Issue 3: March 2009

On Appeal

Welcome to the Third edition of ‘On Appeal’.

Edition 3 - March 2009 includes a summary of the February 2009 decisions.

These summaries are prepared by the Presidential Unit and are designed to provide a brief overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.

Please note that the following abbreviations are used throughout these summaries:

Index

Presidential Decisions:

Section 40 of the 1987 Act – partial incapacity. 3

(i)      Probable earnings - ability to earn. 3

Doyle v Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd) [2009] NSWWCCPD 14. 3

Ledingham v The Glen Cotton Company Pty Limited [2009] NSWWCCPD 15. 6

(ii)     Concurrent employment - true value of labour. 8

Mammo v Australian Venue Security (AVS) Pty Limited [2009] NSWWCCPD 18. 8

(iii)    Evidence - speculative. 10

Formosa v Express Transport & Packaging Pty Ltd [2009] NSWWCCPD 21. 10

Hearing loss – further loss - estoppel 12

Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13………………………………………………………………………………………………12

Delay in making claim - failure to discharge onus re: ignorance of rights. 15

Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12………………………………………………………………………………………………15

Video surveillance - weight of medical opinion.. 17

Stratco (NSW) Pty Ltd v Korunovic [2009] NSWWCCPD 16. 17

Interlocutory appeal – AMS referral 20

Moore v Greater Taree City Council [2009] NSWWCCPD 17. 20

Factual evidence – failure to determine factual disputes - effect of voluntary payments - estoppel 22

Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19. 22

Section 9A – expert evidence – ipse dixits. 25

New South Wales Police Force v Cox [2009] NSWWCCPD 20. 25

Section 40 of the 1987 Act – partial incapacity

(i) Probable earnings - ability to earn

Doyle v Q Catering Riverside Pty Ltd (formerly known as Caterair Airport Services (Sydney) Pty Ltd) [2009] NSWWCCPD 14

Roche DP

9 February 2009

Facts:

• From September 1996 until 25 October 2007, Ms Doyle worked for Caterair as a catering assistant lifting and carrying goods onto aircraft.  In the course of her employment she sustained a variety of injuries including injury to her right shoulder and arm on 29 September 2001 and 28 January 2003; to her right foot and ankle on 10 September 2004 and to her lower back and right leg on 7 September 2007.  She performed her usual duties until her resignation on 24 September 2007.
• In a report dated 6 November 2007 Dr Bodel, orthopaedic surgeon, took a history of Ms Doyle’s injuries to her right shoulder in September 2001 and January 2003. He recorded that after each injury she remained on light duties for a number of months but was able to return to normal duties. Dr Bodel concluded that Ms Doyle had rotator cuff pathology in her right shoulder with associated pain and stiffness and that the overall prognosis was reasonable from a musculoskeletal point of view and that she should be capable of a return to her pre-injury style of work should it be available to her.  In a separate report dated 6 November 2007, Dr Bodel assessed Ms Doyle to have a 10% permanent loss of efficient use of her right arm at or above the elbow due to her September 2001 injury.
• On 17 January 2008 Dr Bodel clarified his opinion as to Ms Doyle’s fitness for her pre-injury style of work noting that at the time of his assessment in November 2007 he felt that Ms Doyle was “fit for part time light duty activities with a 10-12kg lifting limit initially and over a period of three to four months she may be able to upgrade [to] full time pre injury duties” and that if she was able to do so, she should be able to upgrade to fulltime work in a permanently modified basis with a 15kg maximum lifting limit.
• On 27 June 2008 Ms Doyle settled a claim for lump sum compensation in the sum of $8,000 in respect of an agreed 10% permanent loss of efficient use of her dominant right arm at or above the elbow as a result of her September 2001 injury.
• On 4 July 2008 Ms Doyle filed an ARD in the Commission claiming weekly compensation in the sum of $770.00 from 25 October 2007 to date and continuing (this was amended at the arbitration hearing to date from 14 December 2007).
• The Arbitrator found in favour of Ms Doyle in respect of section 40 and awarded  weekly compensation at the rate of $270.00 per week from 14 December 2007 to 6 March 2008 with an award for Caterair thereafter.

Arbitrator’s Decision:

• The Arbitrator noted that:
• Ms Doyle’s work with Caterair was a “heavy job” and that she was having difficulties with her employment as a result of her injuries [23].
• Ms Doyle had accepted the sum of $25,000 upon her resignation and he was not persuaded that Ms Doyle’s resignation was a result of her shoulder injury [39].
• Ms Doyle was right hand dominant and had a permanent impairment of the right shoulder, therefore alternative duties such as food preparation or as a retail sales assistant may not have been appropriate.  Given her specific lifting and overhead use restrictions as set out by Dr Bodel “quite a number of potential job options would not be available to her in the open labour market.” [40]
• Ms Doyle had been fit for normal duties on a full time basis for the period from 24 April 2003 to at least September 2007 regarding her accepted right shoulder and arm injuries [44].
• Caterair’s submission, that the reason for the lack of medical certification to substantiate Ms Doyle’s claim for on-going incapacity was that there was no support for that contention, was persuasive [45].
• With the exception of the period from 6 November 2007 to 6 March 2008, Ms Doyle had been at all material times fit “for pre-injury duties” [48].
• In the period from 14 December 2007 to 6 March 2008 Ms Doyle could reasonably secure earnings of $500.00 per week in some similar work within her specified restrictions [51], but that, based on Dr Bodel’s evidence, there was no incapacity from 6 March 2008.

Ms Doyle appealed the Arbitrator’s decision alleging error:

• in finding Ms Doyle had no incapacity or could earn her pre-injury earnings as at 6 March 2008;
• in his interpretation of Dr Bodel’s opinion;
• in failing to provide adequate reasons as to how Ms Doyle’s incapacity ceased, or that she was able to earn her pre-injury earnings, and
• in drawing the inference that due to the lack of medical certificates subsequent to Ms Doyle’s termination of employment, she was not incapacitated.

