Issue 5: May 2009

On Appeal

Welcome to the Fifth edition of ‘On Appeal’.

Edition 5 - May 2009 includes a summary of the April 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:

Partial Incapacity. 3

Fletcher International Exports Pty Ltd v Lott and anor [2009] NSWWCCPD 40. 3

Evidence. 6

(i)      Evidence - factual findings as to injury. 6

Zychowicz-Pawlenty v Coles Supermarkets Pty Ltd [2009] NSWWCCPD 37. 6

(ii)     Evidence - Application of Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’) 7

Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41. 7

McCabe Terrill Lawyers v A [2009] NSWWCCPD 46. 8

Psychological injury – section 11A.. 11

Department of Corrective Services v Byrnes [2009] NSWWCCPD 38. 11

Hearing Loss – expert evidence. 13

Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42. 13

Weekly compensation – Notice to discontinue (section 119 of 1998 Act) – acceptance of suitable employment 15

The Ironbark Restaurant and Café v Galiatsatos [2009] NSWWCCPD 43. 15

Galiatsatos v The Ironbark Restaurant and Café [2009] NSWWCCPD 44. 15

Leave to appeal 18

(i)      Interlocutory. 18

Smith v Walgett Shire Council [2009] NSWWCCPD 45. 18

(ii)     Monetary threshold. 20

Druett v The Smiths Snack Food Company Ltd [2009] NSWWCCPD 39. 20

Partial Incapacity

Fletcher International Exports Pty Ltd v Lott and anor [2009] NSWWCCPD 40

Injury; causation; section 9A of the 1987 Act; summons to give evidence

Roche DP

14 April 2009

Facts:

• Mr Lott injured his left knee in 2002 whilst working for Fletcher Exports as a station hand. He continued to have intermittent difficulties with his knee but after surgery, was able to continue normal duties.
• On 11 July 2005 Mr Lott commenced employment at a higher wage with Glenam Farming (the second respondent) as a station hand. On the second day of employment Mr Lott attempted to turn to walk when his left leg collapsed.
• Glenam Farming denied liability on the ground that the 2005 incident was a recurrence of the 2002 injury with Fletcher Exports, who also denied liability.
• The matter proceeded to arbitration. Fletcher Exports summonsed Mr Swain, a partner in Glenam Farming, to attend and give evidence, but he was excused from doing so by the Arbitrator.

The Arbitrator’s decision

The Arbitrator made an award in favour of Glenam Farming and an award against Fletcher Exports. He assessed probable earnings but for the injury on the basis of earnings with Fletcher Exports. The matter was otherwise referred to an AMS for WPI assessment.

The summons on Mr Swain was set aside as attendance would have caused him serious inconvenience and it was not apparent how his attendance would benefit the appellant.

Issues on appeal were whether the Arbitrator erred in:

• finding that Mr Lott did not sustain an injury in his employment with Glenam Farming;
• finding that Mr Lott was incapacitated for work as a result of injury with Fletcher Exports, and generally in his assessment of probable earnings but for injury, actual earnings and earning capacity;
• denying Fletcher Exports procedural fairness in setting aside the summons requiring Mr Swain to give evidence without hearing submissions from Fletcher Exports, and
• failing to consider apportionment under section 22 of the 1987 Act.

Held

(1)     What is required for an ‘injury’ within par (a) [of section 4] to occur is a ‘sudden or identifiable pathological change’ in the body, whether internal or external (per Armitage CCJ at [129] in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 citing Kirby J in Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; (1996) 187 CLR 310)). [64]

(2)      Mr Lott experienced a sudden pathological change on 12 July 2005, namely a re-dislocation of the patella in his left knee with pain and swelling, which occurred in the course of employment. He therefore received an injury. [66]

(3)      The “strength of the causal linkage” (per Giles JA in Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWCCR 46) between the injury and employment with Glenam Farming was not sufficient to satisfy section 9A of the 1987 Act. The 2005 injury resulted solely from the earlier injury in 2002, not from the work incident in 2005. [82]

(4)      The fact that a worker returns to his or her pre-injury duties does not necessarily mean that no incapacity exists on the open labour market.  However, it was not possible to determine incapacity in the labour market reasonably accessible to Mr Lott as his evidence was inadequate and the medical evidence out of date.  [90]

(5)      In determining probable earnings under section 40(2)(a), the section does not dictate that a worker can only look to wages currently being paid by the employer with whom he sustained his or her injury.  It requires a consideration of the worker's earnings in "the same or some comparable employment".  As to the meaning of that phrase and the circumstances in which it will be appropriate to consider earnings in comparable employment, see Johnston v Commissioner of Railways [1973] HCA 46;(1973) 128 CLR 632 at 640 and Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 540 [93] to [98]. The evidence as to his earnings with Glenam Farming was “comparable employment” within the meaning of section 40(2)(a) and “but for” the injury with Fletcher Exports it is the employment that he would have continued to perform. His employment with Glenam Farm was not “fanciful speculation” (per Kirby P in Pantaleo), but a reality.

