Issue 11: November 2009

Welcome to the Eleventh edition of ‘On Appeal’.

Edition 11 - November 2009 includes a summary of the October 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

Court of Appeal Decisions:

Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324  4

Whether employment a substantial contributing factor to injury – causation – substantial meaning real or of substance – separate test to whether injury arising out of employment for 1987 Act s9 – error in point of law – misconstruction of statutory provision – Mercer v ANZ Banking Group [2000] NSWCA 138 (‘Mercer’)

Watson v Qantas Airways Limited [2009] NSWCA 322. 7

Injury in the course of employment or arising out of employment – injury occurring away from place of employment – injury occurring away from employee’s home – characterisation of overall period of work – error in point of law – error apparent in expression of principle – failure to direct adequately to test in binding High Court authority – ss 4 and 9A

Kajic v Hawker De Havilland Aerospace Pty Ltd [2009] NSWWCCPD 136. 9

Novel or complex question of law - section 60AA(3) of the 1987 Act - gratuitous domestic assistance

Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137. 12

Injury – reconsideration - s350(3) of the 1998 Act - medical expenses - s60 of the 1987 Act - failure to determine issues in dispute

Mather v BHP Billiton Limited [2009] NSWWCCPD 129. 14

Application for an increase in an award – adequacy of evidence – whether the inference drawn that the worker had ‘retired’ was appropriate – exercise of discretion

Willoughby City Council v Kevric [2009] NSWWCCPD 140. 16

Injury - aggravation of disease - inadequate evidence by worker - application of Rail Services Australia v Dimovski & another [2004] NSWCA 267; (2004) 1 DDCR 64 - whether the worker provided relevant particulars of his claim for lump sum compensation

Moon v Conmah Pty Limited [2009] NSWWCCPD 134. 18

Consequential loss – alleged estoppel from consent order

Work Cover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler [2009] NSWWCCPD 127. 20

Proof of non-insurance – proof of a negative – nominal insurer as model litigant

Davilla v ISS Facility Services Australia Ltd and Gemarn Pty Limited [2009] NSWWCCPD 130  22

Identification of employer – s162 of the 1987 Act - need for precision in particularizing injury – need for remitter

Trustees of the Order of Sisters of St Paul de Chartres v Kearney [2009] NSWWCCPD 131  24

Injury - nature of a review - application to further cross-examine worker on review -application of Fox v Percy [2003] HCA 22, (2003) 214 CLR 118

East Coast Timber Products Pty Ltd v Hancock [2009] NSWWCCPD 123. 27

Injury – causation - whether the worker had discharged the onus of proof

Andersen v Manpower Pty Ltd  [2009] NSWWCCPD 139. 30

Psychological injury – weight of evidence – ss 4, 9A and 11A of 1987 Act

Alikhani v A & K Insulation Pty Limited [2009] NSWWCCPD 126. 32

Injury – causation - onus of proof - application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124. 33

Psychological injury - treatment of evidence and issues - s11A of the 1987 Act - s74 of the 1998 Act - failure by insurer to properly identify issues in dispute

Narasell Pty Ltd as Trustee for Heath Newton Family Trust v Evers [2009] NSWWCCPD 135  35

S 40 of the 1987 Act - weight of evidence - vocational assessment report

Briggs Veneers Pty Limited v Ayoub [2009] NSWWCCPD 138. 37

Ss 36, 37 and 40 of the1987 Act – total incapacity – partial incapacity – ability to earn

Huhtamaki Australia Pty Limited v Singh [2009] NSWWCCPD 128. 39

Total incapacity - ss 38 and 38A of the 1987 Act

Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125. 41

Injury – notice – incapacity – weight of evidence – exercise of discretion

Star City Pty Limited v Jerusalem [2009] NSWWCCPD 132. 43

Incomplete transcript of arbitral proceedings – need for remitter

Q Catering Limited (wrongly sued as Caterair Airport Services (Sydney) Pty Ltd) v Tzifas [2009] NSWWCCPD 133. 45

Costs where appeal discontinued by appellant

Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122. 46

Leave to appeal – application of s352(2) of the 1998 Act

Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi (No.2) [2009] NSWWCCPD 141. 47

On remitter from the Court of Appeal

Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324

Whether employment a substantial contributing factor to injury – causation – substantial meaning real or of substance – separate test to whether injury arising out of employment for 1987 Act s9 – error in point of law – misconstruction of statutory provision – Mercer v ANZ Banking Group [2000] NSWCA 138 (‘Mercer’)

Allsop P; Beazley JA; McColl JA; Basten JA; Handley JA

8 October 2009

Facts:

• The worker sustained a knee injury when she was on a business trip with her supervisor at the Perisher Blue Ski Resort.  The purpose of the business trip being to secure the Resort as a client for the respondent.
• When the Resort’s representative withdrew from a previously arranged commitment to go skiing on the final day of the business trip, the worker and her partner went skiing at that time anyway.
• While skiing, her supervisor telephoned her and requested that she return to the Resort to discuss further business matters before they retuned to Sydney.  The worker started to ski down the mountain to the Resort and fell, injuring her knee.
• The worker claimed workers compensation for the injury. Liability was denied on the basis that she was not skiing with the client or her supervisor when the injury occurred.  An Arbitrator upheld the worker’s claim.
• On appeal that decision was overturned by the President (Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72) who held that the worker’s employment was not a substantial contributing factor to the injury as required by s9A.
• The President considered that once the Resort’s representative, her client, withdrew from the skiing arrangement, the appellant’s own skiing was, at most, incidental to her employment and therefore that activity in which she was engaged when she received her injury was not “work for, or an activity of, the employer”.
• Ms Badawi appealed to the Court of Appeal.  The question on appeal being whether the Presidential member had erred in point of law when addressing the requirements of s9A and the interaction between ss 4, 9 and 9A.
• The appeal was heard together with the appeal in Watson v Qantas Airways Limited [2009] NSWCA 322 (‘Watson’), to deal, in particular, with the proper construction of s9A and the Court’s decision in Mercer.  In Watson it was contended that if Mercer was understood to be authority for the proposition that where an injury arises out of employment that employment will be a substantial contributing factor to the injury, then Mercer was wrong and leave to re-argue the decision was sought.

Held: Allsop P; Beazley JA; McColl JA – appeal allowed and remitted back to Commission

Error of law

The only question in issue before the President was whether the appellant’s employment was a substantial contributing factor to her injury within the meaning of s9A, the respondent having conceded at the hearing before his Honour that the appellant was in the course of her employment when the accident occurred.

The headnote to the Court’s decision states:

(1)   The tests for an injury “arising out of” employment under ss4 and 9 and for employment being a “substantial contributing factor” under s9A must be considered separately.  Not sufficient to find that injury arose out of employment and to conclude that the employment concerned was a substantial contributing factor to the injury: [85], [91];

(2) The meaning of an injury “arising out of” employment for the purpose of ss4 and 9 is settled.  An injury arises out of employment if the fact that the claimant was employed in the particular job causes, or to some material extent contributed to the injury.  The phrase involves a causative element and is to be inferred from the facts as a matter of common sense: [73] – [76];

(3) The phrase “substantial contributing factor” in s9A also involves a causative element.  It is a different or added requirement to the “arising out of” employment limb of ss4 and 9, however the causation required for s9A is not less stringent than that found in s9. Mercer v ANZ Banking Group [2000] NSWCA 138 not followed: [80]-[85];

(4) For employment to be a “substantial contributing factor” to the injury for the purposes of s9A, the causal connection must be “real and of substance”.  The language of the section is not to be confused with interpretations such a “large”, “weighty” or “predominant”. Mercer not followed. [82]-[83], [107];

(5) “Employment” for the purposes of s9A is the same “employment” that is under consideration in ss4 and 9: [91];

(6) In determining whether worker’s employment was a substantial contributing factor the matters specified in s9A (2) must be taken into account to the extent they are relevant: [89];

(7) S9A(2)(b) directs attention to the nature of the work performed and the particular tasks of that work and not to what the employee was doing at the actual time of the injury. It is an incorrect approach to consider some other activity other than the employment that had preceded the injury and then seek a linkage with the employment from the standpoint of that preceding activity: [95] – [98], [105];

(8) The Presidential member’s failure to consider s9A(2)(b) by reference to the work performed and the particular tasks of that work involved a misconstruction of the provision and an error in point of law: [99] – [100];

(9) Once it is accepted that “substantial” in this case means “in a manner that is real or of substance” the only answer when the test is applied to the facts of this case was that the contribution of the worker’s employment to her injury were real or of substance: [107].

Basten JA concurring:

(10) The causal test imposed by s9A is more stringent than that imposed by s4: [113]; Mercer not followed.

(11) If the conduct out of which the injury arose occurred in the course of employment and was the effective cause if the injury, absent misconduct on the part of the employee, the only conclusion reasonably open is that the employment was a substantial contributing factor to the injury.  The Commission erred in focusing upon an issue that had been conceded, namely whether the activity the claimant giving rise to the injury was undertaken in the course of the employment: [128] – [129]; Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 applied; Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; McMahon v Lagana [2004] NSWCA 164 referred to.

(12) Given its statutory context s9A should be construed so as not to differentiate between activities arising within the course of employment so that some may be found to be substantial contributing factors and others not.  Activities which occur during an interval between employment activities, as identified in Hatzimanolis, are not to be treated different from other activities in the course of employment: [135]”

Watson v Qantas Airways Limited [2009] NSWCA 322

Injury in the course of employment or arising out of employment – injury occurring away from place of employment – injury occurring away from employee’s home – characterisation of overall period of work – error in point of law – error apparent in expression of principle – failure to direct adequately to test in binding High Court authority – ss 4 and 9A

Allsop P; Beazley JA; McColl JA; Basten JA; Handley JA

8 October 2009

Facts:

• Mr Watson was a pilot employed by Qantas.  Whilst in Los Angeles on a “lay over”, he was seriously injured in a car accident, which occurred when he was returning to his hotel after visiting friends.  The accident was the fault of the other vehicle in the collision.
• At first instance in the Commission the Appellant was awarded compensation.  Qantas appealed and the Presidential member revoked the Arbitrator’s decision and entered an award in its favour.
• Mr Watson appealed to the Court of Appeal submitting DP Byron erred in point of law in holding that the injury did not fall within the requirements of ss 4 and 9A of the 1987 Act because the worker was not in the course of his employment when the accident happened, nor did the accident arise out of employment.

