Issue 10: October 2009

Welcome to the Tenth edition of ‘On Appeal’.

Edition 10 - October 2009 includes a summary of the September 2009 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:

Index

Presidential Decisions:

Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114. 4

Psychological injury - disease; s 151A of the 1987 Act - worker recovered damages under the Anti-Discrimination Act 1977 for three specific incidents of sexual harassment on 31 May 2004, 9 July 2004 and 3 February 2005 - whether barred from recovering workers compensation in a claim for psychological injury as a result of sexual harassment,  victimisation and ostracism between May 2004 and 28 March 2006

Pikus Pty Limited t/as Banjo’s Bakery v Bradica [2009] NSWWCCPD 120. 6

Application for review of weekly compensation - section 55 of the 1987 Act; change in circumstances - reasons - relevance of failure to seek suitable employment in calculation of compensation under section 40 of the 1987 Act

Work Cover New South Wales v Beaton & Anor [2009] NSWWCCPD 118. 8

Jurisdiction of the Commission – worker and employer resident in Victoria – injury in New South Wales – whether connection with that State sufficient to enliven the jurisdiction of the Commission

Coles Supermarkets Pty Ltd V Bourchdan [2009] NSWWCCPD 116. 10

Psychological injury – s 11A of the 1987 Act – whether the dismissal of the worker was ‘reasonable’

Ecowize North Pty Ltd v Weir [2009] NSWWCCPD 119. 12

Injury; causation - delay in onset of neck symptom - medical evidence - Makita (Australia) Pty Ltd v Sprowles - (2001) 52 NSWLR 705

Roads and Traffic Authority of New South Wales v Gentle [2009] NSWWCCPD 111. 14

Psychological injury- evidence – causation- relevance of obsessional personality - substantial contributing factor - s11A of the 1987 Act - refusal of application for adjournment - procedural fairness - application to rely on oral evidence on review

Wilson v Qantas Airways Limited [2009] NSWWCCPD 121. 16

Ss 11A of 1987 Act – psychological injury - reasonable action

Youshia v Storm International Pty Ltd [2009] NSWWCCPD 112. 18

Injury – whether the worker’s evidence was sufficient to discharge the onus of proof

AC v AD [2009] NSWWCCPD 110. 19

Sections 11A, 38, 38A and 40 of the 1987 Act – psychological injury - causation of injury

E v Sydney South West Area Health Service (Concord Hospital) [2009] NSWWCCPD 108  21

Claim for an increase in weekly benefits and lump sum compensation – whether medical treatment was “reasonably necessary” – ss 40, 60 and 66 of the 1987 Act

Brambles Industries Limited v Bell and Anor [2009] NSWWCCPD 115. 23

Section 4 of the 1987 Act – causation of injury

BHP Billiton Limited & Anor v Bourke & Ors [2009] NSWWCCPD 117. 25

Adequacy of reason - causation - apportionment under ss 22 and 22A of the 1987 Act

Greater Western Area Health Service v Greening [2009] NSWWCCPD 109. 29

Extending time to appeal - leave to appeal - weight of evidence

Rail Corporation New South Wales v Hunt [2009] NSWWCCPD 114

Psychological injury; disease - s 151A of the 1987 Act - worker recovered damages under the Anti-Discrimination Act 1977 for three specific incidents of sexual harassment on 31 May 2004, 9 July 2004 and 3 February 2005 - whether barred from recovering workers compensation in a claim for psychological injury as a result of sexual harassment, victimisation and ostracism between May 2004 and 28 March 2006

Roche DP

15 September 2009

Facts:

Ms Hunt started working for RailCorp in 1988. In July 2000 she was the first female to be appointed as Manager, Train Crew Assignment Centre. She alleged that in that position she was subjected to sexual discrimination, sexual harassment and victimization and as a result suffered a psychological injury.

In 2005 or 2006 Ms Hunt claimed damages under the Anti-Discrimination Act 1977 in respect of nine incidents of alleged unlawful behaviour that occurred at work. The ADT awarded $20,000.00 in damages to Ms Hunt in respect of 3 complaints of sexual harassment on 31 May and 9 July 2004, and on 3 February 2005.

In late 2007 Ms Hunt filed an ARD claiming weekly compensation, hospital and medical expenses and lump sum compensation in respect of 15% WPI in respect of a “major depressive episode with anxiety and/or adjustment disorder with depressive and anxious mood”.

RailCorp denied liability on the bases that the injuries claimed were injuries in respect of which Ms Hunt had received or recovered damages under s151A of the 1987 Act and/or Ms Hunt was not incapacitated for work as alleged or at all.

The Arbitrator found in favour of Ms Hunt on all issues. On appeal, RailCorp argued that the damages Ms Hunt recovered in the ADT acted as a bar to the recovery of compensation in the Commission by virtue of s151A, that a Major Depressive Episode is not a disease and that Ms Hunt’s condition significantly deteriorated after she left RailCorp.

Held – Arbitrator’s decision confirmed.

(1) Given the ADT’s findings, Ms Hunt did recover s151A(1) damages from RailCorp, but only for the incidents on 31 May and 9 July 2004 and 3 February 2005 (see Burns v Gladesville Bowling & Sports Club Ltd (2000) 20 NSWCCR 648). The question to be determined was whether the current claim for compensation in the Commission was “in respect of the injury” for which she recovered damages. [45]

(2) As RailCorp did not dispute injury in its s74 notice and tendered no medical evidence, it could not now argue that Ms Hunt’s condition was not a disease or that she suffered no psychological injury because her condition resulted from events after March 2006. Such an argument would clearly prejudice Ms Hunt as she has not had the opportunity to respond to it by calling evidence. [47]

(3) Even if such argument was allowed, DP Roche was satisfied that Ms Hunt’s psychological condition was a disease to which s4(b)(ii) of the 1987 Act applied. [48] In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (‘Semlitch’) at 632 Kitto J held:

“In its ordinary meaning ‘disease’ is a word of very wide import, comprehending any form of illness; and there is no reason that I can see for reading it in the present context as not extending to mental illness.”