(6)      Mr Lott's employment with Glenam Farming (station hand) was directly comparable to, if not exactly the same, as the work as a station hand that he performed with Fletcher Exports.   He was therefore entitled to rely on the evidence he called as to his earnings with Glenam Farming because it was “comparable employment” within the meaning of section 40(2)(a) and “but for” the injury with Fletcher Exports it is the employment that he would have continued to perform. [99]

(7)      In calculating probable earnings under section 40(2)(a), it is appropriate to have regard to the monetary value of subsidised housing (Dabav Pty Ltd v Fowler (1998) 17 NSWCCR 301) and other allowances included in the workers’ remuneration package. Such allowances, however, are excluded when calculating a worker’s current weekly wage rate [102]-[103]

(8)      Mr Swain was not required to comply with the summons because he had not been given any conduct money. [124]

(9)      As Fletcher Export’s solicitor had not complied with Part 14 Rule 14.2 of the Rules, there was no reason to allow Mr Swain to be cross-examined. [127]

(10)    If the Arbitrator erred in failing to hear submissions before setting aside the summons requiring Mr Swain to attend, that error was of no consequence because it did not affect the outcome as Fletcher Exports had no right to enforce compliance with the summons and no right to cross examine Mr Swain in any event. [128]

(11)    Given that no liability attached to Glenam Farming, the question of apportionment did not arise. [130]

Orders: The matter was remitted to a different Arbitrator for re-determination of Mr Lott’s entitlement to weekly compensation.

Evidence

(i)         Evidence - factual findings as to injury

Zychowicz-Pawlenty v Coles Supermarkets Pty Ltd [2009] NSWWCCPD 37

Roche DP

1 April 2009

Facts:

• The appellant worker was a part-time shelf packer and check out operator for Coles. She claimed 34% WPI as a result of alleged injuries to her neck, back, left shoulder, both knees and right hip due to the nature and conditions of her employment.
• Coles denied liability under section 4 and in the alternative, section 9A.

The Arbitrator’s decision

The worker suffered injury to her cervical, thoracic and lumbar spines and both knees as a result of the nature and conditions of her employment. The matter was referred to an AMS for assessment of WPI.

Issues on appeal were whether the Arbitrator erred in:

• failing to find that the worker suffered an injury to her right hip;
• failing to find that the worker suffered an injury to her left shoulder;
• finding that injury to her spine and knees was an aggravation of a disease, and
• the worker also sought to rely on additional evidence on appeal

Held

(1) Additional evidence consisted of recent MRI scan and medical reports which were held admissible as they were not available at the time of the arbitration, they were relevant and it was in the interests of justice to allow them. [21]

(2) The evidence about the right hip claim was inconsistent, unimpressive and unconvincing. [46]

(3) The evidence about the left shoulder claim lacked probative value, as no explanation of the cause of symptoms and pathology, nor opinion as to whether they were work related, were proffered. [54] – [57]

(4) The presence of minor pathology on radiological investigation does not mean the worker has sustained an injury. [56]

(5) The worker had extensive degenerative changes in her cervical, thoracic and lumbar spines and early arthritic change in her left knee. In the absence of any specific work incident that could be identified as responsible for any one lesion, it was appropriate that the arbitrator classified the injury as an aggravation of a disease (an underlying degenerative condition). [60], [61]

Orders: The Arbitrator’s decision was confirmed.

(ii)    Evidence - Application of Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’)

Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41

Injury; aggravation of disease; sections 4(b)(ii) and 16 of the 1987 Act

Roche DP

16 April 2009

Facts:

• The appellant worker alleged that he injured his back on 5 February 2002 lifting a rubbish bag from a bin whilst working as a service attendant for Railcorp. The exact location of his back pain (upper back or lower back) was the subject of conflicting evidence.
• He reported his injury to his manager and consulted his GP who certified him unfit for work. Mr Ramasamy returned to work on or about 15 February 2002.
• A few months later he felt ill, had a fever and his pain increased. A CT scan on 26 April 2002 revealed a T3 fracture of the thoracic spine with suggested TB infection.
• Railcorp initially accepted liability but later declined relying on section 9A.  Its Reply attached two reports from Dr Bencsik which it later elected not to rely upon.  Instead, counsel for Mr Ramasamy sought to rely on Dr Bencsik’s reports, but the Arbitrator refused because the worker had “qualified” Dr Guirgis.

The Arbitrator’s decision

The Arbitrator found that the worker had not established that employment was a substantial contributing factor to his injury therefore an award was made for Railcorp.