Held:  Allsop P; Beazley JA; McColl JA, Basten JA; Handley JA – appeal allowed and remitted back to Commission

The headnote to the Court’s decision reads:

(1)   Hatzimanolis v ANI Corporation Ltd [1992] HCA 21 (‘Hatzimanolis‘) reformulated the test to be applied in determining whether an employee’s injury could be characterized as occurring “in the course of employment” for the purposes of ss4 and 9 and provides the approach to be taken and the test to be applied. [9], [15] – [16]

(2) In Hatzimanolis it was held that an injury sustained during an interval in an overall period or episode of work will ordinarily be seen as occurring in the course of employment when the employer, expressly or impliedly, has induced or encouraged the employee to spend the interval or interlude at a particular place or engaged in a particular activity and the injury occurs at that place or during that activity, unless the employee is guilty of gross misconduct: [27], [29].

(3) The reformulated test in Hatzimanolis requires in the first instance a determination or characterization of the period or periods of work as one overall period or episode of work or two or more period or episode of work: [30], [58]

(4) Once the period of work of the employee is characterized, the circumstances of the injury, including how the interval between actual performance of work was spent, is to be analyzed in that framework: [30], [58]

(5) There was an error of law in the failure of the Presidential member to direct himself in accordance with the reformulated test in Hatzimanolis and therefore the Presidential member effectively asked himself the wrong question. [9]

Per Basten JA, concurring

(6) The principles to be applied in determining whether an injury occurs in the “course of employment” are identified in Hatzimanolis, although the language used by the High Court as appropriate in the circumstances of that case, may not chart the outer limits of the principle: [70], [86], [94]

(7) Although the claimant was unsuccessful on the issue of causation, whether or not the injury occurred in the course of employment may be a relevant matter to be taken into account in determining causation: [77]

Henderson v Commissioner of Railways (WA) [1937] HCA 67; Roncevich v Repatration Commission [2005] HCA 40,

(8) The determination of whether an injury occurred in the course of employment requires a consideration of the general nature, terms and circumstances of the employment.  The Commission erred by failing to pay due regards to these factors: [82], [100].

Hatzimanlois; Danvers v Commissioner for Railways (NSW) [1969] HCA 64; White v Qantas Airways Ltd (unrep, NSWWCC 23 June 2006); Qantas Airways Ltd v Kirkland (unrep, NSWCA, 9 October 1980),

(9) Failure to pay due regard to a material factor may render the decision of the Commission erroneous in point of law: [114]. (HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292)”.

Kajic v Hawker De Havilland Aerospace Pty Ltd [2009] NSWWCCPD 136

Novel or complex question of law - section 60AA(3) of the 1987 Act - gratuitous domestic assistance

Keating P

22 October 2009

Question of Law:

Does ss 60AA(3) of the1987 Act constitute more than an evidentiary threshold entitlement requirement, and if so, is it to be read in conjunction with the WorkCover Guidelines for the Provision of Domestic Assistance dated 15 October 2004, so as to impose a maximum level of compensation payable under s 60AA to a care provider, limited by the amount of any lost income or value of the forgone employment sustained by the care provider?

Leave:

The issue concerning the construction of the statutory provision and the subordinate legislation constituted by the relevant WorkCover Guidelines was both novel and complex, and in the absence of any prior authority on the issue it was appropriate to grant leave to refer the question of law.

Determination:

(1)      Workers compensation legislation is beneficial in nature.  In beneficial legislation where any ambiguity exists it is to be construed beneficially.  The true significance of the provision should not be strained or exceeded, but it should be construed so as to give the fullest relief, which the fair reading of its language will allow, (Bull v Attorney General (NSW) (1913) 17 CLR 378 per Isaacs J).

(2)      Consistent with the objects of the Workers Compensation Acts (the 1987 Act and the 1998 Act), and the Minister’s stated intention of ensuring that the long-term care needs of seriously injured workers are met (see the second reading speech in the NSW Legislative Council, on 24 June 2004, in introducing the Workers Compensation Legislation Amendment Bill 2004), s 60AA should be seen in the context of ensuring appropriate remuneration for the provision of gratuitous care whilst at the same time ensuring that the provision of gratuitous care by family members does not result in a windfall gain to the employer or its insurer.

(3)      S 60AA(3) can only be read as a qualifying provision or evidentiary threshold. The sub-section itself merely provides that the carer must have either “lost income or forgone employment as a result of providing the assistance.” There is no mention of compensation being limited to or measured by the extent of the lost income or forgone employment.

(4)      S 60AA(4) is concerned with the quantum of compensation payable for gratuitous domestic assistance. It provides that compensation is payable as if the cost of that assistance were such sum as may be applicable under s 61(2) in respect of the assistance concerned.

(5)      S 61(2) states:

“The maximum amount for which an employer is liable for any particular medical or related treatment shall not exceed such sum (if any) as may be fixed by the Authority in respect of that treatment or by order published in the Gazette.”

(6)      Pursuant to s376(1) the Authority issued in the NSW Government Gazette No 166 the “WorkCover Guidelines to the Provision of Domestic Assistance”, providing for the regulation and verification of compensation for gratuitous domestic assistance.

(7)      Reading the Act and the Guidelines together as a scheme for the provision of compensation for gratuitous assistance, once an entitlement to compensation has been established, the amount of compensation payable is regulated by clause 7.4 which provides for an hourly rate by reference to the Australian Bureau of Statistics publication on average earnings i.e. dividing by 35 the amount estimated as the average weekly total earnings (full time adult ordinary time) of all employees in New South Wales. Clause 7.4 also sets a limitation on the total compensation payable by providing that compensation is not payable for more than 35 hours per week.

(8)      The Authority asserted that s 60AA(3) together with clause 7 of the Guidelines, limits compensation for gratuitous domestic assistance services to the actual amount of the carer’s lost income or the value of income from forgone employment. That assertion was unsupported by any reasoned argument or authority, and was inconsistent with the proper construction of the Act and Guidelines.

(9)      If clause 7.4 were to be construed in a manner suggested by the Respondent and by the Authority (that compensation for gratuitous domestic assistance should be limited by the quantum of the carer’s pre-accident earnings or forgone employment) one would expect a clear and unambiguous provision limiting the amount of compensation payable to the quantum of the lost or forgone income.  In the absence of such a provision in clause 7.4, or anywhere else in the Act or Guidelines, as a matter of statutory construction (seeBropho v The State of Western Australia [1990] ALR 207), given the beneficial nature of the legislation, there was no justification for concluding that the compensation for gratuitous domestic assistance should be limited by the quantum of the carer’s pre-accident earnings or forgone employment.

(10)    Clause 7.1 of the Guidelines provides a number of examples of evidence that may be offered to establish lost income or forgone employment. These examples are not consistent with establishing the quantum of the lost income. They are consistent with proving that there has been lost income.

(11)    Clause 7.4 of the Guidelines prescribes an hourly fee calculated by dividing by 35 the amount estimated by the Australian Bureau of Statistics as the average weekly total earnings (full-time adult ordinary time) of all employees in New South Wales from time to time.

(12)    John Hayward Enterprises Pty Ltd v Kumar [2006] NSWWCCPD 161 (Kumar) and Macri v D J Catanzariti t/as Rossies Supermarket [2005] NSWWCCPD 163 (Macri) distinguished. In Kumar the parties agreed that the entitlement to compensation for gratuitous domestic assistance was to be calculated by reference to the carer’s previous earnings. Whether that was the correct approach was not the subject of argument or consideration by the Commission.  In Macri the Commission was not directed to, and did not consider, the Guidelines published in Gazette number 166. Therefore, the outcome in the matter of Macri did not assist in deciding the question of law.

(13)    The answer to the Question of Law in this matter was:

S 60AA(3) of the 1987 Act constitutes an evidentiary threshold to the entitlement to compensation for gratuitous domestic assistance and must be read in conjunction with the ‘WorkCover Guidelines for the Provision of Domestic Assistance’ dated 15 October 2004.  When so read the subsection imposes a maximum level of compensation payable to a carer limited by clause 7.4 of the Guidelines, but the compensation is not determined by the amount of any lost income or the value of forgone employment sustained by the care provider.

Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137

Injury – reconsideration - s350(3) of the 1998 Act - medical expenses - s60 of the 1987 Act - failure to determine issues in dispute

Roche DP

23 October 2009

Facts:

Ms Gibson was a part-time swimming instructor for the respondent. Whilst at work on 1 November 2006 she stepped on a piece of stainless steel and fell backwards landing heavily on her back. She had no time away from work but experienced pain in her shoulders, neck, back and right arm, which symptoms still continue. Her claim form listed injuries to her right shoulder, back, neck and arm.

The insurer denied liability. The s74 notice raised 20 issues alleged to be relevant yet did not indicate if injury was disputed.

The ARD alleged injury to the neck, right shoulder, back and pelvis, and claimed s60 expenses and 6% WPI in respect of injury to the thoracic spine.

The Arbitrator found that there was “sufficient pathology for referral” to an AMS for WPI assessment in respect of injury to the thoracic spine and made a “general order accordingly” for related s60 expenses.

Ms Gibson’s solicitors requested a reconsideration by the Arbitrator, for omitting to make any finding in relation to the other body parts claimed. The Arbitrator declined to reconsider his decision. The worker appealed the Arbitrator’s refusal to reconsider his decision.

Held – Arbitrator’s decision revoked. The worker received injuries to the right shoulder, neck, thoracic and lumbar spines to which employment was a substantial contributing factor and the effect of those injuries was continuing. Respondent to pay s60 expenses incurred as a result of those injuries.

(1) The reconsideration power gives the Commission a wide discretion to reconsider its previous decisions (Hardaker v Wright & Bruce Limited (1962) 62 SR (NSW) 244; applied in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141; (2006) 5 DDCR 482 (‘Samuel’)). The power is usually restricted to circumstances where there is fresh evidence (Maksoudian v J Robins & Sons Pty Ltd (1993) 9 NSWCCR 642) or a relevant change in the law after the first decision (Bluescope Logistics Co Pty Ltd (formerly BHP Transport & Logistics Pty Ltd) v Finlow [2006] NSWWCCPD 338R). [59]

(2) In a limited number of exceptional cases where all parties consent and the issue is simple and obvious, the reconsideration power can be used to correct an omission. However, where it is alleged that an Arbitrator has failed to determine all the issues in dispute the appropriate course is for the parties to draw the Arbitrator’s attention to the omission and to request that s/he deal with it. If the Arbitrator declines to determine the matter, the aggrieved party may have a right of appeal (Samuel at [58(6)]). [59]

(3) The present appeal from the reconsideration decision engages the issues in dispute and given the Commission’s statutory obligation to act according to “equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” (s354(3)) and the wide powers on review, and given the history of this claim, it was appropriate that the issues be determined as a review of the reconsideration decision. [60]

(4) The s60 claim could not be determined without determining the issue of injury to the neck, right shoulder, back and pelvis which the Arbitrator failed to do save for the thoracic spine. That matter had to be re-determined. [64], [65]

(5) DP Roche rejected the respondent’s argument that Ms Gibson may have ‘hurt’ her shoulder, neck and low back but had not suffered ‘an injury’, because she had no pathology in those parts of her body.

