Issue 6: June 2009

Welcome to the Sixth edition of ‘On Appeal’.

Edition 6 - June 2009 includes a summary of the May 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:

Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47. 4

Jurisdiction of the Commission - issues of causation - Arbitrator's findings concerning the consequences of injury were determinations in respect of which he had jurisdiction - Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 considered.

McDonald v North Coast Area Health Service [2009] NSWWCCPD 50. 6

Meaning of "unreasonable" - sections 40(2A) and (2B) of the 1987 Act - resigned after employer refused request for roster change in order for worker to meet childcare requirements

Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58. 8

Long haul flight attendant - injury during "slip-time" in overseas port - in the course of employment - substantial contributing factor - s9A - determination of matters of fact and application of principle - evaluation of causal nexus between employment and occurrence of injury - question of fact

Reid v Delta Electricity [2009] NSWWCCPD 49. 9

Lump sum claims - multiple injuries alleged occurring pre and post 2002 Pt 7 amendments - finding of aggravation etc of disease (s4(b)(ii)) - challenge to determination of Registrar founded upon findings of AMS - correctness of Arbitrator's findings leading to remitter to Registrar

Department of Ageing, Disability and Home Care v Vogel [2009] NSWWCCPD 51. 10

Causation - meningococcal disease - proof on the balance of probabilities - expert evidence - weight of evidence - medical history provided "fair climate" for acceptance of medical opinion - Seltsam v McGuiness distinguished

Zoghbi v Star Track Express Pty Limited [2009] NSWWCCPD 55. 11

Last noisy employer - noise assessments did not cover period of employment - failure to produce hearing test result did not lead to a Jones v Dunkel inference where large gaps in medical evidence - noise level and length of exposure of critical importance - employment must carry real risk of hearing loss

Nohra v Sydney Plastering and Construction Pty Ltd [2009] NSWWCCPD 48.  12

Worker is director of respondent company - partial incapacity - return to part time employment - calculation of post injury earnings/ability to earn under section 40 - suitable employment under section 43A - duties of a supervisor on the open market by reference to (self) employment

Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52.  14

Personal injury - section 4(a) of the 1987 Act - aggravation of degenerative changes - disease - section 4(b)(ii) and 16 - application of Rail Services Australia v Dimovski - principles of estoppel do not apply in an appeal under section 352 of the 1998 Act - section 40 - application of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526

Villar v Tubemakers of Australia Pty Ltd and ors [2009] NSWWCCPD 57. 16

Injury - sections 4, 15 and 16 of the 1987 Act - aggravation of a disease - multiple respondents - partial incapacity- calculation of comparable earnings - entitlement to weekly compensation where no economic loss despite physical restriction - issues for determination - costs

Awad v Department of Aging Disability and Home Care (NSW) No.2 [2009] NSWWCCPD 53  19

Psychological injury - subsequent injuries not pleaded - causation - what incapacity results from the pleaded injury - weight of evidence

Sapina v Coles Myer Limited (No.2) [2009] NSWWCCD 56. 20

On remitter from Court of Appeal - psychological injury - sections 9A and 11A of the 1987 Act

SPL Pty Ltd t/as ITW Proline v Oliver [2009] NSWWCCPD 54. 21

Concurrent Workers Compensation and Common Law proceedings - Common Law action settled after remitter by Arbitrator of Commission for Registrar for referral to AMS - appeal by employer against Arbitrator's order - purported discontinuance of proceedings by worker - interlocutory decision - entitlement to costs

Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47

Sections 2A(2) and 65(3) of the 1987 Act; sections 105(1), 319 and 321 of the 1998 Act; jurisdiction of the Commission

4 May 2009

Deputy President Kevin O’Grady

Arbitrator’s decision

Award for the respondent in respect of Ms Peric’s claim for lump sum compensation pursuant to section 66 of the 1987 Act on the basis that she had recovered fully from the subject injury.

Appeal

The question on appeal was whether the Arbitrator’s findings concerning the consequences of injury were determinations in respect of which he had jurisdiction.

Held:

(1) Section 105 of the 1998 Act is qualified by the operation of section 65(3) of the 1987 Act. Section 65(3) requires assessment of permanent impairment by an AMS before the Commission may award compensation under that head of entitlement.