Issues on appeal were whether:

• The Arbitrator erred in refusing to allow the worker to rely on Dr Bencsik’s reports.
• Railcorp was entitled to dispute the issues of injury and incapacity, having not raised them as disputed matters in its section 74 notice.
• The Arbitrator erred in determining that employment was not a substantial contributing factor to an injury under section 4(a) or an injury under the disease provisions of sections 4(b)(ii) and 16 of the 1987 Act.

Held

(1) Dr Guirgis was the treating orthopaedic surgeon so his report was not a “forensic medical report” and therefore clause 43 of the Regulations did not apply. In circumstances where the employer had attached Dr Bencsik’s reports to its Reply, and the worker relied on no other “forensic medical report”, the reports were admissible. As Railcorp filed and served Dr Bencsik’s reports with its Reply, Mr Ramasamy was entitled to assume they would be tendered.  There was therefore no prejudice to Railcorp in allowing the reports in. [53]-[54]

(2) Railcorp’s section 74 notice did not dispute injury, only whether employment was a substantial contributing factor.  However having regard to the history of this matter and sections 289A(4) and 354(3) of the 1998 Act, Railcorp was given leave to dispute injury. However having regard to the history of this matter and the broadness of the worker’s claim in respect of injury (not distinguishing between upper back and lower back), and liability having been accepted for a lower back injury, Railcorp was given leave to dispute injury to the upper back (ss289A(4) and 354(3)). [58]

(3) As the upper back condition was a disease, the worker only had to establish that his employment was a substantial contributing factor to the “aggravation, acceleration, exacerbation or deterioration” (section 4(b)(ii)) of that disease and not to the disease process overall (Murray v Shillingsworth [2006] NSWCA 367; (2006) 68 NSWLR 451; Cant v Catholic Schools Office (2000) 20 NSWCCR 88).  There was an aggravation of a disease if it was made “more grave, more grievous or more serious in its effects upon the patient” (Federal Broom Co Pty Ltd v Semlitch  [1964] HCA 34; [1964] ALR 1031; (1964) 38 ALJR 64 (1964) 110 CLR 626 at 639).  [65]

(4) The treating GP diagnosed a soft tissue lower back injury, which was consistent with the worker’s evidence that he felt a sharp pain in his lower back at the time of the incident. This evidence was preferred to the evidence in the forms completed by the supervisor who recorded that injury was to the right hand side of the upper back. [71]

(5) Expert evidence based on the history that the worker injured his upper back on 5 February 2002 was therefore rejected. But even if it had been accepted, there was no explanation in the evidence of how a strain to the thoracic spine aggravated the worker’s disease condition. The conclusions were therefore bare ipse dixits (see Makita, Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 5 DDCR 271; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 42).

(6) The omission of such an explanation can be overcome by the use of “commonsense” in the evaluation of evidence and the “sequence of events” (Hevi Lift at [90]).  However, the connection between a possible thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within “the realm of common knowledge and experience” (Mason J, Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724).  Nor does “commonsense” indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease the worker suffered. [72]

Orders:  For the reasons given on review, the Arbitrator’s decision was confirmed.

McCabe Terrill Lawyers v A [2009] NSWWCCPD 46

Incapacity; evidence required; Makita

Roche DP

30 April 2009

Facts:

• Ms A was a full-time solicitor for the appellant from 24 May 1999 until 9 July 1999 when her employment was terminated. Her duties required her to use a dictaphone and desktop computer and to attend the Compensation Court. Her hours were weekdays 8.30am to 5.30pm, with extensive overtime.
• On 16 June 1999 Ms A became aware of stiffness in her neck and right shoulder and pain radiating into her right arm. On 18 June 1999, a door struck her right arm as she entered a lift at the Compensation Court.  She reported her symptoms on 23 June 1999 and submitted an “Employee’s Compensation Claim” on 5 July 1999 though she remained at work with no loss of time.
• Her claim was accepted and compensation payments made.
• In 2004 an AMS assessed 0% neck impairment and 10% loss of use of the right arm, for which Ms A received compensation.
• The insurer continued weekly compensation until 28 October 2008 when it denied continuing liability.
• Since 1999 Ms A completed a Masters of Law and had intermittent periods of paid, part-time employment. She claims she was not capable of performing pre-injury duties and has an ongoing partial incapacity for work. She currently works 24 hours per week.
• Ms A was self-represented in proceedings before the Commission.

The Arbitrator’s decision

The Arbitrator made a section 40 award in favour of Ms A and ordered payment for the cost of a laptop computer under section 60.

