Francis v I T Gardiner [2011] NSWWCCPD 67

Section 4 of the 1987 Act; worker; control test; consideration of Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; indicia of relationship; Sch 1 cl 3 of the 1998 Act; deemed worker

O’Grady DP

29 November 2011

Facts:

Mr Sean Francis operated a ‘sole trader’ farm labouring business titled “Sean Francis Farm Services Contracting” which he created in April 2005.  Mr Francis worked concurrently as a farm labourer for various landowners in the Adelong District.

On 15 September 2009 he was kicked by a cow whilst working at a rural property conducted by Ian Gardiner (the respondent). Mr Francis alleged that, at the time of injury, he was a worker in the employ of the respondent. In the alternative it was alleged that, at that time, he was deemed to be a worker employed by Mr Gardiner, pursuant to the provisions of cl 3 of Sch 1 to the 1998 Act.

Mr Francis’s claim for compensation was denied by the respondent and proceedings before the Commission were commenced in May 2011.

The question before the Arbitrator was whether or not Mr Francis was a “worker” as per s 4 of the 1998 Act, or as per Sch 1 cl 3 of the 1998 Act.  The Arbitrator determined that Mr Francis was not a “worker” as defined by the 1998 Act, and an award was made in favour of the respondent.

Mr Francis appealed, arguing that the Arbitrator erred in his determination that Mr Francis was not a worker as per s 4 of the 1998 Act at the time of injury and in the alternative, that the Arbitrator had erred in concluding that he was not, on the evidence, a worker by reason of the application of cl 3 of Sch to the 1998 Act.

Held: Arbitrator’s determination confirmed

Worker as per s 4 of the 1998 Act

1. The definition of  “worker” is defined by s 4 of the 1998 Act:

Worker means a person who has entered into or works under a contract of service or a training contract with an employer (whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, and whether the contract is oral or in writing).

2. Mason J noted in Stevens v Brodribb Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 (Stevens) at 24 that when determining whether a contract of service exists one has to review the degree of control the person who engages the work can exercise over the person who performs the work (the control test) as well as, but not limited to “the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee”. [61]

3. Mr Francis argued that the principles relied upon by the Arbitrator were correct, but that the Arbitrator had erred in their application.  O’Grady DP rejected this submission and found that on review of the evidence, the findings which were made by the Arbitrator in respect of each of these indicia were open to the Arbitrator and disclosed no error.

Worker within the provisions of cl 3 of Sch 1 to the 1998 Act

4. Mr Francis submitted in the alternative that he should be taken to be a worker as per the provisions of cl 3 of Sch 1 to the 1998 Act.  Under this provision a contractor in the performance of rural work who performs specific duties may be “taken to be workers employed by the principal” for the purposes of the Act.  Mr Francis particularly relied on cl 3(1)(e) which states:

“3 Rural Work”

(1) This clause applies to the following work:

...

(e) The work of erecting, constructing or demolishing or assisting in the erection, construction or demolition of:

(i) fences, or

(ii) yards or enclosures for horses, cattle, sheep or other animals,

on farms, orchards, vineyards or agricultural or pastoral holdings.”

5. Mr Francis detailed the various duties he contracted to undertake at [22] of his statement.  The majority of the duties performed related to stock handling (mustering, drafting, drenching, crutching etc) but he also contracted to perform general farm labouring, an example of which was that he undertook “fencing repair and installation”.  It was this reference, and a later reference in his statement to “fixing the fences”, which Mr Francis argued brought him within the provisions of cl 3 of Sch 1.

6. The Arbitrator determined that cl 3 of Sch 1 had no application in the circumstances as the fencing work undertaken by Mr Francis was “incidental to his other duties as a rural contractor engaged in a farm labouring contract business” ([65]-[66] of the Arbitrator’s reasons).

7. O’Grady DP found that the Arbitrator had erred in this finding, noting that a contract does not have to have as its main object that class of work which is defined in the clause in order to satisfy the statutory requirements. [92]

8. In support of this conclusion, O’Grady DP referred to Menzies J in McNamee v Patridge [1959] HCA 43 at 396 where he said “[i]t seems to me that part of the work Partridge contracted to do fell squarely within the sub-section, and that it would be to impose an unwarranted limitation upon its language to treat the sub-section as inapplicable because the contract covered other work as well.”[85]

9. The question was therefore whether the “fencing repair and installation” work performed by Mr Francis “fell squarely within the sub-section” based on the evidence as provided. [87]

10. The question of whether “a proved state of affairs should be included in or excluded from, a statutory category is generally a question of fact” as was stated by Glass JA in Mattinson v Multiplo Incubators Pty Ltd [1977] 1 NSWLR 368 at 372. [89]

11. O’Grady DP took a literal approach to determine this question and found that the activities of “fencing repair” and “fixing the fences” did not fall within the meaning of the terms “erection, construction or demolition” provided by the clause. [90]

12. O’Grady DP determined that the terms “erection” or “construction” are not included in the work described as “installation”. This finding was based on two grounds, firstly, none of the words are synonymous and secondly, in the absence of evidence concerning “installation” it is to be taken to mean “to place in position for use” as it is defined in the Macquarie dictionary. Such meaning is not included in “erection” or “construction” as those terms are understood in their ordinary sense. Therefore fence work as described in the evidence does not fall within the terms of the clause. [91]

13. Whilst the Arbitrator may have erred in the application of cl 3(1) of Sch 1, the error did not affect the outcome.

Transfield Services (Aust) Pty Ltd v Wicks [2011] NSWWCCPD 63

Psychological injury; post-traumatic stress disorder; evidence; accuracy of history taken by medical experts

Roche DP

4 November 2011

Facts:

Mr Wicks worked as a cleaner at Newcastle and later Maitland Police Stations. His duties required him to vacuum, mop, sweep, clean toilets, and generally clean and tidy the station. He was on-call 24 hours a day, seven days a week to perform additional cleaning duties which he described as “forensic cleans” which involved cleaning the prison cells, the charge room and police vehicles in which offenders had either bled, vomited, defecated or urinated.