(2) The Arbitrator will only refer a matter to the Registrar for referral to an AMS in circumstances where an arbitrator has made a determination as to liability (section 321(4)(a)) and complied with Practice Direction No. 11.

(3) The term “liability” is not defined in the Acts. Reference to Roche ADP (as he then was) in Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 that:

“…  To decide liability the Commission must decide, among other things:

(a)      whether the worker sustained an ‘injury’ within the meaning of section 4 of the 1987 and 1998 Acts;

(b)   does the injury satisfy the conditions in section 9A of the 1987 Act, and

(c)  what are the consequences of the injury, that is, what pathology is said to result from the injury.”

(4) The Arbitrator properly addressed the fundamental matters in dispute between the parties - the occurrence and nature of the injurious event and the nature of any resultant pathology. [69]

(5) Haroun v Rail Corporation New South Wales & Ors [2008] NSWCA 192 (18 August 2008) – Consent orders - distinguished on the facts.

(6) Whether an injury has caused ongoing disability or whether such injury has had a pathological effect limited to a particular period of time is a legal question (causation) - remains within the exclusive jurisdiction of the Commission (an arbitrator) to decide.

(7) The fact that a claim may involve a question of the degree of permanent impairment as a result of an injury in terms of section 319 does not deprive an arbitrator of jurisdiction to determine questions as to the duration of pathological consequences of an injury. [77]

(8) However the finding by the Arbitrator that Ms Peric was “now not suffering from any permanent impairment” was one in respect of which the Arbitrator had no jurisdiction.

(9) Errors identified were not findings essential to the ultimate determination of the dispute and the decision of the Arbitrator was confirmed.

McDonald v North Coast Area Health Service [2009] NSWWCCPD 50

Meaning of “unreasonable”, sections 40(2A) and (2B) of the 1987 Act

Injury - graded return to work to full time hours but restricted duties – resigned after employer refused request for roster change in order for worker to meet child care requirements –worker obtained employment with another employer - earning less.

14 May 2009

President, His Hon. Judge Keating

Arbitrator’s decision

In respect of the claim for weekly compensation benefits the Arbitrator made an award for the respondent because the worker had been provided with suitable duties and by reason of his voluntary resignation he had unreasonably refused suitable employment (sections 40(2A) and (2B)).

Appeal

Mr McDonald appealed. The grounds of appeal included the Arbitrator erred:

(a) in law in considering section 40(2B) in the absence of pleading it in the section 74 Notice

(b) in finding that the worker was in breach of section 40(2B)and failed to properly apply section 40

(c) in finding that the worker had unreasonably refused suitable employment

Held:

Section 74 Notice

(1)   The decision to voluntarily resign from employment to fulfil family obligations was a central issue in the decision to refuse benefits. [67]

(2)      Although no separate reference was made to the sub-paragraphs of sections 38 and 40, the reference to sections 38 and 40 coupled with the express reasons for refusing any further benefits, satisfied the respondent’s obligations under section 74. [69]

(3)      No argument was raised before the Arbitrator that the section 74 Notice was deficient. [70]

(4)      In the alternative, it was “in the interests of justice” and there was no relevant prejudice to allow the section 40(2A) arguments to proceed on appeal and, if it was necessary, leave to do so was granted [72] (see Mateus v Zodune Pty Ltd (t/as Tempo Cleaning Services) [2007] NSWWCCPD 227 – issues relevant to exercise of discretion under section 289A)

Rejecting suitable employment

(1)      The meaning of “unreasonable “is not defined for the purposes of sections 40(2A) and (2B) of the 1987 Act. Cases considered as to the meaning of “unreasonable”:

1. Voluntary redundancy - Freight Corp v Duncan [2000] NSWCA 309
2. Refusal to submit to surgery - Fazlic v Milingimbi Community Inc. [1982] HCA 3;(1982) 150 CLR 345
3. Refusal to participate in a rehabilitation programme - Hines v WorkCover / HIH (Transfer Maintenance Pty Ltd) Corporation [2000] SAWCT 171
4. Resigning - uncongenial employment plus oppressive working hours - Joseph Marmara v K Mart Australia Ltd 13 November 2000 (unreported), Curtis CCJ

(2)      Agreed with reasoning in Hines - provisions of section 40(2A) were not triggered, because the worker’s resignation was not “unreasonable” because:

1. Adequate arrangements for appropriate childcare recognised as a perennial problem confronting modern families.
2. No challenge to the worker’s evidence that there was no other reasonable alternative to arrange for the childcare
3. Before resigning, worker explored with the employer all viable options to retain his job, including volunteering to make himself available to work any shift, provided it did not fall on a Monday or Tuesday.

