Issue 6: June 2010

Claim for lump sum compensation where injury conceded; referral to AMS; issues in dispute

Roche DP

5 May 2010

Facts:

This appeal concerns the application of the principles in Haroun v Rail Corporation NSW & ors [2008] NSWCA 192 (‘Haroun’) where the only compensation claimed was lump sum compensation for WPI and the employer conceded that the worker received an injury.

Ms Moore, executive assistant at the Council, did mainly clerical duties but she often set up Council functions. This required physical exertion by her to move plants and other objects. On 16 September 2004, she injured her back moving a pot plant in the Council’s foyer. The Council did not dispute the incident nor injury, however it disputed the nature and extent of injury. The Council met the cost of two back operations Ms Moore had in May 2007.

On 6 September 2007, Ms Moore claimed work injury damages from the Council, and then later, ss66 and 67 compensation. The Council’s s74 notice disputed whether Ms Moore suffered at least 15% WPI, alleging that it was a minor soft tissue injury only. Any incapacity beyond a few days from the date of injury resulted from causes other than the incident.

The Arbitrator’s decision of 7 October 2008 identified the “real issue” to be whether Ms Moore had damaged a disc in her low back when she moved the pot plant. He found the injury to be a strain but referred the WPI claim to an AMS for assessment.

Ms Moore appealed the Arbitrator’s finding that she had only suffered a strain. Snell ADP refused leave to appeal on the ground that the Arbitrator’s decision was an interlocutory order of a preliminary nature (Moore v Greater Taree City Council [2009] NSWWCCPD 17).

The Council then requested the Arbitrator to reconsider his decision (s350(3) of the 1998 Act), arguing that the result of his decision was that the effects of the work injury had resolved within a few weeks and, consistent with the principles in Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 32 (‘Waretini’), he should have entered an award for the council and not referred the WPI claim to an AMS.

By decision dated 11 May 2009, the Arbitrator declined to vary his previous determination. He confirmed that the parties agreed that Ms Moore suffered an injury on 16 September 2004 but stated that the dispute he determined was as to the nature of the injury, to be assessed by an AMS. The AMS assessed 13% WPI, having deducted 40% from 22% WPI for pre-existing degenerative changes. The MAC was appealed by both parties but confirmed by the Appeal Panel. Following a post-MAC teleconference, the Arbitrator issued a Consent Order dated 4 November 2009 for payment of s66 for 13% WPI and $16,500 for s67.

The Council appealed the decisions of 7 October 2008, 11 May 2009 and 4 November 2009.

Held: Arbitrator’s decision of 7 October 2008 revoked in respect of finding of pre-existing condition and injury being a strain. All other findings and decisions confirmed.

1. The critical (and only) issue in dispute was whether, as a result of her admitted injury, Ms Moore had an entitlement to lump sum compensation and, if so, the extent of that entitlement.  The jurisdiction to determine the extent of WPI rests with an AMS and his or her MAC is conclusively presumed to be correct on the issue of the degree of permanent impairment and whether any proportion of the impairment is due to any previous injury or pre-existing condition or abnormality (s 326 of the 1998 Act).  [98]

2. This construction is consistent with Haroun, where it was held that “[i]f there is a medical dispute of a kind defined in s 326(1) of the 1998 Act, an Arbitrator has no jurisdiction to decide it, but ‘may refer it for assessment’ by an AMS: s 321(1)”.  Since the Arbitrator had no jurisdiction to decide the medical dispute (the extent of WPI), he had no jurisdiction to make findings that were binding on an AMS or an Appeal Panel. That the parties agreed that the effects of an injury were continuing did not prevent an AMS from finding that no impairment resulted from that injury (Handley AJA, McColl JA and McDougall J agreeing).

3. Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 32 (‘Waretini’) concerned a claim for lump sum compensation and weekly compensation. The Arbitrator found that the effects of the injury had ceased, therefore he made an award in favour of the employer in respect of the weeklies claim. Notwithstanding that finding, the lump sum claim was referred to an AMS for assessment of WPI. On appeal, Snell ADP held that once causation had been determined, there was no “dispute” to be referred to an AMS because the dispute had been resolved by the finding on causation.

4. The difference between Waretini and the present claim was that the latter only involved lump sum compensation. Had weekly compensation incapacity been an issue in dispute, the Commission would have been required to determine that matter and had it determined that the effect of the injury had ceased, there would have been no medical dispute for referral to an AMS (Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47). The decision would have created an estoppel (WorkCover New South Wales v Evans [2009] NSWWCCPD 95) preventing an AMS from making a finding inconsistent with the Commission’s determination. However, since incapacity was never an issue in dispute in the present matter, the principles in Waretini, Evans and Peric did not apply.

5. Both parties sought a reconsideration by the Arbitrator in order to obtain orders more favourable to their respective positions. By doing this, the parties misunderstood the nature of the reconsideration power in s 350(3) of the 1998 Act. If a party alleges that an Arbitrator has erred, the proper course to be followed is to seek leave to appeal to a Presidential member, not to seek to cavil with the Arbitrator’ decision in order to obtain a more favourable outcome. See the Registrar’s Guideline, October 2007.

6. The evidence established that Ms Moore’s pre-existing condition of left buttock pain and disc degeneration had resolved or was not incapacitating and that her condition subsequent to the injury worsened. The abitrator’s finding that Ms Moore suffered a strain that resolved in a few weeks was unsupported by any persuasive evidence.

7. At its highest, the Council’s case was that Ms Moore had a pre-existing vulnerable back. That was most relevant to any deduction under s 323 for a pre-existing condition, but it did not mean that Ms Moore did not receive an injury on 16 September 2004.  Employers must take their workers as they find them.

8. The decisions of 7 October 2008 (that the worker had recovered from a minor strain) and 4 November 2009 (that the worker had a 13% WPI as a result of the injury) were inconsistent and could not sit together. The Arbitrator did not err in referring the assessment of WPI to an AMS. He also did not err in refusing to revoke that order on reconsideration. However, he did err in finding that Ms Moore suffered only a strain on 16 September 2004. The overwhelming inference from the evidence was that Ms Moore suffered a disc injury on 16 September 2004.