Issues on appeal were whether the Arbitrator erred in:

• failing to decide the matter on the balance of probabilities, with the worker having the onus of proof;
• failing to address the appellant’s argument that the evidence relied upon by the worker did not comply with the test for an expert medical opinion explained in Makita and in South Western Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421;
• considering extraneous matters that were not in evidence before her;
• finding the worker to be incapacitated for full time work as a solicitor, and
• finding that a laptop computer was a reasonably necessary medical expense.

Held

(1) When a worker is currently working, his or her earnings are prima facie evidence of his or her ability to earn (Jordan CJ in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20).  [63]

(2) A determination must be made as to whether Ms A’s actual earnings are a proper measure of her ability to earn (Pira Pty Ltd t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26, JC Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580).  If they are not, then it will be necessary to determine her ability to earn. Due to lack of lay and medical evidence, this could not be determined. [65] – [66], [69]

(3) A finding of incapacity requires an application of a legal standard to the facts found.  The Arbitrator or Presidential member must be satisfied, on the balance of probabilities, having regard to the whole of the evidence that, as a result of the work injury, the worker has an incapacity in the labour market reasonably accessible to him or her.  The medical evidence is an important (often critical) part of the evidence on that issue, but it is not the only evidence that is relevant to the determination. [70]

(4) A medical expert is normally required to provide an explanation for his or her opinion. The Commission will usually be aided by an explanation of the basis for the doctor’s assertion that a significant restriction exists.  In the absence of such an explanation, the doctor’s opinion will be of limited, if any, probative value. However, an expert does not have to explain every opinion (see Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[2002] FCAFC 157 (‘Red Bull’) at [88]-[89], and Giles JA in Adler v Australian Securities and Investments Commission [2003] NSWCA 131 at [631] – cited in Paino v Paino [2008] NSWCA 276 at [65]).  As Weidberg and Dowsett JJ observed (at [89]) in Red Bull, “Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic.”  [71]

(5) The absence of an explanation for Ms A’s doctors’ conclusions did not necessarily defeat her claim but it made acceptance of her allegations more problematic. [72]

(6) An Arbitrator is entitled to take into account a witness’s demeanour when assessing his or her evidence, but should exercise caution when doing so in circumstances where the witness has not given oral evidence.  If demeanour is a factor in an Arbitrator’s determination, the basis upon which it is thought to be relevant should be stated. (see Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 and Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304). [82]

(7) The appellant paid for the cost of voice recognition software as a reasonably necessary rehabilitation expense in order to assist Ms A obtain employment.  There was no evidence that a laptop computer was reasonably necessary as a section 60 expense and the Arbitrator erred in allowing it. [89]

Orders:

The Arbitrator’s decision was revoked and the matter was remitted to a different Arbitrator to be determined afresh.

Psychological injury – section 11A

Department of Corrective Services v Byrnes [2009] NSWWCCPD 38

Wholly or predominately caused by reasonable action of employer

ADP Handley

1 April 2009

Facts:

• Mr Byrnes had worked for the Department as a General Duties Relief Overseer at the Oberon Correctional Centre since 2003.  In 2004, positions in the Department at the Mid North Coast Correctional Centre became available.  Mr Byrnes put his Oberon house up for sale, partly due to his wife’s health and partly due to the fact they had previously purchased a house at Lake Cathie, near Kempsey, with a view to retiring there.  Since 2005 Mr Byrnes applied for several of these positions without success and claims that he had been offered secondments there, which had later been withdrawn.
• Mrs Byrnes had major surgery in December 2007 after which she moved to their house at Lake Cathie and required her husband’s assistance. From 7 January 2008 Mr Byrnes spent weekends at Lake Cathie and then drove to work in Oberon, a distance of 640 kms, where he remained during the course of his weekly shifts.
• On 5 February 2008 Mr Byrnes applied for a transfer to the Mid Coast Centre on compassionate grounds but his application was denied.  He began to suffer from stress and in April 2008 was diagnosed with “anxiety disorder – work induced” and certified unfit for work for a month from 15 April 2008.
• On 15 April 2008 Mr Byrnes lodged an ARD in respect of weekly compensation and medical expenses.

Arbitrator’s decision

• The Arbitrator found that Mr Byrnes had suffered a psychological injury that resulted in him being unfit for work and that the injury was caused:
• in part by excessive driving and his concern for his wife, which did not arise out of his employment, and
• in part by the rejection of the transfer applications which did arise out of his employment.
• The Arbitrator found that while the rejection of the applications for transfer were a substantial contributing factor to his injury (section 9A), the injury was not caused ”wholly or predominately by the actions of the employer” in connection with the transfer (section 11A) and that the actions of the employer in connection with the applications for transfer were reasonable (paragraphs [48] – [49] of Reasons).
• The Arbitrator ordered the Department to pay Mr Byrnes:
• weekly compensation at the rate of $1,150.63 from 14 April to 6 July 2008 and at the rate of $1,196.66 from 7 July to 11 July 2008 pursuant to section 36 of the 1987 Act;
• medical and other expenses pursuant to section 60.

