Issue 12: December 2013
On Appeal
Welcome to the 12th issue of ‘On Appeal’ for 2013.
Issue 12 – December 2013 includes a summary of the November 2013 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
Commission
DP
MAC
Reply
1987 Act
1998 Act
2003
Regulation
2010
Regulation
2010 Rules
2011 Rules
Acting Deputy President
Approved Medical Specialist
Workers Compensation Commission
Deputy President
Medical Assessment Certificate
Reply to Application to Resolve a Dispute
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Regulation 2003
Workers Compensation Regulation 2010
Workers Compensation Commission Rules 2010
Workers Compensation Commission Rules 2011
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
1
Table of Contents
Presidential Decisions:
Unilever Australia Ltd v Petrevska [2013] NSWCA 373 .................................................... 4
WORKERS' COMPENSATION - six month time limit after injury received to make a claim
for compensation - injury taken to have been received when worker first became aware of
it - s 261(6) of the 1998 Act - injury defined in Act as "personal injury arising out of or in
the course of employment" - appellant worked in noisy conditions at factory operated by
respondent - gradual onset of hearing loss - whether worker's opinion or belief that
hearing loss causally related to noisy employment constitutes awareness where
determination of the cause of a gradual hearing loss is a matter for expert opinion whether worker only aware when received appropriate medical advice - discussion of
concepts of awareness and knowledge ............................................................................. 4
Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59........................................ 7
Question of law; s 351 of the 1998 Act; application of amendments to lump sum
compensation provisions introduced by the Workers Compensation Legislation
Amendment Act 2012 with respect to claims for hearing impairment pursuant to s 17 of
the Workers Compensation Act; aggregation of impairment arising from the same injury
(NB: The worker has lodged an appeal in the Court of Appeal) ......................................... 7
BP Australia Ltd v Greene [2013] NSWWCCPD 60 ......................................................... 10
Boilermaker’s deafness; determination of last noisy employer; assessment of expert
evidence; injury deemed to have occurred in 1994; whether, in respect of an injury
received before 1 January 2002, a claim made on or after 19 June 2012 is governed by
amendments introduced by the Workers Compensation Legislation Amendment Act 2012;
implied repeal of legislation; Sch 6 Pt 18C cl 3 and Sch 6 Pt 19H cls 3, 15 and 23 of the
Savings, Transitional and Other Provisions in the 1987 Act; Sch 8 cls 13, 18 and 19 of the
Workers Compensation Regulation 2010 ........................................................................ 10
Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57 ................................... 14
Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; whether
dispute existed for referral to the Commission; whether proceedings a nullity; ss 289 and
352(3A) of the 1998 Act; improper submissions by appellant’s solicitor on appeal .......... 14
St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64 ............................... 17
Psychological injury; whether injury wholly or predominantly caused by reasonable action
with respect to discipline; s 11A Workers Compensation Act 1987; alleged failure to give
reasons ........................................................................................................................... 17
Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 ................................................................ 21
Effect of complying agreement made under s 66A of the Workers Compensation Act
1987; whether complying agreement created an issue estoppel; aggravation of disease; s
4(b)(ii) of the Workers Compensation Act 1987; assessment of expert evidence in the
Commission; application of the principles in Hancock v East Coast Timber Products Pty
Ltd [2011] NSWCA 11; 8 DDCR 399; need for corroboration; application of principles in
Chanaa v Zarour [2011] NSWCA 199 ............................................................................. 21
Spotless Services Australia Limited v Evans [2013] NSWWCCPD 62 ........................... 24
Obligation upon arbitrator to provide adequate and sufficient reasons for his determination
of the dispute; s 9A of the 1987 Act; reversal of onus of proof; referral of dispute as to
whole person impairment to an Approved Medical Specialist by Registrar; relevance of
expert medical evidence concerning corticospinal tract damage to terms of referral ....... 24
Donohue v The Reject Shop Limited [2013] NSWWCCPD 63......................................... 26
Sections 4 and 40 of the 1987 Act (as it stood before amendment by the Workers
Compensation Legislation Amendment Act 2012); aggravation of disease; s 352(5) of the
1998 Act; requirement that relevant error be established; proper approach to calculation of
entitlement to weekly compensation benefits in respect of partial incapacity ................... 26
Hunter New England Local Health District v Iles [2013] NSWWCCPD 58 ..................... 28
2
Aggravation and acceleration of disease of osteoarthritis; whether employment a
substantial contributing factor to the aggravation and acceleration; medical evidence; ss
4(b)(ii) and 9A of the 1987 Act; unmeritorious appeal; obligation of legal practitioners to
comply with s 345 of the Legal Profession Act 2004 when certifying reasonable prospects
of success in Part 3 of Appeal Against Decision of Arbitrator .......................................... 28
Hunt v Arrow Farmquip Pty Limited [2013] NSWWCCPD 65 .......................................... 31
Injury; assessment of evidence; onus of proof; Watts v Rake [1960] HCA 58; [1965] 114
CLR 164 discussed; reasons; requirement for cross examination; non-compliance with
Practice Direction 6 ......................................................................................................... 31
Smith v NSW Police Force [2013] NSWWCCPD 61 ......................................................... 33
Appeal against decision of Registrar acting as an Arbitrator; circumstances in which a
Medical Assessment Certificate can be revoked on appeal to a Presidential member;
misconceived appeal; s 354(7A)(b) of the 1998 Act ........................................................ 33
3
Unilever Australia Ltd v Petrevska [2013] NSWCA 373
Court of Appeal
11 November 2013
WORKERS' COMPENSATION - six month time limit after injury received to make a claim for
compensation - injury taken to have been received when worker first became aware of it - s
261(6) of the 1998 Act - injury defined in Act as "personal injury arising out of or in the
course of employment" - appellant worked in noisy conditions at factory operated by
respondent - gradual onset of hearing loss - whether worker's opinion or belief that hearing
loss causally related to noisy employment constitutes awareness where determination of the
cause of a gradual hearing loss is a matter for expert opinion - whether worker only aware
when received appropriate medical advice - discussion of concepts of awareness and
knowledge
NB: Unilever Australia Ltd v Saab [2013] NSWCA 374 (Saab) was heard in conjunction with
the hearing of Unilever Australia Ltd v Petrevska [2013] NSWCA 373 (Petrevska). Both
matters relate to hearing loss claims as a result of noise in Unilever’s Streets brand ice
cream factory, and both resulted in the same outcome before the Commission. The
argument before the Court of Appeal was also to the same effect as that in Petrevska. As a
result, for the reasons explain in Petrevska, the appeal in the matter of Saab was dismissed.
Facts:
The respondent worker, worked for Unilever, the appellant, as a process worker at its
Streets brand ice cream factory.
On 20 August 2009, the worker gave the appellant notice of injury claiming that she suffered
a loss of hearing as a result of her employment by it, and lodged a s 260 claim for
compensation.
The appellant contended that the claim was lodged out of time. It claimed that it was lodged
after the expiration of the six month period “after the injury or accident happened” (s 261(1))
and also after the extended period of three years after the injury or accident happened
applicable in some circumstances (s 261(4)). The worker contended that the time for
lodgment of her claim did not commence to run until 2009, when she first received medical
advice concerning her hearing loss and its cause (s 261(6)).
The matter went before the Commission and an Arbitrator found in favour of the worker, that
she complied with s 261. The Arbitrator found that the worker did not have the requisite
“knowledge or knowing” until she had been advised by a medical practitioner of her hearing
loss and its relationship to noise exposure. The appellant appealed the decision of the
Arbitrator. The issues on appeal to the Deputy President were that the Arbitrator erred in:
(a) determining when the worker first became aware, within the meaning of s 261(6), that
she had received an injury;
(b) finding that the worker had proven that she had made a claim for compensation
within six months after the injury happened in terms of ss 261(1) and 261(6), and
(c) failing to give adequate reasons for her decision.
4
The Deputy President confirmed the Arbitrator’s determination, finding in favour of the
worker.
The appellant appealed the decision of the Deputy President. The issue in dispute on appeal
to the Court of Appeal was whether the Deputy President erred in law by:
(a) failing to find that the worker was “aware” that she had received “an injury” at a time
when she “understood” that she had suffered hearing loss which was due to her
noisy employment.
Held: Appeal dismissed
Macfarlan JA (Meagher JA and Tobias AJA agreeing)
Awareness of what?
1.
Section 261(6) refers to awareness of receipt of an "injury". This word is defined in s 4
to mean "a personal injury arising out of or in the course of employment". It followed,
as Unilever accepted, that awareness for the purpose of s 261(6) involves not only
awareness of the injury as such but also of its connection to the worker's employment.
In the case of a gradual loss of hearing resulting from noisy employment
("boilermaker's deafness"), which is governed by the special provisions of s 17 of the
1987 Act, awareness of a connection to the worker's employment in noisy conditions
by one or a number of employers is required, rather than connection to employment by
a particular employer [17]; [43]-[44] per Tobias AJA.
What is awareness?
2.
The concept of awareness in ordinary English, and in the context of s 261(6), may be
equated, at least in a general sense, with the concept of knowledge. The awareness to
which s 261(6) refers is clearly actual awareness, as distinct from constructive notice
(Deming No 456 Pty Ltd v Brisbane Unit Development Corporation [1983] HCA 44;
155 CLR 129; Harris v Commercial Minerals Ltd) [22].
3.
Like the concept of knowledge, the concept of awareness may embrace different
gradations of belief (Vines v Djordjevitch [1955] HCA 19; 91 CLR 512 (Vines)) [23].
4.