(3)      The worker entitled to weekly compensation assessed under section 40(1) of the 1987 Act - unable to be determined on appeal due to deficiencies in evidence - remitted to different Arbitrator.

Da Ros v Qantas Airways Limited [2009] NSWWCCPD 58

Long haul flight attendant – injury during “slip-time” in overseas port – in the course of employment - substantial contributing factor – s9A - determination of matters of fact and application of principle – evaluation of causal nexus between employment and occurrence of injury - question of fact

27 May 2009

Deputy President O’Grady

Mr Da Ros challenged the arbitrator’s decision to enter an award in favour of his employer, Qantas, on the basis that he had failed to make a finding of injury as defined in s4 of the 1987 Act and failed to correctly apply the provisions of s9A to the facts.

Held:

(1) The employer properly conceded “injury in the course of employment” (s4 1987 Act).  The evidence supported this concession (Hatzimanolis v ANI Corporation Limited (1991-1992) 173 CLR 473).

(2) The Arbitrator was required to determine and evaluate relevant facts to determine whether employment was a substantial contributing factor to the injury.

(3) A substantial contributing factor to the injury was the apparent negligence of the bicycle rider who collided with the worker’s bicycle.  The question remained, as stated in Cant v Catholic Schools Office (2000) 20 NSWCCR 88, “whether or not employment added a factor of substance to that non-employment factor”.

(4) Whilst there was a causal nexus between the employment and the injury, such was not a substantial contributing factor to the injury.

Order:

Decision of Arbitrator confirmed.

Reid v Delta Electricity [2009] NSWWCCPD 49

Lump sum claims - multiple injuries alleged occurring pre and post 2002 Pt 7 amendments - finding of aggravation etc of disease (s4(b)(ii)) - remittal to Registrar for ref. to AMS - challenge to determination of Registrar founded upon findings of AMS - correctness of Arbitrator’s findings leading to remitter to Registrar - medical evidence of disease-  occurrence of injury (s4(a) not established) - aggravation of disease proven (s4(b)(ii))

12 May 2009

Deputy President Kevin O’Grady

Appeal

A worker alleged the occurrence of 8 employment injuries. Those injuries occurred both before and after the amendments to the 1987 Act (Pt 7) effective 1.1.02. Claims for lump sums were brought calculated with reference to pre and post amendment provisions of 1987 Act.

Held:

The arbitrator’s conclusion that each of the incidents constituted aggravation was plainly supported by the evidence and that the various incident report forms and other contemporaneous records characterized those incidents recorded as being occasions when painful symptoms manifested during conduct by Mr Reid at his day to day duties.  There was no traumatic event from which it may be inferred that an identifiable pathological change had occurred but rather the underlying condition had been aggravated.  The Arbitrator’s conclusions of fact as to the character of those incidents was open to her on the evidence.

The arbitrator’s finding that each injury alleged constituted an aggravation of a disease within meaning of s 4(b)(ii) and determination of deemed date of injury (s 16(1)(ii)) were confirmed.

Department of Ageing, Disability and Home Care v Vogel [2009] NSWWCCPD 51

Exposure to meningococcal disease - causation – proof on the balance of probabilities – expert evidence - worker coughed on by alleged infected person -– cause and spread of infection - Public Health Unit investigation failed to find other cases of infection – limited contact outside of workplace - weight of evidence – medical history provided “fair climate” for acceptance of medical opinion - Seltsam v McGuiness distinguished - weekly compensation ordered

15 May 2009

Deputy President Roche

Facts:

Ms Vogel alleged that she contracted meningococcal septicaemia in the course of her employment, as a result of being coughed on by an infected resident of Sunshine Lodge.  Her medical evidence concluded that “on the balance of probability” she contracted the disease in her work situation as her contact outside the workplace was relatively limited.