(6) The evidence was that Ms Gibson suffered a soft tissue injury to her neck and right shoulder and aggravation of spondylosis to her neck and back, the effects of which were continuing. Soft tissue strains and spondylosis are pathological conditions capable of sustaining a finding of injury. An injury that results in the aggravation of a disease (such as spondylosis) is capable of sustaining a finding of injury under s 4(a) of the 1987 Act (Rail Services Australia v Dimovski & another [2004] NSWCA 267 at [68]; (2004) 1 DDCR 648; Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52). [67]

(7) As the conditions were pathological conditions that resulted from the fall, and as their effects were continuing, Ms Gibson was entitled to an award for the cost of her reasonably necessary s60 expenses for treatment of her right shoulder, neck, and upper and lower back. [70]

(8) The claim for the pelvis was not established. Ms Gibson made no mention of her pelvis in either her claim form or her Accident Report form, and her doctor made no diagnosis in respect of it. [72]

Mather v BHP Billiton Limited [2009] NSWWCCPD 129

Application for an increase in an award – adequacy of evidence – whether the inference drawn that the worker had ‘retired’ was appropriate – exercise of discretion

Moore ADP

13 October 2009

Facts:

The worker injured his back on 18 June 1992 when he slipped alighting from a crane in the course of his employment with BHP. Liability was initially accepted and compensation paid up to June 1999.

On 24 August 2000 the Compensation Court awarded the worker weekly benefits in the sum of $272.00 per week from 22 June 1999 to date and continuing pursuant to s 40. Comparable earnings were found to be $1,022.00 per week and his ability to earn was assessed at $750.00.  Prior to that decision the worker had received lump sum compensation in respect of 20% permanent impairment of his back, 10% loss of efficient use of his left leg and 10% loss of efficient use of his right leg and compensation for pain and suffering.  In 2004 a s 66A Agreement was registered in the Commission, BHP agreeing to pay the worker further lump sum compensation in respect of an additional 5% loss of each named body part.

The worker lodged an ARD on 10 March 2009 seeking an increase in weekly benefits to the maximum statutory rate for a worker with two dependants from 30 June 2005.

The Arbitrator accepted the worker’s circumstances had changed, his condition having deteriorated such that he suffered a diminution of his earning capacity, however he reduced the award further on the grounds that the worker had effectively retired from the workforce.

The worker appealed the decision submitting that:

1. whether a worker is looking for work or not  was not a relevant factor to be taken into account in the exercise of the discretion permitted by s40(1) of the 1987 Act;
2. there was no evidence upon which the Arbitrator could have found  that the worker had in fact ‘retired’ from the workforce.

Held: Arbitrator’s decision part revoked/part confirmed

(1) The inference drawn by the Arbitrator that the worker had retired from the work place was incorrect. The worker was 40 years old, (and only 23 at the time of the injury), and was not approaching compulsory retirement age unlike the situation in Australian Iron & Steel Pty Ltd v Elliott (1966) 67 SR (NSW) 87 nor was there any evidence to suggest that he had indicated that he was in fact retired or intending to retire. [29]

(2) Even if such an inference could be drawn or that the evidence suggested that the worker was not actively looking for work, this was not a relevant consideration in the exercise of the discretion permitted by s40(1). [34]

(3) The discretion in Mitchell v Central West Health Service (1997) 14 NSWWCCR 527 is broad and covers a variety of circumstances as outlined by DP Roche in the decision of Daly Smith Corporation Pty Ltd t/as DSC Personnel v Scherf [2008] NSWWCCPD 74 (‘Scherf’) at [77].  In the absence of any evidence that the worker had in fact retired, or was of retirement age, the exercise of discretion to reduce the award was inappropriate. [37].

(4) The worker was found to have a fairly significant ability to earn; whether he was looking for work or not, his ability to earn remained the same such that he was entitled to the difference between the probable earnings and his ability to earn in the absence of any other factors of the type set out in Scherf.  Reference was also made to DP Roche’s remarks concerning ‘failure to seek employment’ in Pikus Pty Ltd t/as Banjo’s Bakery v Bradica [2009] NSWWCCPD 120 at [67] – [69].

(5) There may also have been grounds to exercise discretion in s 40(1) if there was evidence that the worker had voluntarily removed himself, for reasons unrelated to his injury, to an unfavorable labour market.  There was no evidence that the labour market on the south coast, where the worker had moved, was any more or less favourable than the central coast, from where he moved.

(6) In summary no factors were identified which were relevant to the exercise of discretion under s 40(1).

Willoughby City Council v Kevric [2009] NSWWCCPD 140

Injury - aggravation of disease - inadequate evidence by worker - application of Rail Services Australia v Dimovski & another [2004] NSWCA 267; (2004) 1 DDCR 64 - whether the worker provided relevant particulars of his claim for lump sum compensation

Roche DP

28 October 2009

Facts:

Mr Kevric worked as a labourer, then team leader, for the Council. His work was very physical requiring him to engage in heavy lifting, digging and bending.

In November 1998 he injured his right shoulder whilst lifting a concrete slab onto a truck. In May 2002 he injured his left knee in the course of his employment and required several knee operations between 2002 and 2004. Sometime in 2005 he developed symptoms in his right knee for which he underwent surgery in September 2005. As a result, Mr Kevirc was off work for lengthy periods and when he returned to work he performed only selected light duties.

Sometime in 2006 Mr Kevric experienced an increase in symptoms in his right shoulder, right elbow and thumb, and neck and upper back pain. The cause of the symptoms was disputed. His ARD was eventually amended to claim 40% loss of use of the right arm at or above the elbow incorporating injuries to the right arm, right hand and right shoulder when lifting in November 1998 and 9% WPI as a result of injury to his right upper extremity as a result of the “nature and conditions” between 1 January 2004 to date. The agreed deemed date of injury in respect of the “nature and conditions” claim was 14 March 2008.

As at November 1998, the insurer was GIO and as of 31 December 2003 to date StateCover has been the insurer. On 27 January 2009, GIO offered to settle Mr Kevric’s claim for loss of use of the right arm in the amount of $8,000.00 (10%). GIO’s Reply  identified the issues in dispute to be “liability between insurers” and the “extent of injury”. StateCover’s Reply disputed that Mr Kevric’s claims for lump sum compensation were duly made, that he had suffered any injury or aggravation to his right upper limb as a result of the nature and conditions of employment from 31 December 2003 onwards because he worked on restricted duties/ suitable duties throughout that period and that employment was not a substantial contributing factor to any injury.

The Arbitrator found that the injury in November 1998 was not a frank injury and that it was an aggravation of a pre-existing disease. He found that Mr Kevric’s injury resulted from the nature and conditions of his employment after 1 January 2004.

Held – Arbitrator’s decision revoked. Matter remitted to Registrar for referral to AMS.

(1) The judges of the former Compensation Court of NSW and the Presidential members of the Commission have criticised the use of the term “nature and conditions” without the provision of proper particulars (Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656; Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]).  It is a meaningless expression that should not be used.  A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury. [7]

(2) The fact that a worker relies on an event that allegedly caused an aggravation of degenerative changes does not mean that the injury cannot be a “personal injury” within the terms of s 4(a) of the 1987 Act. [28]

(3) The words “injury consists in the aggravation …of a disease” in s16(1) of the 1987 Act should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation (Sheller JA at 616 in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 and applied in Rail Services Australia v Dimovski & another [2004] NSWCA 267; (2004) 1 DDCR 648).  [30]

(4) In the absence of a proper history as to the cause of the symptoms complained of in 2006 together with a proper clinical analysis of the findings in the investigations taken at that time, the evidence of additional changes in the 2006 ultrasound compared to the 1998 ultrasound did not establish that Mr Kevric sustained an aggravation of injury as a result of his work after 2004.  The evidence did not adequately deal with the cause of the 2006 pathology, therefore the worker failed to discharge the onus of proof on the balance of probabilities and failed to establish that the duties he performed with the Council after 1 January 2004 contributed to the aggravation of a disease in either his right shoulder or right elbow or right thumb. [84]

(5) Even if the worker had established that he sustained an aggravation injury to his right upper extremity, there was no persuasive evidence that the effect of that aggravation is continuing. [85]

(6) A worker is required to provide “relevant particulars” not “perfect particulars”. The worker provided particulars of the claim in a report from Dr Mahony.  The particulars provided to the employer were sufficient to comply with s 282 of the 1998 Act and the relevant WorkCover guidelines (see Walker v Roberts [2009] NSWWCCPD 66 at [39] – [48]).  Claims do not have to be “substantiated” as StateCover submitted. [88]

Other matters

Due to the unsatisfactory state of preparation of Mr Kevric’s case, DP Roche revoked the Arbitrator’s uplift of costs of 20% for complexity.

Moon v Conmah Pty Limited [2009] NSWWCCPD 134

Consequential loss – alleged estoppel from consent order

Roche DP

21 October 2009

Facts:

Mr Moon worked as an electrical/car radio installer with Conmah. He claimed compensation in the Commission in 2004 for multiple injuries he sustained in the course of his employment, including injuries to his left and right upper extremities.

The matter was resolved in May 2008. By consent the Commission made an award for Conmah in respect of Mr Moon’s allegation of injury to the left upper extremity. By consent Mr Moon was paid lump sum compensation for a WPI of 11% as a result of injuries to the right upper extremity.

In April 2009, Mr Moon lodged another Application in the Commission claiming lump sum compensation for impairment of the left upper extremity (left shoulder) as a result of overuse of the accepted injury to his right arm and shoulder.

In a Certificate of Determination issued by the Commission on 9 July 2009 the arbitrator found for the employer. The arbitrator found there were no sufficient evidence of injury and/or pathology in the left shoulder, no contemporaneous record about the onset of symptoms until 2009, three years after the injury to his right shoulder, and no evidence of a causal connection between the left shoulder complaint and employment. The left upper extremity “injury” was not established.

Mr Moon sought leave to appeal against this determination. Conmah raised the issue of estoppel in its submission in reply.

Held: Arbitrator’s determination was revoked.