Vereyken Brothers Pty Ltd v Relf [2010] NSWWCCPD 53

Injury; thoracic outlet syndrome; expert evidence; weight of evidence; causation; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, (2001) 52 NSWLR 705 (‘Makita’)

Roche DP

18 May 2010

Facts:

Mr Relf worked as a welder/ labourer for the appellant employer. His duties involved lifting pieces of metalwork, welding, grinding, cutting, and loading and unloading equipment from trucks. In May 2007, Mr Relf noticed that his left index finger regularly felt cold. His symptoms progressed and he developed numbness, coldness and discomfort in his left hand and arm. Mr Relf was diagnosed with a congenital cervical rib and thoracic outlet syndrome. He underwent a resection of the left cervical rib and repair of a left subclavian aneurysm.

Mr Relf claimed payment of hospital and medical expenses, and lump sum compensation. He described the injury as having occurred due to the frequent and repetitive use of his arms in awkward positions, vibration and low temperature exposure.

The employer disputed injury to the left arm as a result of employment.

At the arbitration, the employer called oral evidence from Associate Professor Myers to the effect that Mr Relf’s condition was unrelated to his employment. Although the Arbitrator found the Professor to be an impressive witness, he was not satisfied with the Professor’s conclusion that working with an arm over the head would have no effect on Mr Relf’s condition, preferring the evidence of Mr Relf’s qualified occupational physician (Dr Dryson) on this point. As a result, he found in favour of Mr Relf, finding that he had “probably aggravated, exacerbated and deteriorated his condition” by virtue of the nature of his work with the appellant.

On appeal, the employer argued that Dr Dryson’s evidence failed the Makita standard because it lacked rigour and he failed to explain the basis for his conclusion. His evidence should not have been preferred over the tested opinion of the Professor.

Held:  Arbitrator’s decision confirmed.

1. The appellant never argued before the Arbitrator that Dr Dryson’s evidence failed the Makita standard and never objected to the Arbitrator admitting the report into evidence (T35.10).  Had it done so, and had the objection been successful, Mr Relf’s solicitor would no doubt have sought to call additional evidence.  Parties must fully prepare and present their cases at the arbitration.  It was not appropriate to await the outcome of the arbitration and then decide to present entirely new arguments on appeal.

2. It is not necessary for an expert to explain the research, texts, and articles that are the source of his or her knowledge (see generally Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [89]), though that may well assist the Commission in determining the weight to be given to the evidence. Dr Dryson based his opinion on his specialised knowledge and the Commission was entitled to consider his evidence, together with all other evidence, in determining the issue in dispute.

3. The Commission is required to apply the commonsense test (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452) to determine causation, which requires an evaluation of all the evidence. The Commission then reaches a factual conclusion according to law (South Australian Emergency Commission v Workers Compensation Tribunal and anor [2009] SASC 213 at [59]). In reaching that conclusion, “the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists” (McDougall JA in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]).

4. The medical evidence established that a cervical rib can “kink” (compress) the subclavian artery even without elevation of the arm, but that is not always the case. Mr Relf’s duties required him to work for long periods with his arm elevated. Dr Dryson’s description of the physiological effects of arm elevation on the subclavian artery in the presence of a cervical rib provided a clear explanation for his conclusion that, had it not been for his employment with the appellant, Mr Relf would not have developed his thoracic outlet syndrome and brachial artery thrombosis.

5. This conclusion on causation not only accorded with commonsense, it was consistent with the evidence of constriction of Mr Relf’s subclavian artery on raising his arm above his head in the angiography on 16 August 2007.  The conclusion was supported by the fact that Mr Relf’s symptoms started at, and were aggravated by, his duties with the appellant.

6. Whilst Associate Professor Myers, who was qualified by the employer, was adamant that working with the arm elevated was irrelevant to the development of Mr Relf’s condition, on close analysis, his dismissal of any connection with work was not entirely consistent with his evidence as a whole.

Doubleday Australia Pty Limited v Preston [2010] NSWWCCPD 47

Partial incapacity; ability to earn; application of principles in Aitkin v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 and Pira Pty Ltd v Tucker [1996] NSWSC 569; (1996) 14 NSWCCR 26

Moore ADP

4 May 2010

Facts:

Ms Preston, a storeperson, worked 27.5 hours per week. Her principal duties were packing books.

In about September 2001, after being asked to perform additional duties, Ms Preston developed bilateral carpal tunnel syndrome and a back injury. She took time off work and returned on selected duties until she accepted voluntary redundancy in February 2004. She sought suitable employment thereafter and eventually commenced part-time work in September 2005 at a tennis club.  The appellant accepted liability and the insurer made payments until March 2005.

In 2005, Ms Preston brought proceedings in the Commission which resolved by Consent Orders in which the parties agreed to pay Ms Preston s 40 payments at various rates from 15 March 2005 to 30 June 2007, and thereafter on a voluntary basis at the rate of $250.00 per week. The parties executed a Complying Agreement pursuant to s 66 of the Act for 10 % WPI in respect of the lumbar spine and both upper extremities, and for pain and suffering.

In July 2009, the appellant issued a section 54 Notice, declining further liability on the basis that Ms Preston could then earn more than her probable earnings but for her injury and more than her earnings in her current employment. The insurer ceased weekly payments on 13 August 2009.

Ms Preston lodged an ARD, claiming weekly benefits from 14 August 2009, being the difference between the agreed probable earnings of $525.80 per week and her actual earnings of $92.30 per week.

The appellant appealed on the grounds that the Arbitrator erred in her treatment of the medical evidence, in failing to provide reasons, in allowing Ms Preston to give oral evidence, and in misapplying the test under s 40 of the 1987 Act.

Held: Arbitrator’s decision confirmed.

1. Having regard to all the circumstances, the Arbitrator’s analysis of the medical evidence was sound and well-reasoned, and her acceptance of Ms Preston’s medical practitioner’s evidence was correct.

2. The proper basis for assessment of earning capacity in the circumstances of the case was that set out in Aitkin v v Goodyear Tyre & Rubber Co (Aust) Ltd (1945) 46 SR (NSW) 20 and Pira Pty Ltd v Tucker [1996] NSWSC 569; (1996) 14 NSWCCR 26, which remain “good law”.