Appeal

The Department appealed and submitted that:

• the Arbitrator made an error of law by incorrectly applying sections 9A and 11A of the 1987 Act; and
• pursuant to the decision in Department of Education and Training v Sinclair [2005] NSWCA 465 (‘Sinclair’), the Arbitrator should have made a finding that to the extent that the employment contributed to the injury, that contribution was wholly or predominately caused by the ‘reasonable’ action taken by the Department with respect to transfer and therefore compensation was not payable.

Held:

(1) When considering the application of section 11A, the context in which the section operates must be considered. That context includes the section 9A(1) requirement that for compensation to be payable, employment must be a substantial contributing factor to the injury [23].

(2) Referring to Chief Justice Spigelman’s interpretation of section 11A in Sinclair (at paragraph 58) ADP Handley noted that, an employer will not be liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominately caused by the employer’s reasonable action or proposed action with respect to transfer, demotion, promotion etc [23].

(3) The question the Arbitrator should have posed was whether the substantial contributing factor, that was employment related, was wholly or predominantly caused by the Department’s rejection of Mr Byrnes application(s) for transfer.  Instead the Arbitrator misdirected himself by applying the ‘wholly of predominantly caused’ test across all substantial contributing factors to the injury and not just the employment related factor.  Had the Arbitrator applied this test only to employment related factor, given his findings, he would have come to a different conclusion [26].

(4) It was open to the Arbitrator to find that the actions of the Department were reasonable based on the evidence and submissions before him.

Order:

Arbitrator’s decision revoked and award in favour of the Department in respect of Mr Byrne’s claim for weekly compensation and medical expenses.

Hearing Loss – expert evidence

Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42

ADP Moore

17 April 2009

Facts:

• Mr Despotoski commenced employment with Qantas in 1987 in the wash up area of their Q Catering division and claimed to have been exposed to noise all day from washing machines and other machinery.  From 1998 he was then employed to deliver carts to jet aircraft with Qantas on the tarmac at Sydney Airport.  Again he claimed that he had been exposed to significant noise from aircraft engines on the tarmac as well as from loading and unloading trucks in the dock area.
• On 19 February 2008 Mr Despotoski provided Qantas with a notice of his claim stating that as a consequence of his employment, he suffers from industrial deafness within the meaning of section 17 of the 1987 Act.  There was no dispute that he suffered from sensori-neural hearing loss of a type that was due to industrial noise.  The issue between the parties was whether Qantas was responsible for that loss.
• An ARD was filed in the Commission on 27 October 2008.  The issue for determination by the Arbitrator was solely whether or not Qantas was liable to pay compensation for any hearing loss and any consequential hearing aids.

Arbitrator’s decision

• The Arbitrator noted that Mr Despotoski bore the onus of establishing that Qantas was a ‘noisy employer’.  Mr Despotoski had adopted Qantas’ Noise Survey report dated June 2008 as to noise levels on the tarmac area of 127dB(a) but disputed that the survey accurately represented his usual working day.  The Arbitrator also noted and accepted Mr Despotoski’s submission.
• Qantas submitted that following the decision in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181 Mr Despotoski could only succeed if he adduced expert evidence of the sound level and the duration of exposure and that as there was no expert evidence Mr Despotoski’s case must fail.  It was also submitted by Qantas that in Ilievski v Sutherland Shire Council (unreported 6 March 2001) (‘Ilievski’) Burke CCJ acknowledged that a “subjective account of noise” will not suffice if there is expert evidence that the particular employment was not noisy.
• The only evidence of noise exposure before the Arbitrator was the Qantas Noise Survey therefore he concluded that Mr Despotoski had not discharged the onus of proof and made an award in favour of Qantas.

Appeal

Mr Despotoski appealed submitting:

• that it was not necessary for him to produce his own expert acoustic report, relying on the decision in Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35, “provided his expert, as in that case a doctor, had a correct history, which is not disputed herein.”;
• Qantas’ Noise Survey was defective or unreliable in some way the challenge being the duration of exposure;
• an exact calculation of noise levels was not required, instead the determination as to whether the employment has the “tendencies, incidents and characteristics” to cause industrial deafness” (see Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52), and
• the Arbitrator should have accepted the evidence of Dr Stylis, ENT surgeon, who found that Mr Despotoski had a hearing loss “consistent with that seen in people who had a chronic exposure to industrial noise” and that Qantas was the last noisy employer.

Held:

(1) If there had been no expert acoustic report from Qantas, Mr Despotoski may have succeeded based upon the principles in Dawson.