Held:

1. The Arbitrator’s reasoning disclosed an error in his approach to the assessment of Ms Doyle’s entitlement to weekly compensation.  It was not a question of whether Ms Doyle could perform her “usual” or “pre-injury” duties, but whether the injury left her in such a position that in the open labour market her earning capacity was less than before the injury [59] Workers Compensation in New South Wales, 2^nd ed, by C P Mills; Alexander v Ashfield Municipal Council CA 78/8, unreported 27.10.82; Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155.
2. The Arbitrator’s conclusion assumed that Dr Bodel’s “optimistic” prognosis had become a reality by 6 March 2008.  There was no basis for this assumption. Even if Dr Bodel’s alternative scenario, that she “should” be able to upgrade to full time work on a permanently modified basis with a 15kg-lifting limit, was correct, the Arbitrator failed to consider the consequences of such a restriction on the open labour market.
3. The Arbitrator failed to acknowledge the difference between actual earnings (whilst employed) and ability to earn (whilst unemployed).  When a worker is employed his or her actual earnings will be prima facie evidence of the ability to earn: Aitkin v Goodyear Tyre and Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20; however, once that employment ceases the Commission is then required to determine what the worker is able to earn in suitable employment in the labour market readily accessible to that worker: Hamilton v Shelton, Iron, Steel and Coal Co (1926) 96 LJKB 295 at 301, applied in Steggles Pty Ltd v Aguirre (1988) 12 NSWLR 693.
4. Ms Doyle’s evidence in regards to her lifting duties while working with Caterair; the evidence that Ms Doyle had a permanent 10% loss of efficient use of her dominant arm and Dr Bodel’s evidence of a 15kg lifting restriction suggested that Ms Doyle had a disability that would restrict her ability to find and retain suitable employment in the labour market accessible to her.  The Arbitrator failed to properly consider the impact of that restriction.
5. The Arbitrator was required to assess Ms Doyle’s ability to earn having regard to the whole of the evidence, including the nature of the injury and disability, her age, education and training, work experience.  The Arbitrator failed to properly undertake that exercise and failed to explain why her incapacity ceased on 6 March 2008.
6. The Arbitrator erred in drawing an adverse inference from Ms Doyle’s failure to tender any medical certificates to substantiate her claim.  That failure was not unexplained [70].  In any event, Jones v Dunkel (1959) 101 CLR 298 “licences, but does not compel, the drawing of inferences when a witness is not called” (per Campbell JA in Howell v Macquarie University [2008] CA 26 at [98]).
7. Whilst the state of the medical evidence was most unsatisfactory, it was not open to the Arbitrator to infer that there was no support for Ms Doyle’s “contention” of an ongoing incapacity.  Support for Ms Doyle’s incapacity came from the uncontested evidence of Dr Bodel.

Other matters:

Due to the unsatisfactory state of the evidence DP Roche was unable to re-determine the matter and remitted it to a different Arbitrator. He noted that careful consideration be given to the preparation and presentation of the case at the re-determination and that the evidence be updated, expanded and clarified.

Ledingham v The Glen Cotton Company Pty Limited [2009] NSWWCCPD 15

Moore ADP

11 February 2009

Facts:

• Mr Ledingham was a cotton farm hand. His duties included tractor driving, maintenance and irrigation work.  On 7 February 2001, he injured his back while carrying a drum of weed-killer. He was off work for a period of time before he resumed work on light duties and then returned to his pre-injury duties full-time.
• Mr Ledingham ceased work with Glen Cotton on 27 October 2003 partly because of ongoing back problems. He then worked in a variety of similar farm labouring jobs until February 2005, when he changed to more sedentary work.  He remained in employment until July 2007 but has been unemployed since.
• In 2004, he brought proceedings in the Commission seeking lump sum compensation. He settled in May 2005, receiving payment in respect of 5% permanent impairment of his back and a 6% loss of use of his sexual organs.
• In July 2008 Mr Smith filed an ARD in the Commission seeking weekly benefits of compensation from 1 July 2001 to date and continuing (although Mr Ledingham remained at work with Glen Cotton until 27 October 2003).

The Arbitrator’s decision:

• The Arbitrator made findings that Mr Ledingham’s probable weekly earnings were $800.00, adopting the amount he was earning at the date of termination of employment with Glen Cotton.  He awarded Mr Ledingham weekly benefits at various rates from 17 February 2005 to date and continuing. He made no award during the period 28 October 2003 to 16 February 2005 on the grounds that Mr Ledingham was able to earn on average $800.00 per week.  The evidence disclosed that he was able to earn during that period amounts ranging from approximately $250.00 to $1,300.00 per week.

Issues on appeal:

• Mr Ledingham appealed the Arbitrator’s decision alleging error:
• in the calculation of his probable weekly earnings, and
• in failing to award weekly benefits for the period between 28 October 2003 and 9 February 2005 (changed to 16 February 2005 by ADP Moore on review)

Held:

(1) There was no evidence that Mr Ledingham suffered any economic incapacity after being declared fit for pre-injury duties in August 2001 up until his resignation in October 2003.

(2) The Arbitrator’s calculation of probable earnings confirmed.

(3) The calculation of probable earnings was consistent with the decision of President Keating in Plumbers Supplies Cooperative Limited v Behnampirouz [2008] NSWWCCPD 47 at [93] and also Deputy President Roche in Miller v A & R Pearson Pty Limited [2007] NSWWCCPD 111 where he stated at [20]:

“In determining probable earnings the following principles are applicable:

1. it must be assumed that the worker’s pre-injury job continued, even if that is not in fact the case (Nicholson at 54), applied in Singh v TAJ (Sydney) Pty Limited [2006] NSWCA 330.  It is a hypothetical calculation;
2. a determination must be made of the worker’s probable earnings “as a worker” had he or she remained uninjured and remained employed in the “same or some comparable employment”, and
3. regard must be had to the whole of the evidence.”

(4) For the period between 28 October 2003 and 16 February 2005 there was clear evidence that Mr Ledingham had an incapacity on the open labour market (see Ranvet Pty Ltd v Vasilevski [2008] NSWWCCPD 81 at [72]-[75]). [42]

(5) Whilst actual earnings are prima facie evidence of ability to earn regard must still be had to whether that amount is “proper” in all the circumstances.  As the Court of Appeal said in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 at 22:

“As to the phrase ‘is earning’, it has been held that if the partially incapacitated worker is earning something, his actual earnings must prima facie be taken as the basis ….If, however, it is proved that his actual earnings are not a proper test, because there is some reason unconnected with his earning power which makes his earning power lower than should be, the other alternative, what he is ‘able to earn’, must be adopted.  This is so where it is shown that he is deliberately taking lower-paid work than he could get, or is idling and on this account receiving less than he could be reasonably expected to obtain…”

(6) There was no suggestion that Mr Ledingham was idling or not using his best endeavours to find suitable work. [47]

(7) In applying section 40(2)(b) of the 1987 Act and also taking into consideration sections 40(3) and 43A of the 1987 Act, the “average” weekly amount which Mr Ledingham was earning in suitable employment during the period under review was $700.00 per week.

Order:       Revoked and decision substituted.