3. Moore ADP confirmed the principle in Pira where the Court of Appeal held that the appropriate amount in determining the rate of compensation under s 40 is, prima facie, the person’s actual earnings after injury unless it is proved that the worker’s actual earnings are not a proper test due to some reasons unconnected with the worker’s earning power which made them lower than they should be (at [56]).

4. Ms Preston’s actual earnings during the relevant period were a proper test of her ability to earn, in the absence of any proof to the contrary (at [62]). There was neither sufficient nor consistent evidence to prove that Ms Preston was deliberately taking lower paid work, was idling, or was not working to the full extent of her capacity.

5. The appellant’s submission that the Arbitrator should not have allowed Ms Preston to give oral evidence was rejected. Ms Preston’s evidence was brief and only focused on the clarification and discussion of her attendances with her own medical practitioner, evidence of which the appellant was aware. The appellant had ample opportunity to cross-examine Ms Preston, but elected not to do so.

Thompson v P & L Haulage Pty Limited [2010] NSWWCCPD 48

Section 55 of the 1987 Act; relevant change of circumstances; review of consent award

O’Grady DP

5 May 2010

Facts:

Mr Thompson, a truck driver, was a working director and shareholder of the respondent company.

On 24 May 2006, Mr Thompson was injured when the forklift he was driving fell from the trailer to the ground and struck him. He had a lengthy hospital stay and, after considerable stints of rehabilitation, commenced work as a driver for Borg Manufacturing Pty Ltd, a different employer. The respondent’s insurer paid voluntary weekly benefits up until he commenced working for that employer. The insurer disputed Mr Thompson’s entitlement to ongoing weekly benefits.

On 6 February 2009, Mr Thompson brought proceedings in the Commission, claiming s 40 weekly benefits. Those proceedings settled by consent. A COD was issued and Mr Thompson was paid weekly benefits from 30 October 2006 and continuing, by consent. At the time of the settlement, Mr Thompson had been retrenched by Borg Manufacturing Pty Ltd. Shortly thereafter, he successfully obtained work as a driver with Dairy Distribution Trust where he remained working at the date of the hearing.

On 21 August 2009, the insurer issued a s 54 Notice, seeking to reduce Mr Thompson’s weekly payments from the agreed sum of $350.00 per week to $42.12 per week on the basis of the difference between probable earnings but for injury and his earnings since he commenced employment with Dairy Distribution Trust.

On 2 September 2009, the respondent brought proceedings in the Commission, seeking a review of the terms of the previous award, pursuant to s 55 of the 1987 Act.  The respondent conceded at the hearing that there was no issue as to Mr Thompson’s actual earnings since 25 May 2009, being $920.00 per week, and that the real issue in dispute was Mr Thompson’s probable earnings but for the injury.

The Arbitrator reviewed the award, reduced Mr Thompson’s weekly benefits and awarded the respondent credit for payments already made for the relevant period.

Mr Thompson appealed.

Held: Arbitrator’s decision which reduced the weekly entitlement revoked. New decision substituted, dismissing the respondent’s application to review the consent award. The costs order was confirmed.

1. The provisions of s 55 are such that a party seeking review needs to establish a change of circumstances since the entry of an award. If that fact is established, there will only be a review of the award in respect of weekly payments if such changed circumstances are relevant to a worker’s entitlement (at [75]).

2. The Arbitrator misstated the task before him. The Arbitrator’s reference to s 55(3) had no relevance to the task of determining whether there had been a relevant change of circumstances. There was no application seeking a review by way of increase of the weekly award before the Arbitrator.

3. The Arbitrator erred in his approach to the relevance of Mr Thompson’s resumption of work and the task of determining probable earnings but for injury.

4. Mr Thompson’s evidence of average earnings of a fully-fit truck driver (workers in comparable employment with Borg Manufacturing Pty Ltd and Dairy Distribution Trust) was relevant to a determination of probable earnings but for injury. Section 40 requires that probable earnings be assessed on the basis of earnings “as a worker but for the injury”. Such earnings may be calculated by reference to the worth to the business of his labour as a fully-fit worker (J & H Timbers Pty Ltd v Nelson (1971-72) 126 CLR 625 and Cage Developments Pty Ltd v Schubert [1981] 2 NSWLR 227).

5. The evidence of the earnings of Borg Manufacturing Pty Ltd truck drivers supports an inference that, if fully fit, Mr Thompson would probably earn between $1,145.00 and $1,694.00 per week. Having regard to the requirement that probable earnings be assessed on the basis of earnings “as a worker but for the injury” (s 40(2)(a)), it was found on appeal that probable earnings were, since May 2009, $1,480.00 per week, being the average of the earnings of Borg Manufacturing Pty Ltd truck drivers.

Sonter v Librix Pty Ltd (No 2) [2010] NSWWCCPD 50

Brain injury; s 40 of the 1987 Act; partial incapacity; probable earnings; ability to earn

Roche DP

13  May 2010

Facts:

Mr Sonter, a working director for the respondent employer, sustained a traumatic brain injury as a result of a serious assault in the course of his employment on 10 July 2002. The respondent conducted a cleaning business and a property maintenance business. Mr Sonter performed administrative work in the cleaning business, but his son did most of the physical work, and Mr Sonter performed general property maintenance in the other business.

The brain injury caused cognitive and emotional changes and, as a result, Mr Sonter experienced difficulty with initiating and completing tasks.

In proceedings before the Commission in 2006, the parties consented to an award in the respondent’s favour in respect of weekly compensation, payment of s 60 expenses and registered a s 66A agreement for the payment of 23 % WPI and $25,000 for s 67.

Without legal representation, Mr Sonter appealed the Consent Orders. Moore ADP confirmed the Consent Orders (Sonter v Librix Pty Limited [2006] NSWWCCPD 269).

Still unrepresented, Mr Sonter filed a second ARD seeking weekly compensation from 10 July 2002 to 15 July 2009 (the date on which Mr Sonter turned 66), s 60 expenses and 23% WPI.