On 8 December 2009, Mr Wicks was reported missing from his home. He was picked up and admitted to Maitland Hospital as an involuntary patient on 9 December 2009. He remained in hospital until 22 December 2009. He has not returned to work. He was also admitted to Maitland Hospital on 21 February 2010, and discharged the following day.

Mr Wicks commenced proceedings in the Commission claiming weekly compensation from 9 December 2009 to date and continuing, together with hospital and medical expenses.  His injury was described as “Post Traumatic Stress Disorder (psychiatric/psychological)”.

Transfield disputed liability on the ground that Mr Wicks had not been exposed to traumatic crime scenes and did not suffer from post-traumatic stress disorder as a result of his employment. They also disputed incapacity.

The Arbitrator held that the dramatic decompensation Mr Wicks suffered in December 2009 had been caused by an “accumulation of events” in the course of his employment at the Maitland Police Station and other police stations.

The issues on appeal were the Arbitrator erred in:

(a)  concluding that Dr Canaris and Dr McDonald (consultant psychiatrists) provided support for the proposition that Mr Wicks had sustained a psychiatric injury as a result of his work;

(b)  finding that an accumulation of events in the course of Mr Wicks’s employment at Maitland and other police stations caused the injury, when the evidence supporting that conclusion was flawed;

(c) finding that Mr Wicks had sustained a post-traumatic stress disorder;

(d)  accepting that Mr Wicks had sustained a post-traumatic stress disorder as the result of the suicide of a friend and concluding from that finding that the case against Transfield had been made out, and

(e)  concluding that Mr Wicks’s alcohol intake was a symptom of his alleged injury.

Held:  Arbitrator’s decision revoked; matter remitted to another Arbitrator for re-determination

1. The opinions of Dr Canaris, Dr McDonald and Maitland Hospital were based on the assumption that, amongst other things, Mr Wicks had been exposed to the trauma of serious crime scenes and that that trauma caused him to suffer post-traumatic stress disorder. That assumption was wrong and reduced the probative value of their opinions. [100]

2. The history recorded by Maitland Hospital that Mr Wicks had a “long history of being exposed to traumatic crime scenes during worker as a police forensic cleaner” was false. The Arbitrator said that history was false if it meant Mr Wicks was physically exposed to traumatic crime scenes, but was accurate if it referred to exposure to those scenes through photos. That was not correct. The hospital notes made no reference to Mr Wicks having been exposed to such scenes through photographs.  They expressly referred to his being “exposed to traumatic crime scenes during work as a police forensic cleaner” and to “disturbing memories & images from homicides & suicides he has had to industrially clean”. Mr Wicks never cleaned homicide or suicide scenes. [101]-[102]

3. Dr Carnaris accepted that Criterion A in the DSM-IV for the diagnosis of post-traumatic stress disorder existed in this case. He stated “... if he did not clean up after crime scenes and did not have exposure to blood, body fluids, or photographs, then the diagnosis of post-traumatic stress disorder would be harder to sustain”. The evidence did not address whether, in the absence of direct exposure to serious crime scenes, exposure to photos and cleaning up blood in cells would be sufficient to sustain a diagnosis of post-traumatic stress disorder, or some other psychiatric condition. [103]-[105]

4. The conclusion that Mr Wicks had post-traumatic stress disorder as a result of his experiences at work was also undermined by the histories taken by both Dr Canaris and Dr McDonald that Mr Wicks enjoyed going to work. [106] Further, neither doctor took a history of an event to which Mr Wicks responded with intense fear, helplessness or horror. [107]

5. The worker urged that the introduction of DSM-IV, which directs how it is to be used, be considered. The Deputy President accepted that DSM-IV was only a guide that was subject to clinical judgment, and that adherence to the diagnostic criteria was not mandatory but advisory (see State of New South Wales v Seedsman [2000] NSWCA 119; 217 ALR 583 at [114]-[122] where the use of DSM-IV was discussed).  However, the main issue was the accuracy of the histories upon which the doctors based their conclusions. While those histories do not have to accord with complete precision with the facts, the inaccuracies in the present case were of such magnitude, and were on such critical issues, they undermined the weight to be attached to the opinions based on them. [108]-[109]

6. Though the Arbitrator acknowledged that the histories were inaccurate, on the basis that Mr Wicks had been exposed to an “accumulation of events” that were “dramatic and traumatic”, he still gave them full weight. That was an error.  The doctors did not consider whether the evidence given by Mr Wicks that he occasionally cleaned blood, and other bodily fluids, and was exposed to photos of crime scenes, was sufficient, on their owner, to have caused his psychological injury. [110]

7. When asked to comment on Transfield’s medical case (set out in the report of Dr Akkerman) that Mr Wicks had not been exposed to crime scenes and did not have post-traumatic stress disorder, Dr McDonald continued to base his conclusions on the history given by Mr Wicks and did not deal with the alternative history. [111]-[112]

8. There was no evidence which supported the Arbitrator’s statement that Mr Wicks’s “consumption [of alcohol] was a symptom of his condition rather than the cause of it”.  At the most, the report of Dr Canaris indicated that the two conditions often appear concurrently. [113]-[114]

9. With respect to the suicides, it was necessary for the Arbitrator to distinguish between exposure to suicide scenes that Mr Wicks alleged he had to clean, and the suicide of police officers with whom Mr Wicks had been friends. He did not do so. The Arbitrator found that Mr Wicks had been affected by the suicide of at least one policeman with whom he was friendly, and possibly more than one. How the suicide of police officers, or the worker’s reaction to those suicides, was caused by or arose out of his employment with Transfield was unclear and not addressed in the Arbitrator’s decision. The worker’s pleadings referred to Mr Wicks having been “exposed to burnt and bloodied clothing from victims of murders/suicides”, but did not allege any injury as a result of the suicide of police officers. [116]-[119]

Lithgow Services Pty Ltd v Walsh [2011] NSWWCCPD 66

Incapacity; aggravation of a disease; s 16 of the 1987 Act; sufficiency of reasons

O’Grady DP

17 November 2011

Facts:

Ms Kim Walsh was employed as a cleaner by Lithgow Services Pty Ltd (Lithgow Services) on 18 December 1998.

