Issue 10: October 2010

McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96

Weekly compensation; failure to consider relevant evidence; failure to refer claim for additional lump sum compensation to Approved Medical Specialist; failure to consider or properly determine claim for medical expenses; forensic medical report; cl 43 of the Workers Compensation Regulation 2003; whether a forensic medical report may be tendered for the limited purpose of relying on the history recorded in it

Roche DP

8 September 2010

Facts:

The appellant worker, Darren McCarthy, commenced work with the respondent employer in 1982. On 29 August 1998, he fell onto his buttocks whilst attempting to sit on a swivel chair in the course of his employment. He injured his back, right leg, left leg and left hip.

In 2002, Mr McCarthy claimed weekly compensation in the former Compensation Court of $1,081 per week from 14 September 1998 to 27 November 1998, and $1,125 per week for one day off work on 9 February 1999. That claim settled on 20 November 2002.

Mr McCarthy later claimed lump sum compensation in respect of 20 per cent permanent impairment of his back, five per cent loss of efficient use of the right leg at or above the knee, 11.25 per cent permanent loss of efficient use of the left leg at or above the knee, and an award for pain and suffering. That claim settled on 14 March 2005.

Mr McCarthy filed an Application in the Commission on 16 March 2010, claiming $300 per week from 1 July 1999 to date and continuing under s 40 of the 1987 Act, lump sum compensation for 1.25 per cent further permanent loss of efficient use of the left leg at or above the knee, and an additional $1,000 in respect of additional pain and suffering, together with a general order for s 60 expenses.

Mr McCarthy gave inconsistent evidence about his duties and classification with the employer at the time of his injury. In his 2004 statement, he stated he was a grade 5 allocations clerk from 1994 until June 1998 when, following an industrial dispute in 1998, the employer reinstated him as either a grade 4 allocations clerk or a grade 4 receiving and delivery clerk. He stated he returned to work after the injury as a grade 4 clerk. Further, his duties were only clerical and he suffered no economic loss due to his accident, but suffered a loss due to his demotion.

In his 2009 statement, he said he was an allocations officer at the time of his accident and that the job involved clerical work and a lot of walking and climbing stairs. He stated the employer downgraded his position from allocations officer to a receiving and delivery clerk in “late 1998 or early 1999”. In contrast to his 2004 statement, he stated he suffered a loss of income due to being unable to work as an allocations clerk.

The Arbitrator made an award for the respondent on all issues. The worker appealed. He argued that the arbitrator erred in:

• failing to reach the true and correct answer to the dispute before him;
• failing to consider all of the evidence to determine the worker’s pre-injury duties;
• failing to properly determine the matters required to decide whether the worker was entitled to weekly compensation;
• failing to determine any of the matters relevant to the worker’s claim for medical expenses;
• failing to determine any of the matters relevant to the worker’s claim for additional permanent impairment benefits, and
• determining the medical dispute about lump sum compensation without first referring that claim for assessment by an Approved Medical Specialist (AMS).

An additional matter arose concerning the application of cl 43 of the 2003 Regulation because Mr McCarthy sought to rely on more than one forensic medical report.

Held: Arbitrator’s determination revoked; award respondent employer in respect of claim for weekly compensation; appellant worker’s claim for additional lump sum compensation referred to an AMS; respondent employer pay worker’s s 60 expenses.

Clause 43 of the 2003 Regulation

The appellant worker sought to rely on the histories in the reports of Dr Chapman (obtained by the respondent employer) and submitted the reports be admitted as witness statements, not as forensic medical reports. Under cl 43(1) of the Regulation, only one forensic medical report may be admitted on behalf of a party to proceedings.

The Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit (s 354(2) of the 1998 Act). Where the rules of evidence do not apply, the conduct of the proceedings will be determined according to the principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the case: Aluminium Louvres and Ceilings Pty Ltd v Xue Qin Zheng [2004] NSWWCCPD 26, cited with apparent approval in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42 per McColl JA at 128: [31]-[32].

Two questions arose: were the histories relevant to an issue in dispute and would their admission invole any unfairness to the respondent employer?

The following common law principles were relevant, but not decisive [34]:

• If evidence is adduced and admissible for more than one purpose, it can be used for any and all of those purposes and the party tendering the evidence cannot restrict the purposes to which the evidence can be put (B v The Queen [1992] HCA 68; 175 CLR 599 per Brennan J at 606-607);
• If evidence is admissible for one purpose, it cannot be rejected on the ground that it is inadmissible for another purpose (Cross on Evidence, Seventh Australian Edition, Butterworths, J D Heydon, 2004, at [1520] citing Rutherford v Richardson [1923] AC 1), and
• Subject to s 60 of the Evidence Act (NSW) 1995, if the evidence admitted for one purpose is not admissible for another purpose, it cannot be used for that purpose (B v The Queen).

Dr Chapman first saw Mr McCarthy within four weeks of the accident, and took a history of Mr McCarthy’s occupation and work duties. The doctor saw Mr McCarthy again a few months after Mr McCarthy returned to work and recorded the nature of his duties at that time. His histories were therefore relevant to the issue in dispute, being the nature of Mr McCarthy’s pre- and post-accident duties. Further, the history recorded in a medical report is evidence of the fact (Paper Coaters Pty Limited v Jessop[2009] NSWCA 1): [35].

The respondent employer tendered Dr Chapman’s reports at arbitration. Therefore, there was no unfairness in allowing the admission of reports on appeal as witness statements. On condition the appellant worker only relied on the histories, and not the opinions or conclusions, the reports were admitted as witness statements: [37].

Weekly compensation

Mr McCarthy’s two statements were inconsistent and could not sit together. This undermined the reliability of his claim. The 2004 statement was comprehensive and detailed. The statement that he suffered no economic loss as a result of his accident, but suffered a loss due to his demotion to a grade 4 allocations clerk due to the industrial dispute, was both clear and unequivocal. He did not suggest in his 2009 statement that any part of his first statement was inaccurate. The 2009 statement asserted his demotion was in late 1998 or early 1999, but gave no reason for the downgrading: [107].

There was no medical evidence to suggest that the downgrading occurred as a result of his injury. The reports and certificates of his general practitioner, Dr McDonnell, did not say he was unfit to perform work that required him to walk or climb stairs, the only restriction being no bending or lifting and a requirement for frequent breaks from sitting: [109].

Dr Chapman’s history was also inconsistent with the 2009 statement. Dr Chapman noted that “[h]is job is now redundant and he is in a multi-skilling group”: [115].

The statements of the eight lay witnesses did not help Mr McCarthy overcome the inconsistencies in his statements. They provided their statements more than 11 years after the event. Human memory is fallible and fallibility increases with the passage of time: Watson v Foxman (1995) 49 NSWLR 315 per McClelland CJ in Eq at 319. Their statements were inconsistent with Mr McCarthy’s first statement that their duties changed in June 1998: [118]–[119].

That he changed duties around the time of his accident did not establish (on its own) an entitlement to compensation. What Mr McCarthy had to establish was that he lost income because the change in duties resulted from the effects of his injury. The lay witnesses did not address this issue: [120].

Three of the witnesses stated that the role of allocations clerk was increasingly computerised, resulting in less walking and less demand for allocations officers. Further, five of the lay witnesses ceased working as allocations officers in or about 1998 or 1999, which was consistent with there being a restructure following the industrial dispute in 1998: [121]–[122].

No one factor was decisive but, taken together, they greatly weakened the weight attached to the statements. Mr McCarthy failed to discharge the onus of proof. His own evidence in his statements was strongly against drawing the conclusion he urged in his 2009 statement: [123].

The claim for further permanent loss compensation turned on whether, as a result of his injury, Mr McCarthy had suffered a further loss of efficient use of his left leg at or above the knee. Mr McCarthy consistently maintained in his histories to Dr Evans that his left hip had deteriorated over time. Based on the history and his findings on examination, Dr Evans concluded that, as a result of his injury, Mr McCarthy’s loss of efficient use of his left leg at or above the knee in April

2009 was 12.5 per cent, 1.25 per cent more than the 2005 settlement. The claim for additional lump sum compensation was referred to an AMS for assessment: [134].

The finding by the Arbitrator that Mr McCarthy suffered no economic loss as a result of his injury had no bearing on whether he was entitled to a general order under s 60. Given Mr McCarthy’s evidence of continuing symptoms, he was entitled to the payment of his reasonable medical expenses which resulted from his injury: [136].

Merrick v Aaron John Shelley and Geoffrey David Swan t/as Nationwide Transport Solutions and Workers Compensation Nominal Insurer [2010] NSWWCCPD 106

Section 9AA of the Workers Compensation Act 1987, principal place of business; burden of proof

O’Grady DP

30 September 2010

Facts:

Mr Merrick, the appellant, was employed by Aaron John Shelley and Geoffrey David Swan trading as Nationwide Transport Solutions (the employers) as an interstate truck driver until 5 May 2006. Mr Merrick alleged that he received injury in the course of that employment in April 2006.

He successfully claimed weekly compensation from WorkCover Queensland up until a date in November 2007.

