Issue 9: September 2009

Edition 9 - September 2009 includes a summary of the August 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

Welcome to the Ninth edition of ‘On Appeal’.

Edition 9 - September 2009 includes a summary of the August 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:

ADP	Acting Deputy President
AMS	Approved Medical Specialist
ARD	Application to Resolve a Dispute
COD	Certificate of Determination
Commission	Workers Compensation Commission
DP	Deputy President
MAC	Medical Assessment Certificate
Reply	Reply to Application to Resolve a Dispute
WPI	Whole Person Impairment
1987 Act	Workers Compensation Act 1987
1998 Act	Workplace Injury Management and Workers Compensation Act 1998
2003 Regulation	Workers Compensation Regulation 2003
2006 Rules	Workers Compensation Commission Rules 2006

Index

Presidential Decisions:

MT Smith, JK Williams t/as Harris Wheeler Lawyers v Mason [2009] NSWWCCPD 106. 4

Section 10 of the 1987 Act - periodic journey; deviation for a purpose connected with employment - material increase in risk of injury

Salama v Q Catering Limited [2009] NSWWCCPD 92. 7

Industrial deafness claim – whether the worker’s evidence was sufficient to discharge the onus of proving ‘noisy employment’ - Despotoski

Arcade Pharmacy Pty Limited v Gauci [2009] NSWWCCPD 107. 9

Sections 74, 289, 289A and 293 of the 1998 Act – s 65(3) of the 1987 Act – requirement for procedural fairness

Thompson v Coffs Harbour City Council [2009] NSWWCCPD 94. 11

Particulars of claim; disease; nature of injury; ss 4, 15 and 16 of the 1987 Act

WorkCover New South Wales v Evans [2009] NSWWCCPD 95. 13

Review of weekly payment pursuant to s 55 of the 1987 Act – change in financial circumstances; issue estoppel and referral of lump sum claims to AMS – application of Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192 where causation decided by Arbitrator in determining claims other than lump sum claims.

Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97. 15

Evidence - leave to call oral evidence from expert witness - late evidence; restricting cross-examination - refusal to grant an adjournment - restrictions on the number of forensic medical reports.

Cemex Australia Pty Limited (formally known as Rinker Group Limited) v Freriechs [2009] NSWWCCPD 101. 18

Supreme Court orders quashing Medical Appeal Panel ('MAP') decision - jurisdictional error in MAP decision - effect on Arbitrator’s orders made in consequence of an invalid MAP decision

NSW Police Force v Kennedy [2009] NSWWCCPD 99. 19

Section 60 of the 1987 Act - knee replacement surgery - whether hospital and medical expenses had been incurred as a result of accepted aggravation injuries – treatment of evidence

Department of Ageing, Disability & Home Care v Fenwick [2009] NSWWCCPD 104. 21

Medical reports - compliance with Makita (Australia) Pty Ltd v Sprowles

Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103. 23

Consent award - issue estoppel - matters in dispute

S & H Removals Pty Ltd v Watson [2009] NSWWCCPD 91. 25

Incapacity – reason - weight to be attached to video surveillance

Doncevski v CAL Marketing Pty Ltd [2009] NSWWCCPD 105. 26

Weight of evidence - failure to discharge onus of proof

Purdon v Munro [2009] NSWWCCPD 98. 27

Application of principles in Jones v Dunkel (1959) 101 CLR 298 - weight of evidence; forensic medical report - clauses 43 and 43AA of the Regulation - s 74 notice

Symbion Health Limited (Formerly Mayne Health Limited) v Hanshaw [2009] NSWWCCPD 93 29

Notice of injury – notice of claim – adjournment of proceedings –last “noisy” employment

Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90. 31

Psychological injury- sns 9A and 11A of 1987 Act – discipline – reasonable action by employer – inadmissible evidence

Buraga v NSW Police Service [2009] NSWWCCPD 102. 33

Causation – sufficiency of reasons

Kay v Wollongong City Council [2009] NSWWCCPD 96. 34

Section 352(2) of the 1998 Act – monetary threshold – leave to appeal

Newby v NSW Police Force [2009] NSWWCCPD 100. 35

Costs reconsideration - section 350(3) of the 1998 Act

MT Smith, JK Williams t/as Harris Wheeler Lawyers v Mason [2009] NSWWCCPD 106

Section 10 of the 1987 Act - periodic journey; deviation for a purpose connected with employment - material increase in risk of injury

Keating, P

26 August 2009

Facts:

Mr Mason was a solicitor employed by the Appellant. It was his usual practice to ride his bicycle to work each day. Mr Mason was a member of a bicycle club and every Tuesday and second Thursday, various members of the club, including Mr Mason, participated in what was described as a ‘training ride’ from John Hunter Hospital at New Lambton Heights Newcastle to Swansea and return. The round trip was approximately 44 kilometres.

It was Mr Mason’s usual practice after completing the training ride to Swansea to continue on to his place of employment in Newcastle. Occasionally he would stop for coffee with the other members before proceeding to work.

On Tuesday 11 December 2007, Mr Mason was on a training ride in a group of approximately 19 cyclists riding in the breakdown lane on the Pacific Highway at Blacksmiths, when he was fatally injured after being struck by a semi trailer. The driver of the semi trailer was under the influence of illegal drugs and veered off the highway striking Mr Mason.

Mrs Mason claimed benefits under s 25 and/or s 26 of the 1987 Act.

The Arbitrator found at the time of his death, Mr Mason:

(a) was undertaking a periodic journey between his place of abode and place of employment;

(b) was injured during a deviation of such journey;

(d) the deviation did not materially increase the risk of injury.

Appeal:

The issues in dispute in the appeal were:

(a) whether Mr Mason was undertaking a periodic journey between his place of abode and place of employment at the time of his death;

(b) if Mr Mason was on a periodic journey, were the injuries sustained whilst on a deviation connected to his employment,and

Held:

(1) The facts in this case were, as the Arbitrator observed, strikingly similar to those in Vetter v Lake Macquarie City Council [2001] HCA 12 (‘Vetter’). [60]

(2) in Vetter Kirby J noted that:

the High Court had emphasised in a number of decisions that claims for compensation for injuries sustained on a journey as defined in the applicable Act may only succeed if the journey in question is properly classifiable as one between a specified origin and a specified destination. (see also Young v Commissioner for Railways [1961] ALR 258).
the Act is intended to apply to employment journeys of workers in a great variety of employment and domestic situations. It provides a valuable benefit to such workers. “This benefit should not be narrowly construed nor confined to journeys in which the employer has some direct or notional interest”. [61]-[67].

(3) There is no obligation upon a worker to take the shortest and most direct route from the worker’s place of work to the worker’s abode so long as the journey can be said to be a journey between the worker’s place of abode and place of employment. (Vetter Gleeson CJ, Gummow and Callinan JJ held at [29]). [67]

(4) Consistent with these authorities his Honour found that Mr Mason was on a journey between his place of abode and place of employment within the meaning of s 10 of the 1987 Act at the time of his death. The journey being undertaken by the worker conformed to a periodic pattern. There was no compulsion for him to take the shortest and most direct route to work. There was no prohibition on him achieving an additional purpose, in this case, the training ride, in addition to his purpose of cycling to work.

(5) The fact that the worker included a training ride with his cycling club, which added approximately 35 to 45 km to the more direct route, and which in part took him on a path opposite to the direct route, being undertaken before normal office hours, did not deprive the journey of the character of a periodic journey within the meaning of s 10 (3).