The Arbitrator struck out the ss66/67 claim, the s 60 claim and the weekly compensation claim from 10 July 2002 to 5 May 2006 (date of previous Consent Order) on the basis that they were nullities. The respondent was ordered to pay weekly benefits under s 40 in the amount of $132 per week from 6 May 2006 to 15 July 2009. The Arbitrator found that “at the most” Mr Sonter would only have been working for 30 % of the time prior to his injury. Accepting that the award wage for a cleaning and building contractor was $489 per week, probable earnings were assessed at $147 per week (ie, 30 % of $489). This assumed that the only work Mr Sonter performed pre-injury was part-time administrative. He then assessed ability to earn to be $15 per week (or partial incapacity of 10 %) resulting in a difference of $132 per week.

At some stage, Mr Sonter sought legal representation and filed an appeal in respect of the Arbitrator’s determination of weekly payments for the period 6 May 2006 to 15 July 2009. He also sought to tender fresh evidence on appeal, that being a statement from him and a cheque register of invoice payments made to the respondent between 1 March 2001 and 6 May 2003.

Held: Arbitrator’s decision partly confirmed, save for new order for payment of weekly compensation under s 40.

1. Although Roche DP was not satisfied that the fresh evidence could not have been obtained and tendered before the Arbitrator, he made allowances for the fact that Mr Sonter was unrepresented at the arbitration and that he had a reduced capacity to prepare and advance his case. The information was also relevant and the respondent failed to point to any prejudice it would face if the evidence were admitted.

2. Mr Sonter worked full time for the respondent, performing administrative duties in the cleaning business and physical work in the property maintenance business. Mr Sonter contributed to the respondent’s earnings and his labour had a value for the business.

3. Mr Sonter’s average weekly earnings at the time of the assault were assessed at $489. That was the relevant award rate of pay in 2002 and the amount for probable earnings in the worker’s wages schedule. It was based on $700, as established by invoices from Raine and Horne, less an allowance of 30 % for expenses.

4. As the respondent had no “comparable” employees after 2002, the figure of $489 per week was the appropriate figure for probable earnings but for injury (s 40(2)(a) of the 1987 Act).  That figure was then adjusted annually by 3 % from July 2002 to allow for general movements in wage rates (step one in Mitchell v Central West Area Health Service (1997) 14 NSWCCR 526 (‘Mitchell’)).

5. Given that Mr Sonter completed maintenance jobs after the assault, and prepared a number of houses for sale, he was capable of performing similar physical duties to those he performed prior to the assault, but not in his previous capacity as a manager. Roche DP found that Mr Sonter was fit for physical work between May 2006 and July 2009 for 15 hours per week, assessed at $15 per hour or $225 per week (step two in Mitchell). This figure was also adjusted annually by 3 %.

6. The respondent argued that the s 40 discretion applied because Mr Sonter had applied to access his superannuation and was therefore not seeking suitable employment. It also argued that Mr Sonter had experienced depression before the accident and that that was a further ground for exercising the discretion.

7. A failure to look for employment is not a proper ground for the s 40 discretion (Mitchell). There was no evidence that Mr Sonter had intended to retire before he turned 66, had he not been injured. There was no basis for exercising the discretion.

8. Whilst it was true that Mr Sonter had psychological problems prior to the accident (depression), there was no evidence that his depression prevented him from working. It was therefore not a ground for exercising the s 40 discretion.

9. The resulting award was the difference between the figures at step one and the figures at step two.

Ponticello (as executrix of the estate of the later Giorgio Gino Ponticello) v De Martin & Gasparini Pty Ltd and anor [2010] NSWWCCPD 46

Compensation for pain and suffering after death of worker, and s 67(5) of the 1987 Act

Keating P

4 May 2010

Facts:

Mr Ponticello sustained injury to his back and both legs throughout his employment with both respondents. He received voluntary compensation payments.

In 2002, Mr Ponticello brought proceedings against both respondents in the former Compensation Court of NSW for lump sum compensation under ss 66 and 67 of the 1987 Act. These proceedings resolved by way of settlement on 4 September 2003.

In 2007, Mr Ponticello claimed compensation under s 66 in respect of further permanent impairment of the back, and further loss of efficient use of both legs at or above the knee and additional compensation under s 67. In 2008, Mr Ponticello also gave notice to both respondents of a claim for 35 % loss of use of sexual organs under s 66 and compensation under s 67 for pain and suffering.

In 2009, Mr Ponticello filed an Application in the Commission making claims under ss 66 and 67 as detailed above.

Consent orders were made that the worker be referred for examination by an AMS in respect of the further loss claims. The dispute was partially resolved and the parties executed a complying agreement for $9,400.00 in respect of 20% loss of use of sexual organs and noted that compensation under s 67 “to be agreed or assessed”.

Mr Ponticello was examined by an AMS and a MAC issued to the parties. Mr Ponticello died shortly before the post-MAC teleconference.

The respondents had paid the s 66 compensation in accordance with the complying agreement and also agreed to pay s 66 compensation in accordance with the MAC. The respondents disputed an entitlement to s 67 compensation by operation of s 67(5).

The Arbitrator found that s 67(5) operated to preclude an award under s 67 and he dismissed the claim.

The executrix appealed.

Held: Arbitrator’s decision confirmed, save for amending the formal orders to make an award for the respondents.

1. No basis existed for this Commission to depart from the established law that s 67(5) operated to extinguish a worker’s rights to compensation for pain and suffering under
s 67 after his/her death (see Bresmac Pty Limited v Starr (1992) 29 NSWLR 318 and TNT Australia Pty Ltd v Horne (1995) 11 NSWCCR 497).

2. Mr Ponticello’s entitlement to compensation under s 67 was not settled or determined prior to his death and his rights to such compensation were extinguished upon his death.

3. The appellant’s argument that the MAC and the Complying Agreement were the equivalent of a judgment and, as the right to s 67 compensation has been determined, the appellant was entitled to recover that compensation was rejected.

4. Approved Medical Specialists are not members of the Commission (see s 368 of the 1998 Act) and the issuing of a medical assessment by an AMS is not a “proceeding” before the Commission as defined under Chapter 7, Part 9 of the 1998 Act (see Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50 (‘Jopa’) at [26]).