(ii) Concurrent employment - true value of labour

Mammo v Australian Venue Security (AVS) Pty Limited [2009] NSWWCCPD 18

O’Grady ADP

25 February 2009

Facts:

• Mr Mammo received injury in the course of his employment as a security guard with AVS when he was assaulted. At that time he had concurrent employment as an engineer. It was not in dispute that Mr Mammo received injury to his left arm, neck and left leg.
• Mr Mammo alleged that despite his injuries, AVS refused him permission to take time off work and that he was compelled to perform his normal duties, which he continued up until April 2004. At that time he ceased work as a security guard. He was to resume such employment at a later date.
• On 31 May 2006 he underwent surgery on his left shoulder and made a claim for compensation.  AVS’ insurer accepted liability in respect of medical expenses and weekly payments were voluntarily paid to Mr Mammo between 31 May 2006 and 15 May 2007.
• On 31 August 2007 Mr Mammo underwent surgery on his left knee.  A further claim for compensation was made for weekly benefits from April 2004 and continuing, medical expenses and lump sums pursuant to sections 66 and 67 of the 1987 Act.  On 11 June 2008 Mr Mammo filed an ARD in the Commission.
• The Arbitrator ordered AVS to pay Mr Mammo weekly benefits for the periods 31 May 2006 to 7 July 2006 and 31 August 2007 to 28 September 2007 at the rate of $1,079.77 per week with an award for AVS in relation to all other periods claimed.

Arbitrator’s decision:

The Arbitrator, in addressing the issue as to whether Mr Mammo had established that he was partially incapacitated for work during the relevant periods, referred to the decision of the High Court in Arnott’s Snack Products v Yacob (1985) 155 CLR 171 (‘Arnotts’) and the decision of the Court of Appeal in Mitchell v Central West Health Service (1997) 14 NSWCCR 526 (‘Mitchell’).

She found on the evidence, there was no “incapacity” in the Arnott’s sense of a reduction in earning capacity and as a result of performing the Mitchell calculation there was no shortfall between probable and actual post injury earnings and no demonstrable reduction in earning power related to his injuries, save for the two periods following surgery in which Mr Mammo was totally incapacitated.

Appeal

Mr Mammo appealed submitting that the Arbitrator had erred in:

• her conclusions concerning the existence and extent of any incapacity suffered by him, and
• her determination as to his entitlement to weekly compensation.

Held:

(1) The dispute between the parties required a determination of the fundamental question of whether the evidence established that Mr Mammo had suffered physical incapacity for actually doing work in the labour market in which he worked or may reasonable be expected to work.

(2) If such incapacity was found it was then necessary to examine the evidence adduced as to Mr Mammo’s probable earnings but for injury and ability to earn in terms of section 40 of the 1987 Act (see Williams v Metropolitan Coal Co Ltd (1948) 76 CLR 432 per Dixon J at 449) [64].

(3) Mr Mammo suffered periods of total incapacity following the shoulder surgery from 31 May 2006 to 7 July 2006 and following the knee surgery from 31 August 2007 to 28 September 2007. In substituting his own orders, ADP O’Grady agreed that the weekly rate for the first period was (rounded up) $1,080.00 however, made a finding that during the second period, Mr Mammo, having earlier received voluntary payments for a period exceeding 26 weeks, was entitled to the maximum statutory rate payable to a worker with a dependent wife and two dependent children ($608.70 per week).

(4) Mr Mammo had since April 2004, (excluding the periods from outlined above), suffered partial incapacity up to at least 9 January 2008 based on the nature of the injuries, the resultant disabilities and the restrictions noted by the various medical practitioners.  That incapacity was only in respect of the most strenuous duties required of a security officer.  Mr Mammo had made no allegation of any incapacity to perform engineering work by reason of the injuries.

(5) In applying Mitchell, in three of the four relevant periods there was no difference between Mr Mammo’s probable earnings and actual earnings or ability to earn.  During certain periods Mr Mammo had, for taxation purposes, sought to offset substantial business expenses against his gross income of $1600.00 per week as an engineering sub-contractor.

(6) On the principles in Cage Developments Pty Limited v Schubert (1983) 151 CLR 584, the true value of the labour performed by Mr Mammo in the course of his engineering work at relevant times was $1600.00 per week. That sum exceeded his probable earnings thus he was not entitled to an award of weekly compensation during those periods [83].

(7)  Whilst Mr Mammo had a prima facie entitlement to weekly compensation during the period of 1 July 2005 to 31 May 2006, an analysis of the earning figures for that period revealed a higher figure from security work, than earlier demonstrated and an unexplained low figure generated by his work as an engineer.  It was concluded that those actual earnings did not properly demonstrate Mr Mammo’s ability to earn.  Mr Mammo’s true ability to earn from both sources of employment was $1250.00 per week, and he had no entitlement to weekly award during that period [85].

(iii) Evidence - speculative

Formosa v Express Transport & Packaging Pty Ltd [2009] NSWWCCPD 21

Handley ADP

27 February 2009

Facts:

• Mr Formosa, after leaving school at the age of 13, worked in the chicken industry performing unskilled manual work. In 1995 he commenced employment with Express Transport (formerly Red Lea Chickens) and worked there until 5 December 2005 when he injured his back while lifting tubs of chickens.
• On 3 October 2007, an Arbitrator determined that Mr Formosa was totally incapacitated for work and an award of weekly compensation was made.
• On 4 September 2008 Express Transport sought a review of the weekly payments because of a change of circumstances, pursuant to section 55 of the 1987 Act, claiming that Mr Formosa was partially incapacitated and no longer totally incapacitated for work.

Arbitrator’s decision:

• Relying on the evidence of Mr Formosa’s gym strengthening training and various medical reports Mr Formosa’s physical condition had improved such that he was no longer totally incapacitated for work and could undertake suitable duties.
• The Arbitrator relied on the opinion of Dr Bodel, dated 11 June 2008, where he stated that Mr Formosa was capable of a wide range of full time work activities, subject to a lifting restriction of 15kgs, for initially a period of four hours a day, five days a week and that “with continued work hardening and appropriately modified duties he may be able to upgrade to full time permanently modified duties within a four month period”. The Arbitrator adopted a longer period of 5.5 months commencing from the date of his determination.
• There had been a ‘change of circumstances’ within the meaning of section 55, since the 3 October 2007 award.  He ordered Express Transport to pay Mr Formosa weekly compensation at the statutory rate for a single worker under section 40 from 1 June 2008 to 19 November 2008 and then at the rate of $171.30 from 20 November 2008 and continuing.
• Mr Formosa would be able to secure suitable employment as a process worker within the meaning of section 40(3) and 43A of the 1987 Act, provided there was no requirement for the taking of inventories or checking orders and other limitations.  Mr Formosa would have been in a better position to secure a position had he continued with the assistance of a rehabilitation specialist.
• Relying on a report by Recovre, the average weekly amount Mr Formosa would be able to earn in suitable employment after injury would initially be $332.00 and upon commencement of full-time work, $548.70. In applying the five steps in Mitchell v Central West Health Service (1997) 14 NSWWCCR 528 (‘Mitchell’) and noting that the parties had agreed that Mr Formosa’s pre-injury earnings were $720.00 per week, the Arbitrator did not consider it appropriate to further reduce the amount of weekly earning.