(1)      Mr Moon claimed compensation for a consequential loss. That is, a loss or impairment that he alleges had resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272) [44].

(2)      The test of causation for a consequential loss is to ask whether the loss “resulted from the relevant work injury” (see Sidiropoulos v Able Placements Pty Limited (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648). [46]& [47]

(3)      It was not necessary for Mr Moon to establish that he suffered an “injury” to his left shoulder in the course of his employment under s 4 of the 1987 Act. To this extent the Arbitrator and Dr Huntsdale (the employer’s qualified specialist) had asked the wrong question [45] & [50].

(4)      All Mr Moon had to establish was that the symptoms and restrictions in his left shoulder had resulted from his right shoulder injury [45].

(5)      Various clinical notes and medical histories provided evidence of the left shoulder symptoms and evidence that those symptoms had resulted from the right shoulder injury [48].  Evidence in a medical history is evidence of the fact (Papercoaters Pty Limited v Jessop [2009] NSWCA 1 at [42])

(6)      The connection between the left shoulder symptoms and the right shoulder injury was so obvious that it required no further explanation by the medical experts (Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]-[89]) [49].

(7)      Orders made by consent only create estoppels between the parties to the orders, but only as to those matters that are necessarily decided (see Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [186]) [51].

(8) The 2008 consent orders were in respect of Mr Moon’s “allegation of injury” to his left upper extremity.  He would be estopped from seeking compensation for any “injury” to his left upper extremity.  However, that was not the basis of his claim.  He sought compensation for a consequential loss resulting from his right shoulder injury and no estoppel arises in respect of that claim. [51]

Work Cover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler [2009] NSWWCCPD 127

Proof of non-insurance – proof of a negative – nominal insurer as model litigant

O’Grady DP

9 October 2009

Facts:

The worker was employed as an enrolled nurse by Hastings District Hospital (now North Coast Area Health Service) between 26 February 1973 and 2 November 1973.  She alleged injury to her back and legs while lifting a heavy patient in the course of her employment.  She reported the injury to her supervisor and received treatment.  She had considerable time off work and her employment came to an end.

In 2003 she sought advice as to her rights to workers compensation benefits.  Her solicitors at that time were provided with details by the Health Service, concerning the worker’s period of employment.

In 2006 the worker’s present solicitors gave notice of her claim to the Health Service in respect of lump sum compensation (s16 of the 1926 Act) and medical expenses.  The notice included a request pursuant to s232 of the 1998 Act for particulars of the relevant workers compensation insurer.  The Health Service failed to provide this information. Extensive unsuccessful enquiries were conducted on behalf of the worker in an attempt to identify the insurer during her period of employment.

On 5 March 2009 the worker filed an ARD in the Commission seeking orders against the Hospital (first respondent) and Workers Compensation Nominal Insurer c/- Work Cover Authority of NSW (second respondent).  The Authority argued that the worker had failed to prove the Hospital was uninsured in terms of s140 (2)(a) of the 1987 Act.  The Arbitrator found in favour of the worker, determining that the Authority was properly served as Nominal Insurer and the matter be remitted for referral to an AMS and ‘the respondent’ pay s60 expenses.

The Authority appealed submitting the Arbitrator erred concerning his application of s140(2)(a) and in finding the employer, the Hospital, was uninsured. It submitted that the Arbitrator failed to apply the correct principles concerning burden of proof.

Held: Arbitrator’s decision part revoked/part confirmed

(1) It was agreed between the parties that the onus of proof was upon the worker to establish non-insurance and that the standard required in these proceedings was on the balance of probabilities.  The parties differed however as to whether such standard was attained. [66]

(2) Failure of an employer to insure as required by the provisions of the 1987 Act and its predecessor the 1926 Act, is deemed an offence.  While the Commission was not dealing with a matter as grave as proof of fraud, the seriousness of the allegation was such as to require evidence of such a character as to lead to “reasonable satisfaction” as to proof. The evidentiary material concerning non-insurance should be such that the Commission should be reasonably satisfied before finding the issue proven. [67]

(3) Having regard to the provision of s 232 of the 1998 Act, the existence of the obligation to provide information, or suffer penalty for the commission of an offence if not so provided, precludes either the Hospital or the Authority from arguing that the absence of “due inquiry and search” in s 140(2)(a) gives rise to a more stringent requirement of proof. [70]

(4) A determination as to the relevant standard of proof requires not only consideration of the state of the evidence but also the statutory obligation that the Hospital has to provide information concerning the matter in issue as well as the general law as summarised by his Honour Hodgson JA in Ho v Powell (2001) 51 NSWLR 572 at [15].

(5) Section 140 of the 1987 Act requires proof of a negative.  The burden of proving a negative such as non-insurance gives rise to particular difficulties for the worker.  The Hospital and Authority have greater ability to adduce evidence relevant to the issue of insurance than her. Concerning onus upon the party to prove a negative see: Apollo Shower Screens Pty Limited and anor v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561.

(6) The standard of proof requires an evaluation of the evidence adduced by the worker taking into account the seriousness of the allegation of non-insurance, the degree of unlikelihood of there being no insurance cover and the consequences of a finding of non-insurance. These matters need to be weighed having regard to the fact that the worker’s task of proof is rendered difficult given that proof of a negative is required along with the proposition that because the Hospital and Authority, given their special knowledge or ability to ascertain facts, bear an evidentiary burden with respect to all questions relating to insurance. [76]

(7) The state of the evidence established that exhaustive inquiries were conducted and that the existence of a policy of insurance had not been established.  Although correctly submitted by the Authority that “inquiry and search” is not specified in the relevant provision concerning proof of non-insurance (s140(2)(a) of the 1987 Act) it was clear that such search and inquiry had been conducted by the worker and was both an obvious and necessary course to adopt in seeking evidence on the issue of insurance.  It was open to inference that there was, on the probabilities, no insurance at the relevant time (reference to Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78]).

(8) The Authority acts on behalf of the Nominal Insurer pursuant to s 152C(1) of the 1987 Act.  The Nominal Insurer is committed to a “Model Litigant Policy”.  It was apparent in the present matter that the manner of conduct of the defence of the claim gave rise to a probable departure from the standards set by the policy, including unnecessary delay.

(9) Requirement of proof as prescribed by s 140(1)(a), in the present matter, has given rise to a most burdensome task for the worker and her representatives.  Having regard to the limited resources of most injured workers it may be seen as appropriate by Parliament that the requirement of proof be reviewed.  A worker should, as in the past, be permitted to commence proceedings against the Nominal Insurer once, following inquiry, the worker is unable to confirm that the employer had obtained or was maintaining in force at the relevant time a policy of insurance under the Act.

Davilla v ISS Facility Services Australia Ltd and Gemarn Pty Limited [2009] NSWWCCPD 130

Identification of employer – s162 of the 1987 Act - need for precision in particularizing injury – need for remitter

O’Grady DP

15 October 2009

Facts:

Ms Davilla commenced employment as a cleaner in 1997 at Meadowbank TAFE.  The identity of her employer at that time was unclear.  She performed her work without any difficulty until March 2005 at which time she began experiencing pain in her left shoulder.  By September 2005 she was experiencing pain in both shoulders and sought treatment form her GP who certified her fit for restricted duties.

She continued performing restricted duties until 20 November 2007 on which day a meeting was held with her supervisor and representatives of the insurer, Allianz. She became distressed during the course of the meeting and left.  She was offered employment at a different site, which was distant from her home. Ms Davilla did not accept the offer. On 3 January 2008 she received notice that her claim for workers compensation benefits had been declined. She has not worked since that time.

Ms Davilla filed an ARD with the Commission in March 2009. The respondent to the ARD was named “German [sic] Pty Limited” and the insurer as Allianz.  A Reply to the ARD was filed in which the employer was identified as “ISS Facility Services Australia Ltd (incorrectly sued as Gemarn Pty Ltd)” and the insurer confirmed as Allianz.

The Arbitrator made an award on 11 June 2009 in favour of Ms Davilla in respect of her claim for ongoing weekly compensation, s 60 medical expenses and permanent impairment as a result of her injury on 5 September 2005, the matter being remitted to the Registrar for assessment by an AMS.  The COD cites two companies as being “Respondents”, namely ISS Facility and Gemarn.

On 3 July 2009 Gemarn appealed against the Arbitrator’s decision, seeking revocation of the decision and substitution with an award in favour “of the employer”.  On 8 July 2009 Ms Davilla appealed the decision seeking a review of the quantum of the award and also sought a finding on review that she had sustained a psychiatric injury arising out of and in the course of her employment. The Respondents named in her appeal application were ISS Facility and Gemarn.

Held: Arbitrator’s decision revoked and remitted for determination afresh

(1) The Arbitrator’s determination of the dispute miscarried.  Firstly, the determination failed to identify which of the two respondents named in the COD were liable to Ms Davilla in respect of the orders made. Secondly, the determination was made when Gemarn was deregistered and thus non-existent (s 601AD(1) Corporations Act (Cth) 2001) and there was no application before the Commission seeking to correct matters pursuant to s 162 of the 1987 Act.

(2) It was clear on the evidence that Ms Davilla’s employment between 1997 and 2007 was as a cleaner at Meadowbank TAFE; that the identity of her employer changed was apparent from her taxation returns which were in evidence and that the changes occurred without Ms Davilla’s knowledge.

(3) Proper adjudication of Ms Davilla’s rights in respect of the injury as alleged in September 2005 and as alleged with respect to the conditions of her work subsequently required proper attention to be given to the identities of her employers at particular times. [37]

(4) The matter to be remitted and it was directed that an appropriate application be made pursuant to s 162 of the 1987 Act in respect of the now deregistered company Gemarn.  A joinder to be also sought pursuant to Part 11 of the 2006 Rules to join the subsequent employer, which on limited evidence, appeared to be ISS Facility. [38]

(5) A remitter was also required by reason of the argument raised in defence of the claim concerning work conditions postdating September 2005.

(6) The Arbitrator gave no proper consideration to Ms Davilla’s allegation of psychiatric injury nor her allegation concerning the aggravation of her physical injuries caused by the nature and conditions of her work.  The reasons stated by the Arbitrator for such an omission related to the difficulties concerning the manner in which the matter was conducted before him. The remitter of the matter will enable a proper adjudication of liability and any entitlement. [41]

(7) Decision revoked (except for [5] regarding uplift for complexity of costs) and remitted back to another arbitrator for determination afresh.