5. Under s 326 of the 1998 Act, a MAC is conclusively presumed to be correct as to the matters listed in s 326(1).  However, as held by DP Fleming in Jopaat [27] “…the issue of a MAC does not equate to a determination of the dispute by the Commission”.

6. Entitlement to compensation is determined by the Commission, not by an AMS (see Milosavljevic v Medina Property Services Pty Ltd[2008] NSWWCCPD 56, Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSWWCCPD 38, Connor v Trustees of the Roman Catholic Church of the Archdiocese of Sydney[2006] NSWWCCPD 124 and Ooi v NEC Business Solutions Limited[2006] NSWWCCPD 131).

7. AMS s do not determine s 67 compensation, but merely assess s 66 impairments. A MAC does not determine the parties’ rights and is not a judgment or a COD.

8. The Complying Agreement in respect of s 67 compensation was no more than an agreement to agree, which is unenforceable (Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600).  The Complying Agreement did no more than preserve the worker’s right to agree, at a later date, the quantum of compensation under s 67 or, alternatively, to have the quantum determined by the Commission under s 67(4).

9. Mr Ponticello died before the resolution of the claim for compensation under s 67.  The date at which the Arbitrator determined the outstanding dispute post-dated the worker’s death.  The Arbitrator, in making the assessment, was bound by the legislative provisions, including the express statutory prohibition in s 67(5).

Trustees of the Roman Catholic Church for the Diocese of Maitland - Newcastle v Manolis [2010] NSWWCCPD 59

Injury; weight of evidence; substantial contributing factor

Roche DP

31 May 2010

Facts:

Ms Manolis, a caseworker with the appellant employer, alleged that on 19 August 2008, she felt a twinge in her lower back when she lifted a bag into a car in preparation for a trip to Sydney for a work conference. Though she felt discomfort on the trip, the pain eased. At the conference, Ms Manolis felt discomfort in her back whilst sitting and it radiated down the back of her right leg. Her pain continued throughout the conference and she mentioned it to her colleagues. In February 2009, she stepped over linen at home, causing further pain to her back.

A CT scan on 26 August 2008 revealed a disc bulge at L5/S1. Ms Manolis was referred to a neurosurgeon who asked whether she had considered a “WorkCover claim”.  It was then that Ms Manolis made the connection between the lifting incident on 19 August 2008 and the development of her symptoms. She submitted a claim form on 28 April 2009.

The employer disputed liability on the basis that Ms Manolis did not receive an injury on 19 August 2008 and that employment was not a substantial contributing factor to any injury. The s 74 notice highlighted that she did not mention injuring her back whilst lifting until April 2009.

At the arbitration, Ms Manolis gave oral evidence and was cross-examined. The Arbitrator found her evidence “compelling”. The Arbitrator accepted that, though there was a delay in making the claim, he was satisfied that there was nothing sinister about the fact that she made no connection between the injury and her work until she saw her neurosurgeon. Ms Manolis was awarded weekly benefits and s 60 expenses.

Held: Arbitrator’s decision confirmed.

1. Ms Manolis expressing uncertainty in her claim form about the connection between the lifting incident and her back symptoms did not weaken nor strengthen her case. She is not a doctor. Questions of nexus involve difficult questions of fact that turn on a careful analysis of the expert and lay evidence. The worker’s uncertainty merely highlighted her honesty and provided a reason for accepting her evidence.

2. Given DP Roche’s acceptance that Ms Manolis felt a twinge in her back when she lifted her bags into the car on 19 August 2008, and given the undisputed account that she felt back and leg symptoms at the conference, the critical question was whether the injury was caused by the lifting incident. That question was largely, but not wholly, a medical one.

3. The worker’s qualified orthopaedic specialist had a full history of the onset of symptoms and he concluded that the injury occurred as a result of putting bags into the boot of a car. His conclusion was consistent with the onset of leg symptoms at the conference, the objectively established facts and the logic of events on and after 19 August 2008. The history provided a fair climate for the acceptance of his conclusions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; [1984] NSWLR 505 at 509-510).

4. The respondent’s submission that Ms Manolis’s pain worsened after the injury to her back at home in February 2009, consistent with the physiotherapist’s notes, overlooked the consistent complaints of back and leg symptoms since 19 August 2008 and findings in the CT scan on 26 August 2008. There was also no evidence that the injury at home, as opposed to the lifting incident on 19 August 2008, caused the injury.

5. The appellant’s submissions on section 9A ignored the fact that employment only has to be a substantial contributing factor to the injury, not the substantial contributing factor.

Port Stephens Shire Council v Cessnock City Council and Anor [2010] NSWWCCPD 60

Skin cancer; disease; sections 4, 15 and 16 of the Workers Compensation Act 1987; dispute between insurers as to liability for weekly compensation and medical expenses

Moore ADP

31 May 2010

Facts:

From around 1990 Mr Evans worked as a surveyor with Cessnock City Council (‘Cessnock’), mostly requiring him to work outdoors in the sun. He developed skin cancers in about 1998, for which he claimed medical expenses from Cessnock’s insurers, GIO. He remained at work with Cessnock until he found employment again as a surveyor with Port Stephens Shire Council (‘Port Stephens’) in 2007. At Port Stephens, he was issued with long-sleeved shirts, trousers, hats and sunscreen. While working with Port Stephens, Mr Evans developed further skin lesions (melanoma) for which he underwent further medical treatment.

He made another claim with GIO, which denied liability on the basis that his condition was a disease for which Port Stephens was responsible. He then made a claim with the insurer for Port Stephens, StateCover, which also denied liability on the basis that his work with Port Stephens was not a substantial contributing factor to injury.

Mr Evans commenced proceedings in the Commission, seeking weekly benefits and medical expenses, naming Cessnock as the first respondent and Port Stephens as the second respondent.

At the arbitration hearing, Cessnock and Port Stephens conceded that Mr Evans was totally incapacitated for the relevant period and was entitled to the benefits being claimed. The only real issue in dispute was which employer was liable for the claim.

In the course of his findings, the Arbitrator determined that Mr Evans’s melanoma was a separate disease. In an ex tempore decision, the Arbitrator found that Mr Evans’s work with Port Stephens was a substantial contributing factor and that it was liable for payment of the benefits.