(4) Given that Ms Hunt had no family history of psychological problems and had a long and stable work record with RailCorp from 1988, the evidence established that, as a result of the hostile circumstances of her employment between May 2004 and 28 March 2006, even excluding the three incidents of 31 May 2004, 9 July 2004 and 3 February 2005, Ms Hunt suffered an injury in the nature of an aggravation of a disease, namely depression and anxiety, and that the effect of the aggravation was continuing. [64]

(5) Whilst it was true that Ms Hunt’s condition deteriorated after leaving RailCorp, it was not a new injury but a condition that clearly resulted from the work injury. “It has long been settled that incapacity may result from an injury for the purposes of workers’ compensation legislation even though the incapacity is also the product of other - even later - causes.” (Calman v Commissioner of Police [1999] HCA 60; (1999) 73 ALJR 1609 at [38]). [66]

(6) As Ms Hunt had clearly established a prima facie case that her injury and incapacity resulted from her employment, the onus was on RailCorp to establish (under s151A) that the injury for which Ms Hunt recovered damages was the same injury for which she sought compensation. RailCorp failed to do this.  [74] – [75]

Pikus Pty Limited t/as Banjo’s Bakery v Bradica [2009] NSWWCCPD 120

Application for review of weekly compensation - s 55 of the 1987 Act; change in circumstances - reasons - relevance of failure to seek suitable employment in calculation of compensation under s 40 of the 1987 Act

Roche DP

28 September 2009

Facts:

Mr Bradica injured his back in the course of his employment with Banjo’s Bakery on 19 October 1999. He was unable to return to his pre-injury duties and his employment was terminated on 19 January 2000.

On 8 December 2004 a Commission Arbitrator determined an award for Mr Bradica for weekly compensation under s 40 from 1 June 2000 at the maximum statutory rate for an applicant with a dependant child. In March 2009, following a reconsideration request by the employer under s 350(3) of the 1998 Act, the same Arbitrator observed that the parties had “differing interpretations” of his decision of December 2004. In the course of the reconsideration, the Arbitrator amended his COD awarding Mr Bradica s 40 payments from 1 June 2000 at the rate of $370 per week.

Mr Bradica’s ARD registered on 1 April 2009 sought an increase in weekly compensation from 11 August 2007 to date and continuing on the basis of a change in circumstances, namely a deterioration in his condition since the 2004 award and change in comparable wages.

The insurer’s s 74 notice disputed there had been any change in circumstances justifying a review of the 2004 award. The employer’s evidence included video surveillance of Mr Bradica lifting a small generator with his right hand and carrying it a few steps before placing it on the ground.

In 2004 the Arbitrator found that Mr Bradica’s ability to earn was $350 per week. In the 2009 ARD the Arbitrator determined that Mr Bradica’s circumstances had changed because his physical condition had deteriorated and earnings but for the injury had increased. He found Mr Bradica’s “current ability to earn would be $250 per week”. The Arbitrator found probable earnings but for injury to be $900 per week, resulting in a difference of $650. As $650 per week was in excess of the statutory maximum, Mr Bradica was awarded s 40 payments at the statutory rate for a worker with a dependent wife and two dependent children.

Held – Arbitrator’s decision revoked and remitted to a new Arbitrator.

(1) The evidence supported a “change of circumstances” within the meaning of section 55. There was evidence from the worker and his treating GP of an increase in symptoms in 2007, objective change in pathology confirmed on MRI scan and a significant increase in probable earnings from $750 per week to $900 per week. [47]

(2) The video evidence was of limited, if any, probative value. For the majority of the surveillance Mr Bradica was inactive and, though he did lift a small generator, he only moved it a few steps. This did not undermine Mr Bradica’s case. [55]

(3) In determining fitness for work, a factual question, an arbitrator is not bound by the medical evidence, but must use his or her knowledge and experience to weigh up the whole of the evidence to determine factual issues according to law (South Australian Emergency Commission v Workers Compensation Tribunal and anor [2009] SASC 213 at [59]). [56], [57]

(4) The Arbitrator’s reasons did not expose the basis for his conclusion that Mr Bradica was able to earn $250 per week.  Mr Bradica sought an award of total incapacity but the Arbitrator did not deal with that submission. Without explaining why, the claim was assessed as one for partial incapacity under s 40 of the 1987 Act and the principles in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 were applied. The Arbitrator failed to deal with the arguments presented on behalf of Mr Bradica and failed to indicate the basis on which he calculated Mr Bradica’s ability to earn to be $250 per week. [61], [64]

Work Cover New South Wales v Beaton & Anor [2009] NSWWCCPD 118

Jurisdiction of the Commission – worker and employer resident in Victoria – injury in New South Wales – whether connection with that State sufficient to enliven the jurisdiction of the Commission

Moore ADP

23 September 2009

Facts:

The worker was and remains a resident in Victoria. He commenced work with a Victorian company, Pinners, the second respondent, in July 2000. He was initially employed as a storeman however was asked to perform truck driving duties, requiring him to drive three times a week to Newcastle and back.

On 15 June 2001 while driving his truck along the Hume Highway in NSW, he struck a truck in front of him and suffered injuries to his head, neck and back.  He was treated at Wagga Base Hospital and resumed work a week later in his role as storeman.

A claim was made on Pinners’ Victorian insurer and he received weekly benefits for various periods and medical expenses. In 2007 he made a claim on WorkCover’s Uninsured Liability Scheme, which was denied and in February 2009 lodged an ARD with the Commission seeking weekly benefits, medical expenses and lump sum compensation.

At a hearing on 12 May 2009 the parties agreed that the only issue for determination at that time was the question of jurisdiction and it was acknowledged that since the injury occurred in 2001, neither the provisions of ss9AA or 13 of the 1987 Act were applicable such that “the principles to be applied in any determination in relation to this matter were those in existence prior to that date” ([9] of Reasons). [21]

Both parties relied extensively in their submissions on the decisions of Tozer v I.D. Transport Pty Ltd [2005] NSWWCCPD 101 (‘Tozer’), Work Cover Authority of New South Wales v Billpat Holdings & Ors (1995) 11 NSWCCR (‘Billpat’) and Mynott v Barnard (1939) 62 CLR 68 (‘Mynott’).

The worker argued that the fact that the injury occurred in NSW provided sufficient nexus to bring into operation the provisions of the 1987 Act and that the facts were similar to those of Tozer.

WorkCover submitted that that fact was insufficient, particularly in circumstances where the employment contract was negotiated in Victoria, both parties were resident there and the worker had already received payments from Pinners’ Victorian insurer (relied on Billpat).

The Arbitrator found that the Commission had jurisdiction to hear and determine the matter.  It is from this decision that WorkCover sought leave to appeal. WorkCover submitted on appeal that the Arbitrator had erred:

• in finding jurisdiction where there were insufficient other connectors to NSW.
• in failing to take into consideration whether it was unreasonable to expect Pinners to have held workers compensation insurance in NSW

Held: Arbitrator’s decision confirmed

(1) In Tozer the arbitrator found in favour of the employer on the basis that at the time of the injury Mr Tozer was merely passing through NSW and that there were insufficient connectors to NSW for the 1987 and 1998 Acts to apply.  On appeal ADP Lansdowne revoked that decision, finding that it was sufficient to establish a “relevant connection” to NSW, “according to the test in Stanley v Gallagher and Ors [2002] NSWCA 174, that the injury occurs in NSW and the work, or at least a substantial part of it, is located in NSW”. [30].