Issues on appeal:

Mr Formosa appealed this decision on the sole ground that the Arbitrator had erred in his application of section 40 of the 1987.

Held:

(1) The Arbitrator’s finding that Mr Formosa would be in a better position had he continued with rehabilitation assistance was speculative [39].

(2) There was insufficient evidence before the Arbitrator to enable him to make the finding that Mr Formosa was capable of full time work at the date of the determination (20 November 2008) and in doing so he made an error of fact.

(3) The lack of co-operation by Mr Formosa in terms of training and rehabilitation was not a matter that the Arbitrator should have taken into account in determining his ability to earn in suitable employment (step 2 of Mitchell) and to the extent he did so was an error of law [39].

Orders:           Revoked and remitted to another Arbitrator for determination afresh.

Hearing loss – further loss - estoppel

Prisk v Department of Ageing, Disability and Home Care (No 2) [2009] NSWWCCPD 13

Boilermaker’s deafness; claim for further hearing loss; section 17 of the 1987 Act; estoppel; effect of prior Medical Panel assessments under section 131 of the 1987 Act and section 122 of the 1998 Act; effect of prior unsuccessful claim for the cost of hearing aids before the former Compensation Court of NSW.

Roche DP

5 February 2009

Facts:

• Mr Prisk started work with the Department as a member of its ground staff in 1974 and, later, as a driver.  His employment exposed him to noise and he first noticed a problem with his hearing in or about 1995.
• In 1996 Mr Prisk claimed compensation for hearing loss. A Medical Panel dated 5 November 1996 assessed him to have 6.7% binaural hearing loss due to boilermaker’s deafness, and a 19% hearing loss in his left ear and 22% hearing loss in his right ear of uncertain origin.  He settled his claim for compensation under section 66 of the 1987 Act for $5,761.66 in respect of 6.7% binaural hearing loss in Terms of Settlement filed with the Compensation Court on 24 July 1997.  The terms noted his “notional date of injury pursuant to s17” to be 12 October 1995, but made no note about the cause of the hearing loss of uncertain origin.
• In 1998 Mr Prisk was unsuccessful in a claim for hearing aids. Curtis CCJ referred to the Medical Panel finding in the previous claim, which did not establish from which loss the need for the hearing aids arose.  His Honour noted the binaural hearing loss of uncertain origin to be 19.7%.
• In 2002 Mr Prisk made a claim for further hearing loss. A Medical Panel dated 19 November 2002 assessed him to have, after adjustment for presbycusis, a binaural hearing loss of 7.6% due to boilermaker’s deafness, and a 21% hearing loss in his left ear and a 23% hearing loss in his right ear of uncertain origin.  He settled this claim under section 66 of the 1987 Act for $585.00 in respect of 0.9% further binaural hearing loss in Terms of Settlement filed with the Court on 1 April 2003.  The terms noted his “notional date of injury pursuant to s17” to be 21 December 2001, but made no note about the cause of the hearing loss of uncertain origin.
• In 2006 Mr Prisk made a fourth claim for hearing loss in respect of 15% “further WPI” with a deemed date of injury of 7 June 2006. Allianz denied liability on the ground that Mr Prisk was “estopped from claiming that the entirety of [his] hearing loss [was] an injury in the nature of a disease of gradual process caused by exposure to industrial noise.”
• At the arbitration on 28 March 2007, the Arbitrator determined that Mr Prisk suffered an injury on 7 June 2006, being a further hearing loss which was of such a nature as to be caused by a disease of gradual onset. The matter was referred to an AMS, Dr Fernandes, who assessed 11% WPI after finding 29.2% binaural hearing loss, and deducting the 7.6% loss paid in the previous settlements.  He made no deduction for hearing loss of uncertain origin. On appeal by the Department, a MAP confirmed the findings and assessments by Dr Fernandes.
• At a further hearing on 31 January 2008, the Department argued that Mr Prisk was bound by an estoppel arising from Curtis CCJ’s decision and the previous Medical Panel certificates to the effect that 19.7% of Mr Prisk’s binaural hearing loss was of uncertain origin and therefore unrelated to his employment. The Arbitrator did not determine the estoppel issue but held that the MAC was not conclusively presumed to be correct because no medical dispute had been properly referred to Dr Fernandes and his certification with respect to those matters was invalid. He referred the matter back to Dr Fernandes for him to assess the degree of permanent impairment as a result of the injury on 7 June 2006 and whether any proportion of that impairment was due to any previous injury or pre-existing condition or abnormality.
• On 14 April 2008 Dr Fernandes issued an Amended MAC with the same assessment as the first MAC, that is, 11% WPI as a result of the further hearing loss deemed to have happened on 7 June 2006, with no deduction for hearing loss of uncertain origin.
• Following a further teleconference and written submissions, the Arbitrator determined on 10 June 2008 that the matter be referred back to Dr Fernandes again to assess permanent impairment from the injury of further hearing loss on 7 June 2006 and directed the AMS to deduct any proportion of permanent impairment resulting from the hearing loss previously identified in 1997, the hearing loss of uncertain origin (19.7%) and the further hearing loss identified in 2002.
• On 25 July 2008, Dr Fernandes’ third MAC, in accordance with the Arbitrator’s decision of 10 June 2008, assessed 1% WPI.

The Arbitrator’s decision:

Mr Prisk appealed the Arbitrator’s decision of 10 June 2008 but leave to appeal was refused because the order was of an interlocutory nature (Prisk v Department of Ageing, Disability and Homecare [2008] NSWWCCPD 106).

The matter was remitted to the same Arbitrator whose final determination, dated 20 October 2008, awarded $1,250 in respect of 1% WPI in accordance with Dr Fernandes’ assessment. Mr Prisk sought leave to appeal the Arbitrator’s determination of 20 October 2008.

Issues on appeal:

Mr Prisk argued that the arbitrator erred in holding an issue estoppel arose from the decision of Curtis CCJ or from the previous Medical Panel assessments.