On 14 November 2008, Mr Merrick’s solicitors gave notice of a claim for weekly compensation in New South Wales to the employers. His employers did not hold an insurance policy in respect of liability under the NSW workers compensation legislation. Notice was then provided to the claims manager of the Uninsured Liability and Indemnity Scheme, WorkCover NSW. WorkCover NSW’s s 74 notice disputed liability on the basis of s 9AA(3)(a) and (b) of the 1987 Act, as Mr Merrick’s employment was not connected with the State of New South Wales.

Mr Merrick lodged an application with the Commission in which he sought weekly benefits from 14 April 2006. The only issue agitated before the Arbitrator was whether Mr Merrick’s employment was connected with the State of New South Wales within the meaning of s 9AA of the 1987 Act.

The Arbitrator made an award for the respondent employer and found that the evidence did not permit a conclusion as to where Mr Merrick usually worked nor as to where Mr Merrick was usually based. The Arbitrator concluded that the principal place of the employer’s business was Queensland. The matters the Arbitrator referred to included the registration of the Queensland address as the principal place of business; the truck was housed in Queensland when not being used; the vehicle was serviced in Brisbane and that the employer maintained a depot in Queensland to which Mr Merrick returned after his deliveries in Port Kembla.

Mr Merrick appealed this decision on the grounds that the Arbitrator erred:

in his application of s 9AA of the 1987 Act to the facts as found;

• in finding that the employers’ principal place of business was not in New South Wales;
• in his finding as to the onus of proof of the whereabouts of the employers’ principal place of business;
• in not determining that Mr Merrick was entitled to compensation benefits by reason, in the alternative to matters otherwise argued, that the subject injury was received in New South Wales (s 9AA(5)), and
• in failing to have regard to the evidence, in particular the statement by the employers that their Queensland office was a “satellite office”.

Held: Arbitrator’s decision confirmed.

1. The registered principal place of business is not conclusive in respect of the question as to the whereabouts of the principal place of business of an employer. A determination of an employer’s principal place of business requires a determination of what is the most important or main place where it conducts the main part or majority of its business (see Martin v R J Hibbens Pty Limited [2010] NSWWCCPD 83 at [60(d)] and Tamboritha Consultants Pty Ltd v Knight [2008] WADC 78): [56].

Mr Merrick’s application for compensation could only be maintained upon proof by him that his employment was connected with the State of New South Wales. In proceedings such as the present, there may be a “shifting” of the evidentiary burden in circumstances where a worker adduces evidence sufficient to establish a fact on a prima facie basis. In this case, all parties adduced evidence concerning the principal place of business. The Arbitrator was then required to evaluate that evidence: [58].

There was evidence of business activity in both Brisbane, Queensland and Port Kembla/Kiama, New South Wales. The evidence did not reveal a number of matters that may be taken to be within the knowledge of the employers. For instance, the employers’ address did not appear on any document generated by it. The statement of Mr Shelley did not include a notation of either a business or residential address. In those circumstances, it was open to Mr Merrick to argue that an inference may be drawn in his favour that presentation of evidence concerning the manner of conduct of the business would not advance the employers’ case: [59]-[60].

The business conducted administrative activities at the Kiama address. However, the business concerned interstate transport and haulage, with some specialisation in heavy and oversized loads. The equipment (three trucks) required for the conduct of that business were based in Queensland. The vehicles were registered and serviced in Queensland. When not in use, they were parked at an address in Queensland. Mr Merrick was required to travel to Queensland to take possession of the truck and commence his duties. It was stated in the evidence that the other two trucks operated by the business were involved almost exclusively in delivery work within Queensland: [63]-[64].

Although management and administrative activities occurred in Kiama, the most important place of business was Queensland, where the expensive trucking equipment was based, serviced and registered. The Arbitrator was correct in his conclusion that the employer’s principal place of business within the meaning of s 9AA was located in Queensland. The employment was not connected with this State (s 9AA(1)) and thus Mr Merrick has no entitlement to benefits under New South Wales compensation legislation: [65].

St Andrews Village Ballina Limited v Mazzer [2010] NSWWCCPD 99

Failure to notify issues in dispute; ss 74 and 289A of the 1998 Act; circumstances in which previously unnotified matters may be heard or otherwise dealt with by the Commission; s 40(2A) of the1987 Act; whether worker injured right shoulder while performing exercise program authorised by insurer for accepted injury to left shoulder/neck; partial incapacity; part-time worker at time of injury; whether worker intended to move to full-time employment but for injury; same or some comparable employment; application of principles in Johnston v Commissioner of Railways [1973] HCA 46; 128 CLR 632 and Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530

Roche DP

15 September 2010

Facts:

Ms Mazzer started work with St Andrews Village Ballina Limited, the appellant, as a part-time domestic assistant in October 2006. On 7 December 2006, she injured her left non-dominant shoulder and neck whilst lifting wet washing into an industrial dryer. Ms Mazzer returned to work on light duties and reduced hours from 15 December 2006.

Ms Mazzer resigned from her employment with St Andrews whilst she was on restricted duties due to alleged harassment from a manager. She did not return to paid employment, apart from working eight shifts of three hours each at a bakery over an eight-week period in 2008.

A MAC issued on 6 March 2009 assessed Ms Mazzer to have a 12 per cent whole person impairment as a result of the injury to her left upper extremity (left shoulder) and cervical spine. This claim was settled in April 2009 and included compensation for pain and suffering.

On 8 December 2009, Ms Mazzer made a further claim for 21 per cent whole person impairment lump sum compensation, additional pain and suffering compensation, hospital and medical expenses, and weekly compensation.

She claimed the additional lump sum compensation in respect of an “injury” to her right shoulder which was allegedly received on 8 May 2009 while she was engaged in an exercise program as part of her QBE approved rehabilitation program for her left shoulder injury.

In respect of the weekly compensation claim, Mrs Mazzer argued that, but for her injury, she would have obtained full-time employment as a domestic or as an assistant in nursing either with St Andrews or another employer. To that end, she commenced an assistant in nursing course in May 2007, but was unable to complete it because of the effects of her injury.

In a s 74 notice, QBE disputed that Ms Mazzer injured her right shoulder, that she was incapacitated and that the worker’s hospital and medical treatment was “reasonably necessary” as a result of her injury.

There was no reference to Ms Mazzer’s resignation in the s 74 notice or the Reply. Although the solicitor for St Andrews referred to the resignation during the arbitration, he did not refer to or rely on s 40(2A).

The Arbitrator found that Ms Mazzer had not injured her right shoulder, had no entitlement to weekly compensation between 26 March 2007 and 6 May 2007 due to her resignation (but made no reference to s 40(2A)), had the ability to earn $317.87 per week from 26 March 2007, would have started full-time work as an assistant in nursing on 7 May 2007 and had an entitlement to weekly compensation (varying from $261.25 to $301.15) from that date and continuing.

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

• failing to apply s 40(2A) after finding that Ms Mazzer resigned for reasons other than her injuries and that she was performing suitable duties;
• finding that Ms Mazzer was only fit to perform 18 to 20 hours of suitable duties per week;
• finding that, but for the injury, Ms Mazzer would have commenced full-time employment;
• awarding weekly compensation on a finding of partial incapacity based on her neck and left shoulder injury only, and
• finding that she had not injured her right shoulder.

An additional issue arose as to whether the worker had breached cl 43 of the Regulation.

Held:

Clause 43 of the Regulation 2003

1. Ms Mazzer tendered medical reports from two specialists from whom she had not received treatment, a shoulder surgeon (Dr Ashwell) and a consultant in occupational medicine (Dr Davis). Ms Mazzer submitted that she was not in breach of cl 43 of the Regulation and was entitled to rely on both reports for the following reasons:

• St Andrews took no objection to the reports at the arbitration or on appeal;
• Ms Mazzer had made two claims, one for her left shoulder and neck, and the other for her right shoulder. She was therefore entitled to rely on one forensic medical report in respect of each claim, and
• The doctors that authored the reports have different qualifications.

2. The Commission is not relieved of its obligation to apply the terms of the Regulation because there is no objection by the other party to the proceedings: ([24]).

3.. Ms Mazzer was entitled to tender two forensic medical reports for the following reasons:

• In circumstances where cl 43AA has no application, a party may only rely on more than one forensic specialist report in the circumstances set out in cl 43(3). That sub-clause provides that, where the injury “has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with medical qualifications in that specialty”.
• Ms Mazzer received treatment from various specialists with different qualifications.
• The specialist in occupational medicine (Dr Davis) had qualifications “relevant to the treatment of the injured worker’s [shoulder] injury” and, pursuant to cl 43(2), his report was admissible.
• Pursuant to cl 43(3), Ms Mazzer was also entitled to tender Dr Ashwell’s report, as his specialty was “one of the specialties in which the worker received treatment”.

Section 40(2A)

4. St Andrews’s submission that the Arbitrator should have applied the provisions of s 40(2A) was rejected on the following bases:

• QBE never identified s 40(2A) as an issue in dispute in its s 74 notice;
• St Andrews did not make submissions on s 40(2A) at the arbitration;
• The Arbitrator was not obliged, as a matter of law, to apply s 40(2A).