(2) ADP Lansdowne’s consideration in Tozer of the decision in Mynott was pertinent to this matter, where she states at [33] that Mynott stands for the proposition that where neither the injury nor the carrying out of work occurred in the state, the workers compensation legislation will not apply. Likewise was her consideration of Billpat in which she noted that the “Court regarded it as essential that there be some connection in addition to injury in the state”. [35]

(3) Since the decision of Tozer the Court of Appeal considered similar issues in Ballantyne v Work Cover Authority of New South Wales [2007] NSWCA 239 (‘Ballantyne’) in which Basten JA observed that prior to 1 January 2006 the principle of statutory construction as explained in Mynott applied and that “the basic premise upon which the Workers Compensation Act operated (until 1 January 2006) was that it might apply to any person employing a worker who might undertake work in New South Wales or who might, in the course of his or her employment, including no doubt the journey to and from the workplace, pass through New South Wales or part thereof, in the event of an accident there.” [41]

(4) It was clear that for injuries occurring prior to 1 January 2006, the principles in Mynott applied and contrary to the views held in Tozer, it was not necessary for “something other than injury in the State” to arise in order to enliven the jurisdiction of NSW.  WorkCover’s assertion that there must be a number of “connectors” with NSW was incorrect in view of Ballantyne.

(5) Further support for Basten JA’s comments in Ballantyne are found in the commentary relating to s7 of the 1926 Act in Mills 2nd ed 1979 at page 190 at [130]. [44]

(6) In line with the authorities referred to, the Commission had jurisdiction to hear and determine the matter.

Coles Supermarkets Pty Ltd V Bourchdan [2009] NSWWCCPD 116

Psychological injury – s 11A of the 1987 Act – whether the dismissal of the worker was ‘reasonable’

Moore ADP

17 September 2009

Facts:

The worker claimed to suffer a psychological injury as a consequence of her suspension then dismissal from her employer, Coles on 19 May 2008.  The reason for her dismissal was that she had been observed on CCTV engaging in behavior, being the removal of items from shelves without apparently paying for them, that was in breach of Coles’ “Code of Conduct”.

Coles denied liability on the basis that the worker did not suffer a psychological injury and that even if she had, the action taken was “reasonable” within the meaning of s11A of the 1987 Act.

The worker lodged an ARD seeking weekly compensation from 19 May 2008 to 1 September 2008 as a consequence of being informed on 13 May 2008 that she was suspended from work.

The Arbitrator found the worker had suffered a psychological injury consequent upon her suspension and dismissal from Coles and that Coles’ decision to terminate her employment was not reasonable in all the circumstances.

Coles appealed this decision challenging the Arbitrator’s application of s11A and his reliance on uncorroborated evidence from the worker in relation to views held by third parties following her dismissal.

Held: Arbitrator’s decision confirmed

(1) Principles and authorities considered in determining the appeal:

1. the test of reasonableness is objective (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138; Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465);
2. in Aristocrat Technologies Australia Pty Ltd v Raskov [2005] NSWWCCPD 66 ADP Sassella considered the decision in Pirie v Franklins Ltd (2001) NSWCCR 346 and concluded at [82] that the question of reasonableness or fairness involved a consideration of all relevant factors; [68]
3. his Honour Judge Keating in Hartley v Dux Manufacturing Pty Ltd & Anor [2008] NSWWCCPD 55 (‘Hartley’), quoting from Smyth v Charles Sturt University [2007] NSWWCCPD 184 stated at [66]: “Consideration should be given to the circumstances surrounding the ‘action’, to the extent that what occurred before and after the ‘action’ may be taken as a guide to its reasonableness or otherwise, but is not necessarily determinative of it ..”; [69]

(2) Whether Coles’ action in dismissing the worker was justified or not was not of concern, it was only whether that action was reasonable in all the circumstances. [71]

(3) In considering whether this action was reasonable, regard was had to the following:

1. there was no evidence that her conduct had been the subject of any adverse notice previously or that she had committed any breaches of Coles’ Code – that being  a guide in considering the “reasonableness” of the action (Hartley);
2. she was abruptly told she was suspended without reason;
3. she was not informed of the reason for the requirement to attend a meeting with a Coles’ investigator;
4. the Code was silent as to the procedure for the purchase by staff of goods during a shift;
5. there was conflicting evidence as to the procedure for the purchase of goods by staff;
6. there was no proven theft or fraud;
7. the worker at all times denied stealing from Coles and no evidence was brought by Coles to show she had. [72]

(4) Agreement with Coles’ submission, in line with Hartley, that it was not for the Arbitrator to consider alternative “options” eg warnings and that they had no bearing on the objective test of “reasonableness” of the action taken to dismiss the worker. [75]

(5) Although accepting that Coles held a genuine belief that its actions in dismissing the worker were reasonable, they were not, particularly in light of what appeared to be a sound pre-existing relationship between the parties.

(6) There was no evidence that Coles was responsible for third parties being aware of the worker’s dismissal and although rejecting that aspect of the Arbitrator’s decision ([65] of Reasons), it had no bearing as to the “reasonableness” of Coles’ conduct with regard to the dismissal. [76]

(7) In line with the reasoning in Irwin v The Director General of School Education (unreported, 18 June 1998, matter number 14068 of 1997), in weighing the rights of the employees against the objective of the employment, the balance fell in favour of the worker. [78]

(8) Having regard to the whole of the evidence the “action taken or proposed to be taken” by Coles in May 2008 with respect to the dismissal of the worker was “unreasonable”.

Ecowize North Pty Ltd v Weir [2009] NSWWCCPD 119

Injury; causation; delay in onset of neck symptoms; medical evidence; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Roche DP

24 September 2009

Facts:

Mr Weir was a night shift cleaner for Ecowize. On 3 December 2005, whilst working on his knees under a platform, he struck his back on the conveyor as he attempted to stand up. Mr Weir claimed lump sum compensation in respect of his back and neck.

Ecowize conceded injury to the back but disputed the neck claim. The Arbitrator found in favour of Mr Weir and referred the claim to the Registrar for WPI assessment of the neck and back.

The issue on appeal was whether the Arbitrator erred in finding that Mr Weir injured his cervical spine as a direct consequence of the injury to his back on 3 December 2005.  Mr Weir argued that the Arbitrator’s error must be such that but for it a different decision should have been made (Snow Confectionary Pty Limited v Askin [2004] NSWWCCPD 56 (‘Askin’)).

Held – Arbitrator’s decision revoked. Award for Appellant employer in respect of the neck claim. Back claim referred for WPI assessment by AMS.

(1) The decision of Askin is no longer good law.  An appeal under s352 of the 1998 Act is to be conducted by way of review and does not require that an error of fact, law or discretion be established but requires a determination of the true and correct position (Sapina v Coles Myer Limited [2009] NSWCA 71; State Transit Authority of NSW v Chemler [2006] NSWCA 249, (2007) 5 DDCR 286). [47]

(2) There are two alternative bases on which Mr Weir could succeed with his claim:

1. that he injured his neck at work on 3 December 2005, or
2. that as a result of the back injury he sustained on that day he developed symptoms in his neck.

