Issue 1: January 2010

Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158

Status of a MAC in subsequent proceedings - s326 of the 1998 Act - failure to give reasons - failure to consider the employer’s expert evidence - failure to determine worker’s ability to earn - s40(2)(b) of the 1987 Act - whether the effect of the work injury had ceased

Roche DP

17 December 2009

Facts:

This appeal concerned 3 main issues:

1. the status in the current proceedings of a MAC obtained in previous proceedings between the same parties when those proceedings were discontinued without any determination by the Commission;
2. whether the Arbitrator failed to give reasons, in failing to refer to any of the employer's evidence, and
3. whether an Arbitrator is entitled to find that the effect of an injury has ceased.

Mr Livaja injured his neck, back, right shoulder and right elbow in the course of his employment as a formwork carpenter with Superior Formwork when he fell whilst carrying a bearer on 7 March 2005. His claim was initially accepted and voluntary compensation paid until 14 November 2005.

In initial proceedings before the Commission in 2006, Mr Livaja claimed weekly compensation and lump sum compensation in respect of injury to the neck and back. The lump sum claim was assessed by an AMS who found nil WPI in respect of both the neck and back. A Medical Appeal Panel revoked the AMS’s findings and issued a new MAC finding nil for the neck and 5% WPI for the back. Mr Livaja requested, and was refused, a reconsideration of the MAP findings. He then discontinued the proceedings.

In 2009, an ARD was lodged seeking weekly compensation from 14 November 2005 to date and continuing and lump sum compensation in respect of the neck, back and right shoulder, as well as s60 expenses.

The Arbitrator found Mr Livaja to be partially incapacitated for work and that he “would be able to earn no more than $360.00”, and he was entitled to weekly compensation at the maximum statutory rate for a worker without dependants. She also found that the effects of the right shoulder injury were continuing. The lump sum claim was remitted to the Registrar for referral to an AMS for assessment of the neck and right shoulder. The parties agreed that Mr Livaja suffered 5% WPI in respect of injury to the back.

Held – Arbitrator’s decision confirmed.

(1) The medical evidence showed that Mr Livaja had ongoing pathology in the nature of disc pathology in his cervical spine and his lumbo-sacral spine and suffered a rotator cuff injury to the right shoulder. His earning capacity was impaired and he was not fit for his pre-injury work as a formwork labourer, although the impairment was not to the extent claimed by Mr Livaja.

(2) The Arbitrator erred in finding that the worker’s ability to earn would be no more than $360.00 per week. An Arbitrator is required to make a determination of the worker’s ability to earn (step 1 in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526).

(3) The assessment of Mr Livaja’s ability to earn must take into account the matters in s43A of the 1987 Act, including the nature of the incapacity and pre-injury employment, age, level of education, skills and experience, medical evidence, limited English and absence of rehabilitation. His ability to earn was assessed by DP Roche to be $570.00 per week as a full-time process worker or assembler, allowing for a market rate of $15.00 per hour for a 38-hour week.

(4) Agreed probable earnings exceeded the maximum statutory rate of compensation payable for a worker without dependants. [82]

(5) The s40 discretion was not exercised. If a worker with an accepted partial incapacity chooses not to use that incapacity, there is no detriment or disadvantage to the employer. His ability to earn remains the same whether he seeks the relevant employment or not. To the extent that Mr Livaja exaggerated the level and extent of his restrictions, that factor was taken into account in the assessment of ability to earn. [83], [84]

The effects of the previous MAC

(6) Except when sitting as a member of an Appeal Panel (s328 of the 1998 Act) and in certain limited circumstances involving s329 applications (for example, an alleged denial of procedural fairness), an Arbitrator has no jurisdiction to analyse the merits or otherwise of reasons given by an Appeal Panel or an AMS. [86]

(7) Whilst a properly constituted and issued MAC is conclusively presumed to be correct in any proceedings with which the certificate is concerned, a MAC does not determine the parties’ rights (Joppa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; (2004) 5 DDCR 321).  A dispute is not determined unless and until the Commission determines liability and issues a Certificate of Determination. [94]

(8) A MAC issued in earlier proceedings does not bind the parties in later proceedings unless the Commission has determined the issues in dispute in the earlier proceedings. Nor does it create an estoppel that is binding in later proceedings between the same parties.  In the absence of a determination in the first proceedings there is no reason why the Appeal Panel MAC is conclusively presumed to be correct in subsequent proceedings with which it was not concerned. [95]

Pasqua v Morelli Constructions Pty Ltd [2009] NSWWCCPD 153

Deemed worker - Schedule 1 clause 2 of the 1998 Act

Roche DP

2 December 2009

Facts:

Mr Pasqua worked as an apprentice carpenter with Morelli Constructions Pty Ltd from 1999.  He injured his back in the course of his employment with Morelli on or about 9 September 2005.  His claim was accepted and he returned to work on light duties after an absence of about four to five months. He suffered a further exacerbation of his back condition and was again off work for a couple of months. Ultimately, he returned to his full duties as a carpenter.

Mr Pasqua stopped work for Morelli in mid 2007 and started his own business as a carpenter.  As work was “a little slow”, he contacted Morelli in June 2008 and asked if they could offer him any work.  He then worked for Morelli full-time as an independent contractor from 10 June until 1 September 2008 when he again injured his back.

Morelli disputed the claim on the ground that Mr Pasqua was not a worker or a deemed worker under the provisions of the legislation.