Whilst the cause of deafness may be obvious where it has suddenly occurred after a
severe impact and thus be something of which a worker is "aware" without receiving
expert advice, the cause of a worker's gradual hearing loss will ordinarily be a fact of
which the worker is not "aware" until he or she receives medical advice. While the
worker may well have, as the worker in this matter had, an opinion or belief that the
hearing loss is related to the worker's employment this is not sufficient. The high level
of assurance required for "awareness" of its correctness will ordinarily require expert
advice [25]; [43]-[44] per Tobias AJA (Field v Field (Court of Appeal, 21 October 1981,
unreported); Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431; Vines;
Commonwealth of Australia v Dinnison [1995] FCA 1176; 129 ALR 239; Morris v
Rawlings [2010] VSCA 306; Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD
17 (Inghams)).
No error of law in the Commission’s decisions
5.
The Arbitrator did not err in her approach. She made particular reference to Inghams
which the Court of Appeal considered to aptly encapsulate the proper approach, that
is, because the determination of the cause or causes of sensorineural hearing loss
5
ordinarily requires the application of medical expertise, the opinion of a medically
unqualified worker about that issue will rarely be of value, or amount to knowledge of
that worker that his or her hearing loss has been caused by the worker's noisy
employment. Having rejected the proposition that the worker’s belief was sufficient to
establish her knowledge of a causal connection between her hearing loss and her
employment, the arbitrator understandably turned to the question of when the worker
was advised of that matter by a qualified person [34]. The Deputy President approach
was to the same effect and did not err [35]; [43]-[44] per Tobias AJA.
6.
In light of the technical nature of the issue of causation, it was open to the Commission
to treat the worker’s belief as to what caused her hearing loss as of little, if any,
significance. In those circumstances, the date upon which she became aware of the
cause of her injury was properly regarded as the date upon which she received
relevant medical advice [36].
6
Sukkar v Adonis Electrics Pty Limited [2013] NSWWCCPD 59
Question of law; s 351 of the 1998 Act; application of amendments to lump sum
compensation provisions introduced by the Workers Compensation Legislation Amendment
Act 2012 with respect to claims for hearing impairment pursuant to s 17 of the Workers
Compensation Act; aggregation of impairment arising from the same injury (NB: The worker
has lodged an appeal in the Court of Appeal)
Keating P
8 November 2013
Facts:
The applicant worker had been employed by the respondent employer as an electrician
since about 1996.
It was not disputed that the respondent employed the worker in employment which had the
tendencies, incidents and characteristics to give rise to a real risk of occupational noise
induced hearing loss by a gradual process (industrial deafness).
In 1996, the worker claimed lump sum compensation in respect of noise induced hearing
loss. The application resulted in the registration of an agreement with WorkCover. That
agreement recorded that the worker suffered 12.9 per cent binaural hearing loss, at the time
of the agreement, for which he was paid compensation.
On 19 June 2012, the worker claimed an additional nine per cent whole person impairment,
based on the report of an ear, nose and throat specialist dated 18 June 2012, who had
assessed the worker to suffer a 31.6 per cent hearing loss, which equated to a whole person
impairment of 16 per cent. After adjustment for the prior claim (of 12.9 per cent) the
remaining hearing loss was 18.7 per cent which equated to a nine per cent whole person
impairment.
It was agreed that the deemed date of injury in respect of the worker’s second claim was 19
June 2012 (s 17(1)(a)(i)).
The insurer rejected the claim on the basis that the whole person impairment claimed (nine
per cent) did not meet the impairment threshold of “greater than 10%” in s 66(1), as
amended by the Workers Compensation Legislation Amendment Act 2012 (the amending
Act).
The matter came before the Commission. The Arbitrator noted that there was a dispute
between the parties as to whether the applicant was entitled to aggregate the impairments
due to the same pathology in order to satisfy the s 66(1) threshold or whether the claim was
in substance two separate claims, with two different dates of injury as prescribed by s 17 of
the 1987 Act.
The Arbitrator considered those issues raised questions of law that were novel and complex
and sought leave to refer two questions of law to the President for determination under s 351
of the 1998 Act.
Held: Leave granted
7
Question one
Do the amendments to Div 4 Pt 3 of the 1987 Act introduced by Sch 2 of the amending
Act apply to claims for permanent impairment compensation for hearing loss (to which
s 17 of the 1987 Act has application) made on or after 19 June 2012 when a worker
has made a previous claim for permanent impairment compensation for hearing loss
prior to 19 June 2012?
Answer: Yes (see [69]-[70])
1.
The amendments introduced by the amending Act included the introduction of s 66(1)
and s 66(1A) into the 1987 Act. Section 66(1) provides that a worker who has received
an injury that results in a degree of permanent impairment greater than 10 per cent is
entitled to receive compensation for that impairment [52]. Section 66(1A) provides that
only one claim can be made under the Act for permanent impairment compensation in
respect of permanent impairment that results from an injury [53].
2.
The submission that s 17 assumes that a s 4 injury has been sustained was not
accurate. The section proceeds on a number of assumptions for the critical purposes
of fixing a date to determine the law applicable to calculating the quantum of an
entitlement to compensation and to determine by whom that compensation is payable
[61].
3.
Even where the subsequent losses arise from the same pathology (sensorial hearing
loss), “for the purposes of” s 17(1)(a) of the 1987 Act, the injury is deemed to happen
on the date the worker gives notice of the injury. In this case the deemed date of injury
was 19 June 2012, the date of notification of the worker’s further loss of hearing. That
was also the date of claim [62].
4.
On this basis, the law applicable to calculating the quantum of the worker’s entitlement
to lump sum compensation for his further loss of hearing was the law introduced by the
amending Act, which applies to a claim made on or after 19 June 2012 [63].
5.
The compensation claimed in this case was for a “further loss” of hearing (which is an
injury) due to exposure to continuing trauma to the ears subsequent to the initial claim.
The facts with which the Court of Appeal was concerned in Goudappel v ADCO
Constructions Pty Ltd [2013] NSWCA 94 (Goudappel) concerned only one injury, in
the sense of only one injurious event and one pathological condition and therefore was
distinguished [65]-[66].
6.
The principles discussed in Goudappel did not insulate the worker from the application
of the 2012 amendments. Accordingly, in the circumstances of this case, there was no
reason to depart from the prima facie position in cl 15 of Pt 19H, that is, the
amendments apply to the worker’s claim for further hearing loss because it was made
on 19 June 2012 [67].
Question two
If yes to the first question, whether in claims for compensation pursuant to s 66 of the
1987 Act, including hearing loss claims (to which s 17 of the 1987 Act has application),
involving the same pathology of injury arising from multiple injurious events of injury,
the multiple injuries can be aggregated for the purpose of determining whether or not
the worker’s claim exceeds the s 66(1) threshold?
8
Answer: No, in circumstances where a worker has made a prior claim for
compensation pursuant to s 66 of the 1987 Act. (see [113])
7.
It was submitted that, the answer to question two depends in large measure on what is
meant by “injury” in s 66 (as amended) and that the resolution of that question
depended upon an acceptance that “injury” in s 66(1) means a pathological condition
rather than a traumatic event [97].
8.
The new regime (introduced with the 2012 amendments) is predicated on a
construction of the legislation that permits “only one claim” (emphasis added) for ‘an
injury’. In that sense, “injury” may mean injurious event or pathology [102].
9.
However, compensation under s 66(1) of the 1987 Act is only payable “as provided by
this section”. The reference to “this section” includes s 66(1A) and the limitation on the
number of claims that can be made. It followed that, irrespective of whether ‘injury’
referred to in s 66 refers to an injurious event or the same pathological condition, the
one claim that may be made under the Act, as amended, must satisfy the 10 per cent
threshold before whole person compensation is payable under the section [103].
10.
That construction is consistent with the legislature’s intention to limit compensation to
those less seriously injured workers in favour of allowing the scheme to focus on the
more seriously injured workers [104].
11.
Construing the words in s 66 as a whole, the clear purpose of the amended provision
is to restrict lump sum compensation claims for whole person impairment to workers
who, in one claim, seek a whole person impairment of greater than 10 per cent.
Regardless of whether injury in the amended s 66 means injurious event or pathology,
the worker did not meet the new threshold unless the impairment in his 1996 claim
was added to the impairment in his 2012 claim. That was not permitted [108].
12.
Given the clear terms in which s 66 (as amended) is expressed, coupled with the
repeal of the former s 66(2)(a), the President did not accept that there was any
ambiguity in the new s 66. However, if such ambiguity did exist, the interpretation
urged by the applicant would lead to an unreasonable and unnatural result because it
would permit the s 66 threshold to be satisfied by aggregating the losses from two
claims, when only one is permitted under the new provisions. The aggregation of the
worker’s two claims would give an impairment greater than 10 per cent. However, for
claims made after 19 June 2012, only one claim is permitted [112].
9
BP Australia Ltd v Greene [2013] NSWWCCPD 60
Boilermaker’s deafness; determination of last noisy employer; assessment of expert
evidence; injury deemed to have occurred in 1994; whether, in respect of an injury received
before 1 January 2002, a claim made on or after 19 June 2012 is governed by amendments
introduced by the Workers Compensation Legislation Amendment Act 2012; implied repeal
of legislation; Sch 6 Pt 18C cl 3 and Sch 6 Pt 19H cls 3, 15 and 23 of the Savings,
Transitional and Other Provisions in the 1987 Act; Sch 8 cls 13, 18 and 19 of the Workers
Compensation Regulation 2010
Roche DP
11 November 2013
Facts:
Between 1962 and 4 February 2008, the respondent worker worked as a laboratory
technician with three different companies: he worked for the appellant employer, BP
Australia Ltd (BP), between 1963 and 1994, Valvoline Australia Pty Ltd (Valvoline) between
1995 and 2003 and, part-time, for Oilcheck Pty Ltd (Oilcheck) between 2003 and 4 February
2008 when he retired.
