the employer could not have assisted his
case was open to the Arbitrator.
It was argued by the employer that employment was not a substantial contributing factor
to the injury (s 9A). On the review it was found that the Arbitrator correctly concluded
that the only evidence concerning causation of injury was that to be found in the expert
medical evidence. That evidence established that the injury was received in the course
26
of, and was causally related to, the worker’s employment. There being no other causal
factor the inevitable conclusion was that the employment was a substantial contributing
factor to injury.
3.
The employer placed reliance upon the “disease provisions”. No particular section was
identified in submissions as being relevant to this argument. The Arbitrator’s finding that
the worker had experienced a “sudden or identifiable pathological change” at the time of
injury was confirmed. The employer’s argument that the worker’s condition had, in some
way, been aggravated by subsequent employment was rejected.
4.
The employer’s complaint on appeal concerning the Arbitrator’s assessment of the
evidence of Dr Faithfull was rejected. The employer’s application seeking an
adjournment for the purpose of calling Dr Faithfull was refused by the Arbitrator. That
refusal was found to be correct for the reasons expressed by the Arbitrator which
addressed the nature of the proceedings and the history of the litigation.
5.
An argument advanced by the employer that it was not bound by the findings made by
Dr Harvey-Sutton in her MAC was rejected. The employer, Mr Taing, took the place of
Arcade Pharmacy Pty Limited as the respondent to the worker’s application. The
amendment of the description of the employer was not the addition of a new party to the
proceedings but rather the substitution, by amendment, of the correct description of the
employer for an erroneous description. Such a distinction is addressed by the High
Court in Bridge Shipping Pty Limited v Grand Shipping SA [1991] HCA 45; (1991) 173
CLR 231. Part 18, Rule 4(4) of the Workers Compensation Rules 2006 has the effect
that the employer, Mr Taing, is, unless an order is otherwise made, bound by any order
earlier made in the proceedings. Mr Taing is bound by the presumption that permanent
impairment as certified in the MAC is correct (s 326(1)).
27
Mitchell v South West Area Health Service [2010] NSWWCCPD 87
Nature of issues in dispute; whether insurer disputed injury; section 74 Workplace Injury
Management and Workers Compensation Act 1998; nature of pathology from injury
Roche DP
13 August 2010
Facts:
Ms Mitchell worked for the respondent employer from 1986. On 13 October 2005, she slipped
and fell on a fire escape stairway. Her evidence was that as she was holding onto the
handrail, her foot went from under her and she twisted and fell into the wall. She said she
suffered a wrenching injury to her left shoulder, a laceration to her elbow and felt pain in her
left leg and knee.
On 18 October 2005, she underwent a pre-arranged bone scan for an unrelated condition.
The scan revealed a recent fracture to the top of the left fibula. Apart from physiotherapy
treatment for her left shoulder, Ms Mitchell had no other treatment and continued her normal
duties.
In March 2008, Ms Mitchell’s knee condition worsened. Her general practitioner referred her
to Dr Nagamori. Ms Mitchell’s knee symptoms continued to worsen and she was diagnosed
with a torn meniscus. She underwent an arthroscopy and ultimately a knee replacement
operation in 2008. As a result of the operations she was unfit for work from 12 May 2008 to 7
July 2008 and 26 August 2008 until 20 October 2008.
On 20 November 2009 Ms Mitchell filed an application in which she claimed lump sum
compensation due to the injury to her “left lower limb” together with a claim for weekly
payments for the periods she was off work following surgery. The insurer did not dispute
injury.
The Arbitrator made an award in favour of the respondent in relation to the s 66 claims and
the claim for weekly payments. An order was also made that each party pay their own costs
of the proceedings.
The issue in dispute was the nature of the pathology said to have arisen from the undisputed
injury to the left lower limb. Did she tear her meniscus in the fall or did she only fracture her
fibula?
Held: Arbitrator’s determination revoked; award respondent employer in respect of
claim for weekly compensation; claim for WPI remitted to Registrar for referral to AMS;
respondent employer to pay worker’s costs.
1.