The employer argued that the evidence did not support the conclusion that a resident had meningococcal disease and had spread it to Ms Vogel. The Public Health Unit investigation failed to find other cases of infection. In the absence of confirmatory cases or other proved facts, the employer argued that it was a matter of speculation that the workplace was the cause of the infection.

Held – Arbitrator’s decision was confirmed:

(1) The worker’s experts explained the basis for their conclusions, namely, that it is well known that meningococcal infection can be spread as a nasopharyngitis between inmates in boarding situations and that the organism is spread by the transmission of small droplets. [61]

(2) Whilst epidemiological opinion evidence on general causation goes no further than establishing a possible connection between work exposure and the disease, Seltsam v McGuiness (2000) 49 NSWLR 262 concerned the strength of the association between asbestos exposure and renal cell carcinoma, aspects of the quality of epidemiological research, and inconsistencies between various studies. No such issues arose in Ms Vogel’s case because the evidence established that meningococcal disease could be spread by the transmission of small droplets and that Ms Vogel had contracted the disease.  The question was whether she had contracted it at work or from some other source (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). [68]

(3)  Whilst the burden of proof is not satisfied merely by evidence that it is possible that a causal relationship exists (Seltsam v McGuiness at [80]), the inference of causation may be drawn from all the evidence in the case, including expert evidence as to the possibility that the causal relationship exists (Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall JA at [64]). [70]

Zoghbi v Star Track Express Pty Limited [2009] NSWWCCPD 55

Onus of proof on worker – last noisy employer - noise assessments did not cover period of employment - failure to produce hearing test result did not lead to a Jones v Dunkel inference where large gaps in medical evidence – noise level and length of exposure of critical importance - employment must carry real risk of hearing loss

21 May 2009

Deputy President Roche

Facts:

Prior to commencing employment, Mr Zoghbi underwent a hearing test conducted by Star Track which allegedly showed that he did not suffer from any hearing loss. However the employer did not produce the results of the hearing test.

Noise assessments recorded noise levels above 85dBA in some of Star Track’s workplace locations but it was unclear whether Mr Zoghbi had worked at those noisier workplace locations and for what length of time throughout the day.

Held by the Arbitrator and confirmed on appeal - Mr Zoghbi failed to discharge the onus of proof, and Star Track was not ‘the last noisy employer”.

Held:

(1) The noise assessments did not cover the period of employment, and given the lack of proper identification of exact work locations to compare with the locations where the noise readings were taken, they were therefore of limited probative value.  [35]

(2) The worker’s medical evidence was unpersuasive. Mr Zoghbi did not establish a prima facie case that his employment with Star Track was “noisy”.  [44]

(3) The rule in Jones v Dunkel [1959] HCA 8 did not permit an inference that the untendered hearing test conducted on Mr Zoghbi would have been damaging to Star Track and the rule cannot be used to fill gaps in the evidence, or to convert conjecture and suspicion into inference. The unexplained absence of the test did not fill the significant gaps in Mr Zoghbi’s case. That was especially so given the disparity between the hearing loss results in the medical evidence. [47] - [48]

(4) To establish employment to the nature of which boilermaker’s deafness is due, the worker must establish that the employment carried a real, as opposed to theoretical, risk of hearing loss (Callaby v State Transit Authority (NSW) & another (2000) 21 NSWCCR 216). In determining that question, both the noise level and the length of the exposure are of critical importance (Dawson and others t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35). [52]

Nohra v Sydney Plastering and Construction Pty Ltd [2009] NSWWCCPD 48

Worker is director of respondent company – partial incapacity – return to part time employment - calculation of post injury earnings/ ability to earn under section 40 -

suitable employment under section 43A - duties of a supervisor on the open labour market by reference to (self) employment.

7 May 2009

Deputy President Roche

Facts:

Mr Nohra was/is a director and employee of the respondent company. He suffered leg injuries at work and received lump sum and voluntary weekly compensation on the basis he was only fit to perform supervisory duties 20 hours per week.