On 19 June 2012, the worker claimed from BP lump sum compensation, and compensation
for the cost of hearing aids, as a result of binaural loss of hearing (equal to eight per cent
whole person impairment). He alleged that BP was the last employer for whom he had
worked in employment to the nature of which his injury was due and that the deemed date of
injury was “approximately 1995” (s 17(1)(a)(ii) of the 1987 Act).
BP did not dispute that the worker’s employment with it was noisy, but argued that it was not
the last noisy employer. It based this argument on evidence from the worker’s ear, nose and
throat specialist, Dr Scoopa. That evidence was that, at Oilcheck, the worker had to raise his
voice to communicate with a person one meter away and that indicated an ambient noise
level of 85 dB, which, over an eight-hour working day, is sufficient to cause industrial
deafness. As the worker’s employment with Vavoline was “somewhat nosier”, it followed that
Valvoline, not BP, was the last noisy employer.
However, after accepting evidence in a 2006 noise survey that the worker’s employment with
Oilcheck was in fact not noisy, Dr Scoopa changed his evidence and concluded, for reasons
given, that Oilcheck and Valvoline were not noisy and that BP was the last noisy employer.
If BP was found to be the last noisy employer, it argued that it was not liable for the lump
sum compensation claimed because the worker’s claim was under the 10 per cent whole
person impairment threshold for such compensation introduced by amendments to s 66 of
the 1987 Act in Sch 2 of the Workers Compensation Legislation Amendment Act 2012 (the
2012 amending Act), which applies to claims made on or after 19 June 2012.
BP disputed liability for the cost of the worker’s hearing aids because the cost was not
incurred in accordance with the Workers Compensation Hearing Aid Fees Order 2012.
The worker succeeded by the Arbitrator. The Arbitrator accepted Dr Scoopa’s final opinion
and therefore found that BP was the last noisy employer and that the worker’s injury
“notionally occurred in 1994” (not 1995, as pleaded).
10
The Arbitrator held that, because of the effect of cl 3 Pt 18C of Sch 6 to the 1987 Act, the
amendments introduced by the 2012 amending Act do not apply to the worker. That clause
provides that the amendments that introduced a new lump sum compensation scheme, with
effect from 1 January 2002, do not apply to injuries received before that date. As the worker
received his injury in 1994, and as the 2012 amending Act did not repeal cl 3 of Pt 18C of
Sch 6, he remained entitled to have his claim for lump sum compensation assessed under
the Table of Disabilities (also referred to as the Table of Maims), which applies to injuries
received before 1 January 2002.
The Arbitrator did not determine the worker’s entitlement to medical expenses incurred in
2005 pending the assessment of the worker’s binaural hearing loss by an AMS.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that BP was the last noisy employer within the provisions of s 17 of the 1987
Act;
(b) not applying cl 3 of Pt 19H of Sch 6 of the 1987 Act to find that the clear intention of
the 2012 amendments is that the amendments apply to all injuries, and
(c) determining that the preservation of the pre-2002 system of assessing impairment
means that the amendments to Div 4 of Pt 3 of the 1987 Act (by the 2012 amending
Act) do not apply to injuries sustained prior to 1 January 2002.
Held: The Arbitrator’s decision was confirmed.
Last noisy employer
1.
What is required for satisfactory compliance with the principles governing expert
evidence is for the expert’s evidence to set out “the facts observed, the assumed facts
including those garnered from other sources such as the history provided by the
appellant, and information from x-rays and other tests” (Hancock v East Coast Timber
Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399). Dr Scoopa’s reports easily
complied with this test and provided a detailed explanation for his conclusion that BP
was the last noisy employer. The submission that Dr Scoopa’s evidence did not
comply with Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705
was without substance [80].
2.
It was never disputed that BP’s employment was noisy (BP argued that it was not the
last noisy employer) and, in any event, the worker’s employment with it exposed him to
noise from a number of sources that were not present at Oilcheck or Valvoline [82].
3.
As no Jones v Dunkel [1959] HCA 8; 101 CLR 298 point was argued or relied on, the
explanation as to why BP did not obtain any expert evidence was irrelevant to the
issue the Arbitrator had to determine. The fact was that BP did not tender any expert
evidence and the Arbitrator was entitled to determine the case on the evidence
presented. The Arbitrator dealt with the evidentiary issues identified by BP in relation
to Dr Scoopa’s reports. His approach disclosed no error [89].
4.
The submission (by the worker) that it was sufficient for the worker to prove that BP
was a noisy employer and that BP bore the onus of proof in relation to whether
subsequent employers were noisy was incorrect. In a claim for compensation for
boilermaker’s deafness, the onus of proof is on the applicant worker to prove the
elements required in the 1987 Act. In the present case the worker had to prove that the
nominated respondent, BP, was the last noisy employer. He did that [90].
11
5.
It followed that the Arbitrator made no error in accepting Dr Scoopa’s evidence and
made no error in finding that BP was the last noisy employer [91].
Statutory interpretation
6.
The critical issue in this matter was the effect of cls 3 and 15 of Pt 19H of Sch 6 to the
1987 Act (which were introduced by the 2012 amending Act as relevant saving and
transitional provisions), in circumstances where those clauses are in apparent conflict
with cl 3 of Pt 18C of Sch 6 to the 1987 Act. The answer to this question depended on
whether cl 3 of Pt 18C had been impliedly repealed by the 2012 amending Act. The
Arbitrator concluded that it had not and that the clause “must be given some work to
do” [119].
7.
Because the 2012 amendments did not repeal s 66, but only amended it, those
amendments can only apply to pre-2002 injuries if they are read with s 66 in its form
saved by cl 3 of Pt 18C. When one attempts to do that, the provision does not work.
This was illustrated by looking at how those amendments would apply to s 66, as it
was before 1 January 2002 [125].
8.
The combined provisions (set out at [125]) are a nonsense and do not fit. That is
because subsection (1) refers to the degree of permanent impairment whereas
subsection (2) refers to the totally different concept of “losses mentioned in the Table”.
In addition, the combined section provides no mechanism for calculating lump sum
compensation for pre-2002 injuries. This strongly suggested that the legislature
intended to preserve the pre-2002 scheme for pre-2002 injuries, regardless of when
the worker claims for such injuries [126].
9.
There is no clear statement of intention in the legislation to entirely abolish the pre2002 scheme. Indeed, cl 18 of Sch 8 (which reintroduces s 69A) and cl 19 of Sch 8
(which applies s 66(1A) to pre-2002 injuries, but not s 66(1)) suggest the opposite
[128].
10.
Clauses 18 and 19 unequivocally indicate an intention to preserve the pre-2002
scheme of lump sum compensation for pre-2002 injuries. Either those injuries are
assessed and compensated under the Table of Disabilities, or they are assessed and
compensated under the 2012 scheme. They can only be assessed under the 2012
scheme if cl 3 of Pt 18C has been impliedly repealed [129].
11.
If the 2012 amending Act eliminated rights for all claims of less than 10 per cent whole
person impairment, regardless of when the injury occurred, why would the legislature
reintroduce s 69A, which has a threshold of six per cent binaural hearing loss,
assessed under the Table of Disabilities, unless it intended that claims that meet that
much lower threshold should be compensated. There can only be one answer:
consistent with having not repealed cl 3 of Pt 18C, the intention is that pre-2002
hearing loss injuries continue to be assessed under the pre-2002 scheme. If cl 3 of Pt
18C had been impliedly repealed, it would not have been necessary to preserve s 69A
for injuries before 1 January 2002. Clause 18 of Sch 8 is a clear and unequivocal
indication that cl 3 of Pt 18C has not been impliedly repealed and takes effect
according to its terms [133].
12.
Clause 19 is directed to s 66(1A), which states that only one claim can be made for
permanent impairment compensation in respect of permanent impairment that results
from an injury. Clause 19 makes it clear that the one claim restriction applies to injuries
received before 1 January 2002 [134]. However, cl 19 does not deal with s 66(1),
12
which introduced the 10 per cent whole person impairment threshold. This strongly
supported the conclusion that the pre-2002 scheme continues to apply for injuries
received before 1 January 2002, but subject to cl 19 of Sch 8 (assuming, without
deciding, that that clause was validly made) [135].
13.
The above conclusion did not involve a radical departure from the “expressed”
intention of cl 3 of Pt 19H. Clause 3 of Pt 19H is expressly stated to apply “(e)xcept as
provided by this Part or the regulations” (emphasis added). Therefore, the clause is
subject to the regulations [136].
14.
Where a statutory provision permits exceptions to be made to it by regulations it is
permissible to refer to the regulations as an aid to the interpretation of the provision
(Ward v Commissioner of Police [1998] FCA 9; (1998) 80 FCR 427). In addition, where
the section is stated to be subject to regulations, and the regulations are within the
scope of the section, the regulation is to some extent to prevail (O’Connell v
Nixon [2007] VSCA 131; (2007) 16 VR 440) [137].
15.
This conclusion was reinforced by cl 1(2) of Sch 8, which states that the provisions of
Pt 19H are “deemed to be amended to the extent necessary to give effect to this Part”.
It followed that, at the minimum, the reference in cl 3 of Pt 19H to the 2012
amendments applying to “an injury received” before the commencement of the
amendment must be read in light of the provisions in Sch 8 [138].
16.
There are other provisions that suggest that cl 3 of Pt 18C has not been impliedly
repealed, such as cl 13 of Sch 8 and cl 23 of Pt 19H [139]-[140].
17.