(6) If his Honour’s finding that Mr Mason was on a periodic journey was wrong, in the alternative, he found that the interruption or deviation to the periodic journey on which Mr Mason was engaged at the time of his accident was for a reason connected with his employment, namely, the promotion of Harris Wheeler through business networking in the cycling club. (see Napoli v Arthur H Stephens (NSW) Pty Ltd [1970] 1 NSWLR 125 at [127]).

(7) Further, in the alternative, his Honour held that the employer failed to establish that the deviation materially increased the risk of injury. He noted:

Once the employer has established that the worker was injured during an interruption or deviation to a journey, the worker bears the onus of negating a material increase in risk (see Babcock Australia Ltd v Proudfoot (1993) 9 NSWCCR 525). [92].

Whilst the worker bears the onus of proving that there has been no material increase in risk, once the worker has led sufficient evidence, from which if accepted, the negative proposition may be inferred, the evidentiary onus shifts to the employer to adduce evidence that tends to show that the negative proposition is incorrect. (see Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 (28 March 2008) at [78]). [97]
Whether the risk is likely to have been increased is a question of fact and degree requiring a comparison of the risk likely to arise had there been no interruption or deviation and the risk involved in or during the deviation or interruption. [94]-[95].
The material consideration is not whether the increase in the risk of injury resulting from the interruption or deviation actually caused the injury, but whether in fact there has been a material increase in the risk of injury generally by reason of the interruption or deviation (see Scobie v K D Welding Company Pty Ltd (1969) 103 CLR 314 (‘Scobie’) at page 322). [93]
As Windyer J noted in Scobie, at 331[par10] the increased risk due to the additional time taken on the journey as a result of a deviation or interruption is not necessarily material. [100]

Orders: Arbitrator’s decision confirmed on appeal.

Salama v Q Catering Limited [2009] NSWWCCPD 92

Industrial deafness claim – whether the worker’s evidence was sufficient to discharge the onus of proving ‘noisy employment’ - Despotoski

Moore ADP

6 August 2009

Facts:

The worker commenced employment with Qantas in 1994, working for the first five years in the catering facility “wash up area”. He claimed that he was exposed to noise during that time from large washing machines. He then worked in the transport areas in which his duties included driving trucks to and from the catering facility to the aircraft. He again claimed that he was exposed to noise from aircraft engines including incidental noise from aircrafts taking off and landing.

On 12 June 2008 notice of his claim for industrial deafness, within the meaning of s 17, was given to Qantas. There was no dispute that he suffered from sensori-neural hearing loss of a type that is due to industrial noise, however, the issue in dispute between the parties was whether or not Qantas was responsible for that loss.

The worker lodged an ARD seeking lump sum compensation and medical expenses. The Arbitrator found in favour of Qantas on the basis that the worker had failed to discharge the onus to prove that Qantas was a ‘noisy employer’.

The worker sought leave to appeal this decision, in particular the Arbitrator’s refusal to admit late documents (two further reports from his medical expert); the reliability and accuracy of Qantas’ noise survey; the Arbitrator’s findings as to the onus required of him to prove certain matters and her treatment of the evidence.

Held – Arbitrator’s decision confirmed

(1) No explanation was given by the worker for the delay in obtaining the reports and that the reports appeared to be obtained by the worker purely to assist in the cross-examination of Qantas’ expert. This conduct was completely inappropriate and demonstrated a fundamental misunderstanding of the legislation. The Arbitrator was correct in ruling that their admission would be prejudicial to Qantas. [65]

(2) The worker failed to demonstrate that Qantas’ noise survey and the evidence given by their expert was unreliable or inaccurate.

(3) The worker carried the onus of proving that his employment was noisy (Galdemar v Asta Enterprises Pty Ltd [1998] 17 NSWCCR 155 (‘Galdemar’)).

(4) The level of noise to which a worker is exposed and whether that level is sufficient to cause industrial deafness is not evidence that can be given by a lay person (Dawson & Ors t/as The Real Cane Syndicate v Dawson [2008] NSWWCCPD 35). [79]

(5) The worker failed to discharge the onus upon him. The only evidence was his own statements and a medical report. There was no expert evidence in support of his assertions (see Despotoski v Qantas Airways Ltd [2009] NSWWCCPD 42 at [38]). [83]

(6) The worker did not fulfill his obligation “to bring evidence concerning tendencies, incidents or characteristics” of the type which could give rise to the injury (see Blayney Shire Council v Lobley & Anor (1995) 12 NSWCCR 52) nor did it comply with the evidentiary requirements set out in Galdemar and in Combined Civil Pty Ltd v Rikaloski [2007] NSWWCCPD 181. [84]

Arcade Pharmacy Pty Limited v Gauci [2009] NSWWCCPD 107

Sections 74, 289, 289A and 293 of the 1998 Act – s 65(3) of the 1987 Act – requirement for procedural fairness

O’Grady DP

27 August 2009

Facts:

In November 2004 the worker injured her right shoulder while moving stock. In 2007 she underwent an operation on her right shoulder and remained incapacitated until March 2007, at which time she returned to part-time work. After the operation she noticed the gradual onset of left shoulder pain and in August 2008 claimed lump sum compensation pursuant to s 66 for both the right and left upper extremities, claiming a 7% WPI.

The employer made arrangements for the worker to be assessed, and on 19 September 2008, made a settlement offer in the sum of $2,500 in respect of 2% WPI. The worker lodged an ARD, stating that the claim was in respect of lump sum compensation where “degree of permanent impairment was in dispute”. The employer lodged a Reply attaching a schedule of “issues in dispute” and Directions for Production, for which leave to issue was required.

On 22 October 2008 an officer of the Commission, acting in accordance with authority delegated by the Registrar, referred the medical dispute for assessment to an AMS. Both the worker and employer were advised of the date of the assessment, in addition to the AMS’ requests for further information.

On 10 December 2008, the date the MAC was issued, the employer wrote to the Commission advising that they required an opportunity to be heard in respect to the “issues”, which remained in dispute. The employer wrote to the Commission again on 19 December 2008 advising that there were a large number of outstanding issues in dispute and requested that the matter be set down for a teleconference. The Commission declined to set down the teleconference on the basis that this request was not made by consent.

The MAC contained an assessment of 9% WPI for the right and left upper extremities. The employer appealed against this assessment and the matter was referred to an Appeal Panel for review, which confirmed the MAC. The Deputy Registrar - Operations, Member of Commission, issued a COD on 22 April 2009 in accordance with ss 294 and 371(1) of the 1998 Act, ordering the employer to pay the worker lump sum compensation in respect of 9% WPI.

Appeal:

The employer appealed on the grounds that it had been denied procedural fairness; that the Commission failed to give sufficient reasons for its decision and argued whether the determination was made within jurisdiction.

The worker, on appeal, submitted that “pursuant to s 371 the Registrar and/or her delegate can exercise all the functions of an arbitrator” and that given the insurer’s failure to comply with its obligations pursuant to s74, the Registrar was correct in referring the matter directly to an AMS for assessment.

Held:

(1) At the relevant time the Deputy Registrar – Operations concurrently held the office of an arbitrator. The COD issued on 22 April was a decision made by the Commission, which may be the subject of an appeal application pursuant to s 352.