(3) The evidence clearly established that Mr Weir only injured his low back at work, ruling out the first basis. [48] – [49]

(4) The Arbitrator based his decision on an incorrect reading of the employer’s medical evidence quoting that the doctor said that the radiation of pain from the low back to the cervical and thoracic areas was “a most typical sequence of events” but in fact the doctor said such a sequence of events was “atypical”. [53]

(5) Dr Bodel concluded that Mr Weir suffered a minor disc injury to his cervical spine as a result of the incident at work but he had failed to take a history of neck injury or development of neck symptoms and he did not consider whether it could be related to a low back injury on 3 December 2005. Dr Bodel’s conclusion was a bare conclusion unsupported by any reasoning and, therefore entitled to limited, if any weight (Makita). [54]

(6) Mr Weir’s evidence was that his neck symptoms developed some time after 3 December 2005, most probably in or about February 2006. The omission of an explanation as to the connection between the neck symptoms and the pleaded injury can sometimes be overcome by the use of “common sense” in the evaluation of evidence and the “sequence of events” (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 at [90]).  [55] However, the connection between a low back injury on 3 December 2005 and the subsequent development of neck symptoms months later is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91]) that would enable an arbitrator or Presidential member to rely on his or her “common sense” to conclude that the neck symptoms resulted from the back injury. [55]

Roads and Traffic Authority of New South Wales v Gentle [2009] NSWWCCPD 111

Psychological injury- evidence – causation- relevance of obsessional personality - substantial contributing factor - s11A of the 1987 Act - refusal of application for adjournment - procedural fairness - application to rely on oral evidence on review

Roche DP

7 September 2009

Facts:

Mr Gentle started work for the RTA in 1994. He claimed to have received a psychological injury as a result of “continuing bullying, harassment and belittling by management” during his employment. The complaint was based on a series of events alleged by Mr Gentle to have occurred between 2000 and 2007 when he ceased working for the RTA. RTA’s evidence suggested that Mr Gentle had harassed other staff and that he had not been harassed.

The Insurer, Allianz, denied liability on the grounds that (i) Mr Gentle’s injury did not arise out of his employment; (ii) his employment was not a substantial contributing factor to his injury; and that (iii) s11A of the 1987 Act applied. Evidence from the employer suggested Mr Gentle had a vulnerable personality and that he had problems with his family and friends, and most of his colleagues.

At conciliation and arbitration on 5 May 2009 counsel for the RTA appeared to be unprepared, having not been advised of the hearing date in Newcastle. RTA applied to have the matter adjourned so that it could call oral evidence from two key witnesses. The Arbitrator refused the adjournment and found for Mr Gentle. RTA appealed, seeking a hearing de novo and seeking to call oral evidence from the two witnesses.

Held: Arbitrator’s determination confirmed.

(1) There was no denial of procedural fairness by the Arbitrator in refusing RTA’s application for an adjournment to call oral evidence. Parties seeking to call oral evidence must comply with Part 14.2 of the 2006 Rules and the RTA had not done so [164].

(2) The circumstances did not justify the calling of oral evidence on appeal, or the appeal being conducted as a hearing de novo.

(3) In determining whether Mr Gentle’s psychological condition resulted from his employment, it was necessary to apply the commonsense test of causation as discussed in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, to establish the requisite connexion between the injury and the employment, and that the employment was a substantial contributing factor to the injury (State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286, (‘Chemler’), per Spigelman CJ at [38]) [188].

(4) Employers take their employees as they find them. The “eggshell psyche” principle applies to psychological injuries in compensation matters (Chemler, per Spigelman CJ at [40]) [190].

(5) It was Mr Gentle’s perception of real events that was of critical importance. Even if the RTA’s medical evidence, which diagnosed Mr Gentle as suffering from a Major Depressive Disorder with additional Obsessional Personality was correct, it did not disentitle Mr Gentle from recovering compensation but was merely a factor that made him more vulnerable to bouts of depression. [194]

(6) There was no persuasive evidence that Mr Gentle would have developed the same or a similar injury at about the same time or same stage of his life, if he had not been at work with the RTA. Employment was a substantial contributing factor to his injury [205].

(7) The onus of establishing a s11A defence is on the employer (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465) [210].

(8) The Commission has to decide whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to, in this case, discipline or transfer, and, if so, whether the action or proposed action with respect to discipline or transfer was reasonable (see Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [4])[211].

(9) RTA’s s11A defence failed because there was no evidence that the whole or predominant cause of the psychological injury was the employer’s action with respect to discipline or transfer [212].

Wilson v Qantas Airways Limited [2009] NSWWCCPD 121

Section 11A of 1987 Act – psychological injury - reasonable action

O’Grady DP

30 September 2009

Facts:

The worker held the position of Premier Customer Liaison Officer with Qantas between 1996 and 2007.  In 2006 Qantas put in place major changes effectively abolishing her position and creating new positions.  The worker was informed of these proposed changes and was invited to make application for the newly created position, Qantas First Host, which she was successful in obtaining.

The nature of her duties were altered in her new position, in particular significant changes were made to the rosters which prescribed her working hours. The change in rosters caused disruption to the worker’s domestic circumstances and also caused staff shortages.

The worker performed her newly assigned duties from May until October 2007 when, whilst at work, she experienced severe chest pain and other symptoms leading to a physical collapse.  She returned to work however continued to experience further “attacks” and in November 2007 was diagnosed as suffering emotional stress. She had time off work and returned in January 2008 on a part-time basis. In February 2008 she made a claim for workers compensation benefits against Qantas on the basis of her alleged psychiatric/psychological injury.  Qantas declined the claim. The worker lodged an ARD in October 2008.

The Arbitrator made an award in favour of Qantas. The worker appealed the decision submitting that the Arbitrator had erred in allowing Qantas to rely on the provisions of s11A by way of a defence, arguing that the s74 notice was deficient; in finding Qantas’ actions in respect of rosters was action within the meaning of s11A and in failing to find that the deficiency in the roster system was a causative factor in the worker’s injury.

Held: Arbitrator’s award revoked – weekly benefits and s60 orders made in workers favour

(1) Although the terms of the s74 notice were in general form, the facts known to the worker concerning the dispute left her in no doubt that any of the defences might be raised.  The Arbitrator did not err in permitting Qantas to rely upon the defence afforded by s11A(1). [52]

(2) The concept of “action” with respect to both transfer and promotion included those employment conditions, which prevail as a consequence.  In this matter it was the requirement that the worker adhere to a revised roster.