Held:

(1) Curtis CCJ’s finding created an estoppel as to Mr Prisk’s entitlement to hearing aids as at the date of that decision. It created no other estoppel because “where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived.” (per Dixon J observed in Blair v Curran (1939) 62 CLR 464). [47], [48]

(2) The present claim concerned a separate cause of action, namely, a claim in respect of a further loss of hearing with a deemed date of injury of 7 June 2006.  Mr Prisk established that, as at 7 June 2006, he was employed in employment to the nature of which the further loss was due. Given that finding, which was not challenged, the question of the nature and extent of Mr Prisk’s hearing loss resulting from that injury was a matter for the AMS, who’s certification was “conclusively presumed to be correct” as to the degree of permanent impairment as a result of an injury (section 326(1)(a) of the 1998 Act).  The AMS was correctly asked, when preparing his Amended MAC, to take into account the prior binaural hearing loss of 7.6% (for which compensation had been paid), which he did.  Therefore, there was no basis for a third referral to the AMS [49].

(3)  The conclusive evidence from the AMS was that Mr Prisk’s hearing loss was not of uncertain origin, but was “occupational”. Therefore, what was uncertain at the time of Curtis CCJ’s decision and the previous Medical Panel certificates was certified as certain in a document that is conclusively presumed to be correct under the terms of the 1998 Act [51]. Therefore, even if Curtis CCJ had made a formal finding of the kind urged by the Department as to the cause of Mr Prisk’s hearing loss as at the date of his decision, that finding would not stop the Commission, when dealing with a different cause of action at a later date, from making a different finding on the basis of additional evidence conclusively presumed to be correct [52].

(4)  Terms of settlement can give rise to res judicata estoppels in certain circumstances (Rail Services Australia v Dimovski [2004] NSWCA 267 (2004) 1 DDCR 648 (‘Dimovski’)), though the nature and extent of such an estoppel will depend on the facts and circumstances of each case [53] and [54].

(5)  Though issue estoppels can arise from Consent Orders (see Rinker Group Limited v Mackell [2008] NSWWCCPD 100), there is no estoppel in a changing situation and a later claim for hearing loss compensation as a result of a further injury is one example of such a situation. (The Doctrine of Res Judicata by Spencer Bower, Turner and Handley at [38] and [185]; Hamersley Iron Pty Ltd v The National Competition Council [2008] FCA 598; Cleverley v Gas Light and Coke Co (1907) 24 TLR 93; O’Donel v Commissioner for Road Transport (1938) 59 CLR 744 (‘O’Donel’)) [55]. Applying the principles in O’Donel and Dimovski to the present matter it was clear that there was “much other evidence” (including a binding MAC)relating to the cause of Mr Prisk’s hearing loss at a later date [61].

(6) Mr Prisk was bound by the previous Terms of Settlement under which he was paid for a binaural hearing loss of 7.6%.  That amount was deducted by the AMS in making his calculations [65].

Orders:

The Amended MAC was validly issued and the Arbitrator erred in requesting a third MAC.  The Arbitrator’s decision was therefore revoked and an award was made for Mr Prisk in accordance with the findings of the Amended MAC for 11% WPI as a result of his injury of further hearing loss deemed under section 17 of the 1987 Act to have happened on 7 June 2006.

Mr Prisk to have costs of the employer’s unsuccessful appeal to the Medical Appeal Panel and the arbitral appeal.

Delay in making claim - failure to discharge onus re: ignorance of rights

Westlake v Sydney Symphony Orchestra Subscribers Committee [2009] NSWWCCPD 12

O’Grady ADP

4 February 2009

Facts:

• The Orchestra employed Mr Westlake as a principal clarinettist during the periods 29 June 1954 to 2 December 1954 and between 4 April 1960 and 17 March 1978.  In July 2007 Mr Westlake made a claim for industrial deafness, which was disputed by the insurer.
• Mr Westlake lodged an ARD on 2 July 2008 claiming 7.4% binaural hearing loss ($3,848.00) and digital hearing aids, relying on a report from Dr Howison of 12 June 2008. Dr Howison opined that Mr Westlake was exposed to considerable noise, seated in front of the brass section and he was not able to wear any ear protection”.
• The Respondent disputed liability:

1. whether Mr Westlake could recover compensation: ss254 and 261 of the 1998 Act
2. whether the claim had been duly made: sections 260 and 282 of the 1998 Act
3. injury and the deemed date of injury for the purposes of section 17 of the 1987 Act and last noisy employer, and
4. to the extent that any of the above were not notified, the Respondent sought for determination of those matters in accordance with section 289A(4) of the 1998 Act

The Arbitrator’s decision:

• An award was made for the Respondent.
• Mr Westlake had failed to comply with the statutory requirements concerning the giving of notice of injury and the making of a claim.
• Mr Westlake’s argument of “ignorance” of relevant matters was rejected.

Issues on appeal were whether the Arbitrator erred:

• in determining that the Appellant was debarred from recovery of compensation due to his failure to comply with the legislative requirements concerning time limitations as to the giving of notice of injury and notice of claim
• with respect to the manner in which relevant provisions of the 1998 Act applied to the facts as proven.
• with respect to her factual findings.

Held:

(1)  It was not disputed that the alleged injury was deemed to have occurred on 17 March 1978 and it was agreed that the claim was made in July 2007. The provisions of sections 61 to 64 of the 1998 Act apply to Mr Westlake’s obligation to give notice of injury.

(2)  Sections 260 and 261 regulate requirements as to the making of a claim stated as being made in July 2007 (applying Toll Pty Limited v Bartimote (2007) NSWWCCPD 153).

(3)   The Arbitrator erred in determining that section 254 of the 1998 Act was the relevant provision to be applied [57].

(4)  Notwithstanding the error noted above, the Arbitrator’s ultimate conclusions concerning Mr Westlake’s failure to comply with the notice provisions and her determination that such non-compliance should not, on the facts, be excused [59] were upheld.

(5)  There was little direct evidence on the issue of prejudice. Correspondence between the Respondent and its Insurer, which was before the Commission did not address the question of the existence or otherwise of actual prejudice occasioned by delay in the giving of notice of injury and making a claim. Notwithstanding, it was clear that the mere effluxion of time, and the period exceeding three decades since the date of injury, formed a reasonable basis upon which a presumption of prejudice may be made (see discussion by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541).  The likelihood was that the Respondent has been prejudiced by such delay and that Mr Westlake had not established entitlement to the benefit of the application of section 61(2)(a) of the 1998 Act [69].

(6)  The concept of ‘ignorance’ was stated by Burke J in Gregson v L and Mr Dimasi Pty Ltd [2000] 20 NSWCCR 520 (‘Gregson’) at 61:

“61 The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it.  Effectively the court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim …”

(7)  There was no evidence of any weight that addressed the question of Mr Westlake’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978.  The onus was on the Appellant, and such evidence was essential to enable a determination of his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant failed to establish such entitlement [66].