Mr Pasqua’s ARD alleged injury to his back and legs, and psychological sequelae as a result of his injuries on or about 9 September 2005 and on or about 1 September 2008.  He claimed weekly compensation in the sum of $1,760.00 from 2 September 2008 to date and continuing and s60 expenses.

The Arbitrator made an award for the respondent. He found that Mr Pasqua was not a deemed worker as he conducted a trade or business and performed work incidental to his trade of carpentry.

Held – Arbitrator’s decision revoked. The appellant was held to be a deemed worker. The matter was remitted to another Arbitrator for redetermination.  

(1) Schedule 1 clause 2 of the 1998 Act sets out the provisions in respect of ‘deemed worker’. An applicant who relies on Schedule 1 must prove:

• that he was a party to a contract with the respondent to perform work; and
• that work exceeds $10.00 in value; and
• that the work is not incidental to a trade or business regularly carried on by the applicant in his own name or under a business or firm name; and
• that the applicant has neither sublet the contract nor employed workers in the performance of it. (see Scerri v Cahill & another (1995) 14 NSWCCR 389 at [33])

(2) The Schedule is designed to allow contractors to recover benefits under the legislation provided the work being performed is not work incidental to a “trade or business” regularly carried on by the contractor.  [50]

(3) Contractors who are not “in business for themselves” are entitled to the benefits of the deemed worker provisions (Turner v Stewardson [1962] NSWR 137).  In Cam v Cousins Interstate Transport Pty Ltd [1964] NSWR 1288 (‘Cam’) the applicant had regularly carried on the business of a carrier up until six months prior to his accident when he ceased his regular carrying business and operated his truck solely for the purpose of the respondent’s business.  He had no business address or telephone book entry relating to an occupation or business as a general carrier and he did not advertise or hold himself out to the public as being in the trade or business of a carrier.  It was held that he was entitled to the benefits of the deemed worker provisions under the 1926 Act.

(4) The circumstances in Cam are analogous to this appeal.  Mr Pasqua clearly conducted a carpentry business until June 2008.  From that time, however, his circumstances changed and he contracted exclusively for Morelli, but not as a part of a trade or business systematically or regularly carried on by him.  As in Cam, Mr Pasqua ceased conducting his business once he contracted exclusively with Morelli in June 2008.  In these circumstances he was entitled to the benefit of the deemed worker provisions. [52]

(5) As part of the review by DP Roche, a teleconference was held where leave was granted for Mr Pasqua to amend his ARD to claim ss66/67 compensation in respect of 11% WPI for injury to the lumbar spine.

Amity Group Pty Ltd v Yusuf [2009] NSWWCCPD 152

Incapacity - s40 of the 1987 Act - secondary psychological condition - assessment of evidence - application of Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Roche DP

01 December 2009

Facts:

Ms Yusuf worked as a nursing assistant at a nursing home owned by Amity. She slipped and fell in the course of her employment in January 2008, sustaining multiple injuries to the neck, back, both arms and both legs. She sustained further injuries to those body parts on 11 April 2008 when a table thrown by a patient struck her back. She also alleged that she developed a secondary psychological condition as a result of her injuries.

The claim was initially accepted and voluntary payments were made until 8 December 2008. The insurer’s s74 notice disputed incapacity, injury and s60 expenses.

The ARD sought weekly compensation from 11 April 2008 to date and continuing and s60 expenses, relying on both the fall in January 2008 and the incident in April 2008.

The Arbitrator found in favour of Ms Yusuf in respect of the back and psychological condition, but in favour of Amity in respect of the neck and right shoulder. The right calf was also found to have been injured in the second incident, but now recovered. The finding of a primary or secondary psychological injury was based on medical evidence by Dr Newlyn, psychiatrist. The back claim was referred to the Registrar for referral to an AMS and the employer was ordered to pay s60 expenses as regards the psychological condition, right calf injury and back injury, and weekly compensation under s40 at the rate of $210.00 per week from 8 December 2008 to date and continuing.

On appeal there was no dispute that Ms Yusuf suffered injury to her back in the two incidents relied upon, but the employer disputed that the effect of the injury continued as at 8 December 2008 or that it was causing any incapacity. The employer’s medical evidence suggested there was a great deal of abnormal illness behaviour. A report by Dr Lee, psychiatrist, diagnosed Ms Yusuf as suffering from a somatisation disorder possibly as a result of “social adversity” unrelated to the work-related injuries, or feigning.

Held – Arbitrator’s award under s40 was revoked and replaced by an award of $135.00 per week under s40. The decision was otherwise confirmed.

(1) Although Ms Yusuf’s complaints and restrictions were not fully explained by the radiological investigations, her complaints of back and left leg symptoms had been frequent and consistent since her work injuries. Given there was also a lack of back symptoms before January 2008, DP Roche accepted that Ms Yusuf’s back pain resulted from the work injuries, notwithstanding that she had exaggerated in her presentation to medical experts.

(2) Dr Newlyn, a consultant psychiatrist and WorkCover approved impairment assessor, concluded that Ms Yusuf developed a major depressive disorder because of her pain. He based his conclusion on a combination of the history he took, background material provided, and his mental status examination of Ms Yusuf. Given the severity and frequency of Ms Yusuf’s back symptoms, the history as recorded by Dr Newlyn provided a “fair climate” for the acceptance of his conclusion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510, (1985) 62 ALR 85, [1985] HCA 58). The conclusion was not a bare ipse dixit.