GIO declined liability for continuing weekly benefits alleging Mr Nohra was capable of earning more as full-time supervisor of plasterers than his alleged pre-injury earnings.

Mr Nohra stated that whilst the business profit was similar to that which it was pre-injury, his drawings ($460 per week) were lower and he had to employ additional workers to undertake physical aspects of the work.

Held – Arbitrator’s decision revoked and remitted

(1) An employed worker’s actual earnings are prima facie evidence of ability to earn (Aitkin v Goodyear Tyre and Rubber Co (Australia) Ltd (1945) 46 SR (NSW) 20) “unless it is proved that the worker’s actual earnings are not a proper test, because there is some reason unconnected with the worker’s earning power which makes them lower than they should be” (Beazley JA in Pira Pty Limited t/as Langdon & Bartley v Tucker (1996) 14 NSWCCR 26 at 31 and 32). [59]

(2) Mr Nohra was fit for full-time supervisory work that was sedentary, provided it did not involve prolonged standing, walking or physical tasks. Whether such duties are available with the respondent is yet to be determined. [67], [70]

(3) The assertion that Mr Nohra’s labour was worth only $460 per week to the respondent was “inherently extremely unlikely” (Campbell JA (Ipp and JA and Sackville AJA agreeing) at [41] in Dunleavy v Peak [2009] NSWCA 72). [70], [75]

(4) There are several different approaches to the calculation of post-injury earnings under section 40(2)(b) when a worker is working for his or her own business. [71]

(5) The alternatives are:

(i) to determine the net remuneration being received by the worker for his or her labour.  This is done by examining the business accounts making allowances for overheads (Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227; (1983) 151 CLR 584) [72];

(ii) to calculate the worth of the worker’s labour to the business without reference to the business’s accounts.  This method has three possible approaches:

(a)  determine the cost to the business of employing someone to do the reduced work the worker is performing (Schubert at 231A);

(b) by reducing from the cost of employing someone whose work capacity is unimpaired the cost of supplementing the reduced efforts of the worker so as to produce for the business the services of a fully capable worker (Schubert at 231A); or

(c) determine what the workers’ work would be worth in wages if he had been employed by another to do the work (J & H Timbers v Nelson (1972) 126 CLR 625 at 631). [72], [73]

(6) Whichever approach was adopted, it was not appropriate to ignore altogether the worker’s labour (physical and mental) in the business.  However, it was not possible to apply any of the methods discussed in the authorities due to the unsatisfactory state of the evidence. [75]

Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52

Personal injury - section 4(a) of the 1987 Act - aggravation of degenerative changes – disease – sections 4(b)(ii) and 16 - application of Rail Services Australia v Dimovski – principles of estoppel do not apply in an appeal under section 352 of the 1998 Act - section 40 – application of Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526

15 May 2009

Deputy President Roche

Facts:

The worker alleged that he injured his back, neck, both shoulders and the right arm, liability for which was initially accepted and compensation paid. The employer later declined liability disputing the precise nature and extent of injury and whether incapacity was continuing as a result of the injury.

At the first arbitration, the Arbitrator found for the worker on all issues. The employer successfully appealed the determination, arguing that the Arbitrator’s finding was founded upon “the disease provisions” and, as that claim had been abandoned, it had been denied procedural fairness and, in addition, there were no reasons given for concluding that injury had been established.

At the second arbitration, the Arbitrator found for the worker in respect of his back only and made an award for the employer in relation to the weekly compensation claim.

On appeal, the worker sought to argue that although there had been no reliance on a “disease” claim, it was always the worker’s case that he had suffered an insult to his back in the context of having a weakened spine because of degenerative changes, that is, the worker either sustained a disc lesion in his lower back, or an aggravation of degenerative changes in his spine in a “frank” incident at work.