(2) The referral of the matter for an assessment by an AMS by the Registrar’s delegate was founded upon the assumption that there was no dispute as to liability, founded solely upon the assertion made in the worker’s ARD, with no consideration being given to the content of the employer’s Reply.

(3) Section 74 prescribes a mandatory obligation upon the insurer to give notice concerning a dispute as to liability in respect of a claim. The employer’s insurer had not complied with its obligations under s 74. Section 289A(4) makes provision for the grant of a discretion in the Commission to permit “previously unnotified matters to be heard or otherwise dealt with”.

(4) Notwithstanding the manner of the conduct of the employer’s defence in this claim, a dispute did exist as to liability and the employer was denied procedural fairness in not being heard, at least in relation to an application pursuant to s 289A(4).

(5) COD revoked and matter remitted to an arbitrator.

(6) A successful party may, by reason of its conduct, be subject to a costs order against it (see Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124 at [77] – [79]). The legislation grants the Commission a wide discretion concerning costs. It was held appropriate in the circumstances that the employer pay the worker’s costs of the appeal.

Thompson v Coffs Harbour City Council [2009] NSWWCCPD 94

Particulars of claim; disease; nature of injury; ss 4, 15 and 16 of the 1987 Act

Roche DP

7 August 2009

Facts:

This appeal concerned a dispute about the nature of the claim particularised in the ARD and whether, given the nature of that claim, the worker received an injury.

On 11 November 2003 Mr Thompson claimed lump sum compensation for both arms as a result of the nature and conditions of employment with the Council from April 1994. The claim was settled, the s 66A agreement recorded the claim as being duly made on 11 November 2003 and the date of injury as 28 April 1994.

Mr Thompson remained with the Council until he resigned on 25 July 2008, then worked for another employer from August 2008 until mid January 2009.

In October 2008 the worker claimed weekly compensation, identifying the date of injury as “11 November 2003 and on or about 25 July 2008”.

The Arbitrator found that Mr Thompson’s condition was a disease to which s 16 of the 1987 Act applied and, as he had been employed by another employer in work that was a substantial contributing factor to the aggravation of the disease, the Council was not the last employer to employ him in employment of that kind.

Held – Arbitrator’s decision confirmed.

(1) Though the Commission is not bound by strict pleadings (Far West Area Health Service v Radford [2003] NSWWCCPD 10), applicants must properly identify the basis of their claim. [49]

(2) The deeming provisions in ss 15 and 16 of the 1987 Act assume that an injury has taken place and merely deem the injury to have occurred on a certain date for the purpose of determining which employer or insurer is liable to pay any compensation that may be found to be payable (Mahoney A-P in Crisp v Chapman (1994) 10 NSWCCR 493). [51]

(3) In any case where it is alleged that a worker received an injury due to repeated trauma over a period of time, that period should be identified in the ARD. It is not enough to simply nominate a deemed date of injury. [52]

(4) The Arbitrator did not err in failing to have regard to the period of employment up to November 2003. The way the claim was particularised restricted consideration to whether injury was received from November 2003. [55]

(5) Osteoarthritis, degenerative changes in the shoulders and epicondylitis are properly characterised as diseases (Perry v Tanine Pty Ltd t/as Ermington Hotel & ors [1998] NSWCC 14, (1998) 16 NSWCCR 253; Fletcher International Exports Pty Ltd v Barrow & anor [2007] NSWCA 244, (2007) 5 DDCR 247). As a result, the claim had to be determined under the disease provisions in ss 4(b)(i) and 15, and/or ss 4(b)(ii) and 16 of the 1987 Act. [57]

(6) There was no evidence that Mr Thompson contracted a disease in the course of his employment and s 4(b)(i) did not apply. [58]

(7) Because Mr Thompson’s duties between November 2003 and 25 July 2008 were predominantly supervisory, the Deputy President was not satisfied that he had suffered an aggravation injury under s 4(b)(ii).

Other matters – although the claim as pleaded failed, it does not mean an end to the worker’s rights. Given the acceptance of liability for his arms in the s 66A Agreement and the unarguable restriction in his ability to perform work requiring full use of his arms, he may be entitled to weekly compensation. The injury to the arms clearly restricts the worker’s ability to sell his labour in the market reasonably accessible to him.

WorkCover New South Wales v Evans [2009] NSWWCCPD 95

Snell ADP

11 August 2009

Facts:

Mr Evans worked as an apprentice cabinet maker for JWA Furniture Restorations when he suffered injuries in the course of employment on 26 September 2001 and 5 October 2001.

The employer was uninsured so the claim for compensation was met by the appellant who declined liability from 6 August 2002.

An Arbitrator determined on 11 July 2003 that Mr Evans had been totally incapacitated up to 30 June 2002 and partially incapacitated thereafter. Probable earnings if not for injury were $450.00 per week, and ability to earn in some suitable employment was $225.00 per week from 7 August 2002 on a continuing basis. An ongoing award on this basis was entered.

Subsequent to the original award, the worker completed a Certificate in Architectural Drafting and a Diploma of Architectural Technology, paid for by the appellant, and worked part-time two hours per day whilst retraining as a draftsman from 2004 to 2006.

After graduation, Mr Evans commenced full-time employment, earning more than his probable earnings. He subsequently consented to termination of the award. Following proceedings instituted by the appellant, Mr Evans was ordered to refund all weekly benefits paid to him from 6 January 2007 to 17 December 2007.

Mr Evans then lodged an ARD claiming an increase in weekly entitlements from 31 July 2004 to 26 September 2006, pursuant to s 55 of the 1987 Act, and lump sums in respect of the back, neck, right shoulder, right leg and sexual function.

The Arbitrator accepted that the worker’s probable earnings if not for injury (s 40(2)(a)) would have increased from time to time, beyond the figure of $450.00 per week found in 2003. The change in the level of probable earnings constituted a change of circumstances, justifying review under s 55, of the existing award. The arbitrator found ability to earn had not increased during the period being reviewed. The s 40 award was increased from 31 July 2004 to 26 September 2006. The lump sum claims were referred to an AMS. It was reasoned that, the original arbitrator having decided in 2003 that the relevant injuries occurred, whether permanent impairment resulted from them was a matter within the jurisdiction of an AMS (applying Haroun v Rail Corporation of NSW & Ors [2008] NSWCA 192 (‘Haroun’)).

Appeal:

The main issues on appeal were whether the Arbitrator erred in:

her assessment of the lower limb of the s 40 equation (s 40(2)(b)) in that the worker’s ability to earn would have increased from the figure found by the original Arbitrator on 11 July 2003; and
referring the lump sum claims in respect of the back and sexual organs to an AMS, given the finding made by the original Arbitrator regarding the consequences of the back injuries.

Held – Arbitrator ’s decision confirmed, with the addition of an award for the appellant in respect of the claim to the lumbar spine and sexual organs.