(3) Even if Ms Yusuf’s personal problems contributed to her depression, it did not prevent a finding that her depression resulted from her work injuries. It is trite law that a condition can have more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). On the balance of probabilities and as a matter of common sense, the condition complained of resulted from the injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (“Kooragang”)). [108]

(4) The psychological condition was not “the injury” Ms Yusuf “received” (s9 of the 1987 Act), but it was a condition that arose as a result of her physical injuries (Kooragang). [115]

(5) That Ms Yusuf may have been a vulnerable person because of her family and personal situation did not detract from the conclusion that her psychological condition resulted from the pain as a result of her physical injuries. Employers take their employees as they find them (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; (2007) 5 DDCR 286 at [40]). [121]

(6) The Arbitrator failed to give any or any adequate reasons for finding the worker’s ability to earn to be $175.00 per week and the matter was redetermined.

(7) Applying Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526, step one: Probable earnings but for the injury - agreed at $385.00 per week. [135], [136]

(8) Step two: Ability to earn - regard to be had to s43A of the 1987 Act. Ms Yusuf’s employment prospects were limited to light unskilled work such as process work ($13.00 per hour). She was certified fit for 20 hours per week but having regard to her background and presentation, she would have difficulty obtaining and retaining such employment. Allowing for that fact, DP Roche assessed Ms Yusuf’s ability to earn in suitable part-time unskilled process work to be $200.00 per week. [142]

(9) Step three: Difference between steps one and two - $185.00 per week. [143]

(10) Step four: Ms Yusuf’s ongoing neck and shoulder symptoms were not work related. DP Roche exercised the s40(1) discretion and reduced the figure at step three by $50.00. Whilst there may have been an element of exaggeration in Ms Yusuf’s presentation, this was factored into the determination of ability to earn (step two). It was not a factor that justified further reduction in the exercise of the discretion [144]

(11) Step five: Figure at step three less any discretion at step four - $135.00 per week. [145]

Babylon Property & Cleaning Services Pty Limited v Hormoz [2009] NSWWCCPD 161

Application for review of prior award - s55 of the 1987 Act - change of circumstances - unnotified issue - s289A(4) of the 1998 Act - admission of evidence - failure to deal with issues in dispute

Roche DP

22 December 2009

Facts:

Mr Hormoz injured his back whilst pushing trolleys up a ramp in the course of his employment with the Appellant on 23 August 2001. His claim was accepted and compensation paid until 31 January 2003.

Following proceedings in the Commission for weekly compensation, lump sum compensation and s60s, DP Fleming determined on 24 March 2005 that Mr Hormoz was partially incapacitated and entitled to receive $332.00 per week from 31 January 2003. A s66A agreement was registered settling the claim for lump sum compensation for the back, both legs and the sexual organs, pursuant to findings by an AMS.

In October 2008 Mr Hormoz made a claim for weekly benefits, an additional 5% back impairment and additional s67 compensation. The insurer declined to make an offer in respect of the claim for additional lump sum compensation on the grounds that, based on Dr Machart’s evidence (which was attached to the letter declining to make an offer)  the worker had not suffered any additional permanent impairment.

The Reply to the ARD sought leave to dispute the weekly compensation claim, arguing that the parties were bound by the decision of DP Fleming.

The Arbitrator refused leave for the employer to dispute the weekly compensation claim, stating that the “real issue” was whether or not the Reply should be allowed into evidence. This was determined in the negative as the worker would be prejudiced by having to deal with the documents (Dr Machart’s reports) attached to the Reply after the filing of the ARD. Notwithstanding this ruling, the Arbitrator then heard submissions on the merits of the application for an increase in weekly compensation.

The Arbitrator found that there had been a change of circumstances since DP Fleming’s decision and made an order for an increase in weekly benefits from 15 April 2005 to date and continuing. The lump sum claim was remitted to the Registrar for referral to an AMS, as agreed by the parties, and the worker discontinued the s60 claim.

The issues on appeal concerned the Arbitrator’s decision to exclude material that was properly in evidence before the Commission (Dr Machart’s reports), finding that there had been a deterioration in earning capacity, and thereby a change of circumstances warranting an increase in the award just weeks after DP Fleming’s decision and making an award in excess of the maximum statutory rate for a single worker, and failure to make any findings as to dependency.

Held – Arbitrator’s decision on weekly benefits was revoked and remitted to another Arbitrator for redetermination.  The remainder of the Arbitrator’s decision was confirmed.

(1) The manner in which Mr Hormoz’s solicitors claimed compensation and the insurer’s denial of liability were both unsatisfactory.  A worker claiming lump sum or weekly compensation is obliged to clearly state and fully particularise the grounds on which the relief is sought. Where a claim seeks an order that a previous award of the Commission be varied by way of a review under s55, that fact must be made clear in the initial notice of claim and in the ARD (Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9 at [34]). [69]

(2) As Mr Hormoz had not properly particularised his claim, and as he could not point to any prejudice he would suffer if the insurer was permitted to dispute the claim for an increase in weekly compensation, this was an appropriate case for the Commission to exercise its discretion in s289A(4) to permit the insurer to dispute previously unnotified matters. [73]

(3) The Commission has a statutory obligation to determine disputes according to their substantial merits (s354(3) of the 1998 Act).  In the circumstances of the present case, it was appropriate that relevant evidence that the insurer served several months before Mr Hormoz filed his ARD be admitted into evidence and considered in the resolution of the issues in dispute. [76]