5. On appeal, St Andrews sought leave under s 289A(4) to have the Commission deal with the s 40(2A) dispute which was a previously unnotified matter. Leave was refused on the following grounds:

• There was no proper explanation offered by QBE as to why it failed to identify s 40(2A) in the s 74 notice.
• The worker would be irreparably prejudiced if leave was granted.
• The s 74 notice made no reference to the circumstances in which Ms Mazzer ceased employment. Section 40(2A) requires a determination of whether the worker has “unreasonably rejected suitable employment”. The question of reasonableness of a worker’s conduct depends on his or her knowledge at the relevant time having regard to all the circumstances (Fazlic v Milingimbi Community Inc [1982] HCA 3; 150 CLR 345): [39(e)]. The duties Ms Mazzer performed prior to her resignation were suitable. Ms Mazzer’s evidence of the harassment that made the situation at work “intolerable” was accepted and therefore there was a finding that she did not “unreasonably reject” those duties by resigning: [42].
• The insurer was not permitted to dispute previously unnotified matters, as none of the circumstances that allow consideration of such matters discussed in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 were applicable in this case.
• In all the circumstances, it was not in the interests of justice to grant leave to QBE to rely on s 40(2A).

Partial incapacity and right shoulder injury

6. The overwhelming evidence supported a finding that the effects of the injury on 7 December 2006 were continuing.

7. It was held (at [95]) that the worker also suffered a tendonitis and probable bursitis in her right shoulder as a result of activities on 8 May 2009 whilst undertaking an authorised exercise program approved by QBE as part of her treatment for her undisputed left shoulder and neck injury. The right shoulder condition had therefore resulted from the original injury on 7 December 2006.

8. The Arbitrator had correctly assessed Ms Mazzer’s ability to earn since March 2007. However, the Arbitrator erred in failing to refer her claim for lump sum compensation in respect of the right shoulder injury to an AMS.

9. The finding that Ms Mazzer injured her right shoulder on 8 May 2009 did not result in an increase in Ms Mazzer’s incapacity on the open labour market. The restrictions were the same for both injuries: [57].

Section 40(2)(a)

10. Ms Mazzer intended to commence full-time employment once completing an assistant in nursing course in April 2008. Such an intention, if accepted as a matter of fact, may be sufficient for the purposes of s 40 (see Department of School Education v Boyd [1996] NSWCA 152; 13 NSWCCR 289 at 291). The prospect of Ms Mazzer working full-time (as either a domestic or assistant in nursing) was “real” and not fanciful (Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530). It was a reasonable “career progression” for Ms Mazzer to move from work as a part-time domestic in an aged care facility to work as a full-time assistant in nursing in the same or a similar facility: [78].

11. The Arbitrator erred in finding that Ms Mazzer would have returned to full-time work from 7 May 2007, as it was Ms Mazzer’s intention to engage in full-time work after completing the course which, had she been able to, would have been in April 2008.

12. The Arbitrator erred in awarding no compensation for the period 26 March 2007 to 6 May 2007. Ms Mazzer was permanently unfit for her pre-injury duties and there was no evidence that her wage on light duties was likely to increase to its pre-injury level. Therefore, Ms Mazzer’s resignation made no difference to her entitlement to compensation ($40.27) between 26 March 2007 and 6 May 2007.

Note:

Though the parties argued the case on the basis that Ms Mazzer had received a s 4 “injury” to her right shoulder on 8 May 2009, as the right shoulder condition resulted from the left shoulder injury, it was not appropriate to refer to it as a separate “injury”. It was more accurately described as a “condition” that resulted from the initial left shoulder injury. As such, the worker did not have to meet the s 67 threshold before being entitled to further compensation for pain and suffering for any impairment from the right shoulder condition.

Kempsey Shire Council v Kirkman [2010] NSWWCCPD 104

Issues in dispute; whether notice under s 74 of the 1998 Act disputed injury; relevance of prior symptoms; nature of the injury; causation; worker’s condition exacerbated by surgery for suspected hernia; no hernia found at surgery; application of principles in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522; weekly compensation; exercise of discretion; s 40(1) of the 1987 Act

Roche DP

28 September 2010

Facts:

Mr Kirkman started work with Kempsey Shire Council (the Council) in March 2001. He injured his groin or lower abdomen whilst lifting or dragging a concrete manhole cover with a co-worker on 20 June 2006. He remained at work until 27 June 2006, when he saw a locum at his local general practitioner’s practice, who certified him unfit for work. An ultrasound revealed a small, right-sided, inguinal hernia.

After having various periods either off work or on suitable duties, Mr Kirkman underwent surgery for his condition in March 2007. The surgery did not disclose the presence of a hernia. The surgery did not relieve his symptoms, but resulted in the development of additional symptoms. He ultimately returned to suitable duties in May 2007, but continued to have pain, and ceased work again in June 2007. Mr Kirkman returned to work on suitable duties between July 2007 and January 2008, when he was ultimately certified fit for work without restriction. The Council made his position redundant on 26 February 2008.

Though it was unclear from the evidence, it seems that the Council’s insurer, StateCover Mutual Limited (StateCover), accepted Mr Kirkman’s claim and paid for Mr Kirkman’s time off work and hospital and medical expenses until it denied liability in a s 74 notice dated 29 September 2008. StateCover disputed liability on the following grounds:

We do not believe your ongoing right-sided groin symptoms are work-related. We do not believe your current right-sided groin symptoms/injury is related to your employment with Kempsey Council. We do not believe the proposed medical treatment by Dr Russo is considered reasonably necessary medical treatment.

Mr Kirkman brought proceedings in the Commission claiming weekly compensation from 26 February 2008 to date and continuing, s 60 expenses, and lump sum compensation in respect of a five per cent whole person impairment. The Council disputed liability on the grounds set out in its s 74 notice dated 29 September 2008.

The Arbitrator found that Mr Kirkman received an injury in the course of his employment on 20 June 2006 and that he was unfit for his pre-injury employment and awarded weekly compensation and medical expenses. The lump sum claim was dismissed with liberty to apply when the condition had stabilised after further treatmemnt.

The Council appealed on a number of grounds.

Held:

Issues in dispute

1. Council’s submission that the Arbitrator erred in stating that injury was not in issue was rejected because:

• The s 74 notice did not dispute injury, but disputed whether the ongoing right-sided groin symptoms were work-related. The reference in the s 74 notice to “current right-sided groin symptoms/injury” was ambiguous. However, it did not suggest that no injurious event occurred. The reference to the “current … injury” demonstrated a fundamental misunderstanding of the legislation. Once a worker has received an injury, the next question is not whether the injury is “current”, but whether the effect of the injury is continuing and whether the incapacity, impairment or relevant treatment has resulted from that injury. If StateCover intended to dispute the occurrence of the injury, it should have said so. It did not: [71].
• The insurer accepted liability and paid voluntary compensation for the injury until the s 74 notice issued on 29 September 2008. The voluntary payment of compensation was a rebuttable admission (Begnell v Super Start Batteries Pty Ltd [2009] NSWWCCPD 19 at [77] to [105]) and an insurer will often be entitled to dispute injury notwithstanding the earlier acceptance of a claim and payment of compensation. However, if an insurer wishes to dispute injury, it must use clear and unambiguous language: [72].
• At the arbitration, the parties submitted on the nature of the issues in dispute. Counsel for the employer conceded there was no evidence to dispute injury.Therefore, regardless of the interpretation of the s 74 notice, the Arbitrator did not err in stating that there was no issue that Mr Kirkman received an injury on 20 June 2006. The Council’s attempt to argue this issue on appeal was surprising and unsatisfactory: [73]–[74].
• The evidence clearly supported a finding that Mr Kirkman received an injury to his right groin whilst dragging a concrete lid with a co-worker in the course of his employment on 20 June 2006: [77].

Prior symptoms

2. A history recorded by a doctor that the worker had suffered a previous groin strain whilst playing touch football was not determinative. The doctor did not record when the previous groin strain occurred, whether it was incapacitating, or whether it required any treatment. Mr Kirkman’s evidence was that, prior to June 2006, he had no problems with his lower abdomen and he was functioning perfectly normally: [80].

3. Mr Kirikman had no relevant problems or symptoms with his lower abdomen prior to the injury, and he was fully fit and performing his heavy duties without restriction. On its own, the history recorded by the doctor was of limited, if any, probative value. There is no evidence to suggest that Mr Kirkman’s previous symptoms, whatever they were, played any role in the cause or perpetuation of his current symptoms: [81].

Nature of the injury

4. The Council advanced no submissions or authority in support of its submission that the Arbitrator erred in failing to determine the nature of the injury on 20 June 2006. Although it is often preferable, it is not essential, as a matter of law, that the Commission determines the precise nature of the injury received by a worker. What is required is a finding that the worker received an injury arising out of, or in the course of, his or her employment, and that employment was a substantial contributing factor to that injury: [82].