Weekly compensation claim:

(1) There was nothing in the evidence that would lead to the conclusion that the respondent’s ability to earn, prior to September 2006, was greater than the sum found at the original arbitration. It would be difficult to conclude the worker could have earned more, in circumstances where he was earning modest sums from part-time work whilst attending TAFE full-time, in co-operation with a rehabilitation plan put in place by the appellant. The provisions of any injury management plan for the worker is a factor to be taken into account, pursuant to s 43A. [43]

Lump sum compensation claim:

(2) The finding that the effects of injury have ceased was distinguished from a consent finding of injury, which even if accepted, does not establish the existence of a permanent impairment. (Peric v Lee & Ran t/as Pure and Delicious Healthy & Anor [2009] NSWWCCPD 47 and Haroun) [57]

(3) In Haroun the claim before the Arbitrator was one for lump sum compensation, questions going to injury having been resolved by consent. Handley AJA concluded that what remained in issue was ‘a medical dispute’, as defined in s 319 of the 1998 Act. The scheme of the 1987 and 1998 Acts was that the medical dispute be determined by an AMS, the Arbitrator lacked jurisdiction to do so. [58]

(4) Haroun can be distinguished from the facts in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 and Peric v Lee & Ran t/as Pure and Delicious Healthy & Anor [2009] NSWWCCPD 47. In the latter, the Arbitrator was required to decide what the consequences of injury were, for the purpose of determining disputes going to entitlement to weekly compensation and medical expenses. An arbitrator clearly has jurisdiction to determine such questions pursuant to s 105(1) of the 1998 Act. It was necessary that the Arbitrator determine causation, amongst other issues, in determining the weekly dispute. [59]

(5) The original Arbitrator decided that the back injury on 26 September 2001 was “minor and of a transient nature” and that the effect of the second injury ceased by 31 July 2002. These findings were legally indispensable to the decision regarding weekly compensation and medical expenses. [60]

(6) The original findings regarding the injury to the back created an issue estoppel, binding both parties. Consistent with the estoppel, there was no dispute regarding the referral for assessment by an AMS of the degree of permanent impairment of the worker’s back. As the claim for loss of sexual organs is secondary to the claim in respect of the back, the estoppel extended to the claim for the sexual organs. [61]

Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97

Evidence - leave to call oral evidence from expert witness - late evidence; restricting cross-examination - refusal to grant an adjournment - restrictions on the number of forensic medical reports.

Keating, P

12 August 2009

Facts:

Claim for lump sum compensation for 7% WPI ($8,750.00) as a result of tendonitis in the right shoulder and arm caused by the nature and conditions of data entry work including prolonged periods of typing and operating a mouse.

Appeal:

The Appellant appealed the arbitrator’s decision in respect of the admission and refusal to admit documentary evidence and restricting cross-examination and refusing Rinker an adjournment. It also alleged the Arbitrator failed to properly consider and assess the evidence.

Held – Arbitrator’s decision confirmed.

(1) The orders made by the Arbitrator to admit as late evidence a report from Dr Miller dated 28 November 2008 and Ms Mackell’s statement dated 28 November 2008 at the teleconference on 10 December 2008 were appropriate, having regard to:

The background of the matter, including the determination of the Deputy President in Rinker Group Limited v Mackell [2008] NSWWCCPD 100 (‘Mackell (No. 1’)).
The relevance of the evidence admitted, and the granting of leave to Rinker to file evidence in reply.
Ensuring the matter was able to proceed at the next hearing without any unnecessary delays occasioned by procedural applications and to minimise the risk of any further adjournment applications.
The usual case management practices of the Commission and the Registrar’s “Guideline for the Practice of the Conciliation /Arbitration Process” and Rule 15.1 of the 2006 Rules. [113]-[115].

(2) The Arbitrator’s order limiting the number of forensic reports on which Rinker could rely was upheld:

In Mackell (No.1), Rinker relied on the mandatory requirement in clause 43 of the 2003 Regulation, to successfully challenge the Arbitrator’s admission into evidence of Ms Mackell’s two forensic medical reports, both from orthopaedic surgeons, however in this appeal, Rinker sought to escape the application of that very same requirement. [130]
Rinker disregarded the Deputy President’s warning in Mackell (No.1) that clause 43 would prevent the reports of both Drs Blue and Maxwell being admitted in evidence. [138]
Compliance with clause 43 is mandatory. There is no discretionary power to be exercised. [136]

(3) The Arbitrator’s refusal to permit Dr Stabler to give oral evidence and her refusal to consider ‘relevant documents’ concerning the application to call Dr Stabler was upheld:

Oral evidence is the exception, not the rule in the Commission. It is a matter for Arbitrator’s discretion.
Rule 14.2 provides that a party may not call a witness unless the requirements of subrule 2 have been met. There were three teleconferences prior to this matter being listed for hearing in Ballina on 10 February 2009 - ample opportunity for Rinker to foreshadow its intention to seek to call Dr Stabler to give evidence.
Rinker did not comply with the Rules or the Practice Directions with respect to the calling of oral evidence nor was any reason given for the failure to comply with the Rules.
The attempt to call oral evidence on the day of the arbitration, without notice and without compliance with the Rules for the calling of oral evidence, repeated Rinker’s same conduct at the first arbitration hearing. The evidence was not permitted then and in Mackell (No.1) the Arbitrator’s decision was confirmed by Deputy President Roche due to the non-compliance with the Rules and Practice Direction.
Ms Mackell would have been placed in a position of substantial prejudice if the application was granted.
After the Arbitrator’s orders, the Arbitrator refused the Appellant’s application to tender “just for completeness” a letter from Dr Stabler to his firm and a copy of a letter to Dr Stabler from his firm on the basis that a ruling had already been made on the issue to which they related, was correct:
if these documents were relevant to an alleged “refusal” to sign a statement of oral evidence then Rinker’s solicitor should have included those documents with a statement in accordance with Rule 14.2(2), and
Rinker provided reasons for not doing so and did not seek to tender them in the application. [170]

(4) The Arbitrator’s decision to limit Rinker’s cross-examination of Ms Mackell was upheld:

Proceedings before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as the Commission thinks appropriate as the proper consideration of the matter before it permits (s 354 of the 1998 Act).
An arbitrator’s discretion in relation to cross-examination must be exercised in a manner consistent with the statutory objectives, the procedures of the Commission and the circumstances of a particular case. (see Aluminum Louvres and Ceiling Pty Ltd v Zheng [2006] NSWCA 34; (2007) 4 DDCR 358 at [37] and South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [131]) [185].
Factors relevant to the exercise of the Arbitrator’s discretion included:
at the outset the Arbitrator made it clear that cross-examination would only be allowed “on issues of relevance to the issue of causation and injury that are before the Commission”;
there was objective evidence in respect of the reporting of the injury to the general practitioner and the employer;
the cross-examination was conducted in an aggressive manner requiring the seating arrangements to be altered to put more distance between the witness and Mr Macken, and
Mr Macken was cautioned over his manner and in particular raising his voice to the witness. [187]

(5) The Arbitrator’s decision to refuse adjournment applications was upheld:

Practice Direction No. 2 ‘Adjournment of Commission Proceedings and Leave to Introduce Evidence’ sets out the Commission’s practice on adjournments. [199]
The Practice Direction must be considered in the context of the objectives of the Commission, in particular the duty to provide a just, and timely dispute resolution service in relation to workers’ entitlements under the workers compensation legislation. (See AON Risk Service Australia Ltd v Australian National University [2009] HCA 27 at [25]-[27]). [200]
As noted by ADP Roche in Mackell (No.1) and adopted and applied in Mackell (No.2). In Moombalene Local Aboriginal Land Council v Dailey [1998] NSWCC 22; (1998) 16 NSWCCR 469 at [25] to [32] Burke CCJ set out a number of general principles applicable to adjournment applications. These must be read in light of the workers compensation legislation, the Rules and Practice Directions in particular, the provisions of s 354 of the 1998 Act. [201]
The principles are capable of application at the same time, may conflict and therefore the decision to refuse or allow an adjournment requires the balancing of competing demands.
There is discretion in the Commission to grant adjournment in the interests of procedural fairness. The discretion must be exercised lawfully having regard to relevant matters.