Trustees of the Order of Sisters of St Paul de Chartres v Kearney [2009] NSWWCCPD 131

Injury - nature of a review - application to further cross-examine worker on review -application of Fox v Percy [2003] HCA 22, (2003) 214 CLR 118

Roche DP

20 October 2009

Facts:

Ms Kearney worked as an assistant to the boarding master and boarding supervisor at the employer’s boarding school. She alleged that she injured her back on 31 January 2007 as a result of lifting a student’s bag at the airport, adjusting the rear seat of a van and/or reaching up to close the van’s rear door.

She claimed weekly compensation for a closed period from 31 January 2007 to 1 August 2008 together with lump sum compensation in respect of a WPI of 15% as a result of the condition of her lumbar spine consequent upon her injury.

At arbitration counsel for the college submitted at the outset that the case was “essentially” one of credit (T7.32).

In an ex tempore decision delivered at the conclusion of submissions on 1 May 2009, the Arbitrator accepted that Ms Kearney injured her back in the circumstances she alleged and made an award in her favour.

The College appealed disputing Ms Kearney injured her back or, if she did, her employment was not a substantial contributing factor to any such injury.

Held – Arbitrator’s decision revoked – entered award for respondent

(1) The Deputy President referred to Fox v Percy [2003] HCA 22; 214 CLR 118 at [30]-[31] where the majority observed:

“…Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances.  Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.  This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.” (emphasis added)

(2) Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [27] said:

“These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case.  Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.”

(3) The above approach had to be applied, with the full acknowledgment that, in conducting a s 352 review, the task was to “decide what is the true and correct view” (per Spigelman CJ in The State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 (Chemler) at [28]). [104]

(4) Although the Arbitrator accepted Ms Kearney’s version of the events on 31 January 2007 he did not do so on the basis of his view of her demeanour, but on the assessment of the evidence overall.  Whether his conclusion was the true and correct view depended on a careful analysis of the “contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy). [104]

(5) The Deputy President reviewed the evidence and identified a number of inconsistencies and defects in it [107]-[120]. The worker’s evidence was unreliable for a number of reasons, including:

(a) Contrary to the worker’s assertion that she reported the 31 January 2007 injury to the initial treating doctor (Dr Yagoub) on 5 February 2007, the doctor’s notes recorded a history of low back pain for two months but had no mention of any work injury until 7 February 2007.

(b) Ms Kearney’s assertion in her claim form that her back was normal before the accident and that she had not previously suffered any similar injury or condition was untrue. Ms Kearny received treatment from a chiropractor in August 2006 and on 1 September 2006 when she had back pain, and pain and cramping in her legs.

(c) The evidence from the employer’s witnesses that the worker suffered a back injury while surfing during the Christmas holidays was consistent with Dr Yagoub’s 5 February history of back pain for two months.

(d) Ms Kearney’s medical case was based on her developing back pain immediately on lifting and twisting with the luggage. That history was inconsistent with the objective evidence and inconsistent with her statements which said she felt pain while reaching up to close the boot.

(e) Ms Kearney tendered no evidence that merely reaching up to close the van’s rear door, or driving a van from the airport to the College, could have caused the pathology in her back.

(f) The events immediately after returning from the airport on 31 January were inconsistent with Ms Kearney having injured herself in the manner now alleged. She completed her normal duties without any official complaint to her employer.

(g) Her case was firmly based on an acceptance of her belated history that she experienced immediate back pain on lifting and twisting to place a suitcase into the Tarago.

(h) The worker lied to her employer about seeking chiropractic treatment and did not claim to have injured herself lifting bags until several days later.

(6) Based on the objective evidence, Ms Kearney’s story was riddled with inconsistencies and, in at least one instance, openly dishonest and, as a result, her claim could not be accepted.

(7) Given the incontrovertible facts, contemporary materials, objectively established facts and the apparent logic of events, Ms Kearney did not injure her back while lifting luggage at Sydney airport on 31 January 2007 or as a result of driving from the airport to the College. [129]

East Coast Timber Products Pty Ltd v Hancock [2009] NSWWCCPD 123

Injury – causation - whether the worker had discharged the onus of proof.

Keating P

6 October 2009

Facts and background

Mr Hancock was employed as a labourer stacking and sorting timber. He claimed that on 31 October 2005 he fell at work and injured his right knee. He sought medical treatment but did not submit a claim for workers compensation. He alleged that as a consequence of that injury his knee remained troublesome, but he was able to keep working. However, by 2007 he required medical intervention and he ultimately submitted to surgery in June 2008. He has not worked since 26 March 2008. His employment was terminated on 16 October 2008.

At first instance Mr Hancock was successful and was awarded weekly compensation benefits for total incapacity.

Appeal

The appellant appealed challenging the arbitrator’s finding of injury and incapacity.

Held - revoking the Arbitrator’s decision – entering award for the respondent

Injury

(1)     The Arbitrator was correct to find that Mr Hancock injured his right knee when he slipped and fell in the course of his employment on 31 October 2005.

Causation

(2)      Whether death or incapacity results from a relevant work injury is a question of fact.  Notions of proximate cause by use of the phrase “results from” are no longer accepted. What is required is a commonsense evaluation of the causal chain, per Kirby J in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452: (1994) 10 NSWCCR 796 (‘Kooragang’). His Honour said at [464B]:

“A point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped.  This may be explained in terms of the happening of a novus actus.  Or it may be explained in terms of want of sufficient connection.”

(3)      There were a number of intervening events:

1. Mr Hancock assisted with unloading bearers and joists in January 2008
2. In late March 2008 he assisted a friend move house. Witness statements confirmed that Mr Hancock moved a lot of heavy furniture. Within days of assisting with the house move, Mr Hancock ceased work.  Mr Hancock offered no evidence as to the circumstances that led to him ceasing work on 26 March 2008.
3. On 21 April 2008 Mr Hancock attended Grafton Base Hospital.  He reported a history of a swollen right lower leg and increasing pain aggravated recently “sanding” at home on his knees.  During the same attendance at the Hospital on 21 April 2008 the emergency treatment assessment notes refer to a history of a fall three weeks earlier. Although the hospital notes of this attendance were included with Mr Hancock’s Application to Resolve a Dispute he gave no evidence in respect of the circumstances leading up to that attendance.

(4) Six of Mr Hancock’s work colleagues stated that they were either unaware of any injury suffered by him and/or he had never complained to them of an injury to his knee or symptoms. In circumstances where three of them describe themselves as friends of Mr Hancock, their statements were compelling evidence that any injury sustained by him in March 2005 was either of a trivial nature or was not incapacitating.

(5) The evidence of Mrs Hancock (mother), on the issue of incapacity was treated with some circumspection. She stated that Mr Hancock was so incapacitated by the condition of his knee that he was unable to do very much around the house, However, the activities listed in [3] above were inconsistent with the picture painted by Mrs Hancock.

(6) Neither party tended a forensic medical report with a complete history of the work and non-work related incidents from which a reliable conclusion could be formed as to the cause of Mr Hancock’s knee problems.

(7) The medical certificates carried little or no weight in the absence of a detailed report setting out the history taken, findings on examination and opinion on causation.

(8) No weight placed on treating orthopaedics’ opinion. The treating orthopaedic surgeon’s opinion accepting a continuation of symptoms since the work injury was unreliable for a number of reasons:

1. he failed to explain or even consider the effect of the intervening events occurring on or about 22 January 2008 (lifting bearers and joists), late March 2008, (moving furniture and appliances), a second fall in late March or early April 2008, and in late April 2008 (two days sanding on knees), and
2. he offered no explanation for Mr Hancock ceasing work in March 2008.

(9) Therefore, the facts on which the opinion was based did not form a proper foundation for it (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) per Heydon JA at [85]).

(10) The doctor provided two reports dated 6 May 2008.

1. In the first he offered no opinion as to causation other than to restate Mr Hancock’s own opinion that the problems with his knee were related to the incident in 2005.
2. In the second, without offering any explanation, he stated that he, himself had formed the view that the 2005 incident was the cause of Mr Hancock’s incapacity.

(11) In the absence of an explanation of the scientific or other intellectual basis for the conclusion reached, his opinion failed to satisfy the second limb of Makita. Seealso Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42

(12) No pathology was identified and reported prior to 2007 and 2008.

Cross-examination

(13) The failure to cross-examine in cases where the issues have been fully set out in affidavits, which were exchanged prior to the hearing was considered in Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105] where it was held no adverse inference arose.

(14) The Commission is not bound by the rules of evidence and its proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits (s 354(1) of the 1998 Act).

(15) The Commission has a wide discretion regarding the procedure to be adopted in a particular case(Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34, (2006) 4 DDCR 358)

(16) Both parties filed extensive statements and other evidence prior the hearing. Cross-examination of doctors in this jurisdiction can only proceed by leave of the Commission.

(17) No adverse inference could be drawn from the failure to cross-examine either the doctor or Mr Hancock.

Conclusion

(18) Mr Hancock failed to discharge the onus of proving that incapacity commencing on 26 March 2008 resulted from the injury sustained on 31 October 2005 (Kooragang).

The combination of the lay evidence from Mr Hancock’s colleagues, his own failure to address a series of intervening injuries, and the lack of any persuasive medical evidence led his Honour to conclude that incapacity due to the effects of the injury on 31 October 2005 ceased by 7 November 2005 when he was certified fit to resume work. Incapacity from 26 March 2008 is unrelated to the injury of 31 October 2005.

Andersen v Manpower Pty Ltd [2009] NSWWCCPD 139

Psychological injury – weight of evidence – ss 4, 9A and 11A of 1987 Act

Moore ADP

28 October 2009

Facts:

The worker claimed she suffered a psychological injury as a consequence of the nature and conditions of her employment with Manpower between March 1999 and November 2006.  The evidence however suggested that it was a series of events during 2006 which were causative of her condition, including a move to a new team, allegedly not being provided with support, and the events surrounding a meeting with Manpower on 23 November 2006, after which she ceased work.

Manpower denied liability on the grounds that the worker did not suffer an injury (s4) or if she had then her employment with them was not a substantial contributing factor to that injury (s9A).  In addition it was claimed that if any injury arose as a consequence of her attendance at the meeting on 23 November 2006, then it had a defence under s11A of the 1987 Act.

The worker filed an ARD in the Commission. The Arbitrator, in making her decision, noted there was a considerable amount of evidence relating to the worker’s other problems outside her work, which she admitted had “affected” her work, which formed a major theme of her discussions with Manpower’s representatives. Weighing all the evidence, the Arbitrator accepted that there was sufficient evidence to find that the worker suffered an injury within the meaning of section 4, but found in favour of Manpower on the basis that employment was not a substantial contributing factor to that injury.