The surgery

5. Council’s submission on appeal that the arbitrator erred in failing to address the question of whether Mr Kirkman “sustained injury in the course of Dr Hodge’s surgery on 12 March 2006” was misconceived and rejected because:

• The employer never argued this issue at the arbitration and its counsel at arbitration conceded that, if the Arbitrator found that the surgery related to (resulted from) the injury, then his client was “stuck with the consequences of that…as a matter of law”: [84].
• If Mr Kirkman developed additional symptoms after his surgery, that did not mean he sustained injury in the course of that surgery. The proper question was, “Was the surgery reasonably necessary as a result of the injury on 20 June 2006?” The answer to that question was unequivocally “yes”: [85].
• There was no evidence to suggest that Dr Hodge’s advice to proceed to surgery was unreasonable. Nor was there any evidence that Dr Hodge performed the surgery negligently. Even if he had, the employer would still have been liable for the consequences of the surgery, unless the treatment provided was so inexcusably bad as to become a novus actus (Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; 156 CLR 522 at 529–530 (Kruschich)). As observed by the High Court in Kruschich, with specific reference to workers compensation cases:

the total condition of a worker whose compensable injury is exacerbated by medical treatment, reasonably undertaken to alleviate that injury, is to be attributed to the accident: see Lindeman Ltd v Colvin [1946] HCA 35; (1946) 74 CLR 313, per Dixon J at p 321; Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29, per Mason JA at p 48; on appeal (1973) 47 ALJR 236, although some medical negligence or inefficiency can be held to amount to a new cause of incapacity in some circumstances: Rothwell v Caverswall Stone Co (1944) 2 All ER 350, at p 365; Hogan v Bentinck Collieries (1949) 1 All ER 588, p 592. [89]

• Mr Kirkman acted reasonably in undergoing the surgery recommended by Dr Hodge and that any additional symptoms that he developed after the surgery resulted from the surgery and, therefore, from the injury: [90].

Causation

6. Whether Mr Kirkman had the symptoms of which he complained and whether those symptoms resulted from the injury on 20 June 2006 and/or treatment provided for that injury was a causation issue which required the application of the commonsense test of causation discussed in Kooragang Cement Pty Ltd v Bates (1994) 25 NSWLR 452: [78].

7. Mr Kirkman had consistently complained of groin symptoms since his injury on 20 June 2006 and had undergone extensive conservative and invasive treatment for those symptoms. There was no doubt that Mr Kirkman’s groin symptoms occurred as a result of his work with the Council and no doubt that his continuing symptoms resulted from his initial injury and/or his treatment for that injury: [97].

8. Mr Kirkman’s continuing symptoms and incapacity resulted from his injury: [102].

9. Award of weekly compensation confirmed.

Medical expenses

10. The order that the Council pay Mr Kirkman’s s 60 expenses “for treatment proposed by Dr Russo” was revoked and substituted with a general order for the payment of hospital and medical expenses under s 60.

11. Section 60 is an indemnity provision (NSW Sugar Milling Co-Operative v Manning [1998] NSWCC 33; 44 NSWLR 442). Widdup v Hamilton [2006] NSWWCCPD 258 held that the Commission has no jurisdiction to make an order for the payment of hospital and/or medical expenses that have not been incurred. Mr Kirkman had not had the treatment proposed by Dr Russo and the Commission had no power to make any order for its payment: [119].

Van Wessem v Entertainment Outlet Pty Ltd [2010] NSWWCCPD 97

Section 4, in the course of employment; s 9A, self-employed working director

Keating P

10 September 2010

Facts:

Ms Van Wessem is the widow of Stephen Jan Van Wessem (Mr Van Wessem/the worker).

Mr Van Wessem was the sole working director of the respondent. He was killed on Bobbin Head Road in the Ku-ring-gai National Park whilst cycling on Sunday 15 February 2009 at approximately 11.00 am.

The respondent had a contract with Aussie Home Loans Pty Limited to provide advice and act as a mortgage broker for clients of Aussie Home Loans Pty Limited. Aussie Home Loans supplied referrals to Mr Van Wessem from inquiries made to them by potential customers. Mr Van Wessem had no office or premises to undertake this work. He worked from home, making contact with clients by using his mobile phone and email.

Mr Van Wessem’s income was derived from commissions on home loans entered into by clients referred to him. He did not have any set hours of work, but was required to adhere to the terms of a contract with Aussie Home Loans and any other policies or directives issued by them.

Mr Van Wessem often worked outside normal working hours and frequently worked on weekends. When not undertaking work for Aussie Home Loans, Mr Van Wessem was free to go about his domestic and recreational activities as he chose.

Mr Van Wessem had been in contact with a potential client before undertaking the ride and his diary indicates that he was intending to either call or meet with the client later that day.

Mrs Van Wessem brought a claim under s 25.

QBE Workers Compensation (NSW) Limited, on behalf of the respondent, declined the claim on the basis that Mr Van Wessem’s death did not arise out of or in the course of his employment with the respondent, and that his employment was not a substantial contributing factor to the injuries that led to his death.

The Arbitrator found in favour of the respondent on the basis that employment was not a substantial contributing factor to the injury. Mrs Van Wessem appealed.

Held: Arbitrator’s decision confirmed

In the course of his employment

1. The respondent had entered into a contract with Aussie Home Loans that required it to be on-call during a set period of hours, namely, 9.00 am to 8.00 pm Monday to Friday and 9.00 am to 5.00 pm on weekends. The worker and the worker alone determined how and when, in the interests of the respondent, those contractual obligations were satisfied. Mr Van Wessem was effectively “on-call” during the nominated span of hours. Mrs Van Wessem confirmed that the worker was required, as a matter of policy, to respond to referrals sent to him within two hours of receiving them, that is, he was required to contact potential customers within a two-hour period. There was no challenge to that evidence: [108].

2. The phrase “arising in the course of employment” refers to a temporal relationship between the injuries and the employment. A causal connection is only relevant to injuries arising “out of” the employment (Davidson v Mould [1944] HCA 10; 69 CLR 96; ALR 165 (Davidson)). In Davidson, the High Court held that the course of employment does not start and end with a worker’s paid hours of employment. The temporal relationship includes all the time that the worker is engaged on the performance of his duties of employment and those things which are incidental to it: [99].

3. In Hatzimanolis v ANI Corporation Limited [1992] HCA 21;173 CLR 473; 106 ALR 611; 8 NSWCCR 242, the majority of the High Court held that the Henderson-Speechley test, as it has become known, was too narrow to determine whether the injury occurred within the course of employment in cases where the injury had occurred outside actual working hours.  The majority held at [13]:

Consequently, the rational development of this area of law requires a reformulation of the principles which determine whether an injury occurring between periods of actual work is within the course of employment so that their application will accord with the current conception of course of employment as demonstrated by the recent cases, particularly the decisions of this Court in Oliver and Danvers.

4. Whilst Hatzimanolis may be more readily applicable to injuries occurring during intervals or interludes within an overall period of work where the activity giving rise to the injury occurred where the employer has expressly or impliedly induced or encouraged the employee to spend the interval at a particular place or in a particular way, the High Court nevertheless accepted that, in determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment, “not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen”: [114].

5. In Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75, the majority of the Court of Appeal applied the principles stated in Hatzimanolis and noted at [72] that difficult factual issues can arise in determining whether a worker was in the course of employment when injury was sustained, but they arise, not because the principle to be applied is uncertain, but because of the fluidity of employment circumstances: [115].

6. In Hook v Rolfe (1986) 7 NSWLR 40, Glass JA (Hope and Samuels JJA agreeing) recognised that the worker’s activity undertaken for both work and non-work purposes may be within the course of employment. His Honour remarked that the solution to adopt in the case of an activity undertaken for multiple purposes is to inquire as to the relevant purpose and to disregard the others, not inquiring as to the dominant purpose. In Mayhew v G & S Mayhew Pty Limited (1995) 12 NSWCCR 398, the worker was injured whilst installing a heating unit for his swimming pool on his roof. He was employed in a business which sold and installed such heaters. Armitage J held that the worker’s injury either arose out of or in the course of his employment, finding that one of the purposes of the installation was work-related: [117].

7. The general nature and terms and circumstances of Mr Van Wessem’s employment required him to be at call within a nominated span of hours. The fact that the worker took his mobile phone with him and routinely responded to calls, both domestic and business-related, during the course of his regular cycling activities lead to the conclusion that, during the course of those rides, he remained in the course of his employment: [121].

8. The respondent’s submission that the course of the worker’s employment was suspended periodically throughout the day and night, depending upon whether he was actually attending to employment-related duties, was rejected. That approach is inconsistent with the test enunciated in Hatzimanolis and confirmed in Badawi. To determine whether an injury occurs in the course of employment is answered not by looking to the circumstances of the particular occasion out of which the injury has arisen, but by having regard to the general nature, terms and conditions of the employment: [122].

9. To satisfy the general nature, terms and conditions of his employment, Mr Van Wessem was either obligated to, or elected to carry a mobile phone with him for the purposes of responding to referrals forwarded to him through Aussie Home Loans.  He did this routinely.  During the course of his regular rides, the unchallenged evidence is that he regularly placed calls to or received calls from clients or potential clients pursuant to the contractual obligations between his employer and Aussie Home Loans. It was part of the general nature and terms of his employment.  When the worker was conducting himself in this way, he was acting in the course of his employment: [123].

10. At the time of his accident, Mr Van Wessem was in the course of his employment within the meaning of s 4: [124].

Substantial contributing factor

11. The meaning of “substantial contributing factor” and the application of s 9A generally were considered at length in Badawi. The Court accepted that the requirement imposed by s 9A that the “employment concerned” was a “substantial contributing factor” involves a causative element. Causation is a fact-laden conclusion which must be based on commonsense: [128]–[129].

12. There was nothing about the time and place of the injury that linked it to the employment save for the fact that Mr Van Wessem was available to respond to phone calls at that time: [133].