In the present matter, the 2012 scheme was capable of sensible operation by applying
it to injuries received on and after 1 January 2002 (where the claim was made on or
after 19 June 2012) and applying the pre-2002 scheme, as saved by cl 3 of Pt 18C,
and subject to cl 19 of Sch 8 (assuming that that clause was validly made), to injuries
received before that date. Indeed, that result was not only sensible, it was consistent
with the intention of the legislation, as gleaned from the words used in the various
relevant provisions [145].
18.
The right to permanent impairment compensation under s 66 is a significant statutory
entitlement (Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355) and
the repealing or limiting of such a right requires clear and unambiguous language
(Buck v Comcare [1996] FCA 1485; 66 FCR 359) with regard to the right to lump sum
compensation for hearing loss injuries received before 1 January 2002, the legislature
has not used clear and unambiguous language that points to a repealing of those
rights. Rather, by not repealing cl 3 of Pt 18C, and by introducing cls 18 and 19 to Sch
8, and the other transitional provisions, it has indicated an intention that those injuries
should continue to be assessed and compensated under the Table of Disabilities,
subject to the one claim restriction [149].
19.
It followed that, for hearing loss injuries received before 1 January 2002, cls 3 and 15
of Pt 19H must be read subject to cl 3 of Pt 18C [150].
13
Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57
Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; whether dispute
existed for referral to the Commission; whether proceedings a nullity; ss 289 and 352(3A) of
the 1998 Act; improper submissions by appellant’s solicitor on appeal
Roche DP
4 November 2013
Facts:
On 4 July 2012, an Application to Resolve a Dispute was lodged with the Commission by the
worker’s legal representatives, claiming weekly compensation and medical expenses for an
injury that allegedly occurred on 24 August 2008 as a result of an assault during which the
worker was performing his duties as a security guard for the respondent employer.
After the Arbitrator advised that the claim was deficient, the Commission did not have
jurisdiction to deal with it, and that the worker should make a further claim, supported by
medical evidence, certificates and a statement, as soon as possible, the matter was
discontinued.
On 11 December 2012, a further Application was lodged with the Commission by the same
solicitors, in the same terms as the first Application, save that the second Application had
attached to it a brief statement from the worker.
Attached to an Application to Admit Late Documents, was a letter dated 10 January 2013
addressed to the insurer claiming lump sum compensation in respect of a seven per cent
whole person impairment, unspecified medical and related expenses under s 60, and
unspecified weekly benefits pursuant to s 40, together with a report from a doctor supporting
the claim.
The respondent submitted that as the worker had not complied with ss 289 and 289A of the
1998 Act, the dispute could not be referred to the Commission and the Commission had no
jurisdiction to deal with it.
The Arbitrator found that while the worker made a claim it was after the lodgment of the
Application and therefore the insurer was unable to carry out its functions under ss 274, 279
and 289 of the 1998 Act. He found that s 289(1) prevented the matter from being determined
in the absence of a dispute and, therefore, the Commission was without jurisdiction. He
added that therefore “the proceedings are a nullity and the matter is struck out”.
Held: Leave to appeal was refused.
The Arbitrator’s decision was an interlocutory decision
1.
The order made by the Arbitrator in the second proceedings was an interlocutory order
because it had not finally determined the parties’ rights (s 352(3A) of the 1998 Act;
Licul v Corney [1976] HCA 6; 180 CLR 213; 50 ALJR 439; Little v State of Victoria
(1998) 4 VR 596; Wickstead v Browne [1992] NSWCA 272; 30 NSWLR 1). If the
worker provides proper particulars of his claim, and the insurer either disputes or fails
to determine the claim within the time limits in the legislation, he is free to lodge a fresh
application and to have that claim determined on its merits [37]-[39].
14
Should leave to appeal be granted?
2.
The Commission is not to grant leave to appeal unless of the opinion that determining
the appeal is necessary or desirable for the proper and effective determination of the
dispute (s 352(3A)) [48]. Section 352(3A) does not involve the “balance of
inconvenience and prejudice”. In any event, there was no prejudice to the worker. He
was free to issue a further application [49].
3.
The submission that the worker was “thrown out” of the Commission “and cannot
pursue his rights” was incorrect. The Worker has the same rights now as he had
before the Arbitrator dismissed the proceedings. His right to weekly compensation has
not been “repealed” from 1 January 2013, but has been substantially amended by the
provisions introduced by the Workers Compensation Legislation Amendment Act 2012.
Those amendments will apply to any fresh application, just as they would have applied
to the second Application, had it not been dismissed [51].
4.
The Arbitrator made no findings on the merits of the claim and no order made on
appeal, if leave were granted, would have advanced the determination of the dispute.
It would have merely remitted an inadequately prepared matter to another Arbitrator.
That step can be achieved by the issuing of a fresh application, after first obtaining
legal aid. It followed that determining the appeal was not necessary or desirable for the
proper and effective determination of the dispute [53].
Alternative finding
5.
The Deputy President considered the merits of the proposed appeal. The question in
this case was “about a dispute having arisen”, because prior to filing either the first
Application or the second Application, the worker did not particularise his claim. As a
result, the insurer had neither disputed liability for it, nor failed to determine it. It
followed that the matter could not be referred for determination by the Commission and
the Commission could not hear or otherwise deal with any dispute where s 289
provides that the dispute cannot be referred for determination by the Commission (s
289(5)) [82].
6.
Section 289 is not satisfied by a worker’s subjective belief that a dispute exists. The
section operates on the presumption that the worker gave particulars of the
compensation claimed and that the insurer has either disputed liability or failed to
determine the claim as and when required by the 1998 Act. Arguably, neither of those
conditions was satisfied in this case [84].
7.
The worker’s initial claim was finalised in July 2009. If he intended making a further
claim, he had to particularise that claim to give the insurer the opportunity to accept it
(as it did with the first claim) or reject it. This approach is consistent with the clear
wording of ss 289 and 289A. As no further claim was particularised, no dispute arose
and ss 289(5) and 289A prevent the Commission from hearing or otherwise dealing
with the matter [85].
8.
That interpretation of ss 289(5) and 289A is consistent with the second reading speech
when the Bill that introduced those provisions was before Parliament. It followed that,
because of non-compliance with ss 289 and 289A, the second Application was
“lacking in substance” and the Arbitrator was entitled to dismiss it under s 354(7A)
[86]-[87].
9.
The Arbitrator was wrong, however, to say that the proceedings were a nullity
(Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364). While Pt 1
15
r 1.6(4) of the 2011 Rules provides that the Commission may determine that the
proceedings, or any step taken in them, are a nullity, and strike out the proceedings, or
any step taken in them, the Arbitrator did not rely on any non-compliance with the 2011
Rules. He relied on non-compliance with the 1998 Act and that brought into play s
354(7A) [88].
10.
It followed that, had leave to appeal been granted, on the arguments presented, the
appeal would have failed [89].
Other matters
11.
There may well be cases where it is appropriate to find that, where an earlier claim has
been filed in the Commission, and disputed in a reply filed by an employer, that earlier
application and reply might, depending on the circumstances, provide the basis for
compliance with s 289. As that issue was not argued, either before the Arbitrator or on
appeal, it was not necessary to express any concluded view about it. Had this point
been argued on appeal, it would not have affected the outcome because leave to
appeal on the ground that the Arbitrator’s decision was interlocutory [90].
16
St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64
Psychological injury; whether injury wholly or predominantly caused by reasonable action
with respect to discipline; s 11A Workers Compensation Act 1987; alleged failure to give
reasons
Roche DP
26 November 2013
Facts:
The worker alleged that she suffered a psychological injury (Major Depressive Disorder with
Anxiety) as a result of “harassment at her place of employment” between October 2010 and
12 November 2011. The employer did not dispute that the worker suffered a psychological
injury, or that her employment was a substantial contributing factor to that injury. It argued
that the injury was wholly or predominantly caused by reasonable actions taken, or proposed
to be taken, with respect to discipline (s 11A of the 1987 Act).
The employer relied on two relevant “actions” in support of its s 11A defence. The first was
the suspension of the worker on 12 November 2011, after having received complaints from
work colleagues that, on that day, the worker had used racist, demeaning and offensive
language in relation to Aboriginal people within the hearing of others at work, something the
worker strongly denied. The second was a phone call to the worker by a manager on 14
November 2011 asking her to attend a meeting to discuss “not continuing her employment”
because of the alleged racist remarks.
The Arbitrator found that the injury had not been wholly or predominantly caused by the
relevant actions taken with respect to discipline and that, in any event, those actions were
not reasonable.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the worker’s accepted psychological injury was not wholly or
predominantly caused by action taken with respect to discipline;
(b) finding that the relevant action taken was not reasonable, and
(c) failing to provide adequate reasons for his findings.
Held: The Arbitrator’s decision was confirmed.
Causation
1.
The employer carries the onus of establishing that the injury was wholly or
predominately caused by the relevant actions of the employer with respect to discipline
and that those actions were reasonable (Department of Education and Training v
Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206; Commissioner of Police v Minahan
[2003] NSWCA 239; 1 DDCR 57 (Minahan)) [106].
2.
The meaning of “predominantly caused” is “mainly or principally caused” (Ponnan v
George Weston Foods Ltd [2007] NSWWCCPD 92) [107].
3.
The test of causation in workers compensation matters is the commonsense test, not
the proximate cause test or the but for test (Kooragang Cement Pty Ltd v Bates (1994)
17
35 NSWLR 452; 10 NSWCCR 796). Scientific certainty is not required, but the
decision maker must feel actual persuasion of the occurrence or existence of the fact
in issue before it can be found (N O M v DPP [2012] VSCA 198) [108].
4.