(4) Though Mr Hormoz had exaggerated his symptoms, there was objective radiological evidence for his complaints, supported by evidence from two doctors, that he suffered disc trauma at the L4/5 and L5/S1 levels with a degree of nerve root irritation. DP Roche therefore found that Mr Hormoz’s condition had slightly deteriorated since March 2005, but he was not totally unfit for employment. [86]

(5) Having found that Mr Hormoz’s condition had deteriorated, it was necessary to assess what impact that deterioration had on his ability to earn. The Arbitrator erred in failing to do this. [90]

(6) The parties agreed that probable earnings but for the injury changed from 15 April 2005.  A change in wage levels provides evidence of a change of circumstances under s55 (Coalcliff Collieries Ltd v Campbell (1964) 112 CLR 349).  Therefore, Mr Hormoz was entitled to have his weekly compensation reviewed from the date of that change.

(7) On redetermination, DP Roche applied the five step process in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526. The parties had agreed on step one (probable earnings but for injury), the starting point for step two (ability to earn) was $150.00 per week that being the amount DP Fleming found Mr Hormoz capable of earning.  DP Roche reduced this to $135.00 per week, and adjusted by 3% per annum. The difference between steps one and two formed step three. At step four there were no discretionary factors warranting a reduction of the step three figures. Step five required the making of an award, this was not possible for the period from 26 July 2007 to date, as the Step three figures exceeded the maximum statutory rate for a worker with a dependent child and dependency could not be clarified due to unsatisfactory evidence. The matter was therefore remitted to another Arbitrator for the determination of the dependency issue and the making of formal orders.

Rural Press Limited v Hancock [2009] NSWWCCPD 160

Injury - aggravation of a disease – weight of evidence – ss4 and 9A of the 1987 Act

Moore ADP

22 December 2009

Facts:

In 1981 Mr Hancock commenced work as a compositor with Rural Press.  His duties involved him standing for long periods. In 1994 he noticed the gradual onset of pain in his left hip and he eventually had a left hip replacement in 1999. In 2000 he noticed similar problems in his right hip and had a right hip replacement in 2006.  Since 1997/1998 his duties had changed from working on his feet all day to sitting at a computer.

He also had problems with his back since at least 1987 and claimed that the problems in his hips caused increased pain in his back. He remained in the employ of Rural Press.

In 2009 Mr Hancock sought lump sum benefits as a consequence of injuries to his hips and back. The injuries were described as an aggravation, acceleration, exacerbation and deterioration of a disease of gradual process caused by the nature and conditions of his employment.

The Arbitrator found in favour of Mr Hancock, remitting his claim to the Registrar for referral for assessment by an AMS.

Rural Press appealed the decision submitting that the Arbitrator had misconceived the evidentiary requirements borne by Mr Hancock to establish an ‘aggravation and acceleration’ of his condition as a result of his employment.  It was also submitted that he had erred in concluding there was a ‘fair climate’ for accepting the opinion of Dr Bracken, consultant surgeon, or that his opinion ‘satisfied the test’ in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 and in failing to give appropriate weight to the opinion of Dr Mitchell, treating surgeon.

Held: Arbitrator’s decision substantially revoked

(1) The principles to be borne in mind in considering “disease” cases are set out in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34 summarised in Cant v Catholic Schools Office (2000) 20 NSWCCR 37 at  [17]. The proper test being whether the aggravation, to which the employment was a contributing factor, had some tangible affect on the worker.  It is not necessary for the particular disease to be made worse (Cabramatta Motor Body Repairers (NSW) Pty Ltd v Raymond [2006] NSWWCCPD 132).

(2) Having carefully considered all the evidence ADP Moore was not satisfied that the manifestation of symptoms in the hips was sufficient to establish ‘injury’. There was substantial medical evidence to this effect, particularly from the treating specialist.

(3) The principal difficulty with Dr Bracken’s opinion was that his conclusion was based upon symptoms arising in both hips as a consequence of prolonged standing.  Although there was some evidence to suggest that may have played a part in the development of left hip symptoms, it did not tie in with Mr Hancock’s statement that his right hip symptoms arose in about 2000 after three years of sedentary work.  This was in stark contrast to other medical evidence on this point and neither Dr Bracken nor the Arbitrator addressed this issue. [79]

(4) Dr Bracken’s opinion was flawed and being in essence the only medical opinion in support of Mr Hancock’s claim, he failed to discharge the evidentiary onus on him.  It was also determined that there was not a ‘fair climate’ for the Arbitrator’s acceptance of Dr Bracken’s opinion.

(5) Having found that Mr Hancock did not suffer an injury to his hips within the meaning of s4(b)(ii) the Arbitrator’s finding that the injury to Mr Hancock’s back was as a consequence of the hip injuries, was also set aside.

(6) In considering the impact of s9A (if findings on appeal on the issue of ‘injury’ were incorrect), the weight of all the evidence, both lay and medical, did not support a finding that the nature and conditions of employment, involving prolonged standing, could be regarded as a substantial contributing factor to the aggravation of either the hips or back.

Sussan Corporation (Aust) Pty Ltd v McBride [2009] NSWWCCPD 157

Injury and causation

Moore ADP

15 December 2009

Facts:

Ms McBride was employed by the Appellant as a picker/packer for approximately 13 years.  She claimed to have injured her neck and right shoulder while unpacking boxes on 28 September 2007.