(2) In the present case, as observed by Burke CCJ in Ilievski, Mr Despotoski’s “subjective account of the noise” could not suffice when faced with expert evidence that the employment with Qantas was not noisy [34].

(3) What was required was either expert acoustic evidence, commentary on the existing report, or evidence to support Mr Despotoski’s dispute with the reliability of the survey.  It was noted that such a report, commenting on the flaws contained in Qantas’ report of June 2008, by Dr Scoppa, dated 13 November 2008 was the subject of an Application to Admit Late Documents, filed by Mr Despotoski on 20 November 2008. The report did not refer to Mr Despotoski (the identity being blanked out), but was withdrawn from evidence apparently prior to the hearing.

(4) Mr Despotoski’s criticism of the Noise Survey was unsupported by any evidence. If the Arbitrator had accepted the opinion of Dr Stylis, ENT surgeon, over the findings of the Noise Survey, it would have resulted in an error of the kind identified in Makita and Hevi Lift.  Once the Noise Survey was in evidence, the onus was on Mr Despotoski to respond with appropriate expert evidence.

Order:

Arbitrator’s decision confirmed.

Weekly compensation – Notice to discontinue (section 119 of 1998 Act) – acceptance of suitable employment

The Ironbark Restaurant and Café v Galiatsatos  [2009] NSWWCCPD 43

Galiatsatos v The Ironbark Restaurant and Café [2009] NSWWCCPD 44

DP O’Grady

22 April 2009

Facts:

• Ms Galiatsatos was employed by the Ironbark Restaurant, (conducting its business in the Earlwood/Bardell Park RSL Club), as a dishwasher.  She received an injury to her upper spine, on 11 July 2007 in the course of her employment, while manipulating a heavy garbage trolley. The injury was reported to the Ironbark Restaurant, liability was accepted by the insurer and weekly payments were commenced and medical expenses paid.
• As a result of her incapacity, Ms Galiatsatos remained absent from work and provided medical certificates to the insurer concerning her condition in support of her ongoing entitlement to benefits.  Between 13 August 2007 and 9 February 2008, medical certificates issued by Dr Gorelick included the diagnosis of “thoracic musculo ligamentous strain” as stated in earlier certificates but also included the words “adjustment disorder”.  Dr Loefler, Ms Galiatsatos’ orthopaedic specialist, in his report to the insurer, dated 5 November 2007, stated that he believed Ms Galiatsatos needed a formal psychological assessment.
• On 29 January 2008 Ms Galiatsatos attended a medical appointment arranged by the insurer with Dr Lee, psychiatrist.  Dr Lee reported that Ms Galiatsatos refused to provide a detailed history.  Notwithstanding that fact, Dr Lee expressed a provisional diagnosis.  The insurer advised Ms Galiatsatos that a “further review” with Dr Lee was scheduled on 25 March 2008, having regard to the contents of a medical certificate issued by Dr Papacosta, Ms Galiatsatos’ GP, which included a diagnosis of adjustment disorder.
• Ms Galiatsatos failed to attend this second appointment with Dr Lee and as a result, on 31 March 2008 the insurer issued Ms Galiatsatos with a notice that her failure to attend Dr Lee’s appointment had led to the suspension of her weekly compensation payments from 4 April 2008, pursuant to section 119 of the 1998 Act.  The suspension was to remain in place until she attended an examination by Dr Akkermann, Psychiatrist, scheduled for 10 April 2008. Ms Galiatsatos attended Dr Akkermann’s appointment however by reason of her conduct, the examination was terminated.  The suspension of weekly compensation remained in place.
• Ms Galiatsatos, unrepresented, lodged an ARD with the Commission on 3 November 2008 claiming weekly benefits from 4 April 2008 and ‘ongoing’ and an order in respect of a medical expense particluarised in the sum of $305.00.

Arbitrator’s decision

The Arbitrator ordered the Ironbark Restaurant to pay Ms Galiatsatos ongoing weekly benefits pursuant to section 40 at the maximum statutory rate and section 60 expenses.

Appeal

Both the Ironbark Restaurant (PD 43) and Ms Galiatsatos (PD 44) appealed the Arbitrator’s decision.

The Ironbark Restaurant submitted that the Arbitrator had erred in:

• finding that Ms Galiatsatos  had not refused to submit herself for any examination;
• his findings regarding the compliance or otherwise by the Ironbark Restaurant with requirements of the WorkCover Guidelines on Independent Medical Examinations and Reports (‘Guidelines’);
• finding that Ms Galiatsatos was totally incapacitated and failing to consider the whole of the medical evidence as to incapacity, and
• making a general order pursuant to section 60 where there had neither been a dispute or a claim.