(6) Arbitrator’s finding of deemed date of injury also confirmed on appeal.

Cemex Australia Pty Limited (formally known as Rinker Group Limited) v Freriechs [2009] NSWWCCPD 101

Supreme Court orders quashing Medical Appeal Panel (‘MAP’) decision - jurisdictional error in MAP decision - effect on Arbitrator’s orders made in consequence of an invalid MAP decision

Keating, P

14 August 2009

Facts:

An award of compensation was made pursuant to ss 66 and 67 of the 1987 Act. The Arbitrator’s decision was based on the MAP decision.

A week after the Arbitrator’s decision was issued, the Supreme Court quashed the MAP decision.

The employer argued the Arbitrator’s decision was affected by jurisdictional error.

Held:

(1) A determination made in reliance on an invalid MAC, is also invalid (see Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321 at [37]). [38]

(2) The Arbitrator’s decision was based on the assumption that a valid and binding MAP decision was issued. In light of the Supreme Court Judgment and Order that assumption was no longer valid. The Supreme Court quashed the MAP decision on the basis that it contained a jurisdictional error. It followed that all decisions and orders of the Commission based on that MAP and consequential to it, could not stand and must be revoked. [39]

(3) Mr Frereichs’ submission that the Arbitrator’s decision could be preserved if the decision of the new MAP confirmed the original MAC was not accepted because the submission assumed that the new MAP would give the same reasons as the previous MAC and there was no basis for that assumption.

(4) At a practical level if the new MAP’s reasons and conclusions were similar to the original MAC, it would make sense for the parties to reach agreement and resolve the claim. In the absence of agreement any outstanding issues must be re-determined.

NSW Police Force v Kennedy [2009] NSWWCCPD 99

Section 60 of the 1987 Act - knee replacement surgery - whether hospital and medical expenses had been incurred as a result of accepted aggravation injuries – treatment of evidence

Roche DP

14 August 2009

Facts:

Mr Kennedy had injured his knees on various occasions since 1977. In the course of his employment for the Police Force, he twisted his right knee whilst running to catch a train on 28 September 2004. On 26 April 2005 he injured his right knee again whilst running in response to a fire alarm at work. Liability, initially accepted, was declined on 7 December 2005.

In 2007 Mr Kennedy underwent bilateral knee replacements. His ARD claimed hospital and medical expenses for treatment of the right knee (s 60 of the 1987 Act).

Liability was disputed on the grounds that any work related aggravations in the 2004 and 2005 injuries were temporary in nature and not causative of the need for the total knee replacement surgery.

The Arbitrator found in favour of Mr Kennedy.

Held – Arbitrator’s decision revoked. Award for the respondent.

(1) There was no dispute regarding injury nor that surgery was reasonably necessary. The crucial question was whether the surgery was reasonably necessary as a result of the accepted injuries. [47]

(2) Evidence from Dr Elliott, the worker’s treating specialist, did not address the issue of whether surgery was reasonably necessary as a result of the work injuries. Whilst that omission might not establish the negative contention (that the need for surgery was unrelated to the injuries), the positive contention (that the need for surgery was related to the injuries) had to be established by Mr Kennedy who bore the onus of proof. [51]

(3) Dr Elliott recommended surgery in view of the worker’s deformity and increasing pain, but there was no evidence that that deformity, or the increasing pain, resulted from the aggravation injuries in 2004 and 2005. [52]

(4) Other features of the evidence undermined the Arbitrator’s conclusion:

(i) The Arbitrator, and some doctors, incorrectly referred to the work incidents as falls, which was inconsistent with the worker’s statement of a twisting injury and a “running” injury, respectively. [55]

(ii) Precisely when the worker sought medical treatment after the 2005 incident was unclear. Medical certificates suggested it was not until 6 May 2005. [56]

(iii) Medical evidence noted a flare up of knee pain following a walk around the Opera House early May 2005, undermining the significance of the work incident on 26 April 2005 and the worker’s submission that no other incident happened after 26 April 2005. [57]

(iv) The first medical evidence with a history of the 26 April 2005 incident was a medical certificate of 23 May 2005. The reason for the delay in seeking medical attention was unexplained. [58]

(5) Regardless of the merit of the Police Force’s evidence, Mr Kennedy failed to discharge the onus of proof. [60], [64]

Department of Ageing, Disability & Home Care v Fenwick [2009] NSWWCCPD 104

Medical reports - compliance with Makita (Australia) Pty Ltd v Sprowles

Snell ADP

24 August 2009

Facts:

This appeal primarily concerned the weight to be given to varying medical evidence and the basis on which opinions were accepted or rejected. Analysis of the medical evidence turned on its own facts, applying Makita v Sprowles [2001] NSWCA 305 and Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, (2005) 2 DDCR 271.

On 5 June 2007 Ms Fenwick fell onto her hands and knees in the course of her employment. The employer declined the claim, the s 74 notice asserting that employment was not a substantial contributing factor to her condition, which was due to pre-existing degenerative changes.

There was no serious dispute that the incident of 5 June 2007 had occurred, the real issue was whether the left arm and shoulder symptoms resulted from the incident.

Following an analysis of the medical evidence, the Arbitrator made an award for the worker in respect of her claim for permanent impairment, medical expenses and weekly compensation. The s 66 claim in respect of the left upper extremity was referred to the Registrar for referral to an AMS.

Held – Arbitrator ’s decision substantially confirmed save for removal of the reference to an “award” for the applicant worker for permanent impairment.

(1) The issue of whether there was sufficient correlation between proven facts, and the assumptions on which an expert opinion is based, to permit the opinion weight, depends upon whether the proven facts “furnished a fair climate for the consideration of the views of the expert witnesses”: Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505. [25]

(2) In addition to opinions in medical reports, a “commonsense evaluation of the sequence of events” can be used in deciding the causation issue (Hevi Lift McColl JA at 90]). [46]

(3) The history of one medical expert was vague regarding onset of symptoms. It was unclear what history he assumed in reaching his conclusion on causation, thus depriving his reports of any weight on the causation issue. The opinion of another doctor amounted to a bare ipse dixit (McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, (2007) 4 DDCR 421), depriving his opinion of weight.

(4) The treating specialist’s report outlined the mechanism of injury, onset of symptoms and findings on examination, and gave a lay explanation of the condition diagnosed (impingement). It furnished the “trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions” (Makita at [59]), and was entitled to weight.

(5) A commonsense finding would be that falling forward, onto one’s hands, whilst carrying a bag in the left hand, would have the potential to injure the left shoulder, consistent with the opinion of the treating specialist. The competing view of the employer’s doctor did not explain what it was about the “mechanism of injury” that was, in his view, inconsistent with injury to the left shoulder. The opinion of the treating specialist was to be preferred, the same view the arbitrator had reached.

(6) The Arbitrator’s decision was true and correct save for the order of an “award” for the worker in respect of her claim for permanent impairment. Where there is a dispute about the degree of permanent impairment, s 65(3) of the 1987 Act precludes the Commission from awarding permanent impairment compensation, unless the degree of permanent impairment has been assessed by an AMS. As such assessment has not yet occurred, the reference to an award was removed. [61]

Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103

Consent award - issue estoppel - matters in dispute

ADP Candy

24 August 2009

Facts:

The worker claimed lump sum compensation and medical expenses as a result of psychiatric and psychological injuries as a result of the nature and conditions of his employment as a teacher with the Department between 2005 and April 2006.