The evidence in the bone scan five days after the fall was consistent with a “recent
fracture of the head of the left fibula”. No evidence was called to challenge this opinion.
It was held that Ms Mitchell fractured her fibula in the fall. [119]
2.
Although later medical histories recorded by the doctors, and Ms Mitchell’s statement,
referred to a continuation of knee symptoms from the date of the fall, the first record of
complaint regarding knee symptoms was on 14 February 2008. Ms Mitchell had visited
her general practitioner on 19 occasions between the date of her fall and the first record
of symptoms. Further, Dr Bokor, to whom she had been referred for her shoulder
complaints following the fall, did not take a history of knee injury or symptoms. The first
referral to Dr Nagamori regarding knee issues was on 3 April 2008 for knee pain
“secondary to osteoarthritis”. He recorded a two-week history of “acute knee pain” with
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“no history of injury”. Therefore, it was not accepted that Ms Mitchell had continuing
knee symptoms since the October 2005 fall. [127], [133]
3.
Dr Nagamori’s report of August 2008, which referred to the fall and the fractured fibular
head, stated that whilst Ms Mitchell did not have ongoing symptoms as a result of the
fall, it was possible that a meniscal tear may have occurred at that time. However, a
mere possibility is not enough to establish causation on the balance of probabilities.
[136]
4.
Dr Nagamori’s report also stated that Ms Mitchell’s symptoms seemed only to have
appeared in early 2008 making it “somewhat unlikely” that the fall caused the meniscal
damage. Given Dr Nagamori’s history of the fall, the fracture and development of knee
symptoms in 2008, this provided a “fair climate” for the acceptance of his opinion (Paric
v John Holland Constructions Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR
505). Further, as Dr Nagamori was a specialist who was entitled to express an opinion
on causation his evidence did not breach the principles discussed in Makita (Australia)
Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. [137]
5.
Dr Harrison’s conclusion that, because it was not possible to state that Ms Mitchell’s left
knee “condition” was not caused by the accident, the accident was therefore a
substantial contributing factor to her current “condition” was rejected. This reversed the
onus of proof, which rested on Ms Mitchell. [141]
6.
There was no evidence that the fall accelerated the degenerative changes in Ms
Mitchell’s left knee. Further, her case was that, as a result of her fall, she suffered a
“sequence of on-going problems affecting” her left knee and that the fall was “likely to
have resulted in a tear of her medical meniscus”. These scenarios relied on an
acceptance on her evidence that she had a continuity of symptoms from the time of the
fall until 2008. The evidence did not establish these scenarios. [143]
7.
Whether Ms Mitchell has any whole person impairment as a result of the injury to her left
lower limb (the fractured head of the left fibula) must be determined by an AMS.
8.
The opinions from Drs Harrison and Sullivan were not accepted because they were
based on Ms Mitchell’s incorrect history of continuing knee symptoms from the date of
the fall.
29
Port Macquarie Hastings Council v Crowe [2010] NSWWCCPD 93
Unreasonable rejection of suitable employment, s 40 (2A) and (2B) of the Workers
Compensation Act 1987; ability to earn in suitable employment, s 40(2)(d).
O’Grady DP
31 August 2010
Facts:
Mr Allan John Crowe, was employed as a park attendant by the appellant council from 1990
until termination of his employment (redundancy) in July 2009. In the course of his
employment he injured his right shoulder on a number of occasions and was absent from work
for a week in August 2008. Upon his return to work he was provided with full time restricted
duties. In December 2008 he communicated to the council his willingness to accept a
voluntary redundancy. In March 2009 the council determined that Mr Crowe’s position was to
be made redundant. Mr Crowe was informed that the date of separation was to be 2 July
2009.
In 2009, before termination of his employment, Mr Crowe suffered two separate aggravations
to his right shoulder injury in the course of his restricted duties.
Mr Crowe made a claim for weekly compensation in September 2009. The council denied that
Mr Crowe suffered ongoing incapacity. It was also asserted that Mr Crowe had unreasonably
rejected suitable employment.