Sussan accepted that Ms McBride had suffered an injury to her right shoulder but disputed that she had injured her neck. Liability was initially accepted by the Appellant however on 5 January 2009 liability was denied by way of a s74 notice, principally on the grounds that Ms McBride was no longer incapacitated.

The Arbitrator made a finding that Ms McBride injured her neck in the incident of 28 September 2007, awarded weekly compensation for a closed period and remitted the matter to the Registrar for referral to an AMS for WPI.

Sussan appealed submitting:

• the Arbitrator erred in finding that Ms McBride had injured her neck because she had not reported or complained of cervical spine symptoms until approximately eight months after the injury (reliance placed on Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62 (‘Brasz’); and medical reports relied upon were based on incorrect histories;
• the ‘shifting diagnosis’ approach was not correct having regard to the whole of the evidence. The evidence suggested that initially Ms McBride had damaged her shoulder, but various specialists she consulted ultimately concluded that her symptoms in the shoulder were emanating from damage to the neck, and
• because Ms McBride’s condition had “settled” by 15 May 2009 and she was certified fit to resume pre-injury duties, her claim for impairment of the neck should not have been referred to an AMS in line with the decision in Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’).

Held: Arbitrator’s decision confirmed

(1) Parallels existed between this matter and the decision in Brasz. Ms McBride had not complained to her GP of specific neck symptoms for many months after her injury, however the main issue was the question of diagnosis rather than an overt attempt by Ms McBride to mislead the doctors she consulted. [36]

(2) The  evidence confirmed that Ms McBride continued to complain of pain in her right shoulder, which the consensus of medical opinion ultimately concluded was a consequence of damage to her neck.  It was therefore not a case of Ms McBride ‘shifting’ her complaints from her shoulder to her neck, rather a case of a ‘shifting’ diagnosis. [37].

(3) The weight of the medical opinion was not that one injury caused the other, but rather that Ms McBride damaged her neck and shoulder in the 28 September 2007 incident and that the damage to the shoulder, the initial focus of attention, ultimately turned out to be relatively minor, and although responsible for some of her symptoms, the bulk of them emanated from the damage to her neck. [43]

(4) In considering the observations of DP Roche in Brasz at [91], an inference of causation could be drawn from all the evidence.

(5) Applying a “commonsense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452) the Arbitrator’s conclusion that Ms McBride injured her neck was correct and consistent with the totality of the evidence. [47]

(6) Although the evidence suggested that Ms McBride’s condition had “settled” to permit a return to work, there was no evidence that it had resolved. Therefore it was appropriate for the Arbitrator to refer her claim for assessment by an AMS.

Menzies Property Services Pty Ltd v Murialdo [2009] NSWWCCPD 162

Injury - substantial contributing factor - causation

Roche DP

22 December 2009

Facts:

Mr Murialdo was a cleaner employed by Menzies, he worked two shifts per day, from 5am to 9am and from 2.30pm to 6.30pm. He alleged injuring his back on the morning of 14 September 2007 when he lifted a trolley full of rubbish into a skip and felt a sharp pain in his lower back. His father, who also worked as a cleaner with Menzies and was working about five metres away from his son, offered to empty the trolley. Mr Murialdo alleged that he then walked to the cleaners’ room and spoke with another cleaner, Ms Quintana, and mentioned his back pain. Later that day he attended on his GP, Dr Chatterjee, whose notes were in evidence and the subject of much debate.

Dr Chatterjee certified Mr Murialdo unfit for a week because of “contusion low back”. He returned to work on normal duties until 25 August 2008 when he reduced his hours to four per day on modified duties due to the pain in his back, then ceased work on 2 September 2008. Investigations have revealed a L4/5 disc protrusion.

GIO paid voluntary weekly compensation from 6 September 2008 until 28 November 2008. Liability was disputed in a s74 notice on the grounds that Mr Murialdo suffered no injury and had not given notice of injury or notice of his claim within statutory time limits.

Medical evidence revealed that Mr Murialdo had an earlier back injury at work in February 2006 when he lifted a heavy bucket. Dr Chatterjee’s notes of 14 September 2007 recorded that Mr Murialdo had been driving from Campbelltown to Richmond to attend university. This was also the history that Mr Murialdo gave to St George Hospital when he attended on 7 May 2008 and to Dr Etherington, surgeon, arranged by GIO. Mr Murialdo said he did not mention his work injury because he did not want to make a workers compensation claim and he thought it would settle.

The ARD sought weekly compensation from 25 August 2008 to 5 September 2008 and from 29 November 2008 to date and continuing on the basis of total, or partial, incapacity, as well as s60 expenses.

The Arbitrator found in favour of Mr Murialdo and awarded s40 payments from 25 August 2008 to 4 September 2008, thereafter the maximum statutory rate for a worker with no dependants. He found that Mr Murialdo’s father and Ms Quintana corroborated Mr Murialdo’s evidence concerning the incident on 14 September 2007 and that the GP’s diagnosis of a “contusion low back” was consistent with a back injury as opposed to a gradual onset of back pain and there was no medical evidence attributing the symptoms or disc protrusion to any other cause. He was satisfied that employment was a substantial contributing factor.

The issues in dispute on appeal concerned whether Mr Murialdo sustained an injury to his back in the course of or arising out of employment, whether employment was a substantial contributing factor and the cause of the L4/5 disc protrusion.