The Arbitrator entered an award for the respondent after finding that the worker had not established that he had suffered an injury arising out of or in the course of his employment.

There were a number of earlier proceedings in the Commission between the same parties and arising out of the same events. Relevantly the parties had reached agreement in earlier proceedings and a COD – Consent Orders was issued in which the employer agreed to pay weekly compensation in respect of a closed period from 18 May 2006 to 15 August 2008, thereafter there was an award for the employer. There was also an award in favour of the employer for the worker’s s 60 expenses.

Appeal:

The issues raised on appeal were whether the Arbitrator erred in failing to find that the employer was estopped from denying injury by reason of a prior consent award, and whether the worker ought now be allowed to raise the question of estoppel having not done so at the arbitration.

Held – Arbitrator’s decision confirmed

(1) The Presidential member reviewed a long list of authorities on estoppel at [46] to [62] including the recent Court of Appeal case of Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231.

(2) On the facts of this case he found:

The worker was allowed to rely on the doctrine of estoppel on appeal.
Given the worker’s failure to notify his injury or make a claim for compensation for almost a year after his resignation, the greatest effect the consent order could have, apart from the resolution of the dispute to which it related, was an admission of those matters entitling the worker to compensation.
The only matter relied on in the earlier proceedings was a failure to report an injury. Unless excused on one of the grounds in ss 61 or 254 of the 1998 Act this would be sufficient to defeat the claim for compensation. Instead the claim was settled for a substantial compromise being a small fraction of the compensation initially claimed by the worker.
There is clear legislative intent that the settlement of disputes is to be encouraged and an issue estoppel should only be held to result from a consent award in those cases where the interests of justice clearly require this.

On the issue of injury the preponderance of medical evidence was against the worker and did not discharge the onus on the worker of proving injury, either injury as defined in s 4 of the 1987 and 1998 Act, or an aggravation of a disease referred to in s 16 of the 1987 Act.

S & H Removals Pty Ltd v Watson [2009] NSWWCCPD 91

Incapacity – reason - weight to be attached to video surveillance

Roche DP

5 August 2009

Facts:

Mr Watson injured his back whilst working as a labourer for the appellant employer. The claim was accepted and voluntary weekly compensation paid until 12 December 2008 when liability was declined after surveillance video obtained on 27 August 2008 showed Mr Watson lifting bricks.

Liability was declined on the grounds that the injury had resolved, there was no incapacity, ongoing treatment was no longer reasonably necessary and there was no permanent impairment.

The Arbitrator made a continuing award for the worker, based on total incapacity.

On appeal, the appellant argued that the Arbitrator did not properly consider all of the evidence and that his conclusions were not supported by the evidence or any proper reasons.

Held – Arbitrator’s decision confirmed.

(1) The surveillance video was of limited probative value. The recording of the worker lifting bricks was of a few minutes duration in over 40 hours of surveillance that failed to reveal activities inconsistent with Mr Watson’s complaints. [52]

(2) To the extent that any activity in the video was inconsistent with Mr Watson’s presentation to medical experts, that inconsistency was explained by the worker’s evidence (supported by his wife’s statement) that he had consumed alcohol and analgesics on the day he moved the bricks. [55]

(3) Objective evidence established that Mr Watson had a spondylolisthesis at L5/S1 and that that condition was aggravated as a result of his work injury with the appellant on 7 August 2007. His complaints were not purely subjective. [56]

(4) Having regard to Mr Watson’s limited education, the nature and extent of his injury, the fact that he has only ever worked in physical jobs that were no longer within his physical capacity, and the absence of any rehabilitation training or vocational assessments by the insurer, the finding of total incapacity was appropriate. [73], [76]

(5) Whilst the arbitrator’s reasons for his finding of total incapacity were brief, they articulated the essential ground(s) upon which the conclusion of total incapacity rested (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). [81]

Doncevski v CAL Marketing Pty Ltd [2009] NSWWCCPD 105

Weight of evidence - failure to discharge onus of proof

Roche DP

25 August 2009

Facts:

Mr Doncevski was a delivery driver for the respondent. On 10 January 2002 he completed a claim form alleging a back strain as a result of loading and unloading his vehicle in the course of his employment.

As a result of an ARD filed in 2003, Mr Doncevski was awarded compensation in accordance with MAC findings (10% back and 5% each leg at or above the knee) and for pain and suffering, as a result of the nature and conditions of employment up to 31 December 2001.

On 19 June 2007 Mr Doncevski claimed additional lump sum compensation in respect of his back and legs, and made a new claim for alleged injuries to the neck, shoulders and knees as a result of “nature and conditions” of employment.

The insurer denied liability on the grounds that there had been no deterioration in the back and legs since the previous award and the worker had not sustained any injury to his knees, neck or arms.

The Arbitrator determined that the worker failed to discharge the onus of proof in respect of the injury to the knees, neck and shoulders. He referred the claim for additional impairment to the back and legs to the Registrar for referral to an AMS.

Held – Arbitrator’s decision confirmed.

(1) Given findings on examination, the long unexplained delay before the first recorded complaint of knee pain, and the lack of any radiological investigations indicating the presence of any relevant pathology, Mr Doncevski failed to establish an injury to his knees, either under s 4(a) or 4(b)(ii) of the 1987 Act. [68]

(2) Dr Mahony considered “the cervical symptoms radiating to the upper limbs to be associated with altered spinal posture being indirectly related to his back condition”, but this conclusion lacked probative value as it was unexplained and thus was no more than a bare conclusion (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16). There was no evidence that the back condition had resulted in an altered spinal posture. [74]

(3) As Mr Doncevski’s shoulder complaint was said to result from his neck condition, that claim must also fail. In the alternative, if it was alleged that Mr Doncevski suffered a separate injury to his shoulders as a result of his lifting duties with the respondent, the shoulder claim still failed because there was no complaint of shoulder pain until 17 December 2003 and because on examination there were only vague symptoms which were inconsistent with any objective anatomical impairment. [76]

Purdon v Munro [2009] NSWWCCPD 98

Application of principles in Jones v Dunkel (1959) 101 CLR 298 - weight of evidence; forensic medical report - clauses 43 and 43AA of the Regulation – s 74 notice

Roche DP

13 August 2009

Facts:

On 5 May 2005, Mr Purdon injured his back whilst moving a large heavy construction jack in the course of his employment with Mr Munro. Liability was accepted and Mr Purdon was awarded weekly compensation by the Commission in earlier proceedings, which only alleged injury to the back.

Some time after undergoing back surgery on 25 July 2005, Mr Purdon developed neck pain, headaches and numbness in the fingers. He made a claim for 37% WPI, based on the condition of his neck and back, relying on Dr Ellis.

CGU advised it had not received all relevant particulars about the claim, and later, that no offers of settlement would be made as maximum medical improvement had not been reached.

Mr Purdon filed a second ARD on 16 January 2009 alleging injuries to the back, neck and bladder. The employer’s Reply contained a s 74 notice declining liability for the neck claim, a (second) report from Dr Le Leu who commented on issues raised by Dr Ellis and stated that any neck symptoms were unrelated to the back injury on 5 May 2005.