The Arbitrator found that Mr Crowe’s duties as provided by the council were causing him
some distress and that he expected increasing demands to be made upon him at the time he
indicated his willingness to accept redundancy. It was found that Mr Crowe’s concerns had
led him to seek a voluntary redundancy and that such conduct was not unreasonable. The
Arbitrator rejected the council’s argument that it was entitled to rely upon the provisions of s
40(2A).
The Arbitrator made a finding of partial incapacity and, following a determination of Mr
Crowe’s probable earnings and ability to earn, entered an award in his favour at the maximum
relevant statutory rate pursuant to s 40.
Held: The Arbitrator’s award of weekly compensation was revoked; an award pursuant
to s 40 was entered in favour of Mr Crowe in respect of the period 3 July 2009 to 6 June
2010; matter remitted to another Arbitrator for redetermination of any entitlement to
weekly compensation from 7 June 2010; the appellant to pay Mr Crowe’s costs.
1.
There was no dispute between the parties as to the occurrence of injury. The Council
challenged the Arbitrator’s finding that Mr Crowe’s acceptance of voluntary redundancy
was not conduct which constituted unreasonable rejection of suitable employment (s
40(2A)). The council bears the onus of proof concerning those matters relevant to the
application s 40(2A).
2.
The determination of the question of reasonableness requires an examination of the
evidence to ascertain the state of the worker’s knowledge at relevant times (Freightcorp
v Duncan [2000] NSW CA 309 per Davies AJA at [19]). Findings were made on review
concerning Mr Crowe’s knowledge and state of mind at the date he communicated his
willingness to accept redundancy. He had concern about suffering exacerbation of his
injuries; he anticipated transfer to a clerical position which he feared and he was
concerned about termination of his employment. The Council had failed to prove that Mr
Crowe’s rejection of the work provided was unreasonable.
30
3.
The council relied upon evidence found in the Intervene reports, vocational and labour
availability reports relied upon by the council. It was argued that those reports support
the argument that the Arbitrator should have found that, not withstanding injury, Mr
Crowe was capable of earning as much, or more, than his probable earnings but for
injury.
4.
The first report of Intervene was found, on review, to be of no evidentiary value. That
conclusion was reached having regard to the statement made in the second report that
the earlier report was “incorrect”. A finding was made that the first report had been
fabricated. A further finding was made on review that the evidence as to earnings in
those occupations nominated by Intervene had no relevance to the question of
entitlement to, nor quantification of weekly benefits.
5.
Fresh or additional evidence which had been admitted on the appeal established that Mr
Crowe, prima facie, had no entitlement to weekly benefits between 7 and 17 June 2010.
There was insufficient evidence before the Commission to enable a proper
determination of Mr Crowe’s entitlement beyond 7 June 2010. It was appropriate to
address the question of the worker’s entitlement up to 6 June 2010, but the matter
should be remitted to another Arbitrator for determination of any entitlement Mr Crowe
may have to weekly payments from 7 June 2010.
6.
It was found that the Arbitrator had not strictly adhered to those steps outlined by the
Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 527. In
the circumstances the evidence concerning entitlement of Mr Crowe required review.
7.
The appellant’s argument concerning weekly entitlement focused upon Mr Crowe’s post
injury ability to earn. The fresh evidence established that Mr Crowe had apparently
secured employment which was more remunerative than his pre-injury employment for a
period in June 2010. Proof of that fact is not determinative of the question as to the
existence or otherwise of partial incapacity. (Arnotts Snack Products Pty Ltd v Yacob
(1984-1985) 155 CLR 171 and Thompson v Armstrong and Royse Pty Ltd (1950) 81
CLR 585).
8.
Having regard to the evidence and taking into account those matters provided by s
43A(1) concerning the meaning of “suitable employment” Mr Crowe’s ability to earn in
his incapacitated state was found to be the sum of $400 per week. Following application
of the relevant steps enunciated in Mitchell an award was entered in favour of Mr Crowe
from 3 July 2009 to 6 June 2010.
9.
By reason of the presentation of the fresh evidence concerning Mr Crowe’s earnings in
June 2010 an order was made remitting the matter to another Arbitrator for
determination of any entitlement Mr Crowe may have for weekly compensation from 7
June 2010.
31