13. Although there were similarities with cases such as Badawi, Da Ros v Qantas Airways Limited [2010] NSWCA 89, Watson v Qantas Airways Limited [2009] NSWCA 322 and Hatzimanolis, the facts in this case were different, in that the worker’s employment did not require him to be at any particular location at a particular time when he was working, and did not require him to work at places remote from his home. It afforded him a certain amount of freedom to work at times that were more flexible than traditional working arrangements. This allowed him to combine his work with other pursuits: [137].

14. Mr Van Wessem had engaged in the practice of undertaking a Sunday morning bicycle ride for a considerable period of time before his company entered into its contract with Aussie Home Loans. His practice of undertaking the rides was not altered in any way as a result of undertaking that employment: [151].

15. In that sense, it could not be said that the employment concerned was a substantial contributing factor to the injuries. The nature of the work played no role in the accident. It did not require him to go cycling: [151].

Greater Western Area Health Service v Williams [2010] NSWWCCPD 95

Absence of transcript of arbitral proceedings; need for remitter

Keating P

1 September 2010

Facts:

Ms Williams was employed as a registered nurse at Orange Base Hospital for approximately 20 years.  She alleged to have suffered injury in the form of bilateral carpal tunnel syndrome caused by her work or, in the alternative, that her bilateral carpal tunnel syndrome was exacerbated, aggravated and/or that it deteriorated as a result of her work from 2001 to date.

Ms Williams claimed lump sum compensation under s 66 as a result of injury to her right arm and s 60 expenses.

The hospital denied injury, that her employment was a substantial contributing factor to the injury, and that Ms Williams had a permanent impairment and/or the extent of any permanent impairment. It also disputed the s 60 claim.

The Arbitrator found for the worker on all issues and remitted her for AMS assessment. The hospital appealed.

Held: Arbitrator’s decision confirmed

Injury

1. The challenge to the worker’s medical evidence was rejected on the following basis:

• any discrepancies in the histories recorded by Dr Kwa (treating orthopaedic surgeon) in his two reports of 2002 and 2008 were unsurprising given the substantial interval of time between them. The symptoms that he described were generally consistent with the worker’s evidence and provided a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at 509-10). In particular, he accepted the complaints of symptoms continuing since 2001 and becoming “worse in recent times”: [67].
• there was no valid reason to diminish the weight to be attached to Dr Evans’s opinion (worker’s qualified medicolegal expert).  There was no challenge to his qualifications or to his expertise to express an expert opinion on the worker’s condition.  The facts upon which he relied coincide with the worker’s accepted evidence, or, at the very least, provide a “fair climate” for the acceptance of his opinion (Paric). Dr Evans provided a rational and plausible explanation for his opinion, namely moderately severe carpal tunnel compression of the right wrist, associated with flexor tenosynovitis and tendonitis as a result of overuse of the right hand.  Dr Evans’s report conformed with the requirements for the acceptance of expert evidence per Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 per Heydon JA at [85]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16): [79].

2. Ms Williams suffered a disease condition to which s 16 of the 1987 Act applies, namely, bilateral carpal tunnel compression of both wrists, aggravated as a result of undertaking repetitive duties in the course of her employment with the appellant, and that aggravation is continuing: [82].

3. In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry), Burke CCJ held carpal tunnel syndrome to be a “disease”, saying at [57]:

In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease. [80]

4. Perry was referred to with approval in the Court of Appeal by Mason P in Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; (2007) 5 DDCR 247: [81].

Causation

5. The appellant’s submission that the Arbitrator reversed the onus of proof in determining the question of causation in dealing with the evidence of the worker experiencing symptoms at night was rejected: [83]–[91].

6. Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 distinguished on the facts: [87]–[88].

7. There is no dispute as to Ms Williams’s duties alleged to have given rise to her injuries. She was not challenged on her statements concerning the nature and extent of her duties, nor did the appellant avail itself of the opportunity to cross-examine her when she gave evidence before the Arbitrator: [87].

8. The Arbitrator determined the case based on his consideration of the worker’s lay evidence and the expert medical evidence tendered in her case. In contrast to Honeysett, which required an evaluation of the circumstantial evidence, Ms Willliams’s case required an evaluation of the uncontested lay and objective expert evidence: [88].

9. Once the worker had established her case at least to a prime facie level, the onus of establishing that the dominance of the nocturnal symptoms was more consistent with the respondent’s case of congenital onset of the condition rested upon the respondent in any event (Watts v Rake (1960) 108 CLR 158; [1961] ALR 333): [90].

Section 9A

10. The meaning of the phrase “substantial contributing factor” was recently discussed by the NSW Court of Appeal in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 at [82]: [115].

11. Employment need only be a substantial contributing factor to the aggravation, not to the disease process overall (Murray v Shillingsworth [2006] NSWCA 367 (2006) 68 NSWLR 451; 4 DDCR 313; Perry and Cant v Catholic Schools Office (2000) 20 NSWCCR 88): [117].

12. Whether the employment concerned was a substantial contributing factor to the injury for the purpose of section 9A was a question to be decided on the evidence overall, including a consideration of the matters in section 9A(2). It was not purely a medical question (Awder Pty Ltd trading as Peninsular Nursing Home v Kernick and Anor [2006] NSWWCCPD 222 at [31]). Relevant factors include: first, the consistency of symptoms between 2001 and the hearing; second, the nature of the worker’s duties that put stress on her hands and wrists and; third, the support from her doctors: [124]–[133].

13. The connection between the worker’s employment and her injuries was real and of substance and the provisions of s 9A were satisfied: [133].

Sydney South West Area Health Service (Concord Hospital) v Topp [2010] NSWWCCPD 94

Causation; pre-existing back condition; whether incapacity resulted from work injury or pre‑existing condition; whether incapacity was total or partial; exercise of discretion in section 40(1) of the Workers Compensation Act 1987; unmeritorious appeal; obligation of legal practitioners to comply with section 345 of the Legal Profession Act 2004 when certifying reasonable prospects of success in Part 3 of Appeal Against Decision of Arbitrator

Roche DP

1 September 2010

Facts:

The worker, Mr Mark Topp, injured his back when he tripped and fell in the course of his employment as a nurse for the appellant employer at Concord Hospital on 12 October 2005. Mr Topp sought lump sum compensation in respect of whole person impairment resulting from his injury. The Commission referred the claim to an AMS for assessment. The AMS assessed 27 per cent whole person impairment, but deducted 100 per cent for his pre-existing impairment, certifying nil impairment as a result of the 12 October 2005 accident. Mr Topp had undergone five operations on his back between October 1982 and May 1996.

Mr Topp appealed the assessment. An Appeal Panel revoked the assessment and issued a new MAC with 31 per cent whole person impairment, deducting 93.55 per cent for his pre-existing condition, resulting in two per cent whole person impairment.

Mr Topp lodged an Application in the Commission seeking weekly compensation from 3 March 2009 (although the insurer did not dispute liability until 8 October 2009) to date and continuing, together with hospital and medical expenses.

The Arbitrator found that the effect of the injury of 12 October 2005 had not ceased and found Mr Topp partially incapacitated from 2 March 2009 until 6 December 2009, and totally incapacitated thereafter.

Held: Arbitrator’s determination confirmed.

1. The employer submitted that Mr Topp’s incapacity resulting from the work injury had ceased. However, there was no evidence to support this submission. There was no doubt that Mr Topp had significant back problems prior to the October 2005 accident. However, he had returned to work (initially for three days per week) and had increased his hours to 36 hours per week by the date of the accident. His previous back problems did not prevent him from engaging in full-time employment: [22]-[24]. Dr Bleasel, neurosurgeon, stated that “but for the injury it is probable that he would have continued in this work”: [34]. Dr Hughes, who treated Mr Topp over many years, also stated that the effect of the injury had not ceased.

2. The employer submitted that Mr Topp’s incapacity stemmed from his pre-existing back condition and focused on the level of medication taken by Mr Topp before the October 2005 accident. However, the critical fact was that, notwithstanding a similar (or higher) medication regime after the October 2005 fall, he was unable to resume his pre-accident activities or his pre-accident employment: [48]. Although Dr Fairley reported that, with pethidine injections each week, Mr Topp “functions well at work”, that fell short of the submission that Mr Topp only sustained employment before the accident due to high levels of narcotic medication: [51].

3. The employer’s assertion that the Arbitrator erred in failing to consider the natural deterioration of Mr Topp’s capacity because of his pre-existing condition was without merit. The employer did not put that submission to the Arbitrator, nor was it supported by any persuasive evidence. Dr Pillemer (the employer’s qualified specialist) did not suggest that Mr Topp’s condition would inevitably deteriorate. His evidence was that the effects of that aggravation had “in all probability” ceased: [49]–[50].

4. The submission that the Arbitrator said that the cause of the worker’s total incapacity was his “requirement to detoxify from his pain medication” was false. The Arbitrator stated that the worker “was totally incapacitated from 7 December 2009 to date and continuing and that the injury in the fall of 12 October 2005 and subsequent increase in medication materially contributed to this period of total incapacity” [54].  Further, the employer called no evidence that the decrease in the level of medication in December 2009 resulted from Mr Topp’s pre-existing condition and not from the effects of the fall and its consequences: [56].