It is trite law that a condition can have multiple causes (ACQ Pty Ltd v Cook [2009]
HCA 28). That is especially so in cases concerning a psychological injury where, in
many cases, multiple events over a long period have contributed to the injury. It is
necessary to look at the whole of the conduct alleged to have caused the injury and to
consider the evidence in light of that conduct [110].
5.
While it was correct that there was no direct expert evidence that the worker would not
have suffered a decomposition following the racial comments allegation had it not
been for the incidents before 12 November 2011, that is not the correct test of
causation and, in any event, the medical evidence had to be viewed in the context of
the histories recorded [112].
6.
The medical experts all took histories of significant conflict over an extended period
prior to 12 November 2011. The conflict in the months up to November 2011 were
matters that clearly, based on the medical histories, and as a matter of commonsense,
played an important role in the development of the worker’s injury [117]. Those
histories were consistent with the worker’s oral evidence at the arbitration [118]. The
evidence was clear and unchallenged that significant events occurred prior to
November 2011 that troubled the worker [120].
7.
While the temporal proximity between the events on 12 and 14 November and the
worker’s attendance on her general practitioner on 14 November 2011 was important,
and was considered by the Arbitrator, it was not the only matter to consider and, in
light of the medical histories, was not determinative [122].
8.
As it is well accepted that an injury can have more than one substantial contributing
factor, the employer’s psychiatrist’s answer that the substantial contributing factor to
the worker’s psychological condition was work related, and related to the events of 12
November 2011, was an acknowledgement that those events satisfied the test in s 9A,
but did not address the test of whole or predominant cause in s 11A [127].
9.
The Arbitrator did not err in concluding that the employer had not discharged the onus
it carried on the issue of the whole or predominant cause of the injury. His reasons for
not being satisfied were clearly stated, namely, the events that preceded 12 November
2011, which, given the medical histories, were significant events that, when combined
with the events on 12 and 14 November 2011, led to the worker’s psychological
decomposition [136].
10.
The Arbitrator’s reasons were supported by the histories recorded by the medical
experts and provided an explanation of the basis for his conclusion. They satisfied his
obligation to give reasons (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR
247) [137].
11.
While it was not necessary to consider the reasonableness issue, the Deputy
President dealt with whether the actions of the employer were reasonable [138].
Reasonableness
12.
The question of reasonableness is an objective test of fact, weighing the rights of the
employees against the objective of the employer. It should be attended, in all the
circumstances, by a question of fairness (see Irwin v Director General of School
18
Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998,
No 14068 of 1997); Ivanisevic v Laudet Pty Limited (unreported, Compensation Court
of NSW, Truss CCJ, 24 November 1998); Minahan) [149] – [150].
13.
Contrary to the employer’s submissions, nothing in the Arbitrator’s approach was
inconsistent with Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
The Arbitrator did not determine reasonableness by reference to events after 14
November 2011, but merely considered that it was not reasonable to discuss not
continuing the worker’s employment when the employer had not conducted a “full
investigation” [166].
14.
The Arbitrator noted that the statutory declarations from staff members in relation to
the allegations of racist remarks all post-dated the scheduled time for the worker to
attend the meeting to discuss not continuing her employment. On that basis, the
Arbitrator was entitled to consider that the investigation was incomplete and that, in
those circumstances, the employer’s comments in the telephone conversation on 14
November 2011 were not reasonable [168].
15.
The Arbitrator was also entitled, in making an evaluative judgment of the kind involved
in this case, to conclude that the suspension was not reasonable because the
employer did not take into account the worker’s long period of employment and
suspended her before a formal meeting with senior management. While there may
have been other matters the Arbitrator could have considered on this issue, there is no
compulsory checklist that an Arbitrator must complete before reaching a conclusion on
reasonableness [169].
16.
It is correct that, while the Arbitrator noted that the matter was serious and that it
“could” well have led to the worker’s dismissal, he did not refer to the short period of
the suspension pending a meeting being held. The shortness of the period of
suspension was not decisive, especially if the decision to suspend was not reasonable.
The Arbitrator’s finding that he was not satisfied that the suspension was reasonable
was open to him and disclosed no error [170], [177].
17.
One would have thought that, weighing the worker’s rights against the employer’s
objectives, a reasonable (fair) approach on 12 November 2011, given the conflicting
accounts, would have been to caution the worker against the use of racially insensitive
language (noting her denials) and to arrange a meeting where the issues could be
more fully discussed and, if necessary, counselling arranged. Instead, the employer
peremptorily suspended the worker. Viewing the matter objectively, given that there
was no issue of patient (or, in this case, staff or guest) safety involved, or any policy
directive that required the worker to be suspended, as there was in Heggie, that was
not reasonable [171], [182].
18.
Whether the employer said the meeting was to discuss “not continuing [the worker’s]
employment” or to “discontinue [the worker’s] employment”, the very clear impression,
objectively conveyed by the words used, was that the worker’s fate had effectively
been determined and that she was required to show cause why her employment
should not be terminated because of something that she strongly denied doing [180].
That was not reasonable because it assumed that the worker was guilty of conduct
that justified her dismissal unless she could prove otherwise [181].
19.
The Arbitrator explained the basis for his conclusion and, while some issues could
have been covered in greater detail, or with more clarity, his reasons were adequate to
enable the parties to understand why the employer had not made out its s 11A
defence. There was no failure of the process of fact-finding (Waterways Authority v
19
Fitzgibbon [2005] HCA 57; 79 ALJR 1816]). The Arbitrator made an evaluative
judgment that was open to him on the evidence [184], [194] (Heggie).
20
Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66
Effect of complying agreement made under s 66A of the Workers Compensation Act 1987;
whether complying agreement created an issue estoppel; aggravation of disease; s 4(b)(ii) of
the Workers Compensation Act 1987; assessment of expert evidence in the Commission;
application of the principles in Hancock v East Coast Timber Products Pty Ltd [2011]
NSWCA 11; 8 DDCR 399; need for corroboration; application of principles in Chanaa v
Zarour [2011] NSWCA 199
Roche DP
27 November 2013
Facts:
The worker’s case was that she injured her cervical spine, right shoulder, right arm, left
elbow, lumbar spine, right hip, left shoulder, and suffered a psychological injury due to
repetitive bending, carrying, lifting, pulling, pushing and twisting associated with her duties at
the appellant.The worker alleged that she had suffered an aggravation, acceleration,
exacerbation or deterioration of a disease to which her employment was a substantial
contributing factor (ss 4(b)(ii) and 9(A) of the 1987 Act). She conceded she had not made
contemporaneous complaints about her cervical spine, left elbow, lumber spine etc.
The worker brought two separate proceedings in the Commission. In the first proceedings,
the Commission issued consent orders in which it was noted that the parties had entered a
complying agreement which was said to be “based on the assessment of Dr Fearnside dated
28 February 2011”. The complying agreement provided for compensation for a four per cent
whole person impairment as a result of an agreed injury to the worker’s right shoulder, but
made no mention of any other body parts, though Dr Fearnside said in his report that the
neck and back symptoms were unrelated to her work.
In later proceedings, the worker alleged the same injuries, caused by the same activities,
and claimed the same compensation as was claimed in the first proceedings, save for injury
to the right arm. The insurer disputed that the worker suffered any of the alleged injuries, and
if she had, it disputed that employment was a substantial contributing factor to those injuries.
It also alleged that the worker was estopped by virtue of the complying agreement.
The Arbitrator rejected the estoppel argument on the ground that there was no award in
favour of the appellant in the first proceedings and that the reference to Dr Fearnside’s
assessment was an agreement about the right arm and “nothing more”. The Arbitrator found
the worker suffered an aggravation, acceleration, exacerbation or deterioration of an
underlying degenerative condition in her lumbar spine, cervical spine, right shoulder and left
shoulder in the course of her employment with the respondent, but found in favour of the
appellant with respect to the alleged injuries to the worker’s arm and right hip.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a)
failing to determine that the worker was prevented from pursuing a claim for
injury to the neck and back, and
(b)
finding that for there to be an injury it was sufficient that there be a complaint of
symptomology, when symptomology was not referred to the employment of the
worker.
21
Held: The Arbitrator’s decision was confirmed.
Estoppel
1.
While it is accepted that consent orders may create estoppels between parties, they do
so “only as to those matters which are necessarily decided” (Habib v Radio 2UE
Sydney Pty Ltd [2009] NSWCA 231; Isaacs v Ocean Accident and Guarantee
Corporation Ltd (1957) 58 SR (NSW) 69). In determining what matters have been
“necessarily decided”, it is necessary to examine the available evidence [35].
2.
The consent orders made no orders and determined no issues [36]. The case was
therefore determined by reference to the complying agreement. While there may well
be circumstances where a complying agreement creates an estoppel (CSR Ltd v
Gonzales [2010] NSWWCCPD 118 (Gonzales)) neither the facts nor the result in
Gonzales assisted the appellant [37].
3.
A complying agreement must be construed according to the usual principles of
contract law. It is not the parties’ subjective beliefs or understandings about their rights
and liabilities that govern their contractual relations. The meaning of the terms of a
contract is determined by what a reasonable person would have understood them to
mean (Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165). The
test to determine the meaning of a contract is objective, not subjective [38].
4.
The agreement identified the medical report relied upon “to assess the degree of
permanent impairment” to be the report from Dr Fearnside [40]. The suggestion that
the parties agreed to resolve the dispute about injury to the worker’s neck, back and
shoulders “by adopting the assessment by Dr Fearnside” was untenable [43].
5.
On any objective view of the evidence, the complying agreement resolved only the
claim for the right upper extremity and nothing else. In the absence of any admissions
and agreed facts, or any orders based on admissions and agreed facts, the agreement
determined no more than the worker’s entitlement to lump sum compensation for the
injury to her right upper extremity [45].