The worker appealed, submitting that the Arbitrator’s decision was against the weight of evidence and undue weight had been given to the worker’s personal issues.

Held: Arbitrator’s decision confirmed

(1) S9A(2) sets out examples of matters to be taken into account to determine whether a worker’s employment was a substantial contributing factor to an injury, but they are not exhaustive. [75]

(2) The evidence clearly supported the view that there were significant other factors causing the worker’s distress and that even if her work situation made, as the Arbitrator said “some contribution” to her condition, it was not by any means “substantial”. [85]

(3) In Badawi v Nexus Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324, the Court of Appeal at [105] stated:

“Section 9A requires a consideration of ‘the employment concerned’ to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2)”

(4) In the present case the “relevant circumstances” were the personal problems being experienced by the worker during 2006, which she clearly acknowledged were affecting her work. There was ample evidence that Manpower endeavored to assist her with this problem but the worker had avoided the assistance offered.

(5) The causal connection between injury and work was real but was not of substance.  The worker’s evidence failed to establish that the “employment concerned” was a substantial contributing factor to her injury.

Alikhani v A & K Insulation Pty Limited [2009] NSWWCCPD 126

Injury – causation - onus of proof - application of principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Roche DP

8 October 2009

Facts:

Mr Alikhani was a labourer who was working on the roof of a house when he fell through the ceiling and landed on the kitchen floor, 2.5 metres below. He alleged that he injured his head, neck, back, right arm and both knees. The insurer accepted liability for all claimed body parts except for the knees.

The Arbitrator found in the employer’s favour in respect of the knees, the claim was otherwise remitted to the Registrar for referral to an AMS. The principles in Makita applied as the worker’s medical evidence lacked the essential explanation to connect the alleged knee injury to the fall.

Held – Arbitrator’s decision confirmed.

(1) Mr Alikhani’s treating GP provided a comprehensive summary of the history of complaints and investigations without any mention of the knees and there were no contemporaneous notes, reports or investigations supporting the worker’s allegation of knee injury.

(2) The question of causation is not solely a question for medical experts. An inference of causation may be drawn from all of the circumstances if a tribunal of fact is satisfied, on the balance of probabilities, that a particular work incident caused a certain physical condition. [56]

(3) The treating orthopaedic surgeon diagnosed chondromalacia of the patellae but did not explain the connection between that condition and the fall, depriving his report of probative value (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 42). [58]

(4) Mr Alikhani’s medico-legal evidence was also of no probative value as it breached the principles in Makita. It was based on the false assumption that Mr Alikhani injured his knees in the fall and that he had complained of pain and symptoms in his knees since the fall, which was contrary to objective evidence.

(5) A common sense approach to the evidence did not lead to the result that it was probable that the fall resulted in trauma to the knees. [60]

(6) The worker failed to discharge the onus of proof of establishing that he injured his knees in the subject fall. The employer carried no onus to explain the reason for Mr Alikhani’s current knee symptoms. [55], [61]

(7) The obligation to give reasons is satisfied if an Arbitrator states the basis for his conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). [62]

Gray v Busways Gosford EMP Pty Limited [2009] NSWWCCPD 124

Psychological injury - treatment of evidence and issues - s11A of the 1987 Act - s74 of the 1998 Act - failure by insurer to properly identify issues in dispute

Roche DP

6 October 2009

Facts:

Ms Gray commenced work for Busways as a casual bus cleaner from September 2006. She had no problems at work until May 2007 when she noticed a change in attitude of two co-workers. Her relationship with her co-workers deteriorated until August 2007 when she ceased work.

Her ARD sought weekly compensation as a result of alleged physical injuries due to performing heavy repetitive duties and also psychological injury due to work overload, inappropriate behaviour, victimization and harassment at work.  The claim based on physical injuries was later abandoned.

The insurer’s s74 notice disputed injury and that employment was a substantial contributing to any injury and it submitted that any psychological injury received was caused by reasonable action taken by the employer with respect to performance appraisal or discipline.

The Arbitrator determined that Ms Gray had not suffered a psychological injury that was either related to her employment or to which her employment was a substantial contributing factor, finding that Ms Gray was a “difficult employee” who attempted to reverse company policy and instigated some of the alleged work conflicts.

Held – Arbitrator’s decision revoked. Ms Gray was awarded weekly compensation and medical expenses.

(1) The system of compensation established under the 1987 and 1998 Acts is a no-fault scheme. Except to the extent that it might be relevant to a s11A defence, questions of whether Ms Gray was a “difficult employee” or whether she instigated the work conflicts (leaving aside consideration of serious and willful misconduct in ss10 and14 of the 1987 Act) were irrelevant. The Arbitrator erred in seeking to apportion blame. [143]

(2) There was clear evidence of significant conflicts at work between Ms Gray and her co-workers and that it significantly affected her emotional health. [145], [177]

(3) Ms Gray’s perception was that she was victimized. Even if that perception was erroneous, it is now established law that a misperception of events can be causative of an injury so long as it is a misperception of events that actually happened (State Transit Authority of NSW v Chemler [2006] NSWCA 249, (2007) 5 DDCR 286). [178]

(4) Jones v Dunkel licenses, but does not demand, the drawing of an adverse inference (Howell v Macquarie University [2008] NSWCA 26 at [98]).  The only inference to be drawn from Ms Gray’s failure to tender a psychologist’s report from 2007 is that it would not have advanced her case.  Such an inference was of little or no consequence given the other evidence establishing injury (Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 29 at [100]). [183]

(5) There was no evidence as to the probability of the injury or a similar injury happening at about the same time or at the same stage of Ms Gray’s life. [185]

(6) The employer bears the onus of establishing that a s11A defence is established (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). [187]

(7) The Commission is to determine whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to one or more of the actions listed in s11A(1), and, if so, whether the action or proposed action was reasonable (Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [4]). [188]

(8) The employer failed to tender any persuasive evidence that Ms Gray’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of Busways with respect to any of the seven categories in s11A(1). [192]

(9) The question of fitness for work in a case involving psychiatric injury requires an assessment of the worker’s ability to cope with all aspects of the work environment and not simply a matter of ability to physically perform the duties involved. The evidence established that Ms Gray was unfit for work during the period claimed. [200]

Narasell Pty Ltd as Trustee for Heath Newton Family Trust v Evers [2009] NSWWCCPD 135

S 40 of the 1987 Act - weight of evidence - vocational assessment report

Keating P

22 October 2009

Facts and background

There was no dispute that Mr Evers suffered injury in the form of bilateral epicondylitis as a result of his work duties lifting and hanging sheep carcasses working at the Abattoir during the period 20 November 2006 to 5 December 2006.

The issues before the Arbitrator were limited to the questions of whether Mr Evers had a partial incapacity for work as a result of this injury and his entitlement, if any, to weekly compensation.  The Arbitrator was required to assess his ability to earn in suitable employment under s40(2)(b), having regard to the factors in s 43A and to determine the worker’s ability to earn in the labour market reasonably accessible to him.

Appeal

The employer appealed on the basis that had the Arbitrator given proper weight to the s 40 assessment, the medical evidence and the rehabilitation reports, he would have reached a different decision in respect of the worker’s ability to earn in suitable employment and in exercising his discretion under s 40(1).

Held confirming the Arbitrator’s decision

Suitable employment and ability to earn

(1)      After reviewing and assessing the evidence his Honour was not persuaded that the Arbitrator had erred in his findings in respect of suitable employment.

(2)      The Appellant’s submissions that the Arbitrator was required to calculate an average rate of all positions recommended by the CRS Section 40 Assessment report and average them and that he erred in not averaging the projected earnings of caravan park attendant/caretaker and meter reader but selected the lesser weekly earning figure of meter reader to determine the worker’s ability to earn in suitable employment was without merit and inconsistent with the authorities.

(3)      The correct approach to calculating a worker’s ability to earn is set out in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175 (‘Mangion’), which has been expressly approved by the Court of Appeal in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175.

(4)      This was the approach applied by Deputy President Roche in Naidu v Able Manufacturing Pty Ltd & anor [2007] NSWWCCPD 237.  Further, his Honour noted the application of the authorities in Wagga Wagga City Council v Owers [2009] NSWWCCPD 34, where Acting Deputy President Snell observed at [68]:

“68.   Applying the decision of Burke J in Mangion v Visy Board Pty Ltd (1992) 8 NSWCCR 175, expressly adopted by Handley JA in Cowra Shire Council v Quinn (1996) 13 NSWCCR 175, I am required to adopt a “weighted average”, having regard to availability of work in the accessible labour market. I agree with the arbitrator that there is no reason, on the medical evidence, why the Respondent Worker could not carry out work on a full-time basis. Weighting the average more towards the figure for work as a caretaker, having regard to the fact that some available positions as process worker would be unsuitable, and therefore less frequently available, I assess the Respondent Worker’s ability to earn in some suitable employment at $750.00…” (emphasis added)

(5)      Applying the above authorities, given Mr Evers’ inexperience in meter reading work or caravan park/caretaker work, his poor literacy, his physical limitations and the fact that he had been unemployed since ceasing work with the Appellant in March 2007, if he secured employment, it was likely he would be remunerated in such work at the lower end of the market.  It was therefore open to the Arbitrator on the evidence to find that Mr Evers’ ability to earn in such suitable employment weighted at the lower end of the market rates.

Discretion (s 40(1))

(6)      The Appellant submitted that the Arbitrator should have exercised his discretion under s 40(1) and further reduced the award because of the worker’s disinclination to travel, the circumstances surrounding his termination of employment and his lack of co-operation in relation to training and rehabilitation.

(7)      His Honour found that the Arbitrator in considering the open labour market reasonably accessible to Mr Evers did not limit it to Junee, he considered Wagga Wagga and surrounding towns in his determination of the factors in s 43A and Mr Evers’ ability to earn in suitable employment. This was the labour market reasonably accessible to Mr Evers.

(8)      The circumstances surrounding Mr Evers’ termination of employment were not relevant to the determination of entitlement under s 40 because the Appellant elected not to argue that the worker’s cessation of work was an unreasonable refusal of suitable work in terms of s 40(2A).

(9)      Failure to co-operate with rehabilitation may be relevant to the determination of ability to earn in suitable employment (Mitchell step 2). Whilst acknowledging that Mr Evers had completed the forklift operator course and undertaken some literacy training, the Arbitrator’s comments at [23] of his Reasons that “if the Applicant were genuine in his endeavours to find a vocation in either the areas he has agreed fit within his capacity…” clearly disclosed that the Arbitrator took into account Mr Evers’ rehabilitation efforts in determining his ability to earn in suitable employment. There was no justification for a further deduction on this basis at step 4 of the Mitchell test.