(3) Guided by the observations of the majority at [7] of Manly Pacific International Hotel v Doyle (1999) 19 NSWCCR 181 the provision of the new roster formed part of the “action” with respect to either or both transfer and promotion and on the facts, any finding that the provision of such a roster “wholly or predominately caused” the worker’s psychological injury, gives rise to the need to determine the availability or otherwise of a defence pursuant to s11A. [56]

(4) On a review of the evidence in its totality, one of the consequences of the introduction of the new roster was a reduction in staffing levels.  The worker’s concerns relating to staffing levels combined with the other consequences of the introduction of the roster, as found by the Arbitrator, wholly or predominately contributed to the worker’s psychological injury. [65]

(5) The onus of proof with respect to matters raised pursuant to s11A is upon the employer and the question of reasonableness is one of fact.  The proper construction of s11A and the meaning of “reasonable action” was considered by Armitage J in Ritchie v Department of Community Services (1998) 16 NSWCCR 727 where his Honour at [48] stated that there was a need to have “…regard to the fairness appropriate in the circumstances”. Having regard to this approach, a determination as to whether Qantas’ action was reasonable involved an examination of the action itself and the circumstances together with the consequences of that action. [70]

(6) Qantas asserted that the transfer or promotion of the worker was necessary as one of the means of meeting the challenges of a highly competitive market.  An intrinsic element of that action was the provision of the new roster.  A circumstance relevant to the question of reasonableness is the fact, unchallenged by Qantas, that before accepting the terms of the new employment contract the worker sought an indication from Qantas that the existing rosters were to be adhered to.  On review, a finding was made that an indication had been given, and an inference was drawn that the worker was induced to seek the transfer, in part, upon the basis of that indication.  Although the new contract provided for a potential change to rosters and an express exclusion concerning any earlier representations, the imposition of the new roster contradicted those earlier indications.

(7) The evidence revealed that the worker’s original manager, prior to removal from his position, was prepared to contemplate amendment to the roster, the worker having devoted time and energy to the task of amending the roster.  Following his departure, management was unwilling to make any changes however the worker’s evidence, accepted on review, was that following her injury the changes suggested by her were made to the roster, inferring that the need for change was occasioned by the inadequacy of the original roster. [77]

(8) The inadequacy of the roster was demonstrated by the inappropriate deployment of staff, which created shortages and caused staff to be overworked.  The worker’s evidence, in this regard, was not challenged by Qantas. [78]

(9) The transfer of the worker to the new role constituted a promotion.  Notwithstanding that promotion it was clear on the evidence that by reason of the roster introduced at the inception of the new regime, the worker and her fellow full-time employees were financially disadvantaged.

(10) The fact that the rosters provided contradicted earlier indications, created shortages and disrupted the workers domestic life and the worker and others suffered a financial disadvantage, were unfair consequences of Qantas’ relevant action and as such that action was not reasonable within the meaning of s11A.  Qantas failed to establish reasonableness in its defence raised under 11A.

Youshia v Storm International Pty Ltd [2009] NSWWCCPD 112

Injury – whether the worker’s evidence was sufficient to discharge the onus of proof

Moore ADP

8 September 2009

Facts:

The worker was employed as a cleaner with Storm International and alleged that he injured his back at work on 31 July 2008 while pushing a large industrial cleaning machine. He continued to work for a week and on Sunday 10 August 2008 he consulted a Dr Than Aung who certified him unfit for work from 11 to 15 August 2008.  He returned to work on 11 August 2008, did not perform any duties and has not resumed work since.  On 12 August 2008 he consulted his usual doctor, Dr Atto.

The worker made a claim on 22 September 2008 and payments were made to 5 November on a provisional basis. On 7 January 2009 the worker lodged an ARD seeking weekly benefits from 1 August 2008 together with medical expenses.

The Arbitrator was not satisfied that the injury occurred on the date and the manner alleged by the worker and found that the worker had failed to discharge the onus of proof.  An award was made in favour of Storm International.

The worker appealed. The evidence as to the date of onset of symptoms recorded by Dr Aung and Dr Atto was conflicting.

The main challenge was to the Arbitrator’s findings that the medical evidence was conflicting and contained inconsistencies particularly in relation to her interpretation of a medical report of Dr Atto’s dated 11 December 2008 in which the term “later on” was used.  The worker submitted that it was clear that he had told Dr Atto of his work injury “later on” during the initial consultation on 12 August 2008, not sometime after the consultation.

Held: Arbitrator’s decision confirmed

(1) The Arbitrator’s analysis of evidence on this issue was thorough and correct.  Taken in the context of the entirety of the 11 December 2008 report from Dr Atto, together with the other evidence, the worker’s evidence was “inconsistent”.

(2) There was no escaping the conflicting medical evidence that suggested that the onset of symptoms was either 3 or 10 August 2008 and that the only evidence that symptoms arose on 31 July 2008 came from the worker himself, his wife and his friend, Mr Faroud.

(3) There was also some doubt as to whether the worker was using the particular machine said to have caused injury on the day alleged, and some doubt as to whether the worker reported the injury as he claimed.

(4) The onus was on the worker to establish that his injury occurred as claimed.  His evidence fell short of that requirement.

AC v AD [2009] NSWWCCPD 110

Sections 11A, 38, 38A and 40 of the 1987 Act – psychological injury - causation of injury

O’Grady DP

7 September 2009

Facts:

The worker held a senior position as chief information officer with the appellant.  In 2007 organisational changes were effected requiring her to report to the corporate services manager (CSM).  In May of 2007 a manager of information services (MIS) was appointed. Following his appointment, tension existed between this individual and the worker, leading to considerable conflict.

During the second half of 2007 the worker approached senior officers of the appellant concerning the behaviour of the MIS.  The worker stated that she felt she had been “marginalized”, encountered difficulties communicating with him and that little if any effective assistance was given by management to resolve the matters raised.

In September 2007 the worker by chance came across a memorandum (dated 13 September 2007) created by the MIS containing an allegation of a “security breach” and illegality on the part of the worker.  Following this discovery, she informed the CSM of her awareness of the contents of the memorandum and the relevant circumstances of the suggested security breach. She told the CSM that she viewed the matter “very seriously” and requested that the matter “be cleared up asap”. The CSM took steps that day to arrange an external investigation of the allegations contained in the memorandum.

The worker commenced annual leave on 28 September 2007.  On 25 October 2007, the external investigators interviewed her concerning the allegations made. She was informed that the documents she had compiled and entrusted to the appellant had not been handed to the external investigators.

On 27 October 2007 the worker ceased work and did not return by reason of psychological injury received in the course of her employment.  She remains incapacitated for work.

Provisional payments of weekly compensation benefits were made. On 18 January 2008 the worker received notice (s74) of the insurer’s intention to terminate payments on 15 February 2008.  An ARD was filed on 4 November 2008 with the date of injury (psychological) alleged by the worker as being “in or after May including November 2007.”