6.
The Arbitrator was correct when he said that the reference to Dr Fearnside’s
assessment was an agreement about the right arm, and nothing more, and that it fell
well short of an explicit outcome creating an issue estoppel, or an estoppel of any kind
[47]-[48].
7.
The complying agreement only resolved the claim for lump sum compensation for the
worker’s upper right extremity and nothing more. It followed that the Arbitrator did not
err in his approach or conclusion on the estoppel issue [51].
Injury
8.
It is not necessary for there to be contemporaneous complaints for there to be an
aggravation of an underlying degenerative condition. The Arbitrator did not have to be
“satisfied as to injury from the contemporaneous material prior to determining whether
the opinions [of specialist doctors] were available to make a finding of injury”. It is not
law that a worker must have corroboration before he or she can succeed. It is the task
of a judge to decide, on the basis of the whole of the evidence, what he or she accepts
(Chanaa v Zarour [2011] NSWCA 199) [73]-[74].
9.
Even without corroborating witnesses, a tribunal of fact is free to accept the evidence
of a claimant as credible (Woolworths Ltd v Warfe [2013] VSCA 22) [76].
22
10.
The absence in medical records of complaints by the worker about the relevant body
parts did not mean that the Arbitrator erred in not rejecting her evidence. It required the
Arbitrator to assess her evidence, along with other evidence, to determine its reliability.
That meant considering her explanation for the lack of complaint, and the other
evidence tendered, especially the evidence about the heavy physical nature of the
worker’s duties and the expert evidence [77]. The evidence supported the Arbitrator’s
findings that the worker did not complain about her neck, back and shoulders at
consultations about her right arm because the focus was on getting the arm “fixed”
[78].
11.
The Arbitrator concluded, after having seen and heard the worker give evidence, that
her evidence was “honest and credible”. It was open to him to accept her explanation
for the lack of contemporaneous complaint about the relevant body parts [86].
12.
The Arbitrator applied the correct test to establish an aggravation injury under s
4(b)(ii). He found that the worker’s symptoms had been made worse due to the
aggravation of her underlying degenerative (disease) conditions (Federal Broom Co
Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 and Cant v Catholic Schools
Office [2000] NSWCC 37;20 NSWCCR 88) [89]-[91].
13.
The worker’s history did not have to accord with contemporaneous records before the
opinion based on it could be accepted. What is required for satisfactory compliance
with the principles governing expert evidence is for the expert’s evidence to set out
“the facts observed, the assumed facts including those garnered from other sources
such as the history provided by the appellant, and information from x-rays and other
tests” (Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR
399 (Hancock)) [96].
14.
In any event, to the extent that an expert has based his or her opinion on assumed
facts, those facts do not have to be the real facts, but only the facts asserted
(Australian Securities and Investments Commission v Rich [2005] NSWCA 152; 218
ALR 764). The asserted facts do not have to correspond “with complete precision” with
the facts established. It is a question of fact whether they are “sufficiently like” the facts
established “to render the opinion of the expert of any value” and whether they provide
a “fair climate” for the acceptance of the opinion (Paric v John Holland (Constructions)
Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510) [97].
15.
The specialist doctor’s evidence the Arbitrator relied upon to find in favour of the
worker complied with those authorities, and given the acceptance of the worker’s
evidence, he was entitled to accept the specialist’s conclusions [98], [120], [122].
16.
In assessing a medical expert’s evidence, it is first necessary to consider all of his or
her reports. A deficiency in one part of an expert’s evidence may be made good by
other material, either in another report or in oral evidence (Hancock) [101].
17.
It followed that the Arbitrator clearly explained the basis for his conclusions and
discharged his obligation to give reasons (Soulemezis v Dudley (Holdings) Pty
Ltd (1987) 10 NSWLR 247) [127].
23
Spotless Services Australia Limited v Evans [2013] NSWWCCPD 62
Obligation upon arbitrator to provide adequate and sufficient reasons for his determination of
the dispute; s 9A of the 1987 Act; reversal of onus of proof; referral of dispute as to whole
person impairment to an Approved Medical Specialist by Registrar; relevance of expert
medical evidence concerning corticospinal tract damage to terms of referral
O’Grady DP
15 November 2013
Facts:
The worker was employed by the appellant as a casual catering assistant between
November 2007 and May 2008. She alleged that she had received an injury to her neck and
back in the course of that employment, as a result of three separate incidents. The
occurrence of injury was disputed by the appellant.
The worker alleged injury to her neck on 20 January 2008 when setting up “bain maries”;
injury to her back on 9 April 2008 as she lifted a milk crate, and injury to her neck and back
on 7 May 2008 as she placed milk into a refrigerator. Claims for compensation made in June
and July 2008, by the worker against the appellant, were declined.
The matter came before the Commission and the Arbitrator entered an award for the worker
referring the stated injuries to an AMS for assessment. There was also an order that the
AMS provide a “general medical opinion regarding”, amongst other things, “whether the
pathology affecting station and gait, bladder function, anorectal function, and sexual
function, result from the cervical spine and lumbar spine injuries”. In addition the AMS was to
assess the worker’s “capacity for work”.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) determining that the worker received injury as alleged on 20 January 2008, 9 April
2008 and 7 May 2008;
(b) failing to provide proper reasons for those findings concerning injury;
(c) failing to correctly apply s 9A of the 1987 Act to the facts;
(d) referring the matter to an AMS for a “general medical opinion”, and
(e) making a referral to an AMS for general medical dispute on capacity for work.
Held: The Arbitrator’s decision was revoked and the matter was remitted for hearing
afresh by another Arbitrator.
1.
The Deputy President was not satisfied that the reasons stated by the Arbitrator were
an adequate, or sufficient, statement of reasons for his conclusions. The Arbitrator’s
failure to state sufficient reasons constituted an error of law (Beale v Government
Insurance Office (NSW) (1997) 48 NSWLR 430) [35].
2.
The Arbitrator’s failure to acknowledge argument advanced by the appellant, and his
failure to state reasons for the apparent rejection of such argument demonstrated error
(Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). Little, if any,
24
attention was given to the arguments founded upon the apparent deficiencies, as
suggested, of the histories of injury recorded by those medical witnesses who had
treated the worker or had examined her for the purposes of the litigation [36].
3.
The Arbitrator stated: “I have no reason to accept that her employment with the
respondent was not a substantial contributing factor to each of those injuries”. That
statement reversed the onus upon the worker to prove relevant facts which satisfy the
requirements of s 9A. That constituted an error which affected the Arbitrator’s decision
(Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561) [37]-[38].
4.
The order of referral concerning general medical opinion regarding station and gait,
bladder function, anorectal function and sexual function was misconceived and an
error. The Arbitrator had made a finding of relevant injury; once such a finding is made,
the question of whole person impairment is to be referred to an AMS for appropriate
assessment (s 65(3) of the 1987 Act read with s 321(4)(a) of the 1998 Act). However,
the Arbitrator adopted the incorrect concept, that the sequelae, being station and gait
etc, were “consequential injuries”, or that there was a need to determine that there had
been “consequential injuries” relating to such pathology. A condition which results from
an injury (consequential condition) is not an injury in terms of the Acts (Bouchmouni v
Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4) [39]-[41].
5.
While the specialist doctor suggested that the sequelae following injury to the worker’s
cervical and lumbar spine included station and gait etc, and that Table 15-6 of AMA 5
was relevant to assessment, it is a matter for the AMS to determine the correctness or
otherwise of that approach and identification of those sequelae. The terms of the
referral to the AMS should have been to assess whole person impairment resulting
from injury to the cervical spine and lumbar spine, and the Arbitrator erred in ordering
otherwise [44].
6.
The Arbitrator erred in referring the worker’s capacity for work to an AMS. It appeared
that such an order was made to determine the worker’s entitlement to weekly
compensation. However, there was no dispute before the Arbitrator concerning such
entitlement [45].
7.
Given the erroneous referral of the above matters to an AMS, together with other
circumstances, and given the need to remit the matter for hearing afresh (due to the
Arbitrator’s consideration of incomplete documentary evidence), it was appropriate that
all the orders be revoked on appeal [46]-[47].
25
Donohue v The Reject Shop Limited [2013] NSWWCCPD 63
Sections 4 and 40 of the 1987 Act (as it stood before amendment by the Workers
Compensation Legislation Amendment Act 2012); aggravation of disease; s 352(5) of the
1998 Act; requirement that relevant error be established; proper approach to calculation of
entitlement to weekly compensation benefits in respect of partial incapacity
O’Grady DP
22 November 2013
Facts:
The worker was employed by the respondent performing selected duties on reduced working
hours following an injury he received in the course of his employment on 15 July 2011. The
injury was received when the worker was struck in the neck and back by falling boxes of soft
drink which had become dislodged from a shelf, when he was moving rows of shelving.
There was no dispute that the worker received injury to his face, neck, and lower back as a
result of the subject incident. Compensation benefits, being weekly payments and medical
expenses, were paid by the respondent’s insurer on a voluntary basis. On the
commencement of selected duties, the worker was paid weekly compensation in respect of
ongoing partial incapacity, in the sum of $439.50 per week.
The worker experienced ongoing pain in his neck, lower back, left leg and knee. As a result
he consulted a specialist doctor, who diagnosed “severe osteoarthritis clinically at least in
both hips especially left side”. The doctor speculated that the worker’s symptoms involving
his hip and left knee might be explained by physical twisting at the time of the July 2011
injury which may have caused some labral pathology.
A dispute arose concerning the worker’s entitlement to an increase of weekly payments and
the cost of treatment expenses in respect of the alleged hip injury and in respect of future
therapeutic treatment of his neck and lower back. The matter came before the Commission
and the Arbitrator entered an award for the respondent in respect of the alleged hip injury.