5. The employer submitted that Mr Topp was capable of performing sedentary duties in health care. This submission was based on the fact that Mr Topp was undertaking further studies. However, although Mr Topp continued with his part-time university studies, he modified his learning methods to avoid lab sessions and university attendances. He predominantly studied by the internet and listened to taped lectures. His work experience at Glebe Morgue was limited to observing the doctors conduct autopsies and other procedures. He sat and stood at will, and was not required to do any lifting. A better guide was his attempt to return to work in 2006, when he initially worked one night per week but, on attempting two nights per week, stopped work because his back pain increased: [64]–[66].

6. Total incapacity is determined by having regard to the worker’s practical situation, looking at “what is the relevant labour market, ie what work the worker was doing or could be reasonably expected to do; and what kind of work is the worker physically able to do”. What is in question is “capacity or incapacity ‘for work’” (Lawarra Nominees Pty Ltd v Wilson (1996) 25 NSWCCR 206 at 213): [67].

7. Applying these principles from 7 December 2009 to date and continuing, Mr Topp was totally unfit for work because of the effects of the injury on 12 October 2005: [68].

8. In respect of the period of partial incapacity, the employer submitted that any award under section 40 should be reduced to reflect Mr Topp’s pre-existing back condition, but provided no authority to support that submission: [72].  The discretion under section 40 is a broad one (Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 at 534F), and requires the Commission to look at the circumstances of the case (Australian Wire Industries Pty Ltd v Nicholson (1985) 1 NSWCCR 50 at 55): [72]–[75].

9. However, there was no proper basis for the exercise of the discretion in this matter. Although Mr Topp had a significant back impairment prior to the October 2005 accident, he was able to secure and maintain full-time employment for several years. The increase in symptoms in 2005 was consistent with the nature of Mr Topp’s condition. His symptoms fluctuated over time. The critical fact was that he continued with his full-time employment until the accident: [78].

10. The employer submitted that the s 60 expenses should be apportioned between the pre-existing impairment and the impairment as a result of the accident in October 2005. However, the question of apportioning liability did not arise at the arbitration and would require further evidence from Mr Topp to meet it. It is not permissible for the appellant employer to raise a new issue on appeal (Coulton v Holcombe [1986] HCA 33, 162 CLR 1). Further, the employer called no evidence on this issue: [79]–[82].

11. Practitioners are reminded that the provision of legal services in an appeal without reasonable prospects of success is capable of amounting to unsatisfactory professional conduct or professional misconduct (s 345 of the Legal Profession Act 2004 (Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60)).

Visy Board Pty Ltd v Nguyen [2010] NSWWCCPD 101

Section 261 of the Workplace Injury Management and Workers Compensation Act 1998, notice of claim; proof of injury; admission of late evidence

O’Grady DP

23 September 2010

Facts:

Mr Nguyen commenced work with Visy Board Pty Ltd, the appellant, in September 2000 as a plate maker/machine operator. He injured his back in the course of his employment with the appellant on 20 April 2007.

He had two periods of absence from duties due to severe back pain. Mr Nguyen lodged a claim form dated 10 August 2007 with the appellant’s insurer. He returned to work in late October 2007 on a return to work program. Mr Nguyen is still employed by the appellant, but he has not returned to his full duties due to the painful symptoms caused by the injury.

In January 2009, Mr Nguyen claimed lump sum compensation pursuant to s 66 and s 67. He claimed he had suffered 12 per cent whole person impairment in respect of the lumbar spine and five per cent whole person impairment in respect of the thoracic spine, with the combined value of those assessments being 16 per cent whole person impairment.

In the s 74 notice, the appellant disputed the occurrence of injury to Mr Nguyen’s thoracic spine and that a claim had been in compliance with s 261(1) of the 1998 Act.

At the arbitration, the appellant admitted liability in relation to Mr Nguyen’s lumbar spine injury. The Arbitrator made a finding that he had also suffered an injury to his thoracic spine on 20 April 2007 and that notice had been given as required by s 261(1). The Arbitrator made an order that the CT scan report of Mr Nguyen’s thoracic spine dated 13 April 2010 be admitted into evidence.

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

• failing to give sufficient reasons for her decisions as to the disputed injury and the giving of notice;
• failing to have regard to the evidence when determining whether Mr Nguyen suffered an injury to his thoracic spine, and
• admitting into evidence, over objection, the CT scan.

On appeal, there was confusion concerning the defence raised by the appellant. The submissions suggested failure to give notice of injury (s 254) as distinct from non-compliance with the notice requirements, which relate to the making of a claim (s 261). No dispute concerning notice of injury had been particularised in the s 74 notice: [56].

The appellant argued that there was non-compliance with the notice provisions because Mr Nguyen failed to specify injury to the thoracic spine.

The appellant also submitted that the Arbitrator’s factual conclusion that Mr Nguyen suffered injury to his thoracic spine was “inconsistent with the weight of medical and factual evidence”: [65].

Held: Orders 1 and 3 of the Arbitrator’s decision confirmed; Order 2 of the Arbitrator’s decision revoked; Tender of CT scan report dated 13 April 2010 was rejected and was not to be forwarded to the AMS.

Notice of claim

1. The provision of the claim form constituted both notice of injury (s 254) and notice of claim (s 261). Mr Nguyen’s claim with respect to whole person impairment arising from the alleged thoracic injury is to be taken as having been made at the time of presentation of the claim form (s 261(3)): [62].

2. Reference was made to Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315. Roche DP held that the word “injury” meant “injurious event” as it appears in s 254. A distinction was drawn between the “pathology said to have resulted from the injurious event” and the occurrence of the event itself. It was stated (at [56]):

A worker is not expected to know the exact nature and extent of his injury at the time of initial notification. Any other interpretation of ‘injury’ in this section would lead to the unsatisfactory situation of a worker who gives notice of an upper back strain being barred from claiming compensation in the event that medical investigations subsequently reveal that he or she in fact sustained a lumbar disc injury. There may well be arguments about causation, but provided the evidence supported a connection between the injurious event and the subsequently discovered lumbar disc lesion, the worker would not be barred from recovering compensation because he or she did not initially give ‘notice of injury’ for the correct body part.

Injury to thoracic spine

3. Injury to the lumbar spine was conceded. Liability in respect of Mr Nguyen’s injury to the thoracic spine had to be decided by the Commission before the matter was remitted for referral to an AMS.

4. In the case of alleged injuries to the spine, the distinction between the occurrence of an injurious event and the pathological consequences of such an event was of particular significance: [63].

5. Chapter 15 of The Guides to the Evaluation of Permanent Impairment published by the American Medical Association (AMA5), as modified by the WorkCover Guides, distinguishes four regions of the spine, namely, the cervical, thoracic, lumbar and sacral vertebrae and associated soft tissues. Appropriate referral needs to be made by the Registrar with respect to the Commission’s finding as to the pathological consequences of the injurious event.

6. The Arbitrator’s reasons for her conclusion were brief, but were sufficient. She gave close attention to the evidence, in particular, the medical evidence, including the diagnoses and particular findings made by those who had examined Mr Nguyen. The Arbitrator acknowledged that the focus of those treating Mr Nguyen was upon the injury to his lumbar spine. However, the evidence overwhelmingly supported the complaint of injury to the thoracic region from the very early days and that there had been ongoing complaints of pain at that level thereafter: [73].

7. The Arbitrator’s conclusion concerning the occurrence of injury to the thoracic spine was one open to her on the evidence.

CT scan

8. A CT scan report of Mr Nguyen’s thoracic spine dated 13 April 2010 was provided to the appellant for the first time on the day of the arbitration hearing. Mr Nguyen had not previously served this report on the appellant. The appellant had not had the opportunity to have the findings of the scan scrutinised by its expert witnesses and therefore the appellant would be prejudiced if the report was to be admitted into evidence. The tender of the report was rejected and consequently the report would not be forwarded to the AMS.

Nand v Spotless Services (NSW) Pty Ltd [2010] NSWWCCPD 103

Injury; aggravation of disease; weight of evidence

Roche DP

28 September 2010

Facts:

Mr Nand worked as a storeman for Spotless since December 2006. His duties required him to load and push heavy trolleys up ramps.

In his claim form dated 28 January 2009, Mr Nand said that he injured his right knee whilst pushing a trolley up a ramp on 23 January 2009. He also stated that his knee had been normal before the accident.

Spotless’s insurer, QBE, initially accepted liability. QBE denied injury, that employment was a substantial contributing factor to the injury, incapacity, and entitlements to s 60 expenses.

Mr Nand filed an Application in the Commission claiming weekly compensation from 1 April 2009 to date and continuing, together with hospital and medical expenses of $612.25. The Application particularised an injury to his right knee while pushing the trolley up a ramp and also that the “nature and conditions” of Mr Nand’s employment aggravated, exacerbated or caused an injury to his back and right leg, including the right knee, and, in the alternative, the injuries received arose as a result of a disease of gradual onset.

Spotless filed a Reply. It relied on the issues identified in the s 74 notice. In relation to the “nature and conditions” claim, it disputed injury (s 4), substantial contributing factor (s 9A) and submitted that the worker had not “duly notified and/or made a claim” in respect of any alleged injury as a result of the “nature and conditions” of employment.

At the arbitration hearing, Mr Nand amended his claim to delete any reference to the back.