(8)  Appellant barred from recovery of compensation as claimed.

Video surveillance - weight of medical opinion

Stratco (NSW) Pty Ltd v Korunovic [2009] NSWWCCPD 16

Snell ADP

17 February 2009

Facts:

1. Mr Korunovic worked as a process worker for Stratco from about 1992. In 1998 he had a car accident driving to work.  Stratco accepted liability and paid weekly compensation benefits and lump sum compensation under sections 66 and 67 in respect of injury to his neck, back, right leg and right arm.
2. In 2002 and in July 2006 he made further claims including allegations that his neck, back, right arm and right leg were aggravated and also that he suffered injury to his left leg, left arm and both feet, due to the nature and conditions of employment from 2000 to date.
3. On 27 October 2006 whilst at work, Mr Korunovic “tripped over offset and fell against machine”.  He was taken by ambulance to Nepean Hospital, hospital notes indicating he complained of symptoms in the neck, thoracic back, lower back, left elbow, left flank and right knee. The history states he had suffered from chronic back and neck pain since the motor accident in 1998.
4. Mr Korunovic was off work from 27 October 2006 until about mid-2007.  He resumed work on restricted hours, which he found difficult complaining of aching in his back and neck, headaches and sharp pain in the left knee.
5. Stratco made voluntary payments of compensation up to at least 24 June 2007, and perhaps beyond that date, for which they sought credit.
6. On 14 September 2007 Stratco wrote to Mr Korunovic asserting that inconsistencies between his version of how he alleged he was injured on 27 October 2006, and CCTV footage of that incident, were such that he had “deliberately sought to mislead” Stratco and the insurer. This constituted serious and willful misconduct, and Mr Korunovic was dismissed on 12 October 2007.
7. Surveillance on 1 August 2007, showed Mr Korunovic involved in the demolition of a fence and construction of a new one to replace it.  Mr Korunovic said in a later statement that he tried to help out a friend in about August 2007, and again about six or eight weeks later but realised he could not do work of that nature as it was “too hard”.
8. Mr Korunovic lodged an ARD in the Commission and at the arbitration on 15 September 2008, the allegations of injury were refined, without objection, to the following:

(i) injury to the neck, back and right knee resulting from the nature and conditions of employment between approximately April 1998 and 14 August 2006;

(ii) aggravation of injury to the neck, back and right knee resulting from the incident of 27 October 2006

(iii) development of pathology in the left knee resulting from the Worker favouring his left knee due to the injuries above.

The Arbitrator’s decision:

(1) The incident of 27 October 2006 did not result in injury.

(2) Mr Korunovic did suffer aggravated injuries as a result of the nature and conditions of his employment.

(3) The employer to pay (under section 40) $274.15 per week from 24 June 2007 to date and continuing with credit for payments already made.

(4) The lump sum claim was remitted to the Registrar for referral to an AMS for assessment of injury to the neck, back, right knee and left knee.

Issues on appeal:

The Appellant argued that the Arbitrator erred in failing to:

(i) consider the medical evidence;

(ii) consider whether Mr Korunovic was a credible witness;

(iii)  properly consider the effect of a finding that injury did not occur in the incident of 27 October 2006, on Mr Korunovic’s credit, and

(iv)   give adequate reasons.

Held:

(1) The CCTV footage of the incident on 27 October 2006 suggested Mr Korunovic was able largely to control his fall, and the level of trauma did not appear great. Considering both that footage, and the medical evidence, which dealt with the incident, the incident was a relatively trivial one and the evidence did not establish that any pathological change occurred [50].

(2) The Worker’s usual duties were strenuous, and involved heavy lifting, repeated bending, and long periods of standing. This finding was based on Mr Korunovic’s consistent histories about his strenuous activities (some of it pre-dating the allegations of injury in the incident of 27 October 2006), the partial corroboration of Mr Korunovic by Mr Berber (co-worker), and the absence of any convincing evidence to the contrary [82].

(3) The Arbitrator correctly approached the issue of ‘injury’ on the basis of the ‘disease’ provisions of the 1987 Act. Mr Korunovic suffered injury by way of continuing aggravation to the condition of his cervical spine, lumbar spine and right knee, resulting from the nature and conditions of his employment [96], [106] and [107].

(4) The surveillance video demonstrated Mr Korunovic carrying out activities that were at marked variance with his complaints and presentation to a number of doctors. This was relevant to the weight to be attached to the doctors’ opinions regarding his capacity to work (see generally Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705). The level of activity shown in the video was directly relevant to a determination of the Mr Korunovic’s ability to earn. [112]

(5) The probable earnings were agreed at $824.15 per week. Considering the video and medical evidence overall, the worker was capable of significant physical work but probably not fit for heavy labouring work. Having regard to the matters set out in section 43A of the 1987 Act, jobs such as cleaning, security work, many forms of process work, or many stores jobs would be suitable, on a full time basis. The worker’s ability to earn in some suitable employment was $670.00 per week, resulting in a difference of $154.15 per week [117] and [118].

(6) The Arbitrator did not give adequate reasons on the issue of the worker’s credit ramifications of the video evidence, especially in circumstances where Stratco conducted its case on the basis the video impugned Mr Korunovic’s credit. However the failure to give adequate reasons on this issue did not affect the orders on this appeal [41] and [124].

Interlocutory appeal – AMS referral

Moore v Greater Taree City Council [2009] NSWWCCPD 17

Snell ADP

20 February 2009

Facts:

• Ms Moore was employed in a clerical capacity but her duties included periodically organising and setting up functions.  On 16 September 2004 she injured her back while moving a very heavy pot plant in the course of a function set up.
• Ms Moore underwent a laminectomy, and fusion surgery. She subsequently resumed carrying out some duties for the Council on a computer from home.
• On 6 September 2007 Ms Moore made a claim on the Council for work injury damages. The Council’s insurer, denied liability, partly on the basis that it did not concede that Worker suffered from at least 15% WPI.
• Ms Moore also made a claim for lump sum compensation pursuant to section 66 and 67 of the 1987 Act. The Council’s insurer in a section 74 Notice, denied liability for the claim from the date of the Notice on the basis that Ms Moore had suffered only a “minor soft tissue injury or strain” in the incident on 16 September 2004 and any incapacity beyond a “few days” from the date of injury resulted from causes other than the work incident.
• Ms Moore filed an ARD on 2 June 2008 claiming lump sum compensation in respect of 22% WPI and pain and suffering.