On 4 February 2004, Ms Walsh, whilst in the course of her employment with Lithgow Services, received an injury to her neck, when she fell down a set of metal stairs. She remained absent from work until 15 March 2004. Her return to work was supervised by a rehabilitation provider and she commenced work on reduced hours and limited duties.  Those hours were gradually increased and on 20 September 2004, a medical certificate was issued by Dr Suresh, at Ms Walsh’s request, certifying her as fit for pre-injury duties from that date.

In her evidence, Ms Walsh stated that she had suffered disabling symptoms since her injury in February 2004 and at no time returned to the same duties she had performed prior to the injury. Initially, her colleagues assisted her by ensuring that she only performed lighter duties. Later she covered her supervisor’s role, which involved lighter office style duties and allowed her to delegate the heavier work.

Her employment was terminated on 6 December 2004 when Lithgow Services lost the cleaning contract for the Wallerawang power station.  One week later the successful contractor for the cleaning contract, Tempo Services Limited (Tempo), hired Ms Walsh to perform cleaning duties, initially, at Wallerawang power station, and one week later at the Mount Piper power station.

At first, Ms Walsh was assigned similar duties, but as time went on she was allocated heavier tasks and experienced an increase in her symptoms. By reason of those symptoms she ceased work on 16 January 2006 at which time she was certified by Dr Suresh as being unfit for work.

Ms Walsh resides in a village in central west New South Wales where there is very little employment opportunity. She undertook voluntary work one day per week for approximately 12 months in 2007, but found that such work caused an increase in her symptoms.

In August 2008 Ms Walsh made a claim against the appellant for lump sum entitlement pursuant to ss 66 and 67 of the 1987 Act which was settled and an agreement pursuant to s 66A was entered into.

Ms Walsh had been paid compensation benefits being weekly payments, medical and rehabilitation expenses before ceasing work for Lithgow Services.  Following her termination in January 2006, Ms Walsh claimed weekly payments in respect of her alleged ongoing incapacity and an application to resolve a dispute was filed in May 2011.

Lithgow Services argued that, as Ms Walsh had been certified fit for pre-injury duties on 20 September 2004, any incapacitating effects of the fall had ceased prior to her employment with Tempo; and further that the symptoms she suffered were as a consequence of the work performed for Tempo.  In the alternative, any incapacity for which Lithgow Services was found to be liable should be found to be partial and not total.

Ms Walsh argued that she was totally incapacitated and relied upon Moran Health Care Services v Wood (1997) 14 NSWCCR 499.

An award was entered in favour of Ms Walsh.

Held: Arbitrator’s determination confirmed

In summary, the grounds of appeal were that the Arbitrator:

(a) had erred in fact and law by determining that Ms Walsh, whilst in the employ of her subsequent employer had not suffered an injury, and that the subsequent employment was not a substantial contributing factor to the aggravation of Ms Walsh’s neck condition;

(b) in making her determination, the Arbitrator had provided insufficient reasons;

(c) had erred in failing to exercise her discretion when assessing Ms Walsh’s weekly entitlement to compensation, and

(d) had erred in finding that there was no work available on the open labour market reasonably accessible to Ms Walsh.

Section 16 of the 1987 Act

1. The appellant argued that the evidence supported a finding that an injury, consisting in the aggravation of a disease in terms of s 16, had occurred arising out of or in the course of Ms Walsh’s employment with Tempo. [71].

2. Section 16 assumes the occurrence of injury. Its purpose includes “determining when the injury is deemed to have happened, [and] by whom the compensation is payable” (Crisp v Chapman (1994) 10 NSWCCR 492 per Mahoney A-P at 495). [72]

3. In order to succeed the appellant had to prove that an injury had occurred arising out of or in the course of employment with Tempo as per s 4 of the 1987 Act. [74] Only then, if proven, is it necessary to consider s 16. [79]

4. The appellant accepted that the expert medical evidence did not address the question of whether Ms Walsh’s neck condition was aggravated as a result of work performed for Tempo. [74] They argued that the evidence provided a reasonable basis on which to draw the inference that Ms Walsh had received such an injury, being an aggravation of a disease, whilst in the employ of Tempo. [75] It was further argued that the Arbitrator’s failure to reach this conclusion was an error of law and fact. [76]

5. Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 noted that  determining whether there has been an aggravation, acceleration or exacerbation of an injury poses the question of “whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects on the patient.”[78]

6. The evidence established that the symptoms experienced by Ms Walsh were constant, but varied with activity. Further, none of the medical experts expressed an opinion that the work at Tempo had caused an aggravation of her established condition. [80] As such the Arbitrator did not err in rejecting the appellant’s argument concerning the relevance of s 16. [81]

7. The appellant argued that the increase in symptoms experienced whilst performing heavier work for Tempo permits an inference that a relevant aggravation had taken place. [82] However it was found that this phenomenon was a manifestation of symptoms causally related to the original injury as distinct from causation of symptoms by reason of aggravation. [83] As described by Windeyer J in Darling Island Stevedoring and Lighteage Co Ltd v Hussey [1959] HCA 55; 102 CLR 482 (at 520), these facts demonstrate “manifestation not causation, revelation not genesis.” The Arbitrator’s conclusion that there had been no relevant “aggravation” whilst employed with Tempo demonstrated no error. [86]

Insufficient reasons

8. Jordan CJ outlined in Carlson v King (1947) 64 WN (NSW) 65 (at 66) that “it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal.” [88]

9. Whilst the Arbitrator’s reasons were deficient, this error did not affect in any relevant sense, the decision appealed against. [91]

Exercise of discretion under s 40 of the 1987 Act

10. Where there is a non-work related disability arising after the subject injury, such disability would only be relevant where there was a finding of partial incapacity arising from the 2004 injury.  The Arbitrator found that Ms Walsh was totally incapacitated as a result of the 2004 injury. [95]