At the teleconference, the employer was ordered to file a Direction for Production on Dr Nijhawan, treating GP, for clinical notes and records. The Direction was served on Dr Nijhawan but he did not respond to it.

At arbitration, the Arbitrator found in favour of the employer for the neck claim, and referred the claim for lump sum compensation to the Registrar for WPI assessment by an AMS.

Mr Purdon appealed arguing that a Jones v Dunkel inference should be made for the failure to produce Dr Nijhawan’s records, that he was “ambushed” by late service of the s 74 notice declining liability for the neck, Dr Le Leu’s second report was inadmissible because it was not a forensic medical report, and that the decision made was against the weight of the evidence. It was conceded at the hearing of the appeal that the central issue in dispute was whether the neck symptoms resulted from the back injury and subsequent treatment for that injury.

Held – Arbitrator’s decision confirmed.

(1) An adverse inference cannot be drawn against the employer in circumstances where it was never in possession of relevant notes from the treating doctor, the doctor having failed to comply with a Direction for Production. [47]

(2) Clause 43AA of the Regulation allows a supplementary report where that report has the purpose of clarifying the original report, but the supplementary report must not go outside the parameters of the original report. [62]

(3) Dr Le Leu’s second report was not a supplementary report as it dealt exclusively with the alleged neck injury and with Dr Ellis’ opinion. It did not seek to clarify the original report (obtained for the earlier Commission proceedings) and it was clearly outside the parameters of the original report. In the event that only one forensic report was admissible, the respondent elected to rely on Dr Le Leu’s second report. [63] - [65]

(4) The fact that Dr Le Leu did not examine the worker for the purposes of the second report did not make it inadmissible, but it did affect weight to be attributed to it. [65]

(5) The employer was given leave to rely on the s 74 notice because:

(i) the worker did not particularise his neck claim until he filed the ARD

(ii) no objection was made at the arbitration to issues raised in the late s74 notice

(iii) the insurer acted promptly to dispute the neck claim once it was particularised

(iv) the worker pointed to no relevant prejudice

(v) the worker declined the Arbitrator’s invitation to discontinue the claim to obtain further evidence

(vi) the issues raised in the s 74 notice were arguable and dealt with issues raised in Dr Ellis’ report.

(6) Whilst it may be a “common finding” for upper cervical discs to be “strained” as a consequence of a lower spinal impairment, as claimed by Dr Ellis, there was no radiological evidence of any cervical disc pathology or disc strain and there was no diagnosis of Mr Purdon’s neck condition. The submission that there was no evidence that the injury to the neck was not caused as a result of the work incident ignored the fact that Mr Purdon carried the onus of proof, which he failed to discharge, even if Dr Le Leu’s second report was excluded. [77]

Symbion Health Limited (Formerly Mayne Health Limited) v Hanshaw [2009] NSWWCCPD 93

Notice of injury – notice of claim – adjournment of proceedings –last “noisy” employment

O’Grady DP

7 August 2009

Facts:

The worker was employed by Symbion as a truck and forklift driver in November1989 and his position became redundant on 24 January 2003. Subsequently he was employed as a traffic controller at construction sites with Workforce for a period of time.

In 2007 he was required to undergo a hearing test arranged by a prospective employer and was told he “had a problem” with his hearing. He consulted his GP and was referred to an ear, nose and throat surgeon. In December 2007 the worker gave Symbion notice of injury and notice of claim (lump sum entitlement and provision of hearing aids) in respect of alleged industrial deafness with the date of injury specified as 24 January 2003.

Liability was disputed and an ARD was filed by the worker on 17 December 2008 claiming 8% WPI and the sum of $6,150 for binaural hearing aids.

At the arbitral hearing Symbion sought an adjournment, the purpose of which was to issue a Direction to obtain documents from Workforce concerning claims against that company in respect of industrial deafness. That application was refused.

The Arbitrator made a finding that, on the deemed date of 12 December 2007, the date of notice of injury, the worker suffered deafness in the course of his employment with Symbion, the last noisy employer, and the matter was remitted for referral to an AMS.

Symbion appealed the Arbitrator’s decision on the grounds that she had failed to afford procedural fairness to the appellant in the conduct of the proceedings; in her application of ss 254 and 261 of the 1998 Act; in her determination of the deemed date of the worker’s alleged injury; and in finding that the worker had discharged the onus of proof that Symbion was the last noisy employer of the worker.

Held:

(1) The question of whether an adjournment is to be granted is a matter for the lawful exercise of discretion by the Arbitrator requiring consideration of all relevant matters (Moombaleen Local ALC v Dailey (1998) 16 NSWCCR 475 at [24] – [32]).

(2) Symbion’s application for adjournment was founded upon conjecture that documents in question may be relevant to the issue in dispute. The known fact that the relevant claims in the documents were made much earlier than the worker’s periods of employment with Workforce suggested that such documents would be of little evidentiary weight. Symbion did not suffer serious prejudice by reason of the unavailability of evidence of that character. [60]

(3) Knowledge of the worker concerning hearing impairment alone was not sufficient to deprive the worker of the benefit of s 254(3)(b) (Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520 at [61]).

(4) The worker’s ignorance that his hearing loss was work-related and of his rights against his former employer, Symbion, were conclusions open to the Arbitrator on the evidence. The Arbitrator’s determination that the worker should be excused from the requirements as to notice of injury was correct [66]. Likewise, the Arbitrator’s conclusion that the worker should be excused from the requirements as to notice of claim was also correct.

(5) The evidence on the issue of ‘noisy employment’ was scant. There was no expert acoustic evidence however this shortcoming was overcome by the medical reports in which each practitioner considered the detail concerning work conditions sufficient to form the basis for their ultimate opinions. Having regard to the totality of the evidence, the Arbitrator’s conclusions concerning employment conditions experienced by the worker whilst employed by Symbion were open to her on the evidence.

(6) The Arbitrator erred in determining that the deemed date of injury within the meaning of s 17 of the 1987 Act was 12 December 2007, the date of notice of injury. This was incorrect and the order revoked and substituted with a deemed date of 24 January 2003, being the worker’s last day of employment with Symbion. The Arbitrator’s other orders were confirmed.

Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90

Psychological injury- ss 9A and 11A of 1987 Act – discipline – reasonable action by employer – inadmissible evidence

Moore ADP

4 August 2009

Facts:

The worker claimed a psychological injury in the course of his employment with Sydney South West Area Health Service (Fairfield Hospital) as a result of false complaints, allegations, harassment and bullying between 2004 and 6 August 2007.

The worker commenced employment with the Hospital as a Security Officer in 1999. In 2004 an allegation was made that he was looking at female body parts on the Hospital’s CCTV, which he denied. He was terminated from his job in February 2005 and in 2006 successfully brought proceedings for re-instatement in the Industrial Relations Commission.

He was involved in an incident with a fellow security guard in June 2007 after which he felt very stressed and tense and after consulting his GP, took a few days off work. When he resumed work the fellow security guard apologised and said he was “only joking”, however the Hospital decided to investigate the incident. The investigation involved two disciplinary interviews/meetings. The worker ceased work with the Hospital after the final meeting and was referred by his GP to a psychiatrist.

A claim was made for compensation however liability was denied on the grounds that the worker did not suffer an injury arising out of or in the course of his employment; that any injury suffered was a consequence of serious and willful misconduct by the worker; that if he had suffered a psychological injury his employment was not a substantial contributing factor and that if he suffered a psychological injury the injury was wholly or predominately caused by reasonable action taken by it with respect to discipline (s 11A).