Held – Arbitrator’s decision confirmed.

(1) The reasonable inference was that the back pain complained of by Mr Murialdo on 14 September 2007 was connected in some way to driving to university, however, it was plausible, and DP Roche accepted, that he did not wish to mention a work injury as he felt it would affect his chances of employment in the future and that his injury would settle down. [80]

(2) There was no persuasive evidence, and it was unlikely, that Mr Murialdo’s disc prolapse would result from driving. Even if it was assumed that Mr Murialdo first experienced back pain while driving that did not mean that his claim failed.

(3) Mr Murialdo’s evidence was corroborated by the evidence of his father and co-worker, Ms Quintana who was an independent witness with no interest in the outcome. Mr Snelson, Mr Murialdo’s supervisor at Menzies, also conceded that Mr Murialdo had a back problem and that “perhaps” he “aggravated it” with Menzies.

(4) Employment does not have to be the substantial contributing factor to the injury. It is trite law that an injury can have more than one cause (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]). Employment will be a substantial contributing factor to the injury if the causal connection is “real and of substance” (per Davies A-JA in Dayton v Coles Supermarket Pty Ltd (2001) 22 NSWCCR 46, [2001] NSWCA 153, applied by Allsop P, Beazley JA and McColl JA in Badawi v Nexon Asia Pacific Pty Ltd [2009] NSWCA 324 at [83]). [93]

(5) The injury happened at work while Mr Murialdo performed his usual work duties. There was no persuasive evidence that the injury, or a smilar injury, would have happened anyway at about the same time or stage of Mr Muriado’s life, if he had not been at work or had not worked for Menzies. Accepting that back pain may have existed prior to the incident on 14 September 2007 did not diminish the significance of that incident. [96]

(6) The history was consistent with other evidence that Mr Murialdo had mild aching in his back from time to time prior to the incident on 14 September 2007 and that he experienced sharp pain his back when lifting a rubbish trolley on that day. Medical evidence by Dr Vote concluded that there was a direct connection between the onset of symptoms and the lifting incident. The history provided by Dr Vote provided a ‘fair climate’ for the acceptance of his conclusion (Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510, (1985) 62 ALR 85, [1985] HCA 58). [99], [100]

North Coast Area Health Service v McDonald (No.2) [2009] NSWWCCPD 156

S40 of the 1987 Act; partial incapacity

Keating J

15 December 2009

Facts:

The Appellant employed Mr McDonald as a registered nurse. On 27 March 2006 he sustained injury to his left shoulder when attempting to lift a patient weighing 150 kg.

Mr McDonald was off work for three months after undergoing surgery to his shoulder in November 2006.  He returned to work at the end of January 2007 on decreased hours, and gradually returned to normal hours but restricted duties.

As a result of the financial strain caused by the worker’s prolonged incapacity his wife returned to full time employment. This necessitated Mr McDonald caring for their child two days a week.

Mr McDonald resigned on 9 November 2007 after the hospital refused his request not to be allocated work on Mondays and Tuesdays due to his need to care for his child.

On 1 July 2008 Mr McDonald commenced employment with Stanhope Health Care Services (‘Stanhope’) as a community nurse.  The work was lighter but the remuneration was substantially less than he was earning with the Appellant.

Mr McDonald sought weekly compensation under s40 and lump sum compensation under ss66 and 67.

Premier Care Pty Limited v Socratous [2009] NSWWCCPD 155

Injury - weight of evidence

Roche DP

9 December 2009

Facts:

Ms Socratous commenced as a carer for Premier in 2004. She alleged that she injured her neck, right shoulder and back as a result of the heavy and repetitive nature of her duties between August 2004 and 2 February 2007. In the alternative, she alleged that on 2 February 2007 she injured her neck, right shoulder and back whilst showering a disabled patient. The circumstances of the alleged events on 2 February 2007 were the subject of conflicting evidence.

The ARD claimed 12% WPI in respect of impairment to the lumbar spine, cervical spine and right upper extremity (right shoulder), and s60 expenses. At the arbitration the worker discontinued the claim for the neck and s60 expenses. The issues in dispute concerned the alleged injury to the right shoulder and the back.

The Arbitrator found that the worker injured her back and right shoulder in the course of her employment on 2 February 2007 which occurred as she turned and propped a patient in the course of showering, and that employment was a substantial contributing factor to the injuries. The Arbitrator was not satisfied that any injury arose out of the nature and conditions of Ms Socratous’ employment with Premier.

Held – Arbitrator’s decision revoked in part – the referral to an AMS to be for assessment of lumbar spine only.

(1) The strongest evidence in the worker’s favour was the belated history recorded by her GP in his report of 11 December 2007 that she had complained of pain in the “shoulder area” when he saw her on 5 February 2007, but this was inconsistent with the doctor’s own clinical notes and also inconsistent with other evidence from two different physiotherapists taken on 6 February 2007 and 7 March 2007.

(2) DP Roche did not accept that Ms Socratous had complained to her GP about her right shoulder on 2 February 2007 as there was no mention of it in his medical certificate of that date, his clinical notes, nor in the claim form where the worker stated in clear terms that she suffered a sprain to her thoraco-lumbar spine.

(3) The Arbitrator’s reliance on the physiotherapist’s reference to spasm in the levator scapulae was misguided as it was not a reference to a shoulder injury or shoulder symptoms, but to neck pain.