11. The finding of total incapacity was supported by the evidence of Dr Lahz. Despite Ms Walsh’s evidence that she may be capable of performing some duties, as was noted by Mahoney P in Lawarra Nominees Pty Ltd v Wilson [1996] NSWSC 584 at [30], the assessment of whether a worker is totally or partially incapacitated is a “practical exercise. It involves the assessment of a capacity ‘for work’ having regards to the realities of the labour market in which he is to be engaged...”. The finding of total incapacity was open to the Arbitrator and demonstrated no error.  [101]

12. As Ms Walsh’s entitlement to weekly compensation in respect of her total incapacity was fixed by legislation there was no basis to argue that the Arbitrator had any “discretion” concerning quantification of those benefits. [102]

Arbitrator’s finding of ‘No work on the open labour market’

13. The appellant argued that no evidence had been provided by the worker proving that she was unable to find suitable work.  As such the Arbitrator gave insufficient reasons to explain this conclusion. [103]

14. O’Grady DP dismissed this ground of appeal noting that the Arbitrator’s reasons do not reveal a finding in the terms stated in this ground. The Arbitrator did refer to the availability of work when making a finding of partial incapacity; that finding was later withdrawn and the Arbitrator proceeded to make a finding of total incapacity. [104]

15. The argument advanced did not establish any error that had affected the Arbitrator’s decision and was rejected. [106]

Sturzenegger v Cosmos Building Services t/as Vastrans Pty Ltd [2011] NSWWCCPD 64

Reasons; failure to determine the issue in dispute

Roche DP

8 November 2011

Facts:

Mr Sturzenegger was a working director of Vastrans, doing office fit-outs as a carpenter.  His duties involved carrying plasterboard up and down stairs, kneeling to fit skirting boards, and climbing up and down ladders. He worked six days per week and sometimes a 12-hour day. His statement did not say when he performed these duties or whether he had any symptoms while doing them.

In April 2000, Mr Sturzenegger fell from a van and suffered a serious fracture to his left wrist that caused nerve damage and required surgery and pinning. He later developed carpel tunnel syndrome. The insurer on risk in relation to that injury continues to pay Mr Sturzenegger weekly compensation for that injury at the maximum statutory rate for a worker with a dependent spouse.

Following that injury, Mr Sturzenegger ceased working as a carpenter but returned to suitable duties “pottering around as a ship builder with restricted duties”. Whether that work was with Vastrans was disputed. At the end of October 2006, he developed a Baker’s cyst behind his right knee. At some stage, his left knee also started giving him “trouble”. He had surgery on his right knee on 18 January 2007. He stated that he believed the condition of his knees had “a lot to do with the sort of work [he] was involved with for over 29 years”.

On 6 July 2010, Mr Sturzenegger filed an Application in the Commission claiming weekly compensation from 1 June 2006 to date and continuing and lump sum compensation under the Table of Disabilities in respect of an alleged loss of efficient use of his legs at or above the knee as a result of the condition of his knees.  The date of injury, initially pleaded as “2001 to date & continuing”, was amended at arbitration to be “11.4.00 – deemed”.

GIO filed a Reply putting all matters in issue, including whether Mr Sturzenegger had received an injury, and advised that it only insured Vastrans from 7 January 2000 to 7 January 2006. The respondent was uninsured after that date.

Mr Sturzenegger’s solicitor, Mr Collins, identified the issues to be “disease and the date of injury, as far as I can gather; disease within the meaning of the Act”. Mr Collins said Mr Sturzenegger’s argument would be that his duties changed following his wrist injury and after that date, he was “either at hospital or whatever and then on very light sort of duties”.

The Arbitrator found that Mr Sturzenegger had suffered an aggravation of a disease as a result of his work as a carpenter with Vastrans up to 11 April 2000 and that he “suffered no further duties aggravating his knees after that date”.  He accepted the employer’s submissions that, in respect of the claim for weekly compensation, the deemed date of injury was 18 January 2007 and, in respect of the claim for lump sum compensation, the deemed date of injury was 23 June 2008. As GIO had ceased to insure the respondent on 7 January 2006, the Arbitrator excused it from further participation in the proceedings.

At the teleconference on 23 August 2011, Mr Sturzenegger’s counsel sought leave to rely on the following grounds of appeal, namely, that the Arbitrator erred when he:

(a)  found Mr Sturzenegger continued to be an employee of the respondent after 7 January 2006;

(b)  declined to consider the application of s 18 of the 1987 Act;

(c) failed to order GIO to indemnify the respondent in respect of the injuries found;

(d)  excused GIO from further participation in the proceedings, and

(e)  failed to consider the terms of the statutory workers compensation policy.

Held:  Arbitrator’s decision revoked; matter remitted to another Arbitrator for re-determination

1. The Deputy President agreed that the new issues were relevant to the proper determination of the matter. The issues before the Arbitrator were identified by Mr Collins to be “disease and the date of injury”.  However, exactly what that meant was unclear. It is the employer, or, more usually its insurer, who identifies the issues in dispute. The respondent’s Reply filed in the interests of GIO put all matters in issue; in particular, it disputed whether Mr Sturzenegger had received an injury “as alleged or at all during GIO’s period of risk” and whether he was a “worker” under the legislation. It did not abandon those issues. This required the Arbitrator to consider not just Mr Sturzenegger’s employment, but also the nature of his duties and whether, as a result of those injuries, he suffered an injury. [64]

2. Contrary to the respondent’s submissions on appeal, there were no agreed facts before the Arbitrator. If matters were discussed at a teleconference, they were not the subject of any formal agreement noted by the Arbitrator. As there was no transcript of the teleconference, it was not appropriate for the Deputy President to base his decision on those discussions. [67]

3. Mr Sturzenegger’s evidence was that, following the fall in April 2000, he had been “pottering” around as a shipbuilder “with restricted hours since, being self employed”. Exactly what that meant was unclear. However, it was clear that the employment issue was before the Arbitrator. That issue went to the heart of the case, namely, when Vastrans employed Mr Sturzenegger, what his duties were while he was employed and how, if at all, he received an injury in the course of or arising out of his employment. In those circumstances, whether the Arbitrator properly determined that issue was a matter the appellant was entitled to argue on appeal. [69]