Ms Galiatsatos, unrepresented on appeal, had not stated the grounds of appeal but challenged the Arbitrator’s failure to enter an award for weekly payments in her favour pursuant to section 38 of the 1987 Act.

Fresh evidence on appeal

Both parties sought leave to rely on fresh evidence. The Ironbark Restaurant sought to rely on a report of Dr Guirgis, consultant orthopaedic surgeon dated 30 July 2008 addressed to Dr Papadakis, Ms Galiatsatos’ other GP.  The report included a diagnosis of “mechanical derangement” of cervical and thoracic area of the spine as well as symptoms and signs of chronic pain and anxiety/depression and a reference for the need for continuing treatment “under the psychiatrist’s care”.  Leave was granted to adduce this evidence.

Ms Galiatsatos sought leave to rely on compact disc recordings of evidence given by Mr Frost, a principal of the Ironbark Restaurant and Mr Maxwell, duty manager of the RSL Club, being short evidence given by both before the ADT on 28 January 2009.  Mr Frost’s evidence included his assertion that at no relevant time did he have light duties available to Ms Galiatsatos, while Mr Maxwell’s evidence concerned the circumstances of her being “banned” from the RSL Club.  Leave was also granted to adduce this evidence.

Held:

Ironbark Restaurant’s appeal (PD 43)

(1) Whilst Ms Galiatsatos had refused to “cooperate” with Dr Lee it had not been argued that her conduct “obstructed” the examination in terms of section 119(3) of the 1998 Act.  The evidence did not establish that Ms Galiatsatos was “obstructive” and the first ground of appeal failed. [88]

(2) The evidence clearly established that towards the end of 2007 there existed a significant body of material obtained by the insurer from various medical practitioners, which stated that Ms Galiatsatos’ diagnosis involved, in part at least, an adjustment disorder requiring psychological assessment.  Ironbark Restaurant’s argument on appeal, that it was “not necessary to raise the matter directly with the treating practitioners” was unpersuasive as the existence of that material at that time would have had the effect of alerting the insurer to a variation which may go to the questions of liability and raise issues as to causation.  Such occurrence was precisely addressed in the Guidelines and that the proper course required compliance with those matters at pages 4 and 5 of the Guidelines.  This compliance required steps to be taken to obtain relevant information from the treating medical practitioners.    There was no evidence as to compliance and the Ironbark Restaurant was not entitled to seek an independent medical examination [95].

(3) There was abundant evidence in the medical certificates relied upon by Ms Galiatsatos that the incapacity suffered by her from 14 August 2007 had been partial incapacity. In failing to address the totality of the evidence with respect to the question of incapacity, a review of the Arbitrator’s determination was required.  Having regard to the totality of the medical evidence, Ms Galiatsatos was partially incapacitated as a result of the subject injuries to date and had an entitlement to weekly compensation payments pursuant to section 40 of the 1987 Act.  Adhering to the steps enunciated in Mitchell, a similar conclusion to the Arbitrator, as to quantum of entitlement, was reached [108] – [109].

(4) The fact that the weekly payments were suspended had no relevance to the correctness of an order with respect to section 60 expenses and Ms Galiatsatos was entitled to seek orders with respect to medical expenses [110].

Ms Galiatsatos’ appeal (PD 44)

(5) It was common ground that Ms Galiatsatos had not been “suitably employed” during the period of her partial incapacity and it was found that such incapacity dated from at least 14 August 2007.  However Ms Galiatsatos was bound by the manner in which her claim had been presented before the Commission, which had a commencement date of 4 April 2008.

(6) It may be inferred from the evidence that Ms Galiatsatos had at relevant times been seeking suitable employment in accordance with the requirements of both section 38 and 38A and that she received a “38A Notice” as established by the content of correspondence dated 23 August 2007 from the insurer.

(7) The difficulty faced by Ms Galiatsatos in establishing entitlement pursuant to section 38 was the evidence, though scant, that she had been barred form attending the RSL premises and that this “ban” had been in place since mid June 2007 and prevented her from taking up any offer of suitable duties that may have been made or that may in future be made [24].

(8) As observed by the High Court of Australia in RJ Brodie (Holdings) Pty Ltd v Pennell (1968) 117 CLR 665, the provision and acceptance of suitable employment involves an element of mutuality and that the “mutuality” which is required for the proper operation of section 38 had not been in place since the placing of the “ban”.  Having regard to the evidence of Mr Frost, admitted on appeal, there had not been any relevant offer of suitable duties made by the Ironbark Restaurant, however, such failure alone did not entitle Ms Galiatsatos to the benefit of section 38 given that she had not been “able” to accept an offer of suitable employment (section 38A(2)(a)).

Order:

Paragraph one of the Arbitrator’s decision revoked, paragraphs two and three confirmed.