Port Stephens appealed.

Held: The Arbitrator’s decision revoked, new decision substituted.  

1. The parties agreed that Mr Evans’s injury fell within the definition of s 4(b)(ii) of the 1987 Act, and that the “injury” was a “disease” in line with decisions such as Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482, Commissioner of Railways v Bain [1965] HCA 5; (1965) 112 CLR 246, Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 and Perry v Tanine Pty Ltd t/as Ermington Hotel & Others [1998] NSWCC 14; (1998) 16 NSWCCR 253.

2. In line with principles established in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 and Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88, the evidence supported the finding that Mr Evans’s disease was aggravated, leading to incapacity in 2008.

3. Section 16(1)(a)(i) of the 1987 Act provides that injury is deemed to have occurred when incapacity first arose: Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277.

4. The Arbitrator’s finding that melanoma was a separate or distinct disease from his skin cancers was revoked, due to insufficient evidence.  The melanoma was a further manifestation of Mr Evans’s chronically sun-damaged skin at the time of his employment with both Port Stephens and Cessnock, and was merely a representation of the many types of skin cancers he was suffering since his work with Cessnock.

5. In accordance with s 16(1)(b), it was necessary to determine which employer last employed Mr Evans in employment that was a substantial contributing factor to the aggravation of his disease (at [50]).

6. There was some evidence of Mr Evans’s exposure to sunlight in the course of his employment with Port Stephens, and medical evidence supporting the proposition that it contributed to his condition. However, the evidence was unsatisfactory in that it failed to address the relevant issues.

7. The medical opinion that all of Mr Evans’s sun exposure was relevant to his skin cancers, and that his work with Port Stephens had aggravated this and contributed to the development of melanoma, was flawed. No medical examiner took into account any history of Mr Evans’ working conditions with Port Stephens. There was no apparent basis on which this medical opinion was formed. There was therefore no medical evidence that could have satisfied the test set down in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.

8. The evidence was insufficient to establish that Mr Evans’ sun exposure during the course of his employment with Port Stephens constituted a substantial contributing factor to the aggravation of the disease: Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324 (at [52]).

9. There was insufficient evidence to conclude that any sun exposure during the course of Mr Evans’s employment with Port Stephens could be considered “real and of substance”.

10. Mr Evans failed to discharge the onus of establishing that he suffered an injury within the meaning of s 4(b)(ii) of the 1987 Act whilst in the employ of Port Stephens.

11. Having determined that Mr Evans’s melanoma was a further manifestation or a variant of his skin cancer condition, it was found that Cessnock was the employer who last employed Mr Evans in the type of work that substantially contributed to the aggravation, acceleration, exacerbation or deterioration of the disease.

12. In lieu of Port Stephens, Cessnock was found liable for the payment of Mr Evans’s weekly compensation and medical expenses.

Stevens v Minjin Pty Ltd t/as Harpers Painting Service [2010] NSWWCCPD 54

Determination of factual dispute

O’Grady DP

18 May 2010

Facts:

On 4 June 2007, Mr Stevens, employed as a painter by the respondent, slipped on a piece of copper piping and fell.

Mr Stevens ceased work a few weeks after the fall, complaining of back pain and of difficulty in walking and lifting his arms. He claimed weekly compensation benefits from the respondent’s insurer who accepted liability. By reason of incapacity, he has not returned to work since and continues to receive weekly payments to date.

On 29 October 2009, Mr Stevens brought proceedings in the Commission, claiming lump sum compensation for 18% WPI in relation to injuries to the cervical, thoracic and lumbar spine, right lower extremity (knee) and right upper extremity.  The respondent conceded that he sustained injuries to the cervical, thoracic and lumbar spine, and the right lower extremity, but disputed the injury to the right upper extremity.

The matter came before an Arbitrator who subsequently found that Mr Stevens had not proven injury to the right upper extremity.

Mr Stevens appealed.

Held: The Arbitrator’s decision confirmed.

1. There was no clear or unequivocal evidence from Mr Stevens’ statements concerning injury to the right shoulder at the time of the incident.

2. There was no contemporaneous evidence to support Mr Stevens’ allegation of right shoulder injury.

3. The Arbitrator’s finding that Mr Stevens failed to discharge the onus of proof concerning the right shoulder injury was correct.  The finding required only an evaluation of the weight of evidence concerning the alleged fact of injury and did not involve a consideration of any scientific proof in relation to conflicting expert evidence and the availability of variable inferences, as argued by Mr Stevens (at [60]).

4. The submission that the Arbitrator failed to apply the “legal test” when determining the factual issue was rejected. The Arbitrator appropriately acknowledged and evaluated all the relevant evidence before him, on which basis his decision was made.

Beaton v Pinners Transport Pty Limited [2010] NSWWCCPD 57

Weight of evidence; onus of proof

Keating P

26 May 2010

Facts:

On 15 June 2001, Mr Beaton was involved in a motor vehicle accident when the truck he was driving struck another vehicle at high speed. The force of the collision was sufficient to dislodge the driver’s cab from the chassis, causing the cab to travel some considerable distance from the point of impact before coming to rest.

The matters in dispute for determination at the hearing were: first, whether the worker sustained injuries to his neck and back as a result of the motor vehicle accident on 15 June 2001; and, second, whether he was incapacitated as a consequence of those injuries.

The Arbitrator determined that, whilst Mr Beaton had suffered injuries to his neck and back in the accident on 15 June 2001, he was not satisfied that they had resulted in any permanent impairment to the neck or back. He found that Mr Beaton had resumed normal duties and, by the time his employment with Pinners ended in September 2001, he had fully recovered from the effects of his injuries.

The Arbitrator entered an award for the respondents and declined to refer the matter to an AMS.

It is from that decision that Mr Beaton now seeks leave to appeal.

Held: Arbitrator’s decision revoked and remitted.