4. The Arbitrator’s decision proceeded on the assumption that Vastrans employed Mr Sturzenegger as a working director up to the date of his decision. Without referring to the evidence or submissions, the Arbitrator said that Mr Sturzenegger “continued to be an employee of the respondent company and continues to this date”. That was the only statement he made about Mr Sturzenegger’s employment. He failed to give reasons for that conclusion and appeared to have proceeded on the basis that it was an agreed fact. It was not. It was an issue to be determined and the Arbitrator’s failure to deal with it was an error that affected his decision. [69]

5. The respondent’s “point of contention” argued that the Arbitrator’s conclusion could be upheld on the alternative basis that, contrary to his findings, Mr Sturzenegger suffered an aggravation injury to his knees under s 4(b)(ii) of the 1987 Act as a result of the work he did building a boat after April 2000 and not as a result of his work as a carpenter up to April 2000. [71]

6. First, neither the Act nor the Commission’s rules make any provision for a “point of contention”. Second, the matter raised in the “point of contention” did not merely seek to uphold the Arbitrator’s decision on an alternative basis to that relied on by the Arbitrator, which is permissible in submissions in a Notice of Opposition, but sought to challenge one of the Arbitrator’s factual findings. To do that, the respondent should have filed an appeal. Third, the “point of contention” raised a matter that was not argued before the Arbitrator and was a matter that could have been met with evidence from Mr Sturzenegger. It was therefore not appropriate to give leave to the respondent to argue on appeal the issue in the “point of contention”. Last, as all matters must be re-determined in any event, the respondent was at liberty to raise this issue at the next arbitration. [72]

Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61

Application for reconsideration

O’Grady DP

2 November 2011

Facts:

Mr Rachmaninoff commenced employment as a farmhand with Inghams Enterprises Pty Ltd (Inghams), the appellant, in 2002. His duties involved catching chickens, which required a lot of bending, twisting, working on uneven surfaces and lifting weights between seven and 10 kg. Mr Rachmaninoff alleged that the “nature and conditions” of this work between 2002 and December 2009 caused an injury to his back.

Mr Rachmaninoff claimed lump sum compensation (which did not nominate a particular date of injury) in respect of a five per cent whole person impairment, which was declined by Inghams, a self-insurer.

Proceedings were commenced.  Following a teleconference, the Arbitrator ordered (in a Certificate of Determination dated 16 July 2010), that the matter be remitted to the Registrar for referral to an AMS for assessment.

Following the issue of the MAC, a Certificate of Determination dated 9 February 2011 was issued which ordered that Inghams pay Mr Rachmaninoff, “as lump sum compensation under section 66, $8,662.50 in respect of 6% permanent impairment resulting from injury on Nature and Conditions of employment from 2002 to 2009”.

On appeal, Inghams challenged the determination found in both Certificates of Determination on various grounds, including (but not limited to) that there had been a denial of procedural fairness, and that inadequate reasons had been supplied.

On 6 July, 2011, O’Grady DP confirmed the certificates of determination dated 16 July 2010 and 9 February 2011.

In their application for reconsideration, Inghams sought a reconsideration of O’Grady DP’s findings and orders made on 6 July 2011.

Held: application for reconsideration is refused and the findings and orders in the Appeal are confirmed.

The power to reconsider

1. The principles applicable to reconsideration applications under s 350(3) of the 1998 Act were outlined by Roche ADP (as he was then) in Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 between [38] and [58].  Those principles as outlined remain sound and relevant notwithstanding the subsequent amendments to s 352(5) and s 352(8) of the 1998 Act. [10]-[11]

2. The Commission has the power to reconsider any matter dealt with and to rescind, alter or amend any decision previously made, however, the exercise of that power has generally been restricted to circumstances where fresh evidence has become available and is found to be admissible on such an application or to correct errors or omissions which are simple and obvious.[12]

3. The appropriateness of an application made for reconsideration must be considered having regard to the availability of a right of appeal from decisions of an arbitrator and the right, as provided by s 353, of appeal against the decision of a Presidential member. [13]

Reconsideration

4. Inghams submitted that an incorrect perception had arisen on appeal that Inghams had not and/or did not wish to make an application for leave to raise a liability issue pursuant to s 289A(4). Inghams asserted that they had made, or wished to make, such an application at the 16 July 2010 teleconference before the Arbitrator.

5. O’Grady DP rejected the submission that an application had been made before the Arbitrator raising a liability issue pursuant to s 289A(4). It was noted that during the appeal hearing, counsel for Inghams had conceded that “[n]o such application was made” [77].

6. In respect of the submission that Inghams had “wished” to make an application before the Arbitrator, O’Grady DP rejected this submission noting that the Arbitrator had initially thought an application had been made pursuant to s 289A(4) and had refused the application.  It was then that Inghams’s solicitor stated that no such application had been made. [23]

7. Based on the findings that Inghams had neither made nor wished to make an application for leave pursuant to s 289A(4), Inghams failed to establish any relevant error requiring reconsideration and the application was dismissed.

Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65

Injury; aggravation of disease; need for independent corroboration of complaints of pain; expert evidence; application in the Commission of the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 in light of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11

Roche DP

11 November 2011

Facts:

Ms Findlay commenced work with the Department as a careworker in August 1997. Her duties required her to shower, dress, and generally care for elderly and disabled clients.

She claimed lump sum compensation in respect of a 12 per cent whole person impairment she alleged resulted from an injury to her back and neck caused by her heavy and repetitive duties since 1997. The injury was said to be an aggravation, acceleration or exacerbation of a disease process.

The Department admitted liability in respect of the injury to the lumbar spine but disputed liability in respect of the alleged injury to the cervical spine. The Department argued that Ms Findlay did not suffer an injury to her cervical spine and, in the absence of any radiological evidence of a disease, it was not open to the Arbitrator to find an injury in the nature of an aggravation of a disease.

The Arbitrator accepted that, based on the evidence of Dr Matthew Giblin, orthopaedic surgeon, and Ms Findlay’s evidence of the nature of her duties, she had a disease in her cervical spine and that she aggravated that disease in the course of her employment.