The Arbitrator found that the “nature and conditions” claim had been duly made, but that Mr Nand did not suffer injury as a result of the nature and conditions of his employment. Mr Nand did not suffer a torn meniscus in the incident on 23 January 2009. He suffered from osteoarthritis in his right knee, a pre-existing condition which was aggravated on 23 January 2009, but the aggravation was of a minor nature that ceased by the date of Dr Wilcox’s examination on 17 February 2009. Any incapacity from 17 February 2009 resulted from Mr Nand’s underlying degenerative osteoarthritis and was not work-related.

An award was made for the respondent (because QBE had accepted liability and paid compensation up to the end of March 2009).

Mr Nand appealed. The issues in dispute in the appeal were whether:

• the worker suffered an injury as a result of the work he performed with the respondent employer,
• he suffered an injury as a result of an aggravation or exacerbation of a disease,
• employment was a substantial contributing factor to the injury, and
• the effects of his injury were continuing.

Held: Arbitrator’s orders revoked and matter remitted

1. The Arbitrator failed to properly consider the evidence and failed to give proper weight to Mr Nand’s heavy duties and the evidence from his treating general practitioner (Dr Lau) and orthopaedic surgeon (Dr Davé): [61].

2. The fact that the “nature and conditions” and disease allegations were late amendments to the claim was of little weight in the overall assessment of the claim. Both the worker’s treating GP and orthopaedic surgeon supported his claim in respect of the injury on 23 January 2009 and in respect of the aggravation of a disease as a result of the duties Mr Nand performed in the course of his employment with Spotless: [62].

3. The fact that the worker’s claim form only referred to the injury on 23 January 2009 and that Mr Nand wrongly said in that document that his knee was normal before 23 January 2009 was not decisive and did not destroy his case. However, it did require a careful assessment of the claim to determine its consistency and reliability having regard to all the evidence: [63].

4. That Mr Nand did not refer to his work duties when he saw Dr Lau and Dr Davé before 23 January 2009 was of limited relevance and was not determinative [64]:

• The uncontested evidence was that Mr Nand’s duties required him to regularly load and unload trolleys with 20 kg weights and to push and pull heavy trolleys up ramps.
• Significantly, neither Dr Lau nor Dr Davé took a history of any other activity that might have caused, or contributed to, Mr Nand’s knee symptoms.
• There was no evidence that Mr Nand injured his knee while participating in sporting activities.
• At its highest, the absence of a history of his duties at his first attendances on Drs Lau and Davé suggested that Mr Nand did not know the cause of his symptoms in 2008 and early 2009. That was of no great weight, especially in circumstances where it was not disputed that the duties were heavy and where his treating doctors, having the full history, accept a connection between his injury and his work.

5. Consistent with Dr Davé’s evidence, Mr Nand tore the meniscus in his right knee as a result of his heavy duties and/or as a result of a twisting incident whilst pushing a heavy trolley in the course of his employment on 23 January 2009.

6. Further, or in the alternative, it was undisputed that Mr Nand had osteoarthritis in his right knee and that his symptoms increased in late 2008 and early 2009 while he remained at work performing heavy duties with Spotless. A disease is aggravated if the symptoms are made more severe or more grave for the individual (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626). Mr Nand’s symptoms were clearly made more severe as a result of his duties with Spotless: [84].

7. Mr Nand suffered an injury in the nature of an aggravation of the disease of osteoarthritis in his right knee as a result of the heavy duties he performed with Spotless up to and including 23 January 2009 under s 4(b)(ii) of the 1987 Act. In view of Mr Nand’s continuing symptoms, the effect of the aggravation was continuing and Mr Nand was incapacitated as a result: [69].

8. Although Mr Nand had knee symptoms before 23 January 2009, he was not incapacitated until he stopped work on 23 January 2009. Therefore, the appropriate deemed date of injury for the disease injury was the date of incapacity, namely, 23 January 2009 (s 16(1)(a)(i) of the 1987 Act and P & O Berkeley Challenge Pty Ltd v Alfonso & Ors [2000] NSWCA 214; 49 NSWLR 481).

9. The evidence comfortably satisfied the test in s 9A in respect of both the aggravation injury and the injury on 23 January 2009: [66].

10. Remitted for determination of Mr Nand’s entitlement to compensation because the evidence was a year old and neither party submitted on appeal on the award that should be made.

The Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98

Section 11A of the Workers Compensation Act 1987; psychological injury wholly or predominantly caused by unreasonable action

O’Grady DP

14 September 2010

Facts:

Ms Walsh commenced employment with the Greater Southern Area Health Service, the appellant, in 2003 as an enrolled nurse working casually at both Young District Hospital and Murrumburrah-Harden District Hospital. Ms Walsh was employed on a permanent basis performing part-time work at the aged care unit at Murrumburrah from December 2007.

She started to experience conflict with other staff members in approximately April 2008. At about that time, allegations, which were the subject of an investigation, were made against her concerning her management of residents.

During the conduct of this investigation, Ms Walsh experienced symptoms of depression and was on sick leave for three weeks during May 2008. She was informed in June 2008 that the investigation had been completed and a “Performance Management Plan to address her work related behaviour” was put in place. At this time, Ms Walsh had been diagnosed as suffering from a major depressive disorder.

She continued to work, but experienced conflict with a co-worker. She made two written complaints to her superior alleging “bullying and harassment” by the co-worker. On 29 January 2009, she was diagnosed as suffering work-related stress and anxiety, and was absent from work for three weeks on workers compensation benefits.

Ms Walsh commenced a return to work program on 23 February 2009 and completed this on 24 March 2009. On the following day, she was informed that a complaint had been made against her by a resident. Specifically, there was an allegation of “rough handling” of a resident during a transfer from his bed to a chair, resulting in a bruise on his right arm.

On 26 March 2009, Ms Walsh was suspended with pay. An investigation was immediately initiated. The police were notified, as were the relatives of the resident. Ms Walsh received correspondence on 30 March 2009, dated 26 March 2009, confirming the conduct of an investigation and she received an email on 15 April 2009 informing her of further allegations which were also to be investigated. Her mental state deteriorated in April 2009 and she was admitted to Calvary Hospital, Canberra. She has not returned to her duties with the appellant.

In August 2009, Ms Walsh claimed workers compensation benefits. The insurer declined her claim on the basis that her injury, a psychological injury, was not compensable, as it was wholly or predominantly caused by “reasonable actions” taken by the appellant in respect of discipline.

There was no dispute as to the occurrence of injury and that incapacity had resulted from that injury.

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

• failing to give sufficient reasons for his conclusions of fact, and
• failing to find that a s 11A defence had been made out.

The appellant submitted that it was impossible to determine from the Arbitrator’s Reasons what finding was made with respect to causation of injury. Ms Walsh submitted that the Arbitrator made his reasons “abundantly clear” and made a finding that the injury was “caused by receipt … of the letter from the appellant of 26 March 2009 … and email of 15 April 2009”.

The appellant also argued that, in deciding the relevance of s 11A, the Arbitrator should have considered the entirety of the appellant’s conduct with respect to the issues of discipline and/or termination. Ms Walsh submitted that consideration of the whole of the disciplinary process was not required.

Held: Paragraph 1 of the Arbitrator’s decision revoked; Award for weekly compensation pursuant to s 37 in favour of the worker from 14 December 2009 to date and continuing; Paragraphs 2, 3 and 4 of the Arbitrator’s decision confirmed.

Sufficient reasons

1. Reasons provided in support of a decision should be sufficient to enable a party to exercise a right of appeal (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

2. The Arbitrator failed to discharge his obligation to clearly state reasons for his conclusions. The Arbitrator should have detailed:

• an analysis of the evidence;
• a determination as to whether the injury had been wholly or predominantly caused by the appellant’s actions within the meaning of s 11A, and
• if the facts attracted the application of s 11A, whether such action was reasonable.

Causation

3. Accordingly, on appeal the evidence was reviewed and it was found (at [75]) that the following actions taken on behalf of the appellant were with respect to discipline of Ms Walsh:

• the communication by Ms Downey on 25 March 2009 to Ms Walsh that a “complaint” had been made against her;
• her immediate suspension with pay;
• the institution of an investigation, and
• the email dated 15 April 2009 sent to Ms Walsh requesting her attendance at a fact-finding interview at the manager’s office on 21 April 2009, and containing a number of further “allegations” concerning her conduct that had been raised during the investigation.

4. Dr McClure, consultant psychiatrist, expressed the view that Ms Walsh’s psychiatric injury was caused by receipt of the verbal and written communications in March and April 2009 concerning the allegations and the commencement of investigations. Those investigations concerned matters relating to discipline, as was made clear by the appellant’s reference to the provisions of s 117 of the Health Services Act 1997:  [75].

5. Ms Walsh’s injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the appellant with respect to discipline within the meaning of s 11A(1). This finding concerning causation involved action by the appellant in a series of steps which cumulatively had psychological effects on Ms Walsh (see Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [96]).

Was action reasonable?

6. The appellant argued that its actions were reasonable and, further, that they were “mandated … by law and policy”. The appellant relied upon three documents, namely, Identifying Reporting and Responding to Allegations of Assault in GSAHS residential aged care, a Policy Directive issued by Department of Health NSW, and compulsory reporting guidelines for approved providers of residential aged care issued by Commonwealth Department of Health and Ageing. It submitted that these documents governed its response to the “complaint”.