(10)    His Honour agreed with the Arbitrator that there were no grounds that would require a further reduction of the award through the exercise of the discretion.

Briggs Veneers Pty Limited v Ayoub [2009] NSWWCCPD 138

Ss 36, 37 and 40 of the1987 Act – total incapacity – partial incapacity – ability to earn

O’Grady DP

27 October 2009

Facts:

Mr Ayoub commenced employment as a process worker with Briggs on 1 February 2007.  On 6 February in the course of his employment ‘he alleged injury to’ his left shoulder while maneuvering a loaded trolley.  He reported his injury to management, attended his GP and returned to work performing his usual duties. He experienced considerable pain over a period of two to three days and on 9 February consulted Dr Hoe, orthopaedic surgeon, who diagnosed him as having a grade II-III subluxation of the left AC joint.

Dr Hoe recorded a history of a left shoulder injury sustained on 5 December 2006 when the worker fell from his pushbike and suffered pain for three or four weeks following the incident.  Further history of a work injury to the shoulder (subluxation) was noted. Dr Hoe recommended surgery, which the worker belatedly underwent on 31 March 2008, which was carried out by Dr Aho.  In March 2007 Mr Ayoub was informed that his claim for workers compensation benefits had been declined and he was given notice of termination of his employment.

Mr Ayoub lodged an ARD in March 2009.  The Arbitrator made findings in favour of the worker awarding ongoing weekly compensation for total incapacity from 6 February 2007, s60 medical expenses and referred the matter for assessment of lump sum s66 claim to an AMS.

Briggs appealed submitting that the Arbitrator had erred in finding the worker was totally incapacitated, being against the weight of the lay and medical evidence and sought a substitution of that finding with one of partial incapacity and an assessment of weekly benefits in accordance with Mitchell v Central West Health Service (1997) 14 NSWCCR 526.  It also argued that the Commission, as a specialist tribunal, had knowledge of a wide variety of employment suitable to Mr Ayoub in his incapacitated state, none of which were considered by the Arbitrator when making his findings of total incapacity.

Mr Ayoub argued on appeal that the finding of total incapacity was open on the evidence to the Arbitrator and that having regard to his educational background and lack of training and work experience, the only labour market accessible to him was the performance of manual work.

Held: Arbitrator’s decision revoked and decision substituted

(1) The question of capacity should be addressed during two distinct periods, the first being between the date of injury and the date of surgery, 31 March 2008; the second was that which followed the surgery to the present time.

(2) The nature of the task before the Arbitrator in determining the extent of incapacity was addressed in Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213. [44]

(3) In summary, the evidence before the Commission led to the inevitable conclusion that during the first period Mr Ayoub was totally incapacitated as a result of injury however the terms of the Arbitrator’s award during that period required amendment having regard to the provisions of s 37 of the 1987 Act.

(4) Consideration of the extent of incapacity suffered by Mr Ayoub during the second period presented considerable difficulty for the Commission given the paucity of evidence which addressed this issue.  Having regard to all known circumstances, the worker would probably have remained totally incapacitated following the surgery for a period of four months, being 31 July 2008 and from 1 August 2008 had been partially incapacitated for work as a result of the injury. [50]

(5) The determination of Mr Ayoub’s entitlement to s 40 benefits from 1 August 2008 required attention to his ability to earn in the labour market reasonably accessible to him (s 40(3)) and consideration of matters in s 43A. The labour market accessible to Mr Ayoub was restricted to that of unskilled light labouring work.  Exercise of discretion pursuant to s 40 was not appropriate in the circumstances. [57]

(6) The award for weekly payments was amended.  The Arbitrator’s first order, awarding the worker a lump sum claim under s 66, was revoked, noting that s65(3) of the 1987 Act provides that any award pursuant to s66 may not be made until such time as the degree of permanent impairment, if any, has been assessed by an AMS. [58]

Huhtamaki Australia Pty Limited v Singh [2009] NSWWCCPD 128

Total incapacity - ss 38 and 38A of the 1987 Act

Roche DP

12 October 2009

Facts:

Mr Singh, a machine operator, developed pain and pins and needles in his right hand and forearm, which radiated into his upper arm and shoulder.

He claimed compensation as a result of an injury to his right fingers, hand, arm and shoulder, caused or aggravated as a result of the nature and conditions of his employment with Huhtamaki from June 2006.

The Arbitrator found in favour of Huhtamaki in respect of the alleged injury to Mr Singh’s right shoulder, but found in favour of Mr Singh in respect of the remaining issues. He was awarded weekly compensation for various periods under ss 36, 37,38 and 40.

Appeal:

Huhtamaki sought leave to appeal the Arbitrator’s determination so far as it related to the award for weekly compensation for total incapacity between 17 June 2007 and 10 April 2008 and under section 38 of the 1987 Act for the period 11 April 2008 to 1 October 2008.

Held – Arbitrator’s decision revoked

(1) The Arbitrator erred in finding Mr Singh to be totally unfit for work from 17 June 2007 to 10 April 2008.[39]

(2) Whilst there was a medical certificate that Mr Singh was totally unfit for work from 8 June 2007 it was inconsistent with the fact that Mr Singh continued to work up to and including 16 June 2007.  That evidence alone established that Mr Singh’s incapacity, at that time, was not total.

(3) At paragraph 30 of his statement, Mr Singh said that he had at all times since June 2007 been using his best endeavours to secure employment.  Clearly, he did not regard himself to be totally unfit for work and a finding of total unfitness could not stand.

(4) The Arbitrator erred in finding Mr Singh entitled to compensation under s38 from 11 April 2008 to 1 October 2008. [42]-[44]

(5) During the relevant period (11 April 2008 to 1 October 2008), Mr Singh did not comply with the first three subsections in section 38A(2).

1. It could not realistically be suggested that Mr Singh was ready, willing and able to accept an offer of suitable employment from his employer in circumstances where he tendered his resignation on 4 June 2007.  There was no evidence that Mr Singh later changed his mind and indicated to Huhtamaki a willingness to return to work on suitable duties.
2. there was no evidence that Mr Singh supplied Huhtamaki (or the insurer) with a medical certificate in respect of his partial incapacity for work in the period from 11 April to 1 October 2008.  Dr Gill’s report of 23 March 2007 did not qualify:
3. it did not cover the relevant period,
4. was not a medical certificate and
5. was not “supplied” to the employer or the insurer as required by s38A(2)(b).
6. there was no evidence that Mr Singh requested Huhtamaki (or the insurer) to provide him with suitable employment during the relevant period, nor was it apparent from the circumstances of Mr Singh’s resignation that he was ready, willing and able to accept an offer of suitable employment during the relevant period.
7. whilst Mr Singh’s evidence that he was taking reasonable steps to obtain suitable employment since June 2007 was accepted, in order to succeed under s 38 a worker must establish all four of the preconditions set out in s 38A(2).

   (6) In considering whether Mr Singh came within the additional words at the end of s38A(2), which state “Taking reasonable steps to obtain suitable employment includes seeking or receiving rehabilitation training that is reasonably necessary to improve the worker’s employment prospects”, the fact that he completed a security course may well have established that he was taking reasonable steps to obtain suitable employment, however, there was no evidence of when he commenced that course or whether it qualified as “seeking or receiving rehabilitation training” and, in these circumstances, it was not open to make an award under s 38 from 11 April 2008 to 1 October 2008 on the basis of the security course.

   (7) Matter re-determined and an award under s 40 was made for the relevant periods.

   Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125

   Injury – notice – incapacity – weight of evidence – exercise of discretion

   Moore ADP

   8 October 2009

   Facts:

   The worker first commenced employment with Rocla in August 1999 as a casual and gained permanent full-time employment in December of that year, working as a dredge operator.  At that time he underwent a pre-employment medical assessment at the request of Rocla.

   His duties involved heavy manual lifting, carrying, bending and pulling weights up to 50 kilograms.  He first noted pain in his back in about March 2001 when he was lifting an outboard motor.  He consulted his doctor on 10 April, was prescribed anti-inflammatory medication but remained at work. On 17 April while at work, he fell on uneven ground and jarred his back.  He reported the injury to his boss and saw his doctor the same day.  He resumed work on selected duties but after some further time off his employment was terminated. He had not resumed work since that time. He underwent surgery to his back in February 2002 followed by a further procedure in October 2003.

   Rocla accepted liability and weekly benefits and medical expenses were paid up until 14 April 2005 at which time liability was declined with reliance placed on provisions under ss 52A and 54 of the 1987 Act.

   The worker filed an ARD in the Commission in December 2008 seeking weekly benefits from 15 April to date, s60 expenses and lump sum compensation as a consequence of the frank injury to his back and left leg following the fall on 17 April 2001 and “general duties in employment with Rocla” between August 1999 and 17 April 2001 (causing injury to his back and left leg). An Arbitrator found in favour of the worker awarding him weekly payments pursuant to s37 from 15 April 2005 and continuing, s60 expenses and remitted the matter for referral to an AMS.

   Rocla appealed, identifying several grounds of appeal including that the Arbitrator erred in: the exercise of his discretion concerning the admission of late evidence; in failing to properly consider and assess the evidence; errors in findings of injury, deemed date of injury and s9A; in finding the worker totally incapacitated; in his consideration of the effectiveness of the concurrent notification given under ss54 and 52A and his consideration and application of s74 of the 1998 Act and Regulation 37.

   Held: Arbitrator’s decision confirmed

   (1) Consistent with the practice and procedure of the Commission, the worker sought to have the late material admitted on the day of the hearing and as pointed out by the Arbitrator, the worker’s statement had been in Rocla’s possession for at least five weeks prior to the hearing.  Having viewed the contents of the late evidence, it was found that Rocla did not suffer any prejudice in the circumstances and the decision of the Arbitrator to admit the evidence was correct. [29] – [31]

   (2) In submissions, the worker set out in considerable detail evidence in support of his contention that proper notice of his injuries was given which confirmed that he had suffered a back injury in the fall on 17 April 2001.  Rocla’s own evidence corroborated the worker’s evidence on this fact and in these circumstances, Rocla failed to demonstrate any error by the Arbitrator in his assessment of the evidence.

   (3) Given Rocla’s acceptance of liability for four years and its own evidence, it’s grounds of appeal in relation to injury, deemed date of injury and s9A submissions, were “nothing short of ludicrous” nevertheless given the nature of the review it was necessary to consider whether the Arbitrator’s findings represented the “true and correct view” of the case.  The Arbitrator considered these issues in great detail and his conclusions were entirely consistent with the evidence.  Rocla’s complaints in this regard were unsubstantiated. [46] – [49]

   (4) In regards to the ‘total incapacity’ issue, nothing in the Arbitrator’s extensive analysis of the evidence and the relevant authorities disclosed any error and Rocla’s submissions, which were simply a repeat of the same arguments put before the Arbitrator, were without merit.