The Arbitrator awarded the worker weekly compensation payments pursuant to s36, s38 and ongoing weekly compensation pursuant to s40.  The employer appealed the decision citing several grounds of appeal, including that the Arbitrator’s finding of psychological injury as a result of “nature and conditions of her employment” prior to being certified unfit in October 2007, and errors concerning the application of the provisions of ss 11A, 38 and 40 to the facts. The worker in her Opposition to the appeal challenged the Arbitrator’s determination as to quantum of her entitlement from 26 February 2009 to date.

Held:  Arbitrator’s decision revoked in part.  Worker awarded weekly benefits pursuant to s 40 and s 60 expenses.

(1) The evidence clearly established that the discovery by the worker of the MIS’s memorandum was a causative factor, along with the prolonged difficulties experienced with the MIS during the antecedent months, of psychological injury suffered by the worker, which resulted in incapacity from late October 2007 onwards. [57]

(2) The appellant relied on the MIS’s memorandum and the worker’s discovery of its contents, as being disciplinary action as founding the defence raised pursuant to s 11A.  Reliance was placed on Yeo v Western Sydney Area Health Service t/as Cumberland Hospital [1999] NSWCC 1 (‘Yeo’).

(3) The present case was distinguishable from Yeo as there was no relevant “communication” by the appellant to the worker of the contents of the memorandum and at the time it was discovered by the worker, there was no disciplinary process in place.

(4) A further finding was made, assuming the action was within s11A, that her acquisition of knowledge of the memorandum occurred as a result of the appellant’s failure to act reasonably. Hence the injury occurred not wholly or predominately as a result of reasonable action with respect to ‘discipline’. [59].

(5) The question arose as to whether the offer of work made by the appellant was in respect of “suitable employment” and if so whether the worker was ready, willing and able to accept such an offer.  This question was not addressed by the Arbitrator and required review.

(6) The worker is only entitled to the benefit of s 38(1) if compliance with s 38(4) is established. Section 38A(2)(a) provides that a worker is not to be regarded as seeking suitable employment unless the worker is ready, willing and able to accept an offer of suitable employment from the employer.

(7) Considering the totality of the evidence, the work offered by the appellant to the worker was “suitable employment” having regard to the nature of the worker’s incapacity and all relevant circumstances.  It was clear on the evidence that the worker was unwilling to accept that work.  Such unwillingness to accept this offer disentitled the worker to the benefit of the operation of s 38 and a redetermination of the worker’s s 40 benefits was required.

E v Sydney South West Area Health Service (Concord Hospital) [2009] NSWWCCPD 108

Claim for an increase in weekly benefits and lump sum compensation – whether medical treatment was “reasonably necessary” – ss 40, 60 and 66 of the 1987 Act

Moore ADP

28 August 2009

Facts:

In May 2002 the worker injured his back while employed as a security officer at Concord Hospital.  He was treated for this injury and continued to work up until August 2002 when he ceased work.  He had previously injured his back with another employer in 1999.  This was the subject of proceedings in the Compensation Court in 2000 and settled by way of commutation.

In 2005 the worker commenced proceedings in the Commission in relation to the 2002 injury.  These proceedings resolved in 2006 by way of consent orders in which he was awarded s66 payment in respect of 7% WPI lumbar spine, weekly compensation of $100.00 from 22 June 2004 and reasonable s60 expenses.

In February 2009 the worker lodged an ARD seeking an increase in weekly benefits; payment of outstanding s60 expenses, an increase in WPI to his back (now 9%); s66 entitlements for nervous system (sexual organs) and digestive system (anal fissure) and pain and suffering compensation.

The Arbitrator in his COD dated 12 May 2009 referred to an AMS the digestive system (anal fissure) injury with the lumbar spine to be reviewed as to any deterioration since the previous MAC.  He found no basis for the further claim for sexual dysfunction.  Weekly compensation was awarded at the rate of $150.00 from the date of the award and payment of one half of the treatments by Dr Papacosta.

The worker appealed the decision submitting that the Arbitrator erred in the weekly payments award (being the Arbitrator’s exercise of discretion and commencement date of award), the award for s 60 expenses and the s 66 claim for injury to the nervous system (sexual organs).

Held

(1) Section 40(1) provides a broad discretion to make an award in an amount considered “proper in the circumstances of the case (see Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50).  The Arbitrator adequately set out the basis for the exercise of his discretion although in some respects incorrect, however, there was ample evidence to support the Arbitrator’s findings that the worker’s complaints of significant neck and arm pain together with his “psychological condition” and his prior injuries suffered in 1999, were proper factors to take into consideration in assessing any award [69] – [75].

(2) The correct approach was to date the s40 award from the date of the ARD, 9 February 2009.

(3) The Arbitrator’s orders discounting Dr Papacosta’s account to date was appropriate however the other claims for outstanding s 60 expenses were not dealt with and in the circumstances, failing any agreement between the parties, the matter was remitted to the Arbitrator for determination of any outstanding expenses.

(4) The onus of establishing whether there had been a deterioration of sexual function lay with the worker.  If there was plausible evidence of deterioration he was entitled to have it assessed (Gane v Dubbo City Council [2007] NSWWCCPD 140).  Considering all the evidence in context, it was arguable that there was a “genuine claim” for the deterioration in sexual function consequent upon a deterioration of the back condition, such that the worker was entitled to have that claim assessed in terms of a review as to any deterioration since the previous MAC. [90].

Brambles Industries Limited v Bell and Anor [2009] NSWWCCPD 115

Section 4 of the 1987 Act – causation of injury

O’Grady DP

17 September 2009

Facts:

Brambles employed the worker as a truck driver in 2000. In 2003 he suffered an injury to his back in the course of his employment. He sought treatment from his general practitioner and remained working for several weeks, performing suitable duties in Brambles’ office.   He returned to his pre-injury duties and on three occasions suffered a recurrence of back disability, which required medical treatment.

In May 2007 he commenced employment with Morrison Recruitment (second respondents) as a truck driver operating a side loading garbage truck.  In June 2007 he was involved in a motor vehicle accident when the garbage truck he was driving overturned.  He suffered numerous injuries and lodged a claim with the second respondents, which was accepted.

In July 2007 he commenced work with Integrated Group driving prime movers and making deliveries.  In September 2007 the worker awoke suffering from a recurrence of painful symptoms in his lower back preventing him from resuming his work. He made a workers compensation claim against Brambles which was declined.  He has not resumed employment.

The worker lodged an ARD with the Commission in September 2008.  Brambles filed an application to have the second respondents joined as respondents to the proceedings.  The Arbitrator made an award in favour of the worker solely against Brambles.