Leave to appeal

(i)         Interlocutory

Smith v Walgett Shire Council [2009] NSWWCCPD 45

DP O’Grady

22 April 2009

Facts:

• Mr Smith commenced fulltime employment as a semi skilled labourer in early 2005 with Walgett Shire Council.  There was no dispute between the parties that he received injury to his lower back on three separate occasions, in the course of his employment, on 17 September 2006, 15 December 2006 and 22 January 2007.  Mr Smith had not worked since the last injury and had been in receipt of weekly compensation benefits to date.  He was referred to Dr Bentivoglio and underwent a discectomy on 4 April 2007.
• Mr Smith lodged a claim with Walgett Shire Council and its insurer for lump sum compensation pursuant to sections 66 and 67 of the 1987 Act on 22 May 2008.  Agreement could not be reached between the parties and an ARD was filed with the Commission on 8 September 2008.  On 13 November 2008 a teleconference was listed at which time a “COD – Consent Orders” was issued by the Arbitrator, recording that the matter be remitted to the Registrar for referral to an AMS to provide an assessment of WPI that resulted from the injury sustained by Mr Smith to his lumbar spine on the three dates.  The Registrar’s referral to an AMS was subsequently made on 17 November 2008.
• On 14 November 2008, the day following the teleconference, Mr Smith forwarded correspondence to the Commission referring to the agreement reached by the parties and also containing submissions concerning those documents which should be referred to the AMS.  The correspondence also made reference to the decision of Barrow v Greater Western Area Health Service (GIO) [2008] NSWWCCPD 32 and it was argued that as a result of the accepted back injury, Mr Smith had suffered an injury to his sexual organs resulting in whole person impairment.
• Efforts were made by the Commission to convene a teleconference with a view to clarifying those matters raised in Mr Smith’s correspondence, including matters asserted in later correspondence dated 26 November 2008.  The first teleconference listed on 3 December 2008 failed due to the late attendance of Mr Smith’s legal representative.  The AMS appointment was cancelled at this time.
• A further teleconference was listed for 15 December 2008.  Mr Smith’s legal representative failed to attend and the Commission was advised that an appeal had been lodged with the Commission.  The appeal application was initially rejected for non-compliance with procedural requirements and was re-lodged again on 22 December 2008, a date outside the time prescribed by the 1998 Act.

Issue on Appeal:

• that the Arbitrator and the Manager, Dispute Services, as delegate of the Registrar, erred in referring Mr Smith to an assessment of the lumbar spine only.

Held:

(1) Clause 200B of the 2003 Regulations, as amended, provides that for the purposes of section 352(8) “ …all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

(2) In Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35, a matter with facts analogous to the present case, DP Roche stated at [26]: “…An order determining the nature of the question or questions to be referred to an AMS does not finally determine the parties’ rights and liabilities and is clearly interlocutory…” [21]

(3) The decision, comprising Consent Orders, concerned only those matters remitted to the Registrar for referral to an AMS and in line with the decision in Filippou was “interlocutory”. Leave to pursue the appeal was refused [23].

(4) There was no need to address Mr Smith’s application seeking an extension of time to bring the appeal given the circumstance that the subject decision was interlocutory and that no appeal lies in respect of such a decision.

(5) Any claim Mr Smith may seek to make alleging WPI resulting from the loss of sexual function related to his spinal injury requires evidence of the character addressed in the WorkCover Guides for the Evaluation of Permanent Impairment (‘Guides’) from an assessor qualified in accordance with the Guides (section 322(1) of the 1998 Act).  No such evidence was before the Commission. Accordingly the referral for assessment made by the Registrar conformed with the agreement reached by the parties in the Consent Orders as well as the state of evidence before the Commission [26].

(6) Mr Smith lodged an Application to Admit Late Documents on 18 March 2009 comprising of a medical report by Dr Nashed dated 31 January 2009, recording a history of “sexual impairment” suffered by Mr Smith since the subject injuries.  There was no evidence that Dr Nashed was a trained assessor of personal impairment in terms of the Guides, nor did the report address those matters found in the Guides or advance any argument concerning the challenge to the Arbitrator’s decision. Leave to adduce that evidence on appeal was refused.

Order:

Leave to appeal Arbitrator’s decision refused.

(ii)        Monetary threshold

Druett v The Smiths Snack Food Company Ltd [2009] NSWWCCPD 39

Monetary threshold to appeal not met

His Hon. Judge Keating, President

3 April 2009

Mr Druett’s claim for compensation was confined to an allegation of total incapacity for two days, namely 8 and 9 July 2008.

The amount of compensation at issue was significantly less than $5,000.00 and therefore the monetary threshold under section 352(2)(a) was not met.

Order:

Leave to appeal refused.