Held – Arbitrator’s decision revoked. The worker was awarded section 40 weekly compensation in respect of injury to his back:

(1)      The words “injury consists in the aggravation…of a disease” in section 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as confined to what are entirely injuries by aggravation (Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 ; Rail Services Australia v Dimovski and anor [2004] NSWCA 267; (2004) 1 DDCR 648). [58]

(2)      As the worker relied on and established that he sustained a frank injury to his back, his injury was a personal injury under section 4(a) and did not come within the disease provisions of sections 4(b)(ii) and 16, regardless of whether the injury may have also aggravated any pre-existing degenerative changes. [62]

(3)      The worker was not “estopped” from arguing on appeal that his injury resulted in an aggravation of degenerative changes. The principles of estoppel do not apply in an appeal by way of review under section 352 of the 1998 Act. [63]

(4)      A point cannot be raised for the first time on appeal when it could have been met by calling evidence below (Coulton v Holcombe (1986) 162 CLR 1 at 7; Park v Brothers [2005] HCA 73, (2005) 222 ALR 421 at 435; John Orford v Qi Ying He [2002] NSWCA 152). However, if the point sought to be raised on appeal is restricted to a legal point that does not require the calling of additional evidence then there will be no prejudice to the other party and, subject to the rules of procedural fairness, the argument will be allowed. [63]

(5)      The difference between steps 1 and 2 in the section 40 calculation (and applying Mitchell) was between $735.90 and $792.70 per week.  There were three reasons for reducing those figures in the exercise of the discretion under section 40(1): first, the worker complained of pain and restrictions in his neck, right arm and upper back, which were unrelated to his injury; second, his employment with Transfield was only short term, and third, he was almost 66 years old and unlikely to continue heavy work. As a result, he received an award of between $331.16 and $356.72 per week from July 2007 until 9 June 2009, the date on which he tuned 66 (section 52(2)(a) of the 1987 Act).

Villar v Tubemakers of Australia Pty Ltd and ors [2009] NSWWCCPD 57

Injury –sections 4, 15 and 16 of the 1987 Act – aggravation of a disease - multiple respondents - partial incapacity – calculation of comparable earnings – entitlement to weekly compensation where no economic loss despite physical restriction - issues for determination - costs

25 May 2009

Deputy President Roche

Facts:

• Mr Villar’s ARD claimed the following:

- against Tubemakers (first respondent): weekly compensation from 7 September 1999 to date and continuing, section 60 and lump sum compensation for an injury to the right knee/leg on 31 March 1993;

- against Adecco (second respondent): weekly compensation from 7 September 1999 to date and continuing, section 60 and lump sum compensation for the right knee/leg due to nature and conditions of work

- against Grocon (third respondent): weekly compensation from 10 July 2002 to date and continuing, section 60 and lump sum compensation for a back injury due to nature and conditions of work

• Mr Villar was a process worker at Tubemakers from 1989. In March 1993, he struck his right knee against a metal barrier in the course of his employment. After arthroscopic surgery and a brief recovery period, he returned to work with Tubemakers until early 1994. He earned about $650.00 per week at Tubemakers.
• In March 1999 he obtained employment with Adecco as a labourer, averaging $898.45 per week. His duties required him to walk up and down stairs and over uneven ground resulting in excessive stress being placed on his right knee.  He stopped work on 6 September 1999 when he could no longer cope with the work.
• In February 2002 he started work with Grocon as a formwork carpenter, averaging $1222.85 per week. The work involved lifting heavy construction materials and a lot of pushing and pulling. In May 2002 he started feeling discomfort in his lower back. He ceased with Grocon in July 2002 and lodged a claim for his back in September 2002.
• In between employment with the three respondents, Mr Villar had always remained in fulltime work except for some months in Peru to visit his mother.

The Arbitrator’s decision: An award for Tubemakers in respect of the weekly compensation claim.  The second and third respondents were ordered to pay closed periods of weekly compensation.

An award for the second and third respondents in respect of the lump sum compensation claims. The matter was referred to an AMS for assessment of the right knee in respect of the March 1993 incident whilst employed by Tubemakers.