The worker filed an ARD seeking weekly benefits, medical expenses and lump sum compensation. The Arbitrator found in favour of the worker concluding that he had suffered a psychological injury arising out of the nature and conditions of his employment.

The Hospital appealed on the following grounds - the Arbitrator’s refusal to admit a ‘Confidential Investigation report’ attached to the Reply, her findings on injury, her treatment of the medical evidence and her determination that s 11A did not apply to the circumstances of the case.

Held – Arbitrator’s decision confirmed

(1) The Arbitrator’s determination, that the ‘Confidential Investigation report’ fell into the types of reports set out in clause 37 of the 2003 Regulation and was inadmissible by reason of s 73, was correct.

(2) The Arbitrator was correct in concluding that the worker had suffered a psychological injury after carefully considering the test in Stewart v NSW Police Service [1998] NSWCC 37 referred to by DP Roche in Department of Corrective Services v Bowditch [2007] NSWWCCPD 244, relating to proof of a psychological injury as opposed to an emotional response or mere anxiety state.

(3) Having accepted the Arbitrator’s findings that the worker’s injury was wholly or predominately caused by the nature and conditions of his employment with the Hospital, it was not necessary to consider the s 11A defence. However the following observations were made:

(i) the onus of establishing a s 11A defence is on the employer (Ritchie v Department of Community Services [1998] NSWCC 40; Department of Education and Training v Sinclair [2005] NSWCA 465);

(ii) the test for reasonableness is objective (Irwin v Director General of Education NSWCC No. 14068/97 (18 June 1998);

(iii) the disciplinary interview played some part in the development of the worker’s condition but was not the predominant cause;

(iv) given the background of events from 2004 it was inevitable that the Hospital’s actions consequent upon what appeared to be a minor flare up in an otherwise sound relationship between the worker and a fellow security guard, was bound to have psychological consequences for the worker, and

(v) were it necessary, it would be concluded then, that the action taken by the Hospital with respect to discipline was not “reasonable” in the circumstances of the case.

Buraga v NSW Police Service [2009] NSWWCCPD 102

Causation – sufficiency of reasons

O’Grady DP

20 August 2009

Facts:

The worker was employed by the Police Service as an administrative officer between 1995 and 2007. She alleged that she suffered injury, described as “occupational overuse injury affecting both wrists, hands, neck and shoulder” in the course of her employment. In May 2007 she accepted voluntary redundancy and in July 2007 lodged a workers compensation claim, claiming a lump sum in respect of WPI.

The Arbitrator found that the worker did not suffer injury to her left upper extremity and cervical spine arising out of or in the course of her employment. The Arbitrator failed to expressly enter an award for the Police Service and ordered it to pay the costs of the worker.

The worker appealed this decision. The main issues on appeal was whether the Arbitrator erred in the manner in which he determined the issue of “injury” within the meaning of the 1987 Act; in his treatment of the evidence and in failing to provide adequate reasons.

Held

(1) The Arbitrator’s approach to the issue of “injury” found between [24] and [33], had little relevance to the issues raised by the parties concerning causal nexus between the worker’s duties and the injuries alleged. He did not consider the proof or otherwise of there being a disease process that may be relevant to a determination of the worker’s entitlement and in these circumstances a review of the evidence on appeal was required (see State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 at [30]).

(2) The worker’s statement, suggesting that there was a temporal connection between work and the onset of symptoms, alone did not prove “causation”. The evidentiary weight of that evidence would have been greatly enhanced if there had been contemporaneous expert medical evidence before the Commission which related those symptoms to her duties. [52]

(3) The Commission, in dealing with an examination of events which had occurred over a period of may years, required a standard of proof in such circumstances, being evidence that was more comprehensive and persuasive than factual assertions concerning work duties made by the worker and the qualified opinion of a medical expert. [60]

(4) Although the conclusion reached on appeal was in agreement with the Arbitrator’s ultimate conclusion, the Arbitrator’s decision as expressed was revoked and an award entered in favour of the Police Service. No order made as to costs.

Kay v Wollongong City Council [2009] NSWWCCPD 96

Section 352(2) of the 1998 Act – monetary threshold – leave to appeal

Moore ADP

12 August 2009

Facts:

The worker claimed to have suffered a psychological injury in the course of his employment with Council, as a cemetery technician, as a result of viewing a promotional video at a training meeting.

Council denied liability on the grounds that he did not receive injury within the meaning of s4; employment was not a substantial contributing factor and the worker’s condition was pre-existing.

The worker filed an ARD seeking continuing weekly payments of $158.90 per week from 1 August 2007 to date and continuing, claiming that since this date he had been employed on alternate duties earning less than his previous job. This claim was amended at the arbitral hearing to cover the period from 1 August 2007 to 30 June 2008 at an agreed rate of $50.00 per week, a total of $2,200.00. Medical expenses claimed totaled $1,420.00 together with an unquantified HIC charge.

The Arbitrator found in favour of the Council in respect of both claims. On appeal the worker argued that as a result of the Arbitrator’s findings, he would potentially be returned to pre-injury duties, which he could no longer perform, and as a result would lose his employment, resulting in an ongoing incapacity on the open labour market. He submitted that the likely cost to him would be substantially greater than the amount claimed in the present proceedings and would therefore in all likelihood exceed the $5,000.00 jurisdictional threshold.

Held – Leave refused

(1) The worker attempted to circumvent the provisions of s 352(2) by citing the “potential” value of his claim. This was not an appropriate interpretation of the legislation (Work Cover Authority v Leonard Patrick Riordan [2003] NSWWCCPD 13 at [34]).

(2) The worker’s statement, in respect of the “likelihood” of his employment being finalised and/or the “unlikely scenario” that the Council would continue to provide him with temporary suitable duties, he would continue to experience an earnings loss, was simply “in the realm of possible” and did not assist in satisfying the requirements of s 352(2) (see Druett v The Smith’s Snack Food Company [2009] NSWWCCPD 39 at [21]).

Newby v NSW Police Force [2009] NSWWCCPD 100

Costs reconsideration - s 350(3) of the 1998 Act

Keating, P

14 August 2009

Facts:

Mr Newby sought reconsideration, under s 350(3) of the 1998 Act, of the cost order made in NSW Police Force v Newby [2009] NSWWCCPD 75.

In NSW Police Force v Newby [2009] NSWWCCPD 75, the Police Force was successful on appeal and the cost order was that each party pay its or his own costs of the appeal.

Held

The Application for Reconsideration was refused for the following reasons:

(1) The principles applicable to the Commission’s power to reconsider under s 350(3) of the 1998 Act as set out by ADP Roche (as he then was), in Samuel v Sebel Furniture Limited [2006] NSWWCCPD 141,at [58] were adopted and applied. [17].

There was no material produced in support of the reconsideration application, which could be described as “new evidence”.
There had been no change in the law such as to favour or require the exercise of power under s 350(3) (see Bluescope Logistics Co Pty Limited (formerly BHP Transport & Logistics Pty Limited) v Finlow [2006] NSWWCCPD 338R).

Therefore Mr Newby advanced no basis to justify the use of the reconsideration powers in s 350(3). [18].

(2) In the event he was wrong in the application of s 350(3) the President was not persuaded to exercise his discretion to depart from the usual costs order (see McHugh J in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72). [19].

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Issue 9: September 2009

Index