Arbitrator’s decision:

• On 7 October 2008 the Arbitrator made the following findings:
• Ms Moore had suffered an injury on 16 September 2005 when moving the pot plant;
• prior to that injury Ms Moore suffered from a degenerative back condition including a disc protrusion at L4/5, and
• the ‘injury’ was a strain and did not involve further damage or rupture to the disc.
• The Arbitrator directed that the Registrar refer Ms Moore to an AMS, and that the AMS was to be provided with the findings and reasons, in addition to medical reports, for evaluation of WPI as a result of the injury of 16 September 2004.

Issues on appeal:

• Ms Moore appealed the decision relying on several grounds including:
• that the Arbitrator exceeded his jurisdiction (section 326 of the 1998 Act) in that, having made a formal finding of ‘injury’ he should have referred the matter to an AMS for assessment without embarking upon other findings (Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (‘Haroun’);
• Council argued on appeal inter alia that the orders made referring the matter for assessment by an AMS were interlocutory within the meaning of section 352(8), and accordingly section 352(1) did not grant a right of appeal.
• On the interlocutory issue, Ms Moore argued that the Arbitrator not only referred the matter to an AMS but also made specific findings of ‘injury’ that would severely limit the assessment by an AMS and that the ‘findings’ appealed against, determined the rights of the parties and were not ’interlocutory’.

Held:

(1) ADP Snell referred to P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 at [31] and after surveying the decided cases on interlocutory appeals and the relationship between Arbitrators and AMSs from [32] to [39] he drew some common features as set out in [40].  He concluded that the Arbitrator’s orders on 7 October 2008 were interlocutory.

(2) The current matter was distinguished from Maricic v Medina Serviced Apartments Pty Limited [2007] NSWWCCPD 196, in which there was a finding that the worker had not suffered certain injuries on which she relied because in the current matter the Arbitrator had made a formal finding on the only injury on which Ms Moore relied and then referred the issue of the impairment resulting from that injury to an AMS.

(3) The situation may have been different had the Arbitrator entered an award in the Council’s favour based on his Reasons [42].

(4) There is a line of Presidential decisions holding that decisions regarding injury, substantial contributing factor and causation are for the Commission to determine and that after the Commission determines such threshold questions, it is appropriate for a matter to be referred (if necessary) to an AMS for assessment pursuant to Chapter 7 Part 7 of the 1998 Act including: Jopa Pty Ltd (t/as Tricia’s Clip-n-Snip) v Edenden (2004) 5 DDCR 321, Issott v North Sydney Leagues Club (t/as Seagulls Club) [2005] NSWWCCPD 38, Davies v Bisaxa Pty Ltd (t/as Sir Joseph Banks Nursing Home) [2006] NSWWCCPD 103, Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2006) 5 DDCR 337 and Ooi v NEC Business Solutions Ltd (2006) 5 DDCR 461.

(5) These decisions predated the decision of the Court of Appeal in Haroun.

(6) Applying Haroun, ADP Snell noted that an AMS assessing the Worker and issuing a MAC would be at liberty to treat the Arbitrator’s findings as irrelevant, if the AMS independently came to a different conclusion.  The findings of the Arbitrator in such circumstances could not finally dispose of the rights of the parties [46].

Orders:

Leave to appeal was refused.

Factual evidence – failure to determine factual disputes - effect of voluntary payments - estoppel

Begnell v Super Start Batteries Pty Ltd  [2009] NSWWCCPD 19

Effect of voluntary payment of weekly compensation; whether such payments amount to an estoppel; section 274 of the 1998Act; weight to be given to an admission of liability; credit issues; relevance of worker’s criminal record; failure to determine factual issues in dispute; Clause 43 of the 2003 Regulations; admissibility of a MAC

Roche DP

26 February 2009

Facts:

• Super Start is a family run wholesale supplier of batteries.  It employed Mr Begnell through the Department of Corrective Services in 2001, initially as a storeman, and then promoted him to be the warehouse manager a few months later.
• There was no dispute that Mr Begnell had disc pathology in his low back nor that he was unfit for heavy work.  However, how and where Mr Begnell injured his back was hotly disputed and the subject of conflicting evidence from several witnesses.
• According to Mr Begnell, his disc injury had been caused by regularly lifting heavy batteries in the course of his duties and as a result of lifting on 4 July 2003.  Super Start alleged that Mr Begnell’s duties were supervisory and that he admitted to hurting his back at home on the morning of 4 July 2003 while picking up dog droppings.
• CGU initially accepted Mr Begnell’s claim and made voluntary compensation payments from a date in September 2003 until 14 February 2006, having declined liability by letter to Mr Begnell dated 2 February 2006.

The Arbitrator’s decision:

The Arbitrator found in favour of Super Start on the grounds that Mr Begnell had failed to discharge the onus of proof.

Issues on appeal:

Whether the Arbitrator erred in:

1. Failing to find that the initial acceptance of liability and the making of voluntary payments of compensation amounted to an estoppel that prevented Super Start from denying liability;
2. Finding that the MAC was a “forensic medical report” under Clause 43 and therefore inadmissible;
3. His factual findings;
4. Making no findings in respect of critical factual issues;
5. Admitting Mr Begnell’s criminal record into evidence;
6. Failing to make any determination as to the credit of key witnesses, and
7. Drawing an adverse inference against Mr Begnell for failing to cross-examine witnesses.

Held:

(1)  The mere acceptance of liability and payment of compensation until February 2006 amounted to no more than an admission to be assessed and weighed with all the other evidence in the case and did not prevent a later denial of liability. (Department of Education and Training v Sinclair [2005] NSWCA 465; Nominal Defendant v Gabriel & anor [2007] NSWCA 52) [105].  This conclusion was not affected by the introduction of “provision liability” in section 274(2) in January 2002.

(2)  The circumstances where an estoppel by representation might arise as a result of the voluntary payment of compensation were discussed at [98] to [105].

(3)  Clause 43 does not apply to MACs (see Clause 47) and a MAC is not a “forensic medical report” [111] and [112].

(4)  The Arbitrator incorrectly referred to Dr Bodel having been sent extra material by “the Applicant”, which was “not called in evidence by the Applicant.”  As Super Start qualified Dr Bodel, it was not open to draw a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) inference against Mr Begnell [116].

(5)  The Arbitrator failed to discharge his duty to consider relevant evidence, weigh that evidence with conflicting evidence and determine which he accepted and which he rejected in reaching his conclusion.  It was not open to conclude, without indicating if he accepted or rejected Mr Begnell’s medical and lay evidence, that Mr Begnell had not discharged the onus of proof [136].