The Department appealed the Arbitrator’s decision on the basis that the Arbitrator erred in:

(f) finding that the worker had sustained an injury to her neck by way of an aggravation of a disease process that occurred with the Department on 4 February 2008;

(g)  in relying on the opinion of Dr Giblin;

(h)  in finding that Dr Tsui had made a diagnosis of “cervical spondylosis”, and

(i) in finding a deemed date of injury of 4 February 2008.

Held:  paragraph 1 of the Arbitrator’s determination revoked and matter referred to AMS to assess worker’s whole person impairment; paragraphs 2 and 3 of the Arbitrator’s determination confirmed.

1. The Department submitted that the Arbitrator erred in finding injury when there were no independent complaints of pain that were contemporaneous with the claimed injury as required by authorities such as The Department of Education and Training v Ireland [2008] NSWWCCPD 134 (Ireland). Ireland gave the Department little, if any assistance. It was not a disease case, and was decided on its facts and stated no principle of law that was binding in this matter. Nothing in Ireland suggested or implied that a worker cannot succeed without independent contemporaneous evidence to corroborate his or her complaints. In civil law, corroboration is not a legal requirement; a judge’s (arbitrator’s) task is to decide cases on an assessment of the whole of the evidence (Chanaa v Zarour [2011] NSWCA 199 at [86]). [34]-[37]

2. The submission that the evidence fell short of what was required for expert opinion evidence was based on the argument that Dr Giblin’s evidence failed to comply with the principles in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita). In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11, the Court of Appeal examined the application of Makita to proceeding in the Commission. Beazley JA (Giles and Tobias JJA agreeing) said (at [82]) there could be no doubt that the Commission was required to be satisfied that expert evidence provided a satisfactory basis upon which the Commission can make its findings.  However, even in evidence-based jurisdictions, “that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report”. [39]

3. Her Honour added (at [83]) that, in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”. What was required for satisfactory compliance with the principles governing expert evidence was for the expert’s report to set out “the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests” ([85]). [41]

4. Dr Giblin’s opinion that, notwithstanding the absence of x-rays, Ms Findlay had degenerative changes in her cervical spine and most likely aggravated those changes was based on:

(a) the history he took from Ms Findlay that her duties involved repetitive bending and heavy lifting over 12 years and that she developed a “slow deterioration of her low back and cervico thoracic regions” in the two-and-a-half years since she hurt her back moving a paraplegic;

(b) his findings on examination of Ms Findlay’s cervical spine, which revealed a restricted range of movement associated with pain and spasm, and

(c) her age.

5. These matters explained the basis for Dr Giblin’s opinion and complied with the principles governing expert evidence in the Commission. It was open to the Arbitrator to accept the doctor’s conclusions and to find that Ms Findlay suffered from a disease in her cervical spine and that, as a result of her duties over 12 years, she had aggravated, exacerbated or accelerated that disease. [43]-[44]

6. Dr Tsui’s evidence that Ms Findlay had complained of neck pain in April 2005 and had cervical spondylosis was of limited relevance to the outcome and was not determinative. Had Ms Findlay sought to rely solely on his evidence in support of her case, she would have had difficulties because Dr Tsui expressed no opinion on causation and recorded no history. However, Dr Tsui’s opinion on diagnosis was open to him and was based on his findings on examination. The weight attached to his opinion was another matter. Dr Tsui’s diagnosis was only one factor the Arbitrator considered with regard to whether Ms Findlay suffered from a disease. He was entitled to consider it. However, he did not base his conclusion on it. Further Dr Tsui’s notes were not inconsistent with Ms Findlay’s evidence; they supported her claim that she developed neck symptoms well before she saw Dr Giblin in 2009. [45]-[46]

7. The Arbitrator erred in finding the deemed date of injury in respect of the cervical spine to be 4 February 2008, the agreed deemed date of injury for the lumbar spine. Having found the injury to be an aggravation of a disease, the injury shall be deemed to have happened at the time of the worker’s death or incapacity, or, if death or incapacity has not resulted from the injury, at the time the worker makes a claim for compensation (s 16(1)(a) of the 1987 Act). [51]

8. As there was no evidence that the aggravation injury to the cervical spine had caused any incapacity, the date of injury was the date of claim, 8 February 2011.  [52]

9. In Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6, it was held if a worker suffered the same injury (pathology) from separate injurious incidents, or two separate injuries (pathologies) from the same injurious incident, those injuries were to be assessed together when calculating lump sum compensation. While the injury to Ms Findlay’s cervical spine may well be the same as the injury to her lumbar spine, the Deputy President preferred to base his decision on the fact that the injuries (whether or not they resulted from the same pathology) had resulted from the same injurious incident: the heavy repetitive duties she performed since 1997. [55]

10. The Commission determines whether a worker has received “an injury” by applying s 4 of the 1987 Act (Crisp v Chapman (1994) 10 NSWCCR 492). Ms Findlay’s evidence was that she developed a slow deterioration of problems in her back and neck in performing her work tasks over time. Therefore, the aggravation injury to her cervical spine and lumbar spine resulted from the “same incident” under s 322(3) of the 1987 Act, and any impairments resulting from that incident should be assessed together. [56], [58]

11. The same result could have been reached by an alternative and much simpler method. As 8 February 2011 was also the first date of claim for lump sum compensation for the back, it would have been open to find that date was also the correct deemed date of injury for the purpose of lump sum compensation for the injury to the lumbar spine (Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246; Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701). The parties did not address on this approach. [59]

George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62

Psychological injury; assessment of evidence; application to extend time to appeal; no prospects of success; unmeritorious appeal; no demonstrable or substantial injustice if time to appeal not extended; Pt 16 r 16.2(12) of the 2011 Rules

Roche DP

3 November 2011

Facts:

Ms Bogdanoski worked for the appellant as a machine operator from 7 June 2005 until June 2008. She alleged that she received a psychiatric injury (complex post-traumatic stress disorder and severe depression) as a result of victimisation, bullying and harassment in the course of her employment. Her complaints fell into three main categories: allegations of general harassment and bullying by co-workers and team leaders between 2005 and June 2008; an incident on 2 July 2006 when it is alleged two co-workers approached one of whom waved a spanner at her; and an incident on 22 June 2008 when two co-workers stood on a conveyor and thrust their pelvises at her.