The issue of ongoing treatment related to the worker’s neck and back was referred to an
AMS for assessment.
The issue in dispute on appeal was whether the Arbitrator erred in:
(a) determining that the worker had not received injury to his left hip on 15 July 2011 and
was thus not entitled to medical treatment expenses and an increase of weekly
payment.
Held: The Arbitrator’s decision was revoked in part and it was determined that no
order concerning weekly compensation should be made on appeal.
The finding of no injury to hip
1.
It was suggested that the Arbitrator paid “undue regard to GP recording and the failure
to diagnose, and [the worker’s] own inability to isolate his problem as a hip problem”.
However, the Arbitrator acknowledged the relevant evidence, and it was a matter for
him to determine the weight to be ascribed to such evidence and to determine what, if
any, available inference may be drawn [53].
26
2.
The Arbitrator’s apparent reliance upon the evidence of a specialist doctor, which
evidence was criticised as being “inconsistent with the evidence as a whole”, appeared
to be asserted as demonstrating relevant error. That merely demonstrated a conflict of
opinion between the medical evidence and in no way made out a basis upon which
relevant error could be asserted [54].
3.
The fundamental basis of the Arbitrator’s rejection of the allegation of hip injury
seemed to have been the absence of relevant contemporaneous complaint and
evidence concerning a twisting or similar action at the time of the injury. The rejection
of the argument that the awkward position in which the worker found himself at the
time of injury and his being forced back against the adjacent shelf constituted ‘twisting’
as contemplated by the medical experts demonstrated no error [56]-[57].
4.
The Arbitrator’s conclusion as to there being no relevant aggravation was open to him
on the evidence. His acceptance of that evidence demonstrated no error (Whiteley
Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505) [58].
The Arbitrator’s conclusion concerning the claim for increased weekly payments
5.
The claim was brought pursuant to s 40 of the 1987 Act as it stood prior to the 2012
amendments [62].
6.
Voluntary payments made by the insurer corresponded to the maximum statutory rate
for a worker without dependants (despite evidence suggesting the worker had
dependent children). Whilst it was argued that the worker’s entitlement to an increase
of weekly payments was “by reason of the hip disability”, it was clear that there had
been a failure to appreciate and apply correct principle to the facts [63].
7.
A proper approach to determination of any entitlement the worker may have to weekly
compensation required an assessment made in accordance with the principles made
clear in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (Mitchell).
Such a determination would follow the Arbitrator’s decision as to whether the hip
disability was relevantly work related. Once a determination was made that the hip
disability was not compensable it would have been open to the respondent to argue
that the Commission’s discretion should be exercised to reduce any entitlement as is
addressed in the decision of Mitchell [64].
8.
Given the undisputed level of the worker’s probable earnings but for injury and the
earnings that he had made performing selected duties as demonstrated in the latest
wages schedule he was, prima facie, entitled to the difference in earnings subject to
the maximum rate as fixed by statute and, further, subject to any reduction found to be
proper in the circumstances. Upon proof of the dependency of the worker’s children,
that statutory maximum was $643.30. Those matters were not argued before the
Arbitrator and resolution of the question of entitlement must await agreement between
the parties, failing which a fresh application accompanied by all relevant evidentiary
material may be made [65].
9.
The only matter put in argument, with respect to the complaint about the Arbitrator’s
dismissal of the claim for weekly payments, was entitlement to “increased weekly
benefits follows upon a finding of injury to the left hip, as [the worker’s] incapacity
resulting from that injury was not put in issue by the s 74 Notice” [66]. The Arbitrator’s
order concerning the misconceived claim in respect of weekly benefits, that reflected
the confused manner in which argument was presented, was revoked and in
substitution it was determined that no order concerning weekly compensation should
be made [67].
27
Hunter New England Local Health District v Iles [2013] NSWWCCPD 58
Aggravation and acceleration of disease of osteoarthritis; whether employment a substantial
contributing factor to the aggravation and acceleration; medical evidence; ss 4(b)(ii) and 9A
of the 1987 Act; unmeritorious appeal; obligation of legal practitioners to comply with s 345
of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3
of Appeal Against Decision of Arbitrator
Roche DP
6 November 2013
Facts:
This appeal concerned whether the Arbitrator erred in finding that the worker suffered an
aggravation injury, namely, the aggravation and acceleration of the disease of osteoarthritis
in his knees in the course of his employment, and in further finding that his employment was
a substantial contributing factor to that injury in circumstances where the worker’s disease
had been caused by gout.
To be entitled to recover compensation, in addition to proving that he or she has received an
aggravation injury (under s 4(b)(ii) of the 1987 Act, as it was prior to the amendments
introduced by the Workers Compensation Legislation Amendment Act 2012), the worker
must prove that his or her employment was a substantial contributing factor to that injury (s
9A of the 1987 Act). Compensation for such an injury is payable by the employer who last
employed the worker in employment that was a substantial contributing factor to the
aggravation, acceleration, exacerbation or deterioration (s 16 of the 1987 Act).
The worker succeeded in his claim for weekly compensation, lump sum compensation, and
medical expenses on the basis that he suffered an aggravation injury, the Arbitrator
accepting the worker’s medical evidence from Dr Bodel in preference to the evidence from
Dr Potter.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the worker’s employment with the appellant was a contributing factor to
his injury (s 4(b)(ii));
(b) failing to give consideration to the provisions of sub-ss (d) and (e) of s 9A(2) in
finding that the worker’s employment with the appellant was a substantial
contributing factor to the aggravation of a disease;
(c) failing to prefer the opinion of Dr Potter, rheumatologist, or give proper weight to
this opinion, as to the cause of the worker’s disease and symptomology, over the
opinions relied upon by the worker;
(d) finding that the worker sustained an injury to his knees in the course of his
employment with the appellant;
(e) finding the appellant liable to pay the worker weekly payments of compensation
between 17 February 2010 and 26 September 2012;
(f) finding the appellant liable to pay the worker compensation pursuant to s 60 of the
1987 Act, and
28
(g) ordering the appellant to pay the worker’s costs.
Held: The Arbitrator’s decision was confirmed.
Discussion and findings
1.
In determining if a worker has suffered an aggravation injury, it is necessary to ask the
following questions:
(a) is the worker suffering from a disease?
(b) if so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c) if so, was the employment a contributing factor?
(d) if so, was employment a substantial contributing factor to the aggravation,
acceleration, exacerbation or deterioration? [52]
2.
It was accepted that the worker suffered from osteoarthritis in his knees and that that
condition is a disease [53].
3.
On the question of whether the worker’s employment with the appellant was a factor to
the aggravation, acceleration, exacerbation or deterioration of the disease of
osteoarthritis, the parties called conflicting evidence. For reasons given, which were
not challenged, the Arbitrator accepted the evidence of Dr Bodel, the worker’s qualified
orthopaedic surgeon. It was open to him to do so [54].
4.
The Arbitrator correctly determined that the worker’s work contributed to a worsening
of the symptoms in his knees and that he had therefore suffered an aggravation injury
(Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; Cant v Catholic
Schools Office [2000] NSWCC 37; 20 NSWCCR 88). The evidence from Dr Bodel
strongly supported that conclusion and nothing in the appellant’s submissions pointed
to any error by the Arbitrator on this point [55]-[57].
5.
The Arbitrator was right to reject Dr Potter’s opinion. Not only did Dr Potter not discuss
the correlation of the worker’s experience of symptoms during the course of his work
with the appellant, he wrongly focused on whether there was a history of “injury
causing advancing arthritis”. His use of the word “injury” and his later reference to
there being “no history of trauma ... to [the worker’s] knees” indicated that he
considered it necessary for the worker to have sustained some specific trauma before
he could succeed. That was incorrect. An aggravation injury can and, in many cases,
will be caused over time by repeated stress (Fletcher International Exports Pty Ltd v
Barrow [2007] NSWCA 244). Dr Potter’s failure to properly acknowledge that fact
further undermined his evidence [59].
6.
Dr Bodel based his opinion on the history, examination and documents provided to him
and therefore complied with the principles in Hancock v East Coast Timber Products
Pty Ltd [2011] NSWCA 11; 8 DDCR 399. It was not speculative as Dr Potter had
asserted [60].
7.
Amongst other things, Dr Potter had ignored the effect of the strenuous work the
worker did with the appellant and it appeared that he had applied the wrong test of
causation (s 4(b)(ii)). It followed that the Arbitrator did not err in accepting Dr Bodel’s
evidence in preference to the evidence from Dr Potter [61]-[63].
29
8.
The worker did not have to establish that his employment was a substantial
contributing factor to the underlying disease process (Murray v Shillingsworth [2006]
NSWCA 367; 68 NSWLR 451; 4 DDCR 313) [65].
9.
In determining whether the worker had received a compensable injury, Dr Bodel had to
consider: whether there was an injury within the terms of s 4(b)(ii) and, if so, was
employment a substantial contributing factor to that injury. Dr Bodel considered those
questions and, noting the relevant legislation, answered yes to both. Nevertheless, the
ultimate determination of these issues was for the Commission [71].
10.
The issue before the Arbitrator was whether the worker’s employment was a
substantial contributing factor to the aggravation injury. The evidence comfortably
established that it was. Moreover, in an aggravation injury case, it is doubtful it is
necessary to deal specifically with s 9A(2)(d) and (e). That is because the injury is the
aggravation (or acceleration) of the disease and, if employment caused that
aggravation (or acceleration), as it did in this case, it is the cause of the injury and s 9A
is satisfied [72].
11.