(4) A statement from another employee at Premier further weakened Ms Socratous’ claim. Whilst she did mention right shoulder pain to this co-worker, she said it was caused by “over-compensating for her back injury”, an alternative ground that was discredited or not addressed by medical evidence.

(5) Ms Socratous’ histories were inconsistent and did not support her claim that she injured her right shoulder at work on 2 February 2007. The overwhelming weight of the evidence was that she did not injure her right shoulder on that day.

Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159

Extension of time – Rule 16.2(11) of the 2006 Rules - operation of s40 of the 1987 Act

Snell ADP

21 December 2009

Facts:

Mr Economidis was a qualified chef and had worked as such for most of his working life, however from about 2002 he worked in the landscaping industry and was employed by Rockhard Products in that industry from about 10 June 2003.

He injured his back at work on 16 January 2004 whilst lifting and stacking pavers. The injury was reported, he stopped work and attended Tweed Heads Hospital. Radiological investigations revealed a L4/5 disc protrusion. Mr Economidis underwent back surgery on 19 April 2004 and continued to experience symptoms in the lower back and left leg. He has not resumed any regular employment.

Liability was accepted and weekly compensation paid voluntarily. Mr Economidis also received compensation under s66 for a WPI assessment of 13%.

On 10 September 2008, the employer issued a s54 notice stating that it was reducing voluntary payments of weekly compensation to $223.96 on the basis that an assessment had been carried out on Mr Economidis’ ability to earn. The notice stated probable earnings if not for injury (s40(2)(a) of the 1987 Act) were $805.96, and ability to earn in some suitable employment (s40(2)(b)) was $582.00. $223.96 represented the difference between these figures.

The ARD claimed $692.30 per week from 22 October 2008 to date and continuing, being the difference between probable weekly earnings of $832.30 and actual weekly earnings of $140.00.

The Arbitrator found in Mr Economidis’ favour. The COD dated 18 August 2009 awarded payments of weekly compensation from 22 October 2008 at the maximum statutory rate for a worker with four dependant children. An amended COD dated 13 October 2009 changed that amount to $600.00 per week pursuant to s40 of the 1987 Act.

When the appeal was initially lodged on 16 September 2009 it was rejected by the Registry on the basis it had not been lodged within 28 days of the decision appealed against, as required by s352(4). The Employer resubmitted the appeal on 24 September 2009 accompanied by submissions in favour of granting an extension of time, noting that it was lodged only one day out of time. It submitted that it acted reasonably in raising the obvious error in the award (ie the full award pursuant to s37) within 28 days of the original COD which the Commission and worker did not respond to within the 28 day period. It also submitted that “exceptional circumstances” in Rule 16.2(11) should not mean more than “unusual circumstances”.

Held – Leave to extend time to appeal refused.

(1) The existence of “exceptional circumstances” is not a precondition to an extension of time, but a matter to be considered in the exercise of the discretion under rule 16.2(11) to extend time to appeal (Bryce v Department of Corrective Services [2009] NSWCA 188 (‘Bryce’)). [30]

(2) In applying the concept of “exceptional circumstances”, it is necessary to have regard to ss3 and 354 of the 1998 Act, consistent with Yacob v Pilkington (Australia) Limited [2007] NSWCA 290 at [67]: see NSW Fire Brigades v Turton [2008] NSWWCCPD 66. [32]

(3) The circumstances in the current matter, taken as a whole, are those regularly, routinely or normally encountered. There was no single exceptional matter, nor a combination of factors which could be seen as exceptional. Having regard to Bryce, this was not fatal to the application to appeal, but was clearly a factor militating against the exercise of the discretion to extend time.

(4) On a consideration of the merits of the appeal, Snell ADP determined that the appeal did not have reasonable prospects of success, a powerful factor against the granting of an extension of time (Gallo v Dawson [1990] HCA 30, 93 ALR 479). The grounds of appeal were discussed:

Ground 1 – Probable earnings: The employer argued that the comparable earnings of two employees had reduced considerably after 10 September 2008 and that they had ceased to be employed due to “the economic downturn”. The employer submitted that probable earnings would thus be the award rate. ADP Snell held:

• In determining “the weekly amount which the worker would probably have been earning as a worker but for the injury”, it is necessary to assume continuation of the worker’s employment (per Mc Hugh JA at 54D in Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50, restated in Singh v TAJ (Sydney) Pty Ltd (2006) 4 DDCR 557).
• On review, he would have arrived at a figure of at least the magnitude found by the arbitrator. There was evidence that could have justified a finding of probable earnings in excess of the $800.00 found by the arbitrator. The arbitrator based his calculation on the 2003/04 tax return, but that figure was likely to have been somewhat reduced by the effects of the injury. Actual earnings were in fact in excess of $832.30.

Ground 2 – Ability to earn: Actual earnings were less than $200.00 per week. There was no evidence that Mr Economidis was deliberately taking lower paid work than he could get or that he was idling or that his actual earnings were reduced by something unconnected with his injury or general earning power (Jordan CJ in Aitken v Goodyear Tyre & Rubber Co (Aust) Pty Ltd (1945) 62 WN (NSW) 233). For the purposes of s40(2(b), Snell ADP would not have found a figure higher than the $200.00 as found by the arbitrator.

Ground 3 – Failure to properly address s43A(1): The worker was a qualified chef but the evidence was that this type of work would no longer be suitable employment for him. The requirements of s43A(1) was addressed in the analysis of ability to earn in Ground 2.