Brambles appealed the decision challenging the Arbitrator’s reasoning which led to a determination that they were solely liable for payment of the worker’s benefits and that he had erroneously considered and applied the provisions of ss4 and 16 of the 1987 Act.

Held:  Arbitrator’s decision confirmed and additional order in favour of the second respondents made

(1) The worker’s entitlement to the award in respect of weekly payments was not the subject of dispute on appeal.  The real issue agitated both before the Arbitrator and on appeal was the question as to what was the cause of that accepted incapacity.

(2) The worker had made only one allegation of injury (2003 incident) although there was a suggestion in the ARD that the “nature and conditions” of his work with Brambles following that incident had caused injury.  Brambles joined the second respondents to the proceedings alleging that the injury in July 2007 caused or exacerbated injury to the worker’s back.

(3) Section 4 defines “injury” with the inclusion of aggravation etc of a disease in that definition, whereas s16 makes provision with respect to identification of the employer liable for any compensation payable in circumstances where a disease has been aggravated.

(4) While the Arbitrator expressly found that the injury was not one “resulting from a disease process” his reasoning demonstrated error.  The proper application of those provisions required the Arbitrator to determine whether or not the state of the worker’s lumbar spine (as demonstrated on the CT scan in 2003) was such that it could be said that there was an underlying disease process present.  The Arbitrator did not address that question and spoke in terms of injury not “resulting from a disease process”. [87]

(5) The Arbitrator found that the worker suffered “exacerbations” subsequent to the 2003 injury, which included the motor vehicle accident in June 2007, however declined to determine “that each subsequent incident was a new injury”.  The Arbitrator’s use of the word “exacerbations” was not explained in the course of reasons nor was there any findings made as to the consequences, if any, of such exacerbations.  In the circumstances a review of the evidence was required to determine whether the Arbitrator’s findings were true and correct (State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 per Spigelman CJ at [30]). [88]

(6) There was no suggestion on the evidence that the worker experienced any disabling pain in his lumbar spine prior to the 2003 incident.

(7) The evidence established that, on the probabilities, following injury in 2003, whilst the worker suffered disc damage at two levels, there was no relevant disease process in place.

(8) The subsequent recurrence of symptoms on occasions at work (3 times with Brambles) and the motor vehicle accident in 2007, had been the result of temporary aggravations of the underlying disc damage received in January 2003, and in those circumstances, there was no basis for any apportionment of liability to pay compensation as between Brambles and the second respondents. [99]

BHP Billiton Limited & Anor v Bourke & Ors [2009] NSWWCCPD 117

Adequacy of reasons – causation - apportionment under sections 22 and 22A of the 1987 Act

Snell ADP

22 September 2009

Facts:

Mr Bourke worked as a stevedore from about 1968. The identity of his employer changed from time to time, resulting in the multiplicity of parties in the proceedings, although there was no change in the nature of his work, which was heavy.

BHP employed Mr Bourke at the time of injuries to his right foot alleged to have occurred on 7 October 1984 and 28 June 1986. The next pleaded injury was to the left shoulder on 9 November 1996, during BlueScope’s employ and for which BlueScope paid lump sum compensation for loss of use of the left arm. The last pleaded injury was to the lower back and right shoulder which occurred on 19 May 2005, with Toll. There was also an entry in the injury book for a right foot injury on 15 July 1981 when Mr Bourke’s foot was crushed between steel plates, but this injury was not pleaded.

The ARD sought weekly and lump sum compensation for all pleaded injuries, including further loss of use of the left arm. Liability was disputed by the three employers.

The Arbitrator ordered payment of weekly compensation to Mr Bourke in the proportion of 10% by BHP, 30% by BlueScope and 60% by Toll, medical expenses payable in respect of injuries received as applicable by each employer, and referred the ss66/67 claim to the Registrar for referral to an AMS.

BHP appealed the part of the decision that found Mr Bourke suffered injury in 1984 and the 10% of the weekly award apportioned against it. Bluescope appealed the decision that it was liable to contribute 30% of the weekly award. There was no real dispute as to the occurrence of the pleaded incidents in 1984 and in 1986. The issue was whether there was a causal relationship between either of those incidents, and the symptoms in the right foot from which Mr Bourke now suffers.

Held – Arbitrator’s decision was revoked in part. An award for BHP in respect of the claim to the right foot. Liability to pay weekly compensation apportioned one third to BlueScope and two thirds to Toll. Lump sum claim to be referred to AMS.

(1) Applying a commonsense evaluation of the sequence of events (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271 at [90] and [91]), it was unlikely that the right foot fracture occurred on 7 October 1984. Mr Bourke’s statement described the incident as minor, requiring no time off work and recovering in a day or two. [45]

(2) The only medical opinion to the effect that the fracture occurred in 1984 was that of Dr Bornstein who was not made aware of the incident in 1981. To that extent, the assumptions on which Dr Bornstein prepared his report did not provide a fair climate for an opinion on the likelihood of the fracture occurring in 1984. [48]

(3) Similarly, the incident in 1986 involved no medical treatment and no time off work and was therefore unlikely to have caused a fracture of the right great toe. [52]

(4) Mr Bourke submitted that it was irrelevant which of the three known work incidents caused the fracture, because given that they all occurred at work, compensation was payable. The difficulty with this submission was that the foot incident in 1981 was not pleaded. Although a claim form had been lodged, no subsequent claim for weekly or other benefits had been made nor was it mentioned in the ARD. Ss 289 and 289A of the 1998 Act would have prevented the claim in respect of the 1981 injury being referred to the Commission, in the absence of a dispute or a failure to determine the claim. [57]

(5) Fleming DP said in Far West Area Health Service v Radford [2003] NSWWCCPD 10 (‘Radford’) at [24] “In the informal, less technical environment of the Commission it is not necessary or desirable to rely upon strict pleadings to define the issues between the parties.” However a party is entitled to notice of the nature of the claim against it, and an opportunity to respond: Radford at [34].  The Commission is obliged to act “in accordance with the obligations of procedural fairness and natural justice”: South West Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [91]. It would be a breach of procedural fairness if the decision-maker were to find a causative injury that had not been raised in the pleadings (or other documents that assisted in defining the issues between the parties), and to which BHP had not had an opportunity to respond. [58]

(6) In the proceedings as they were pleaded, it was impossible to properly make a finding that the fracture occurred in the 1981 incident although that incident clearly had the most significant consequences at the time of its occurrence. The claim in respect of the right foot must fail. [59]

In respect of BlueScope’s appeal on apportionment:

(7) Section 22A sets out an approach to apportionment between employers, on a time basis, that can be departed from in an appropriate case. [69] S22(1A) widens the meaning of the expression “results from more than one injury”, Clarke JA in Sutherland Shire Council v Baltica General Insurance Co Ltd & Ors (1996) 12 NSWCCR 716 at 727A:

“What is involved in the wider test introduced by section 22(1A) is an enquiry whether the incapacity was so connected with a number of injuries that, as a matter of ordinary commonsense and experience, it should be regarded as having resulted partly from all or any of them”

(8) The evidence established that the injury with BlueScope in 1996 materially contributed to Mr Bourke’s incapacity. Therefore apportionment of the weekly award was available, pursuant to s 22. [88], [89]

(9) A fair approach to apportionment would be on the basis of what is just and equitable in the circumstances, by looking to the extent to which the different injuries had contributed to the ultimate outcome (HIH Workers Compensation (NSW) Pty Ltd v GIO General Ltd (2000) 21 NSWCCR 108 Campbell CJ). Based on the evidence, apportionment was deemed appropriate at one-third to BlueScope for the left shoulder injury and two-thirds to Toll in respect of the back and right shoulder. [106]

The Bright Group Pty Ltd v Akdeniz  [2009] NSWWCCPD 113

Mistreatment of the evidence - partial incapacity - s 40 award

Keating J

14 September 2009

Facts:

Ms Akdeniz was employed as a process worker soldering electronic components. She alleged injury as a result of using a press machine on 4 September 2003 and as a result of the nature and conditions of employment for an unspecified period. She claimed weekly compensation payments from 1 October 2004 to date and continuing and lump sum compensation under ss 66 and 67, and a general order under s 60.

A Certificate of Determination – Consent Orders’ issued dated 9 October 2008, which contained an order referring neck and left and right upper limb injuries to the Registrar for referral to an AMS, to assess WPI.

Dr Breit, AMS, issued a MAC certifying 6% WPI for the cervical spine and 4% WPI for the right upper extremity and 0% WPI for the left upper extremity.

Prior to the arbitration commencing the parties reached agreement in respect of the claims under ss 66 and 67. Bright Group agreed to the entering of an award in Ms Akdeniz favour under s 66 in accordance with the MAC and $7,500.00 under s 67 for pain and suffering.

The claim for weekly compensation benefits proceeded to arbitration hearing.

The Arbitrator made an award under s 40 in favour of the worker.

Appeal:

The employer appealed submitting that the Arbitrator failed to make a finding of injury or a finding as to the nature of the injury, and mistreated the medical evidence.

Held – award confirmed but for reasons in Presidential decision

(1) The submission that the Arbitrator erred in not making a finding of injury or a finding as to the nature of the injury was without merit because the parties reached agreement on injury six months prior to the arbitration hearing and agreed to compensation payments under ss 66 and 67 prior to the arbitration hearing in accordance with the MAC.

(2) The MAC was not the subject of an appeal under s 327 of the 1998 Act and was therefore conclusively presumed to be correct as to the degree of permanent impairment as a result of an injury (s 327(1)(a) of the 1998 Act).

(3) The word “permanent” in s 66(1) has been held to mean “will persist in the foreseeable future” (see Brown v Grafton Base Hospital (2002) 24 NSWCCR 45 at [141]-[142]).

(4) Whilst an assessment of disability under s 66 is different from an assessment of incapacity, the AMS assessment of permanent impairment was binding evidence of a continuing disability as a result of the work injury and was probative evidence that must be weighed in the determination of incapacity for work and her ability to earn in the labour market available to her (see Total Steel of Australia Pty Limited v Waretini  [2007] NSWWCCPD 33 at [39] and Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155).

(5) The Arbitrator failed to discharge his duty to assess the probative value of the evidence before him, and the weight to be attached to it (see Singh v FTW Products Pty Ltd [2007] NSWWCCPD 230 at [65]-[66]), because his Statement of Reasons neither disclosed what weight, if any, he gave to Dr Acar’s opinion, given that he made no reference to Dr Acar’s evidence nor disclosed that he weighed and assessed Dr Breit’s evidence.

(6) His Honour however found after analysing the evidence, that the error made no difference to the ultimate finding that Ms Akdeniz continue to suffer from the ongoing effects of the work injury.

(7) In the alternative, if it was intended by the Appellant to concede injury and the 10% WPI but to argue that Ms Akdeniz had no incapacity as a result of the work injury, his Honour also rejected that argument and found, taking into account the factors in section 43A, and the open labour market reasonably accessible to her, that Ms Akdeniz had a physical incapacity resulting in a partial incapacity for work (see Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; (1985) CLR 171).

Other

(8) His Honour also rejected the Appellant’s submission that pending the appeal, it be granted a stay of the Arbitrator’s award and that interest not run during the period of the stay because the legislation makes no provision for a stay pending a s 352 appeal. A successful worker is entitled to the benefit of any award in his or her favour from the date the award or order is made.

Greater Western Area Health Service v Greening [2009] NSWWCCPD 109

Extending time to appeal - leave to appeal - weight of evidence

Keating J

3 September 2009

Facts:

Ms Greening sought lump sum compensation under ss 66 and 67 for injuries to her thoracic and lumbar spine arising from the heavy and/or repetitive cleaning duties she performed at the Canowindra Soldiers Memorial Hospital.

The Arbitrator found in favour of the worker on the issue of injury and referred the matter for AMS assessment.

Appeal:

The employer lodged an appeal one day outside the 28-day time limit set out in s 352(4) of the 1998 Act submitting that the Arbitrator erred in giving any, or any substantial weight, to the expert opinion of Dr Burgess because his opinion is a bare ipse dixi and in finding that the worker had established injury within the meaning of s 4 of the 1987 Act.

The explanation for the delay was that the solicitor with carriage of the matter was away from the office on a family emergency and unable to receive confirmation of instructions to proceed with the appeal prior to the expiration of the appeal period and these were “exceptional circumstances” that warranted an extension of one day.

Held – leave to appeal refused

(1) Leave to appeal was refused because the appeal lacked merit.

(2) His Honour found that Dr Burgess had undertaken a detailed examination of Ms Greening, and provided a detailed report of his findings. The submission that Dr Burgess failed to adequately explain his opinion or that his report failed to meet the requirements for expert opinion set out in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 was rejected.

(3) Part 16 Rule 16.2(11) of 2006 Rules governs an extension of time in which to appeal. Rule 16.2(11) provides:

“(11) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

(4) Having analysed the issues argued on appeal, his Honour concluded that the appeal had no merit and would have failed, if time to appeal were extended.  The refusal to extend time to appeal did not result in any injustice to the Health Service.

(5) In the alternative, it was necessary to consider whether “exceptional circumstances” existed.  The Health Service provided no information concerning the period the solicitor was absent from the office, nor details as to when it occurred within the context of the allowed appeal period, nor the nature of the emergency concerned.  No information was provided to explain why the absence manifested itself in a failure to obtain the necessary ‘confirmation of instructions’.

(6) “Exceptional circumstances” were therefore not demonstrated such that to lose the right to seek leave to appeal would work a demonstrable and substantial injustice.