   (5) The Arbitrator’s findings that the worker had been totally incapacitated for work since payments ceased was correct and consistent with the evidence and it was neither necessary or appropriate for the arbitrator to consider whether the provisions of s 52A were applicable in the circumstances of the case.

   (6) No particulars were provided in either the appeal or further appeal submissions lodged by Rocla in support of the claimed error of the Arbitrator in his consideration and application of s74 notice and regulation 37. The Arbitrator dealt with all the issues raised in the s74 notice and in the absence of a specified “error”, this ground of appeal also failed.

   Star City Pty Limited v Jerusalem [2009] NSWWCCPD 132

   Incomplete transcript of arbitral proceedings – need for remitter

   O’Grady DP

   20 October 2009

   Facts:

   The worker, presently 66 years of age, commenced employment as a pastry chef with Star City in 1996. In April/May 2008 he first experienced painful symptoms in both shoulders and took a month’s holiday in June 2008.  On his return to work he consulted his GP concerning his painful shoulders.

   The worker ceased work on 8 July 2008 at which time he was certified by his GP as being fit for suitable duties.  He made a claim in respect of workers compensation benefits for injury to both his right and left shoulders in July 2008, for which liability was ultimately denied.  He lodged an ARD with the Commission in February 2009 seeking orders in respect of entitlement to lump sums and payment of medical expenses.

   The arbitration hearing, by arrangement, was conducted at the premises of Star City on 4 May 2009.  An issue in dispute was the nature of the worker’s pre-injury duties. The Arbitrator directed that a view of the worker’s kitchen premises be conducted that same day as well as a demonstration of certain aspects of his duties.

   The Arbitrator determined that the worker suffered from a work related injury to both shoulders in his employment with Star City on or about 30 May 2008 and awarded s60 expenses and referred the matter to an AMS for assessment of WPI.

   Star City appealed challenging the Arbitrator’s finding of fact concerning the occurrence of the injury as alleged by the worker and her finding that the worker’s employment was a substantial contributing factor to that injury.  There was also a challenge to the probative value of the expert medical evidence which was before the Arbitrator with reliance placed upon the principles concerning the admission and evaluation of expert evidence as stated in the Court of Appeal decision of Makita (Australia) Pty Ltd v Sprowles (2001) 25 NSWCCR 218.

   Star City’s solicitors informed the Commission that there were “deficiencies” in the transcript, being “large slabs’ of re-examination missing and the agreed description of what was observed in the worker’s workplace.  Parties were invited to make any further written submissions in relation to the future conduct of the appeal given the incomplete transcript.  The worker submitted that the appeal should proceed having regard to the material presently before the Commission notwithstanding the incomplete state of the transcript.  Star City asserted that a substantial amount of evidence had been omitted however no submission was put concerning the future conduct of the appeal.

   Held: Arbitrator’s decision revoked and remitted for determination afresh

   (1) It was probable that some part of the worker’s evidence given during the course of re-examination by his solicitor had not been recorded.  Had that been the extent of the deficiency of the transcript it was arguable that the review could have proceeded.  However, the omission from the transcript of counsel’s summary of the matters observed and agreed during the course of the view and demonstration were of a different character, as the manner in which Star City had conducted its defence of the claim involved argument concerning the relevance of the precise physical nature of the worker’s duties to the issue of injury (s4) and the proper application of s9A. [24]

   (2) The matters demonstrated and observed in Star City’s kitchen on the day of the hearing led to an agreement between parties concerning the nature of the subject duties which contrasted with the evidence relied upon by the worker.

   (3) The Arbitrator made numerous references to the nature of the worker’s pre-injury duties and observed that the description of the subject duties as recorded by medical experts was not accurate ([86] of Reasons).  Star City’s complaint on appeal was that the conclusion expressed by the Arbitrator in [86] was erroneous and that error had arisen by reason of her evaluation of the evidence as a whole and in particular evidence concerning the nature of pre-injury duties. [27]

   (4) The absence of the record of counsel’s summary of those duties gave rise to difficulties as stated by Bryson JA in Aluminium Lourves and Ceilings Pty Limited v Xue Qin Zheng (2006) 4 DDCR 358 at [32]. [27]

   (5) Whilst the Arbitrator’s reasons included a detailed summary of the subject work duties, the Commission was unable to rely on that summary as a substitute for those matters omitted from the transcript.

   (6) Having regard to all circumstances, the absence of a complete record of the proceedings before the Arbitrator so impeded the conduct of the appeal that a just determination of the dispute could not be attained.

   Q Catering Limited (wrongly sued as Caterair Airport Services (Sydney) Pty Ltd) v Tzifas [2009] NSWWCCPD 133

   Costs where appeal discontinued by appellant

   Roche DP

   20 October 2009

   Facts:

   Mr Tzifas claimed 3% WPI ($4,125.00) in respect of binaural hearing loss. Q Catering unsuccessfully disputed before the Arbitrator that it was a noisy employer. The matter was referred to an AMS for assessment of WPI, who certified Mr Tzifas to have a hearing loss below the threshold required for the recovery of compensation. Q Catering lodged an appeal against the Arbitrator’s decision.

   Mr Tzifas’ solicitors advised Q Catering’s solicitors that it would not appeal the MAC and requested advice as to whether the appeal against the Arbitrator’s decision would proceed.  They received no response to that enquiry.

   In the absence of a response, Mr Tzifas’ solicitors filed a Notice of Opposition to the appeal application in which it submitted that leave to appeal had to be refused for failure to meet the monetary threshold of $5,000.00 (s352(2) the 1998 Act).

   Q Catering then discontinued the appeal.

   Mr Tzifas’ solicitors sought costs in respect of the arbitration hearing and the appeal (Rule 15.7(4) of the 2006 Rules). Mr Tzifas submitted that he was entitled to costs of the arbitration because he succeeded on the issue of whether Q Catering was a noisy employer. He was also entitled to appeal costs as the appeal was futile because it had not met the monetary thresholds and it resulted in unnecessary litigation.

   Q Catering argued that at the time the appeal was filed the quantum of compensation in dispute was not properly identifiable because the compensation claimed in the ARD was a WPI assessment however the deemed date determined by the Arbitrator was 31 December 1995, giving rise to a different method of assessment and quantification. It also argued that it would be unjust to order Q Catering to pay any costs where s69A of the 1987 Act precludes a legal practitioner from recovering costs if a worker’s total hearing loss is less than 6%.

   Held – Employer ordered to pay the worker’s costs of the appeal, assessed at $600.00 plus GST.

   (1) The appeal had no merit as the quantum of compensation at issue on the appeal was below $5,000.00. Q Catering tendered no evidence to suggest that the deemed date determined by the Arbitrator could result in an award above $5,000.00. [12]

   (2) S69A did not assist Q Catering. S69A referred to costs incurred “in connection with acting on a claim”. The costs on appeal were costs of responding to an unmeritorious appeal after Mr Tzifas’ solicitor requested advice as to whether the appeal would proceed. Mr Tzifas had a prima facie entitlement to costs incurred in the appeal. [13], [14]

   Costs of the arbitration were a matter for the Arbitrator as the appeal was not properly before DP Roche. [16]

   Peter J Davis (Newcastle) Pty Ltd v McLeod [2009] NSWWCCPD 122

   Leave to appeal – application of s352(2) of the 1998 Act.

   Snell ADP

   1 October 2009

   Facts:

   In December 2006 the parties executed a s66A Agreement for 9% WPI in respect of an injury to Mr McLeod’s left lower extremity on 15 December 2005.

   In September 2008 Mr McLeod lodged an ARD for 3% WPI in respect of further impairment, together with s67 of $25,000.00.

   An AMS certified an impairment of 3%, associated with scarring and numbness. There was an issue regarding whether this assessed impairment represented an additional 3%, or whether its effect was that Mr McLeod had 3% total WPI.

   The Arbitrator ordered payment of $3,750.00 to Mr McLeod in respect of 3% WPI of the left lower extremity due to injury received on 15 December 2005 and an award for the employer in respect of the s67 claim.

   The employer argued on appeal that the MAC certified a total impairment resulting from the injury of 3%. On this basis Mr McLeod was not entitled to additional lump sum compensation as his impairment was assessed to be lower than the lump sum compensation previously received.

   Held – leave to appeal refused. Failure to meet s352(2) monetary threshold

   The phrase used in s352(2) is “compensation at issue on the appeal”. The only such compensation was $3,750.00 (for 3% WPI), well below the statutory threshold of $5,000.00 (s352(2)(a)).

   Other matters

   The worker is now out of time to appeal the award against him in respect of the s67 claim. It was apparent from Mr McLeod’s notice of opposition that a deliberate decision was made not to appeal, a factor which would act against any application to extend time to appeal, should one be lodged by the worker. In the absence of a successful appeal lodged by Mr McLeod on this point, the s67 claim has resulted in an award in the employer’s favour.

   Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi (No.2) [2009] NSWWCCPD 141

   On remitter from the Court of Appeal

   Keating P

   Facts and background

   Ms Badawi suffered injury to her knee when she was on a business trip to Perisher Blue Resort. At first instance in the Commission Ms Badawi was successful with Arbitrator finding that employment was a substantial contributing factor to her injury.

   The employer appealed and on review his Honour found that her employment was not a substantial contributing factor to the injury and made an award in favour of the employer(Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi [2008] NSWWCCPD 72).

   Ms Badawi appealed to the Court of Appeal.  The appeal was heard on 22 June 2009 and judgment was delivered on 8 October 2009 (Badawi v Nexon Asia Pacific Limited t/as Commander Australia Pty Limited [2009] NSWCA 324).

   The Court of Appeal made the following orders:

   1.          The appeal is allowed;

(a) Set aside the decision of the Workers Compensation Commission (the Commission) made on 14 July 2008;

(b )Remit the matter to the Commission for determination in accordance with these reasons that the employment                         concerned was a substantial contributing factor to the injury;

(c) The respondent to pay the appellant’s costs. The respondent is to have a certificate under the Suitors’ Fund Act 1951(NSW) if so entitled.”

Held on remitter

Given the Court of Appeal’s orders, and that there were no other issues in dispute between the parties, His Honour                   upheld and confirmed the Arbitrator’s decision dated 26 February 2008.