Ground 4 – Failure to exercise a discretion: The employer’s arguments regarding the arbitrator’s failure to exercise a discretion to reduce the step 3 figure (difference between the s40(2)(a) and s40(2)(b) figures) were misconceived and generally directed at Mr Economidis’ ability to earn being higher than his actual earnings, addressed at the analysis of Ground 2.

(5) Therefore had time to appeal been extended, the appeal would have failed in any event. [76]

Marzuki v Site Workforce Pty Ltd [2009] NSWWCCPD 154

Psychiatric injury – s9A of the 1987 Act – disease contracted in the course of employment – the aggravation, acceleration, exacerbation or deterioration of disease – amendment – new evidence

Candy ADP

3 December 2009

Facts:

The worker commenced employment as a security guard in August 2001 with Site.  He alleged that on 23 January 2007, while at work, he was the subject of threats and racial taunts. He ceased work in February 2007 and returned to his homeland Indonesia where he was diagnosed as suffering “schizophrenia paranoid” in April 2007.  On return to Australia he was referred to a psychiatrist Dr Younan, who diagnosed the worker as suffering from paranoid schizophrenia in September 2007.

Mr Marzuki made a claim for workers compensation for an injury described as “anxiety and depression”.  Site accepted liability to pay weekly compensation and treatment expenses for two years until it revised its attitude following a claim made for lump sum compensation pursuant to sections 66 and 67 in November 2008.

An ARD was lodged with the Commission in January 2009 with the injury described as ‘psychiatric/psychological’ and as occurring due to the nature and conditions of employment.  In February 2009 Site not only disputed that the worker suffered a permanent impairment but also disputed: injury; that employment was a substantial contributing factor to the injury or condition or any aggravation, exacerbation or deterioration of an underlying condition and submitted that the worker’s psychological condition was a constitutional condition unrelated to his employment.

The Arbitrator found that section 9A was not satisfied and made an award in favour of Site.

The worker appealed the decision submitting that the Arbitrator erred in regarding the worker’s injury as an aggravation, acceleration, exacerbation or deterioration of a disease and in determining that the provisions of s9A had not been satisfied.

On appeal ADP Candy held a directions hearing to clarify a number of issues including the specified date of injury of 23 January 2007, because most of the work events relied on by the worker occurred after this date.  Over objection, ADP Candy allowed the worker to amend the ARD to rely on a series of events from 13 January 2007 to 1 February 2007 because Site had investigated all claimed incidents and its medical evidence dealt with them.

Held: Arbitrator’s decision revoked and decision substituted

(1) The ADP noted that the Arbitrator determined that the worker’s injury was an aggravation or acceleration of a disease under s4(b)(ii) of the 1987 Act. However she also accepted as probable that the symptoms he manifested in late January/early February were the onset of the condition rather than relapse.  She then went on to say that she was satisfied that the psychotic symptoms were present prior to 6 February 2007.

(2) The Arbitrator appeared to be confused as to whether she found the injury in question to be a disease contracted in the course of employment to which employment was a contributing factor or the aggravation, acceleration etc of a disease where the employment was a contributing factor to the aggravation, acceleration etc.

(3) It was clear on the authorities which were brought to the attention of the parties at the directions hearing: (Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 (‘Semlitch’); King v Commissioner for Police [2004] 2 DDCR 416; Harpur v State Rail Authority [2000] NSWCC 3; Cant v Catholic Schools Office [2000] NSWCC 37; Murray v Shillingsworth [2006] NSWCA 367; Maher v Brambles Australia Ltd [1998] NSWCC 54) that an injury which consists in the contracting of a disease (s4(b)(i)) is not the same as an injury which consists in the aggravation, acceleration etc of a disease (s4(b)(ii)). [112]

(4) The issue to be determined was whether the matter was to be considered as an aggravation, acceleration etc of a disease or a disease contracted in the course of employment. The contraction of a disease is not the same as the aggravation, acceleration etc, with the latter requiring a pre-existing disease to which employment makes a further contribution. [117]

(5) In Semlitch, Windeyer J (at 640) referred to “acceleration” in the context of a progressive disease.  There was no medical evidence as to whether paranoid schizophrenia was a progressive disease or not. [118]

(6) The terms used by Dr Younan as to the effects of the workplace events were “activation” and “activate” which suggested that it was appropriate to regard the case as one of a disease contracted in the course of employment rather than aggravation, acceleration etc.

(7) The medical evidence, including the history of the worker’s belief in his ability to read minds at a young age and other psychic powers, did not permit a finding that the worker was suffering from paranoid schizophrenia prior to January 2007 and only indicated at most a vulnerability to develop paranoid schizophrenia rather than the disease itself.

(8) In Dr Younan’s opinion, the period of time from the workplace incidents to the condition developing was too short to have brought about paranoid schizophrenia.  The doctor opined that in 41 years of psychiatric practice he had never seen a case of schizophrenia developing as a result of incidents of abuse.

(9) The actual events in the worker’s employment did not contribute to his developing paranoid schizophrenia.

(10) The causal connection between the employment and the disease required under s4(b)(i) was missing and the worker therefore had not established injury.  It was not necessary to consider the application of s9A since employment was not a contributing factor to the disease.

(11) In view of the amendment dated 6 October 2009, allowed at the directions hearing, the decision of the Arbitrator was revoked and a new order made in favour of the employer but which correctly reflected the amended dates of injury.