7. The guidelines issued by the Commonwealth Department of Health and Ageing contain a paragraph that recognizes that “there may be circumstances where a staff member could be genuinely trying to assist a resident, and despite their best intentions the resident is injured because the person bruises easily or has fragile skin. Injury alone therefore may not provide conclusive evidence of either the use or unreasonable force or the seriousness of an assault”. There was no evidence that attention had been given, by the appellant, to the cautionary wording of this guideline.

8. The appellant continued the action against Ms Walsh in the knowledge that the resident’s treating doctor reported that it was difficult to ascertain the duration of the bruise given his ongoing antiplatelet medication and “there is every possibility that one does not have to have a major trauma to sustain this bruising”.

9. The appellant’s conduct was not reasonable having regard to all the surrounding circumstances and, in particular, to the following important factors:

• the resident did not want to make a formal complaint;
• the police reported that the resident declined to make a statement and no further police action was taken;
• the resident’s relatives, who were informed of the suggested complaint, chose to take no action;
• the additional allegations were elicited from individuals questioned by investigators using “leading and assumptive questions”, and
• a fellow worker who Ms Walsh said she had been working with at the relevant times was not interviewed by the appellant.

10.The fact that legislation and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable. Proper exercise of judgment and assessment of facts and circumstances must be made by those responsible to determine the threshold question as to whether such action is required. Any subsequent action must, if a defence is to be made out, be reasonable. The decision to institute the action and the manner of conduct of the appellant in the course of the investigative process were not reasonable. Therefore, the defence founded upon the terms of s 11A failed: [102].

11. Ms Walsh was therefore entitled to an award for weekly payments.

Ivsic v The Croatian Club Limited [2010] NSWWCCPD 105

Worker; contract of employment

Keating P

29 September 2010

Facts:

Mr Ivsic alleged that he sustained injury to his neck, back, anxiety and/or depression on 20 April 2007, when he fell while climbing out of an industrial waste bin. He also alleged injury on 25 April 2007, when he and a member of the Club’s staff lifted a garbage bin full of waste food to empty it into a larger industrial bin. He also claimed injury as a result of the “nature and conditions” of his employment between 15 February 2007 and 25 April 2007.

Mr Ivsic had previously suffered a brain injury in a car accident and the evidence disclosed multiple delusional episodes.

The respondent denied employing Mr Ivsic. It alleged that he was a patron of the club. Mr Jaksic from the respondent confirmed that he gave Mr Ivsic small amounts of money from time to time as a gift because he felt sorry for him. He also said that he gave him money to stop him annoying patrons and bar staff by frequently asking for money. The respondent claimed, to the extent that Mr Isvic did any work around the club, it was voluntary.

The Arbitrator found for the employer, on the basis that Mr Ivsic had failed to discharge the onus of proving the existence of an employment contract between himself and the respondent. In the alternative, if she was wrong on the issue of “worker”, she found that Mr Ivsic did not suffer injury in the form of anxiety and depression, and any injury to the neck or back was a temporary aggravation of underlying degenerative changes.

Mr Ivsic appealed.

Held: Arbitrator’s decision confirmed

1. Mr Ivsic bore the onus of establishing that the arrangements between him and the club were such as to evidence an intention by the parties to enter into legal relations (Teen Ranch Pty Ltd v Brown (1995) 11 NSWCCR 197 at 201): [89].

2. The respondent’s evidence was preferred to the worker’s evidence. Mr Ivsic failed to establish the existence of a contract of employment: [90]–[107].

3. There were no witnesses to the incident on 20 April 2007. He did not report the incident until he filled in a claim form almost two years later. He did not claim to be incapacitated. When Mr Ivsic visited his general practitioner on 23 April 2007, he made no reference to the injury. In the absence of any objective evidence to corroborate Mr Ivsic’s belated complaints of injury on that occasion, Mr Ivsic failed to discharge the onus of proof that he was injured in the circumstances as he alleges: [108].

4. In relation to the incident on 25 April 2007, an employee of the respondent’s confirmed that there was an occasion when she assisted Mr Ivsic to empty waste bins in the manner described by him, but Mr Ivsic did not complain of having suffered an injury. When he attended his general practitioner on 26 April 2007, he stated that he was suffering from back pain from “moving rubbish in club”: [110].

5. Mr Ivsic was injured in the circumstances as alleged on 25 April 2007, but he performed that activity as a volunteer, not as an employee: [111].

6. Notwithstanding the findings on employment, the following findings on injury and incapacity were made:

• There was no evidence at all in relation to the allegation of psychological injury as a result of the injuries pleaded. As a consequence, the allegation of psychological injury was not proven: [112].
• There was no dispute on the medical evidence that Mr Ivsic suffered from a lumbar strain and/or an aggravation of pre-existing degenerative changes in his lumbar and cervical spine in April 2007. However, Mr Ivsic had been receiving treatment for those degenerative changes for many years: [117].
• Taking all the evidence into account, the President preferred the evidence of Dr Millons, who opined that any problems Mr Ivsic may now be suffering in his neck and back are likely to reflect long-term degenerative changes, rather than the effects of the alleged injury. Therefore, the effects of the alleged injuries sustained in April 2007 are no longer continuing: [118].

Greater Western Area Health Service v Johnston [2010] NSWWCCPD 100

Absence of transcript of arbitral proceedings; need for remitter

O’Grady DP

16 September 2010

Facts:

Ms Johnston commenced work with Greater Western Area Health Service, the appellant, on a part-time basis (four shifts per week) as an assistant in nursing in December 2006. She was concurrently studying at Charles Sturt University to attain a degree to qualify as a registered nurse.

On 3 September 2007, she injured her lower back (L4/L5) in the course of her employment and remained absent from work until 20 September 2007. Upon her return, Ms Johnston worked four hours per day three days a week doing light clerical work. By early 2008, she was working full-time hours doing the same light work.

Ms Johnston attempted to return to her duties as an assistant in nursing on 28 July 2008, but was unable to continue with these duties as the disabling back pain returned. She remained absent from work for a further period of two weeks and again returned to her light clerical duties. These suitable duties were “withdrawn” by the appellant, at which time her employment ended.

Ms Johnston conducted a horse riding business from October 2008 to June 2009. On 2 July 2009, she then commenced employment with Central West Family Support (38 hours per fortnight).

Ms Johnston claimed weekly payments between 1 October 2008 and 30 June 2009, lump sums in respect of whole person impairment, and medical expenses. The insurer denied these claims.

The Arbitrator found in favour of Ms Johnston in respect of each claim and remitted the matter to the Registrar for referral to an AMS to assess impairment resulting from the L4/5 disc protrusion suffered on 3 September 2007.

The issues in dispute on appeal were whether the Arbitrator erred in awarding weekly payments beyond those claimed by Ms Johnston (the Arbitrator made an award from 1 October 2008 to 30 September 2009, but the worker only claimed to 30 June 2009), the manner of the application of s 40, and the making of the s 60 order.

On appeal, it became apparent that a transcript of the arbitral proceedings was unavailable due to technical failure. The parties were prepared to proceed with the appeal in the absence of the transcript.

Held: Remitted to another Arbitrator for determination of any entitlement to weekly compensation between 1 October 2008 and 30 June 2009 and any entitlement to a s 60 order; Costs of appeal to follow the final costs order following remitter to, and hearing by, another Arbitrator.

1. The difficulties which arise when there is no record, or an incomplete record, of proceedings were addressed by Bryson JA (with whom Handley JA and Bell J agreed) in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34; 4 DDCR 358, where it was stated (at [32]):

This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s 352; and also impedes the conduct of a further appeal under s 353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.

2. The absence of the transcript meant that there was no certainty as to what arguments were raised by the parties during the arbitration concerning the fundamental issues for determination: [20].

3. The absence of the transcript gave rise to such practical difficulties that the matter had to be remitted to another arbitrator for determination of weekly payments and s 60 expenses afresh.

4. The confused state of the evidence compounded the problems faced by the absence of the transcript: [22].

5. As Ms Johnston was self-employed during the period she claims weekly payments, precise evidence of the value of her labour to the business, or a detailed examination of the business accounts, is required (see Cage Developments v Schubert [1981] 2 NSWLR 227 at 230).

6. In accordance with s 354(3), the Arbitrator may be mindful to provide leave to the parties to adduce additional evidence relevant to Ms Johnston’s entitlement, if any, to an award of weekly compensation prior to the determination of the issues in dispute.

Energy Australia Pty Limited v Butler [2010] NSWWCCPD 102

Keating P

24 September 2010

Facts:

A Certificate of Determination was issued in which an award of compensation was made pursuant to ss 66 and 67 of the 1987 Act. The Arbitrator’s decision was based on the Appeal Panel decision.

The Supreme Court subsequently quashed the Appeal Panel decision (Energy Australia v Butler [2010] NSWSC 487).

The employer argued the Arbitrator’s decision was invalid and should be revoked.

Held: Arbitrator’s decision revoked and matter remitted

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], Ryan v State Transit Authority of NSW [2004] NSWWCCPD 81 and Cemex Australia Pty Ltd v Freriechs [2009] NSWWCCPD 101): [45].

2. The Arbitrator’s decision was based on the assumption that a valid and binding Appeal Panel decision was issued. In light of the Supreme Court judgment and order, that assumption was no longer valid. The Supreme Court quashed the Appeal Panel decision. It followed that all decisions and orders of the Commission based on that MAC and consequential to it could not stand and must be revoked: [46].