The appellant disputed liability on the grounds that:

(a) no bullying or harassment occurred and Ms Bogdanoski had not been assaulted;

(b) Ms Bogdanoski had not received a psychological or psychiatric injury;

(c) if she had received such an injury, her employment was not a substantial contributing factor to the injury;

(d) she was not incapacitated;

(e) her medical treatment was not reasonably necessary as a result of any injury, and

(f) if she received a psychiatric injury, the injury was wholly or predominately caused by reasonable action taken by the appellant with respect to discipline and/or performance appraisal (s 11A of the 1987 Act).

The Arbitrator found, based on an acceptance of the worker’s evidence and the evidence of the worker’s doctors, that Ms Bogdanoski had received a psychiatric injury, namely, post-traumatic stress disorder with major depression and panic disorder, to which her employment had been a substantial contributing factor. The s 11A defence failed because the Arbitrator found that any action with respect to discipline and performance appraisal was not the predominant cause of the injury.

In an appeal filed one day out of time, the appellant sought an extension of time to argue that the Arbitrator erred in:

(a) the exercise of her discretion in refusing to allow cross-examination of witnesses relied upon by either party in circumstances where there were clear issues raised in relation to Ms Bogdanoski’s credit, and where there was a significant conflict in the evidence relevant to the issues of injury, substantial contributing factor and whether or not the injury (if any) had been wholly or predominantly caused by reasonable action on the part of the employer in relation to performance appraisal and/or discipline (oral evidence);

(b) failing to given any reasons as to why oral evidence was not permitted and failing to acknowledge in her decision that the question of whether oral evidence should be heard was raised by the parties (oral evidence);

(c) making adverse findings in relation to the credit of the witness Ms Kulaga without providing an opportunity for that witness to give oral evidence, be cross-examined and be confronted with the prospect of such a finding being made without having had the opportunity to respond (Ms Kulaga’s evidence);

(d) preferring Ms Bogdanoski’s evidence over that of Ms Kulaga in relation to the incident on 2 July 2006 in that she:

i) failed to acknowledge or appreciate that Ms Bogdanoski carried the onus of establishing that her account of the circumstances of that incident were more probable than not, and

ii) failed to give any or any adequate reasons for accepting the evidence of Ms Bogdanoski over the evidence of Ms Kulaga in relation to that incident (Ms Kulaga’s evidence);

(e)  finding that “Chris” may not have been Christopher Blagonic when there was no evidence from the worker that that was the case (Christopher Blagonic);

(f) finding that the events described in Dr Stephenson’s report to Dr Pukanic dated 24 November 2010 were “reflections of a disturbed mind” in the absence of any medical or other evidence to support such a finding and in circumstances where it was equally open to conclude that the assertion made to Dr Stephenson was yet another manifestation of the unfounded delusions that had manifested themselves throughout the period during which Ms Bogdanoski alleged having suffered injury (Dr Stephenson’s report of 24 November 2010);

(g) accepting Ms Bogdanoski’s account of events was more probable than not and sufficient to discharge the onus of proof which rested on her in circumstances where such evidence was not corroborated and had been directly challenged by a number of witnesses (Ms Bogdanoski’s evidence), and

(h) failing to recognise, when considering whether Ms Bogdanoski’s injury had been wholly or predominantly caused by reasonable action on the part of the employer in relation to performance appraisal and/or discipline within the meaning of s 11A of the 1987 Act, that the management of Ms Bogdanoski’s “behaviour” by her team leaders and supervisors constituted performance appraisal and/or discipline within the meaning of s 11A, thereby causing the determination to miscarry (s 11A).

The appeal was out of time because the appellant’s solicitor “miscalculated the time in which the appeal had to be lodged”. The appellant argued that, as the appeal was only one day out of time, there was no prejudice to the worker, and there would be a demonstrable and substantial injustice to the appellant if the right to appeal was lost.

The Commission has held in several cases that an oversight or administrative error by a solicitor does not, of itself, provide exceptional circumstances to justify an extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55). Nevertheless, even if the reason for the appeal being lodged out of time is less than satisfactory, it is still possible to satisfy the rest in r 16.2(12) if it is otherwise established that to lose the right to appeal would create a demonstrable and substantial injustice. [14]

Whether there would be a demonstrable or substantial injustice if time was not extended required a careful consideration of the merits of the appeal.

Held:  After the following consideration of the merits, the application to extend time refused; Arbitrator’s determination confirmed

Oral evidence

1. None of the issues that concerned the Court of Appeal in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399 were present in Ms Bogdanoski’s case. When the arbitration started, the question of cross-examination came up at the informal conciliation stage of the proceedings (which were not recorded or transcribed) when no formal orders or directions were made.  The parties agreed that the Arbitrator expressed a preliminary view that cross-examination would not assist her. Whether that related to cross-examination of Ms Bodganoski or to cross-examination of witnesses generally was not known. It was open to the Arbitrator to express that preliminary view. [95]

2. The Arbitrator’s expression of a preliminary view at the conciliation stage was not a ruling and did not prevent either party from applying for leave to cross-examine or call oral evidence. The Arbitrator expressly asked if the parties wished to make any application about further evidence. That included any application for leave to cross-examine or call oral evidence.  Both parties declined. [97]

3. The obligation to give reasons had to be considered in light of the issues raised for consideration by the parties (Brambles Industries Ltd v Bell [2010] NSWCA 162). As the appellant made no application to call oral evidence, the Arbitrator did not err in failing to deal with it in her reasons. [101]

Ms Kulaga’s evidence

4. The submission that the refusal to allow Ms Kulaga to give oral evidence was a “clear denial of procedural fairness” was incorrect. That submission was not soundly based. There is no obligation to accord procedural fairness to a witness. The appellant argued that the denial of procedural fairness occurred because it was denied the opportunity to put its case and to test Ms Bogdanoski’s case. The appellant had every opportunity to put its case and made no application to call oral evidence from Ms Kulaga or to test Ms Bogdanoski’s evidence in cross-examination. [112]