(6)  A worker’s criminal record will not normally be admissible in the Commission because it will rarely be relevant to the issues in dispute.  However, the present case was exceptional as the case turned on the acceptance or rejection of Mr Begnell’s evidence and, therefore, his credit, and given that he had tendered evidence of his good (or reformed) character, evidence of his criminal record was admissible as it indicated he had been convicted of offences relating to honesty.  Whilst such convictions impacted adversely on Mr Begnell’s credit, they were not determinative of the issues in dispute but required that his claim be carefully assessed and weighted against other evidence to determine its consistency and reliability [131] and [132].

(7)  The Arbitrator did not adequately deal with the significant credit issues relating to several key witnesses or the issues in dispute generally. Merely referring to Mr Begnell’s submissions about certain credit issues relevant to Super Start’s witnesses did not deal with any of the critical issues in dispute, namely, the nature of Mr Begnell’s duties, whether those duties may have caused his injury, and whether the injury had been caused at home on the morning of 4 July 2003, as claimed by Super Start.  To determine those issues the Arbitrator had to determine which of the conflicting statements he accepted and which he rejected.  He failed to do that [139].

(8)  In a case where neither party sought leave to cross-examine any of the many witnesses, the Arbitrator was not entitled to draw an adverse conclusion against one party from its the failure to cross-examine. The failure to cross-examine was a neutral factor that did not advance or diminish either party’s case.  The Arbitrator erred in criticising Mr Begnell for his failure to cross-examine [145].

(9)  The evidence from Mr Begnell’s GP, Liverpool Hospital, Dr Bodel, Dr Milder and two lay witnesses corroborated his claim and added an element of “consistency and reliability” (see point (4) above) to his case that made the acceptance of his evidence reasonable and appropriate notwithstanding the damage to his credit as a result of his past criminal conduct [161].

(10) Though it was not a specific ground of appeal, the Arbitrator also failed to rule on certain evidentiary objections by Super Start [149] and [150].

Orders:

The Arbitrator’s decision was revoked and an award was made for Mr Begnell for section 40 payments at the statutory rate, which Super Start conceded was appropriate if he was otherwise entitled to an award.

Section 9A – expert evidence – ipse dixits

New South Wales Police Force v Cox [2009] NSWWCCPD 20

Substantial contributing factor; journey provisions; whether a worker in the course of employment can also be on a journey; expert evidence; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Roche DP

27 February 2009

Facts:

• On 13 June 2004, Mr Cox, a police officer, was rostered as the “on call officer” for the Forensic Service Group Crime Scene Unit at Albury. He left his home at about 6am in the “on call police vehicle”. He alleged that he turned his head and reached for the police radio and as he did so, he coughed and experienced severe pain in his head, with weakness in the left side of his body. Only two days prior to this incident, Mr Cox had been off work due to a viral infection with a sore throat, headaches and repeated dry cough.
• The Police Force initially accepted the claim, but ultimately disputed liability on the basis that Mr Cox had not turned his head, or reached for the radio, at the time he coughed and felt pain and that, as a result, his employment was not a substantial contributing factor to his injury.
• At the arbitration, Counsel for Mr Cox conceded that his client was in the course of his employment at the time of the incident on 13 June 2004.  As a result of that concession, the Arbitrator noted that section 10 did not apply. The Arbitrator identified the issue in dispute to be whether employment was a substantial contributing factor to the injury.

The Arbitrator’s decision:

The Arbitrator found in favour of Mr Cox on the basis that he had sustained a soft tissue injury to his neck with cervicogenic headaches and that employment was a substantial contributing factor to this injury, the incident having occurred as he had a coughing fit whilst bending to adjust the police car radio which was a task performed in the course of employment.

Issues on appeal:

The Police Force argued that the Arbitrator erred in finding employment to be a substantial contributing factor to the injury in circumstances where there was no evidence that Mr Cox turned his head as he coughed until several months after the incident.

Counsel for the worker argued that the Arbitrator’s decision was correct and that Mr Cox was also on a journey within the meaning of section 10 of the 1987 Act and that the requirement that employment be a substantial contributing factor did not apply to such a claim (section 9A(4) of the 1987 Act).

The appeal therefore turned on the following points:

• Did the Arbitrator err in finding employment to be a substantial contributing factor to the injury?
• Could it also be said Mr Cox was on a journey and therefore covered by section 10?

Held:

(1) Factual findings can be made notwithstanding the absence of contemporary evidence. Findings depend on an assessment of all the evidence [87].

(2) The histories recorded by Mr Cox’s treating doctors within days of the incident, which did not mention Mr Cox reaching down or turning his head at the time he coughed, were likely to be a more accurate account of what happened on 13 June 2004, than the histories recorded several months later. It was therefore found that Mr Cox had not reached for, bent towards, or turned his head towards the police radio when he coughed. There was therefore no factual basis for the conclusions reached by the Arbitrator [96].

(3) Mr Cox’s symptoms were caused by his viral infection and coughing and had nothing to do with his employment [104].

(4) The assumptions on which the opinions of Drs Bittar and Patrick were based, namely, the rotation of the head (Dr Bittar) and the lateral rotation of the neck to the left with flexion and lateral flexion (Dr Patrick), had not been proved and their opinions were of no weight (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) at 731) [96]. Moreover, Drs Bittar and Patrick did not have a history of Mr Cox’s symptoms caused by his viral infection leading up to 13 June 2004 nor of past unusual neurological symptoms in 1993 [101].

(5)  In the alternative, even if the factual basis for the opinions of Drs Bittar and Patrick was established, the doctors did not explain how it was that coughing with the head turned or flexed while reaching for the radio caused or contributed to the injury. Their conclusions were no more than bare “ipse dixits” (Makita and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421 at [130] and [131]) that were unsupported by any reasoning or analysis.  The omission of such an analysis can sometimes be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) at [90]) however, the incident on 13 June 2004 and its consequences were not within “the realm of common knowledge and experience” referred to by Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91]) that would enable an arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that there was a connection between coughing while reaching, or coughing with the head turned or rotated, and the development of Mr Cox’s symptoms [98].

(6)    In respect of the journey claim at the time of the incident, Mr Cox’s “place of employment” for the purposes of section 10 was the police car. Having arrived at his “place of employment”, he could no longer be on a journey within the terms of section 10 [114].

(7)  If the point at [5] above was incorrect, and Mr Cox was on a journey, the claim still failed because his injury resulted from his “medical or other condition” (section 10(1D)), namely, his viral infection and coughing.  The journey did not cause or contribute to the injury [117].

Orders:

The Arbitrator’s decision was revoked and award was made for the Police Force.