1. In determining whether the requisite standard of proof had been satisfied to establish that Mr Beaton suffered pain in his neck and back continuously since the motor vehicle accident in June 2001, reliance was placed on the principles discussed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, where McDougall J (McColl and Bell JA agreeing), after analysing the relevant authorities, said at [55]:

“The position may be summarised as follows:

• A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
• Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
• Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
• A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”

2. After considering the whole of the evidence, although it was not free from doubt, the President found, on the balance of probabilities, that Mr Beaton did establish that he suffered injuries to his back in the form of an aggravation of pre-existing degenerative changes and a rupture of the L5/S1 intervertebral disc and that the effects of those injuries were continuing. The President was also satisfied that Mr Beaton established that he suffered injuries to his cervical spine in the form of an aggravation of pre-existing degenerative changes, the effects of which were persisting.

3. Having regard to the provisions of s 9A(2) of the 1987 Act and the recent statements by the Court of Appeal in Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd [2009] NSWCA 324; (2009)7 DDCR 75, the connection between the worker’s employment and the injury was “real and of substance” and his employment was a substantial contributing factor to the injury.

4. The Arbitrator’s decision was revoked.

5. As a result of deficiencies in the lay, medical and wages evidence, the matter was remitted for re-determination of the claim for weekly compensation and for referral to an AMS.

NSW Police Force v Bassett [2010] NSWWCCPD 58

Sections 4, 9A and 11A of the Workers Compensation Act 1987

O’Grady DP

28 May 2010

Facts:

Ms Kathy Bassett was a police constable serving with the appellant at Mount Druitt police station. In May 2007, she ceased duty by reason of alleged psychological injury received in the course of her duties.

Ms Bassett claimed that she received the injury following a series of events that caused her substantial concern, anxiety and social withdrawal.  These events included:

• The manner and delay of an investigation of a complaint made against her by a member of the public conducted by her supervisor, Chief Inspector McMahon;
• Unpredictable and changing rosters, and the content of emails addressed at large to officers of the Mount Druitt police station which she perceived as specifically addressed to her;
• The accidental release of her confidential medical information through email by her rehabilitation officer to a party not associated with the matters, and
• The inefficient return to work plan arranged for her.

The appellant’s insurer denied the claim on the basis of a psychologist’s opinion that Ms Bassett “did not fulfil the criteria for a clinical diagnosis” and that the appellant had acted reasonably in the course of the conduct of the investigation.

Ms Bassett commenced proceedings in the Commission. The matter came before an Arbitrator, who found in her favour, awarding weekly compensation for incapacity from 3 July 2007 to date and continuing and medical expenses.

The appellant lodged an appeal on the following grounds:

Ground one:        The Arbitrator erred in taking into account irrelevant considerations such as Ms Bassett’s professional standing among her colleagues in the NSW Police Force and her past achievements in the course of her duties and career as a police officer;

Ground two:        The Arbitrator inappropriately dismissed Dr Pendel’s records, on which the appellant relied, but also chose to rely upon the contents of those records himself;

Ground three:      There was no evidentiary basis for the Arbitrator’s finding that Ms Bassett’s injury “was present from mid-2006”;

Ground four:        The Arbitrator’s view of the reasonableness of the appellant’s conduct of investigation was flawed;

Ground five:        Ms Bassett’s perception that the emails sent to the whole work force at Mount Druitt police station were directed to her was not an accurate perception of events;

Ground six:          Ms Bassett’s constitutional predisposition to overreaction was the cause of the injury flowing from the “misperceived emails”, and

Ground seven:    The circumstances surrounding Ms Bassett’s return to work plan suggested that she was not totally incapacitated for work.

Held: The Arbitrator’s decision was partly revoked. In lieu of the award under s 37, an order was made for weekly entitlements for total incapacity under s 36 for a closed period up to 12 November 2007. The Deputy President also found partial incapacity thereafter, and remitted the matter to a different Arbitrator for determination of the quantum of entitlement in that respect. Other orders were confirmed.

First ground

1. Having regard to the factual complexity and the subject matter of the complaint made against the worker, it was necessary for the Arbitrator to properly take into account his observations of Ms Bassett’s professional standing among those working at Mount Druitt police station. The Arbitrator’s comments and observations did not form the basis for his decision but were relevant matters to the task of determining injury.

Second ground

2. The absence of any notation by Dr Pendel of any reference to anxiety in the scant records made in 2006 was not a sufficient basis on which Ms Bassett’s complaints of work-related problems should be doubted.  There was extensive evidence before the Arbitrator to corroborate her complaints and description of work-related concerns.

Third ground

3. The appellant’s reliance on Townsend v Commissioner of Police (2002) 25 NSWCCR 9 (‘Townsend’) was rejected. It appeared that the appellant suggested that there had been some reconstruction of past events which characterised Ms Bassett’s behaviour during the course of the investigative process as a misperception on her behalf in similar terms as observed in Townsend.  The Arbitrator was correct in accepting Ms Bassett’s explanation as to her failure to consult Dr Pendel concerning her work-related stress and anxiety during the latter half of 2006.

Fourth ground

4. The appellant failed to establish that its actions with respect to discipline were “reasonable” within its meaning in s 11A of the 1987 Act. The entire course of investigation is the “action” to which s 11A applies (Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206).

5. Ms Bassett’s injury was predominantly caused by the manner with which the investigation was conducted. The appellant’s investigation of the complaint against Ms Bassett was, in its entirety, not reasonable, due to the following factors:

• Mr McMahon was Ms Bassett’s senior officer to whom she reported on that particular shift and therefore was in a position of conflict, and should have disqualified himself from also taking on the role of the investigating officer.
• The delay in the conduct of the investigation rendered the whole action unreasonable. The significant delay in investigating and finalising the complaint (approximately 200 days from the date of the complaint) was contrary to practical and formal obligations upon the appellant to deal with the matter expeditiously.
• There were no suggestions made on evidence that the appellant was in any way unable to utilise its considerable resources to appoint an appropriate investigating officer and to arrange an earlier interview date, given the divergent work shifts of Mr McMahon and Ms Bassett.
• Given the disclosure by Ms Bassett of a pre-arranged leave period immediately after the interview, there was no suggestion that her absence from work would in any way impair the progress of the investigation. There were no suggestions made on evidence that the outcome of the investigation could not have been communicated to Ms Bassett during the period of her leave (at [105]).