Held – Arbitrator’s decision confirmed

Against Tubemakers:

(1) Applying a “commonsense test of comparability” (Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530), it could not be said that employment as a formwork carpenter, or as a labourer in the building industry, was either “the same” or “comparable” to employment as a process worker. [69]

(2) Mr Villar’s unchallenged wage schedule had a figure for probable earnings with Tubemakers that was less than his current earnings. It followed that he had no economic loss as a result of his 1993 injury (despite a physical restriction) and therefore no current entitlement to any weekly compensation against Tubemakers. [70] - [71]

Against the second and third respondents:

(3) It is not necessary for the doctors to use the word ‘disease’ before the Commission can make a finding that a worker’s condition is a disease within the meaning of sections 4, 15 and/or 16 (Fletcher International Exports v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247).  A failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease (Toll Pty Limited v Bartimote[2007] NSWWCCPD 153; Perry v Tanine Pty Ltd t/as Ermington Hotel and others (1998) 16 NSWCCR 253). [77]

(4) Right knee: There was medical evidence that Mr Villar suffered from osteoarthritis of the right knee and that the symptoms were made more serious in their effects upon Mr Villar as a result of his work with Adecco.  There was no evidence of any specific pathological change as a result of a specific incident (Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496). After Adecco, Mr Villar was able to return to fulltime work as a construction worker. Mr Villar therefore suffered an injury to his right knee in the form of temporary aggravation of a disease (section 4(b)(ii)). [79] – [82]

(5) If the effect of the aggravation injury was continuing, as a result of his subsequent employment as a formwork carpenter, Mr Villar suffered a further aggravation injury to his right knee to which his employment was a substantial contributing factor.  Therefore, Adecco was not the last relevant employer under section 16. [84]

(6) Back: The evidence established that Mr Villar suffered from lumbo-sacral disc degeneration.  That evidence, together with Mr Villar’s complaints of increasing pain over time, established that the pathology in his lumbar spine was a morbid condition that was properly characterized as a disease. [90]

(7) Theevidence that Mr Villar’s symptoms came on over time and that he did not injure himself in any specific incident, together with the findings in the radiological reports, all pointed to his injury being an aggravation injury under section 4(b)(ii) [92].  That aggravation was only temporary. [94], [95]

(8) If theaggravation injury continued, section 16 applied and compensation was payable by the last employer to employ Mr Villar in employment to the nature of which the aggravation was due. [96]

(9) After ceasing work for Grocon, Mr Villar worked in several jobs that placed excessive strain on his back and right leg and he stopped work in August 2007 because he had difficulty coping [96].  Mr Villar left formwork carpentry because it aggravated the problems with his back and knee [97]

(10) Mr Villar’s work after leaving Grocon was a substantial contributing factor to the aggravation of the disease condition in his lumbar spine. [99]

(11) Grocon was therefore not the last employer under section 16. [102]

(12) The Arbitrator did not make any costs order, presumably because the matter had to be referred to an AMS for assessment of the right leg. However Mr Villar partially succeeded with his claim and there was no valid reason why he should not have a costs order in his favour. [108]

Awad v Department of Aging Disability and Home Care (NSW) No.2 [2009] NSWWCCPD 53

Psychological injury - subsequent injuries not pleaded – causation - what incapacity results from the pleaded injury- weight of evidence

15 May 2009

President, His Hon. Judge Keating

Appeal

Mr Awad appealed the arbitrator’s decision not to award him ongoing weekly compensation on the basis that he had misconceived the evidence, and made a decision against the weight of evidence.

Held:

(1) The Arbitrator placed undue weight on the HealthQuest report (prepared at employer’s request) and failed to accord proper weight to Mr Awad’s evidence, reports from his treating psychiatrist and general practitioner (GP) who were in agreement that his psychological condition was continuing to inhibit his ability to return to work after 3 February 2008 [152].

(2) The weight to be attached to the HeathQuest report was diminished because the authors did not have a complete history or details of consultations with, or reports from, GP and psychiatrist.

(3) The weight of evidence supported a finding that from 4 February 2008 Mr Awad continued to suffer an incapacity for work as a result of the November 2007 psychological injury – finding of fact made accordingly. [155].

(4) A determination of causation and what incapacity resulted from the injury pleaded was required (see Latham CJ in Ward v Corrimal-Balgownie Colliers Ltd [1938] HCA 70; (1938) 61 CLR 120).

(5) The matter could not be re-determined on appeal because of deficiencies in the evidence - remitted to a different arbitrator for determination of the claim for weekly compensation from 4 February 2008 to date and continuing [163] - both parties to be given an opportunity to file any additional evidence and make submissions as to whether any award is total or partial, and if partial any discretionary issues to be considered [161].