In any event, Dr Bodel’s statement that the worker’s knees would not have reached
“this level of degeneration at this point in time” had it not been for his work, was a clear
and unequivocal statement that dealt with s 9A(2)(d) and (e) in a manner that
supported the worker [73].
12.
It did not matter that part of the worker’s current condition may have also resulted (in
part) from his pre-existing condition. Dr Bodel’s evidence comfortably established that
the worker’s employment with the appellant was a substantial contributing factor to the
worsening of the symptoms of the disease of osteoarthritis in his knees and that the
effect of that worsening was continuing. Thus, s 9A was satisfied [75].
30
Hunt v Arrow Farmquip Pty Limited [2013] NSWWCCPD 65
Injury; assessment of evidence; onus of proof; Watts v Rake [1960] HCA 58; [1965] 114 CLR
164 discussed; reasons; requirement for cross examination; non-compliance with Practice
Direction 6
Keating P
26 November 2013
Facts:
The worker was employed by the respondent as a trainee welder.
On 13 February 2007, whilst lifting steel beams in the course of his employment, the worker
suffered an accepted injury to his lower back and also alleged that he had injured his
thoracic spine.
On 14 June 2007, the worker was involved in a motor vehicle accident when returning from a
gym program associated with the treatment of the injuries sustained on 13 February 2007, in
which he alleged he further injured his thoracic spine.
On 16 May 2011, the worker claimed lump sum compensation for injuries sustained from the
13 February 2007 incident. The worker relied on a specialist doctor’s report attributing five
per cent whole person impairment to the thoracic spine and five per cent whole person
impairment in respect of injuries to the lumbosacral spine. An additional one per cent was
added due to ongoing restriction in the worker’s work capacity.
The employer’s insurer accepted liability in respect of the injury to the lumbar spine as a
result of the incident on 13 February 2007, but denied the worker suffered an injury to his
thoracic spine as a result of the incident on 13 February 2007 or the motor vehicle accident
on 14 June 2007.
The matter came before the Commission and an Arbitrator entered an award for the
respondent employer with respect to the alleged injuries to the thoracic spine on 13 February
2007 and 14 June 2007.
The issues in dispute on appeal were whether the Arbitrator erred in:
(a) finding that the worker did not sustain an injury to his thoracic spine in the original
injury on 13 February 2007, and
(b) determining “the effects of the motor vehicle accident on 14 June 2007”.
Held: The Arbitrator’s decision was confirmed.
Did the worker sustain an injury to his thoracic spine in the injury on 13 February
2007?
1.
After an assessment of the evidence, it was noted that the worker’s complaints to his
treating doctors were largely in relation to the lower back and not the thoracic spine
[109]-[112].
2.
The submission that clinical notes of an occupational therapist on 22 March 2007,
referral for x-rays of the thoracic spine in April 2007, and a comment on a specialist
31
doctor’s report supported the contention that the worker was complaining of thoracic
pain from the initial injury was rejected. In the absence of complaint relating to thoracic
pain, that evidence could not support a conclusion that the Arbitrator erred in finding
that the worker did not injure his thoracic spine in the initial injury [113]-[118].
Did the worker injure his thoracic spine in the motor vehicle accident on 14 June
2007?
3.
The worker submitted that the evidence of the employer’s consultant occupational
physician was misleading and ambiguous and the Arbitrator erred by relying on it
[119].
4.
That doctor concluded that the effects of the motor vehicle accident on both the
thoracic spine and the lumbar spine were short lived. There was no ambiguity. The
Arbitrator’s rejection of the claim that the worker continued to experience thoracic pain
thereafter was consistent with the doctor’s opinion, which was compelling in that he
examined the worker and took a history of his complaints within a week of his
involvement in the motor vehicle accident [120].
5.
Contrary to the worker’s submissions, that doctor examined the thoracic spine and
made allowance for the possibility of an aggravation of the Scheurmann’s disease
arising from the worker’s involvement in the motor vehicle accident. The Arbitrator’s
reliance on the doctor’s evidence to conclude that the worker had not aggravated his
constitutional condition, but had merely suffered a short term flare-up of symptoms,
was open to the Arbitrator and did not involve any error [121]-[122].
6.
The submission that the Arbitrator erred by rejecting the worker’s evidence when it
was not tested by cross examination was rejected. An Arbitrator may reject evidence
that has not been the subject of cross-examination, if, for example, it is inconsistent
with other evidence which he accepted. The worker’s evidence was inconsistent with
the documentary evidence of his complaints to his treating doctors and therefore it was
not incumbent on the employer to seek leave to cross-examine the worker (NSW
Police Force v Winter [2011] NSWCA 330) [123]-[124].
7.
Contrary to the worker’s submissions, the entry in hospital notes of “chronic pain” since
2007 did not provide any probative evidence to link the finding of tenderness in the
thoracic region of the worker’s back to either of the injuries upon which the worker
relied [125].
8.
The submission that the Arbitrator erred by failing to refer to the evidence of another
specialist doctor was incorrect. The Arbitrator referred to that evidence and it was open
to him to assess the weight to be given to that evidence, and his treatment of it did not
involve any error [126]-[127].
9.
The Arbitrator did not accept that the worker made out a prima facie case of injury to
the thoracic spine as a result of either of the injuries pleaded. In those circumstances
the onus of proof did not shift. The worker carried the ultimate onus of proof, which, for
the reasons given by the Arbitrator, and which disclosed no error, he failed to
discharge (Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 229; Brown v
Lewis [2006] NSWCA 87) [129].
32
Smith v NSW Police Force [2013] NSWWCCPD 61
Appeal against decision of Registrar acting as an Arbitrator; circumstances in which a
Medical Assessment Certificate can be revoked on appeal to a Presidential member;
misconceived appeal; s 354(7A)(b) of the 1998 Act
Keating P
12 November 2013
Facts:
The worker was employed by the respondent as a senior constable. It was alleged that as a
result of repeated exposure to traumatic incidents in the course of her employment, the
worker suffered a psychiatric or physiological disorder.
The worker made a claim for lump sum compensation in respect of 19 per cent whole person
impairment and claimed the maximum for pain and suffering (s 67) presumably for the
condition of “chronic Post-Traumatic Stress Disorder in association with Major Depressive
Disorder”.
The employer’s insurer denied liability, alleging that the worker had not suffered a permanent
impairment or disability as a result of the alleged injury.
The matter came before the Commission. In its Reply to the Application to Resolve a
Dispute, the employer submitted that the dispute was appropriate for referral to an AMS. The
matter was later referred to an AMS, who found that the worker’s impairment was fully
ascertainable and certified that she suffered a seven per cent whole person impairment.
The worker lodged an ‘Application to Appeal Against Decision of Approved Medical
Specialist’. The Commission was not satisfied that any of the grounds for appeal, as
specified in s 327(3), had been made out. However, it was determined that the matter should
be referred to an AMS for reconsideration (s 329(1A)).
The AMS reconsidered its initial findings and confirmed the original MAC without
amendment. On 2 August 2013, the Commission issued a Certificate of Determination with
an award for the worker for a whole person impairment of seven per cent resulting from the
psychological injury and thus she had no entitlement to lump sum compensation. The worker
appealed.
The issues in dispute on appeal were whether:
(a) any proper grounds for appeal under s 352 had been demonstrated in respect of the
decision appealed against, namely, the determination of 2 August 2013;
(b) any error of fact, law or discretion had been identified as required by s 352(5), and
(c) the Commission has jurisdiction to provide the relief sought.
The worker sought an order that the Commission’s determination of 2 August 2013 to be
quashed and a decision made in its place that the worker had reached maximum medical
improvement. In addition, it also sought for the matter to be referred to a Medical Appeal
Panel for a consideration of the question of ‘whole person impairment’.
33
Held: The appeal was dismissed under s 354(7A)(b) of the 1998 Act.
1.
The appeal was misconceived [23]. Once the MAC was issued, subject to the appeal
provisions in s 327, it was conclusively presumed to be correct in finding that the
degree of permanent impairment was seven per cent (s 326 of the 1998 Act) [27].
2.
Section 327 of the 1998 Act provides for an appeal to a medical appeal panel against
a MAC on limited grounds [28]. However, under s 327(4) an appeal is not to proceed
unless the Registrar is satisfied that at least one of the grounds for appeal specified in
s 327(3) has been made out [29].
3.
The Registrar, through her delegate, was not satisfied that at least one of the grounds
for appeal specified in subsection (3) was made out and therefore decided, subject to
a request for reconsideration, that the appeal was not to proceed [30].
4.
A Presidential member has no power to set aside a valid MAC (Morris v University of
NSW [2008] NSWWCCPD 31). Given that a valid MAC is conclusively presumed to be
correct, and given that there were no liability issues in the present matter, the Registrar
made no error of fact, law or discretion in making the orders in the Certificate of
Determination dated 2 August 2013. The appeal was misconceived and should never
have been lodged [33]. The President dismissed it under s 354(7A)(b) of the 1998 Act
[34].
5.
On the basis that the appeal was without merit and should not have been lodged, the
employer sought an order for costs against the worker (s 342) [35].
6.
An order for costs (against a worker) can be made under s 341(4) of the 1998 Act
(now repealed) in circumstances where a claim was frivolous or vexatious, fraudulent
or made without proper justification. Section 341(4) continues to have force in this
case by reason of the savings and transitional provisions found in Sch 12 cl 21 of the
Workers Compensation Legislation Amendment Act 2012 [38].
7.
At the time the worker made her claim for lump sum compensation it was supported by
medical evidence, therefore, the claim did not fall within s 341(4) (Duffy v John Fairfax
& Sons Pty Ltd NSWCC No 11861/96 unreported) [39]. As a result there was no order
as to costs [41].
34