Fifth ground

6. It was open to inference that the emails sent concerning activities that Ms Bassett was deeply involved in were substantially addressed to her. Her reaction to the emails was a response to real events, and not an “erroneous perception of external events” as propounded in Townsend. The Arbitrator was correct in finding that such a reaction had, in part, caused the injury.

Sixth ground

7. Despite the Arbitrator’s acknowledgment that Ms Bassett was an emotional and reactive person, it cannot be suggested that this characterisation led the Arbitrator to find it as a causal factor concerning injury. The overwhelming evidence from medical practitioners, and the events surrounding her return to work and the consequent accidental disclosure of her medical information to a third party, supported the Arbitrator’s conclusion of injury and the finding that her employment was a substantial contributing factor to her injury (s 9A of the 1987 Act).

Seventh ground

8. There was evidence that Ms Bassett was totally incapacitated for work for the first six months following her cessation of work on 14 May 2007. However, there was also evidence that she was keen to return to work after being cleared by her medical advisors to work on selected duties and that she worked on restricted hours and duties over an unspecified period of time. Following her return to work, it was clear she continued to suffer incapacity, albeit, partially. The matter was remitted to the Commission for determination of her weekly entitlements under s 40 of the 1987 Act for partial incapacity during the relevant period.

Tozanis v KU Children’s Services [2010] NSWWCCPD 51

Section 352 of the 1998 Act; interlocutory orders of a preliminary nature

Roche DP

13 May 2010

Facts:

Ms Tozanis alleged injuring her lower back whilst lifting a child in the course of her employment with the respondent on 31 July 2000. Her ARD sought lump sum compensation for back impairment and loss of efficient use of the left leg.

The insurer did not dispute that Ms Tozanis injured her back on 31 July 2000, but disputed that that injury caused a disc protrusion at the L5/S1 level of her lumbar spine.

The Arbitrator determined that the pathology at L5/S1 had not resulted from the injury of 31 July 2000. However, he found that Ms Tozanis did suffer a compensable injury on that date, and remitted the matter to the Registrar, for referral to an AMS.

Ms Tozanis appealed the Arbitrator’s determination that the injury on 31 July 2000 “did not extend to” the disc pathology at L5/S1.

Held: Arbitrator’s determination was interlocutory. Leave to appeal refused.

1. The Arbitrator’s determination was clearly a preliminary decision of an interlocutory nature.

2. An AMS must assess the degree of back impairment and loss of use of the left leg and that has not occurred yet. The Arbitrator’s determination had not finally disposed of the parties’ rights, and it was therefore a preliminary order of an interlocutory nature.

3. The consequences of an Arbitrator’s orders in circumstances such as the present–where the insurer had conceded injury and the only compensation claimed was lump sum compensation–are fully discussed in Greater Taree City Council v Moore [2010] NSWWCCPD 49.

Crethar v GA and JI Charters Pty Ltd trading as Avis Northern Rivers [2010] NSWWCCPD 52

Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the 1998 Act

Keating P

14 May 2010

Facts:

There was a dispute between the parties as to whether the claim had been duly made.

At the teleconference, the Arbitrator gave an ex tempore decision.  He found that the claim had not been duly made and struck out the Application.

Although the Arbitrator failed to identify the section of the Act under which he exercised the power to strike out the Application, it was inferred that the matter was struck out under
s 354(7A) ofthe 1998 Act, on the basis that it was lacking in substance.

Mr Crether appealed.

Held: Arbitrator’s determination was interlocutory. Leave to appeal refused.

1. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006, s 352(8) excludes orders of an interlocutory nature from the definition of ‘decision’. As contained in s 352(1).

2. Section 352(8) of the 1998 Act excludes orders of an interlocutory nature form the definition of ‘decision’.

3. Clause 200B of the 2003 Regulation, as amended, provides that “for the purposes of s 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed”.

4. Since its commencement on 1 November 2006, the Commission has considered the meaning of “interlocutory decision” and the application of s 352(8) in a variety of circumstances including specifically in relation to orders made by Arbitrators striking out applications under Rules 1.6 and 15.1 of the 2006 Rules and pursuant to s 354 of the 1998 Act (Nott v The Western Stores Limited and ors [2007] NSWWCCPD 83 at [21]-[22] and Teofilo v New South Wales Police Service [2007] NSWWCCPD 200 at [23]).

5. Consistent with the authorities above, the orders made by the Arbitrator at the teleconference were orders of an interlocutory nature as prescribed by the Regulation and pursuant to s 352(8).  They did not finally determine the merits of the claim or parties’ rights and, pursuant to s 352(8), the decision was not a decision from which leave to appeal can be granted.

Da Ros v Qantas Airways Limited (No. 2) [2010] NSWWCCPD 55

On remitter from the Court of Appeal

O’Grady DP

25 May 2010

Facts and background:

On 9 September 2005, Mr Da Ros, a long-haul flight attendant with Qantas Airways Limited, suffered injury during slip-time between flights in Los Angeles, USA.

At first instance in the Commission, Mr Da Ros was not successful, there being a finding that employment was not a substantial contributing factor to injury (s 9A of the 1987 Act).

Mr Da Ros appealed. The Arbitrator’s decision was confirmed on appeal.

Mr Da Ros appealed to the Court of Appeal where Basten JA (McColl JA and Tobias JA concurring), found that Mr Da Ros’s employment was a substantial contributing factor to injury.

The Court of Appeal made the following orders at [30]:

• “ Allow the appeal and set aside the decision of 27 May 2009 made by the Workers Compensation Commission constituted by Deputy President O’Grady.
• Order that the Commission reconsider the appellant’s appeal against the decision of the Arbitrator according to law, on the basis that the appellant’s employment was a substantial contributing factor to the injury.
• Order that the respondent pay the appellant’s costs of the appeal.”

Held on remitter:

Given the Court of Appeal’s orders, the Deputy President reconsidered the decision made on 27 May 2009, upheld Mr Da Ros’s appeal, revoked the Arbitrator’s decision, and remitted the matter to the Registrar for referral to an Arbitrator for determination of Mr Da Ros’s claims according to law. Appropriate costs orders were made.