Sapina v Coles Myer Limited (No.2) [2009] NSWWCCD 56

On remitter from Court of Appeal, psychological injury; sections 9A and 11A of the 1987 Act

21 May 2009

President, His Hon. Judge Keating

Background

Arbitrator made an award for the respondent employer in respect of Ms Sapina’s claim for psychological injury  - Ms Sapina appealed  - on appeal Acting President Byron made an award for the respondent, but for different reasons.

Ms Sapina appealed -  the Court of Appeal upheld the appeal and remitted the matter to the Commission (Sapina v Coles Myer Limited [2009] NSWCA 71) on 6 April 2009, holding that the Acting President had failed to consider for himself, whether the Arbitrator’s decision was wrong, and if so, what was the preferred or correct decision.

Keating J held on remitter:

(1) The arbitrator applied section 11A without first making a finding as to the cause of the worker’s injury and she applied the wrong test in determining the merits of the respondent’s defence under section 11A [28].

(2) The arbitrator’s comments in relation to section 11A were not consistent with the terms of the section [24].

(3) Section11A is specific. It only applies where the whole or predominant cause of the psychological injury was the employer’s reasonable action with respect to transfer and/or demotion and/or promotion and/or performance appraisal and/or discipline and/or retrenchment and/or dismissal of workers and/or provision of employment benefits to workers was reasonable [25].

(4) The onus of proof in establishing the matters within section 11A rests with the respondent (see Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206).

(5) For a general discussion of the general principles to be applied in such cases see Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130 at [25]-[31] and Temelkov v Kemblawarra Portugese Sports and Social Club Ltd [2008] NSWWCCPD 96.

(6) Arbitrator’s decision revoked.

(7) Given the significant passage of time, the deficiencies in the medical evidence and the lack of evidence in relation to probable earnings or ability to earn, and counsel for the worker foreshadowing an application for the admission of further evidence, the matter was not suitable for re-determination but was remitted to a different arbitrator for re-determination.

SPL Pty Ltd t/as ITW Proline v Oliver [2009] NSWWCCPD 54

Concurrent Workers Compensation and Common Law proceedings – Common Law action settled after remitter by Arbitrator of Commission for Registrar for referral to AMS – appeal by employer against Arbitrator’s order – purported discontinuance of proceedings by worker – interlocutory decision – entitlement to costs.

19 May 2009

Deputy President O’Grady

Appeal:

A worker settled concurrent common law proceedings after remittal of lump sum application by arbitrator to Registrar for assessment by AMS.  An appeal had been brought by the employer against the Registrar’s determination made in accordance with the AMS assessment after which the worker purported to discontinue the proceedings.

Held:

(1) Having received damages in respect of the subject injuries, Mr Oliver had no further right to compensation (s151Z of the 1987 Act) [7]. The only outstanding matter between the parties concerned the question of entitlement to costs.

(2) ITW Proline’s application for leave to appeal was refused as there was no compensation at issue between the parties [22] – [23].  In addition it was clear on the authorities that the Arbitrator’s order was of an interlocutory nature. Pursuant to s352(8) no appeal lay (Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35).

(3) Notwithstanding the terms of Rule 15.7(1), once a determination is made by an Arbitrator in proceedings, any order made remains standing unless revoked or otherwise affected by order on appeal, brought pursuant to s352 or by way of reconsideration, s350(3) [19].

(4) Mr Oliver retained the benefit of the costs order made in his favour by the Arbitrator.  The position would be otherwise had Mr Oliver agreed to settle his common law proceedings before the Arbitrator’s decision.  Mr Oliver was entitled to bring the claim; he was successful in respect of that application and entitled to an order for costs upon the fundamental principle that costs follow the event [24].

(5) Mr Oliver’s application for an order for the costs of the appeal in his favour refused (Hodson v Scott Transport Industries Pty Ltd (1994) 10 NSWCCR 19).

(6) ITW Proline’s application for costs on the appeal was refused, the employer having failed to make out grounds for such order (s341(4) of 1998 Act).