5. The submissions put on appeal, namely, that Ms Bogdanoski’s account was a “manifestation of her delusional and paranoid personality”, were not put at the arbitration. Counsel at the arbitration argued, based on the evidence, that the Arbitrator should not accept Ms Bogdanoski’s evidence. There was no evidence to suggest that Ms Bogdanoski was or is delusional. [113]

6. Dr White suggested that personality dysfunction could provide an alternative explanation for emotional distress that was alleged to be due to a compensable focus. He added that personality dysfunction “may have been the primary cause for any workplace incident at issue”. He did not say, or even imply, that Ms Bogdanoski was delusional.  There was no evidence that she was delusional.  The fact that the appellant disputed a number of the worker’s allegations did not support a submission that she was delusional. [114]

7. The Arbitrator was satisfied that many of the things that Ms Bogdanoski complained of did happen. Even if they did not occur exactly in the way Ms Bogdanoski described them, it could not be seriously contended that there was no conflict at work or that that conflict did not cause Ms Bogdanoski’s injury. [116]

8. There is no rule of law that evidence in a civil action must be corroborated before it can be accepted (Chanaa v Zarour [2011] NSWCA 199).  That a distressing event occurred at work on 2 July 2006 was corroborated by Dr Kurrie’s notes recorded on the day of the event. There was also a note kept by Mr Charmand dated 2 July 2006 which confirmed Ms Bogdanoski complained of being “verbally abused” on that day. [117]-[118]

9. While neither note referred to a spanner, the Arbitrator correctly observed that, though Ms Kulaga denied that anyone had been waiving a spanner at Ms Bogdanoski, she did not deny that Ms Johnson may have been holding a spanner. That fact, taken together with the evidence that spanners were readily available at the workplace, provided a sound basis for the Arbitrator’s conclusion that “something threatening” occurred on 2 July 2006. [119]

10. More importantly, the question was not whether Ms Kulaga and Ms Johnson were trying to kill the worker, but whether Ms Bogdanoski perceived that the events at work created “an offensive or hostile working environment” (per Basten JA State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [69]; 5 DDCR 286. If so, and a psychological injury resulted from that environment, it was open to the Arbitrator to conclude that causation was established. [120]

11. With the exception of Dr White, who did not accept that Ms Bogdanoski had any psychological condition, the medical evidence strongly supported a connection between the events at work and the development of Ms Bogdanoski’s injury. [124]

Christopher Blagonic

12. The Arbitrator did not “gloss over” the evidence about Chris relating to the events in 2005. She considered it in detail. Her reasons for finding that Mr Blagonic was not the Chris who looked at Ms Bogdanoski in 2005 were not based on speculation but on the worker’s evidence that the Chris who looked at her worked in the warehouse and the unchallenged evidence that Mr Blagonic did not start work with appellant until November 2006 and he did not work in the warehouse. That was not speculation; that was the evidence. [132]

Dr Stephenson’s report of 24 November 2010

13. The Arbitrator’s statement that it was “possible” that the statement recorded by Dr Stephenson was the reflection of a disturbed mind was not speculation. Mr Whyte said in his report of 19 September 2010 that Ms Bogdanoski reported experiencing “confused cognitions leading to memory and concentration difficulties”. Whether that accounted for the history recorded by Dr Stephenson was far from clear because Mr Whyte did not give oral evidence. However, the Arbitrator did not make a positive finding on that matter, but merely referred to it as a possibility. [142]

14. That Dr Stephenson considered the involvement of Chris in a serious assault as significant was not determinative. The worker’s case did not hinge on the report of 24 November 2010. Dr Stephenson strongly supported the worker’s case in her earlier reports and there was no suggestion that that would have changed if she had not taken the history recorded in the November 2010 report. [143]

Ms Bogdanoski’s evidence

15. There was nothing in the Arbitrator’s reasons which suggested that she did not approach the case on the basis that Ms Bogdanoski carried the onus of proof. She considered the evidence in detail and concluded that, on balance, she preferred Ms Bogdanoski’s evidence on several critical issues. It was open to the Arbitrator to accept Ms Bogdanoski’s evidence of the distress the events at work caused her. That evidence together with the strong medical case, provided a sound basis for her conclusions. [151]

16. The Arbitrator carefully considered the alleged inconsistencies in Ms Bogdanoski’s evidence, as put by the appellant’s counsel at the arbitration. Those matters did not come close to “mandating” that the Arbitrator find that Ms Bogdanoski’s evidence could not be accepted or that she had not discharged the onus of proof. [152] Though she did not accept all of the worker’s evidence, that did not prevent her from finding in the worker’s favour. After dealing with the alleged inconsistencies, she accepted that there was considerable conflict in the workplace and that that conflict was a substantial contributing factor to Ms Bogdanoski’s psychiatric injury. [154]

Section 11A

17. The appellant did not refer to any of the medical evidence in its submissions on this issue because, regardless of the definition of “discipline”, there was no persuasive medical evidence that Ms Bogdanoski’s psychological injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken with respect to discipline.  Dr White did not address s 11A as he did not accept that Ms Bogdanoski suffered from a formal psychiatric disorder. [172]

18. Based on the Arbitrator’s findings, which disclosed no error, Ms Bogdanoski’s injury had two main causes: the incident on 2 July 2006 and the workplace conflict with co-workers between 2005 and 2008. On any version of the July 2006 incident, it had nothing to do with discipline or performance appraisal. Therefore, even if the workplace conflict related wholly to discipline and performance appraisal, which was not supported by the evidence, it was impossible for that conflict to be the whole or predominant cause of the injury. [173]

19. While there were general allegations that Ms Bogdanoski did not accept feedback on her work or actions, that fell well short of establishing that the feedback was discipline under s 11A, or that the feedback was the whole or predominant cause of the psychological injury.  Merely telling a worker how to carry out his or her work, that is, giving lawful instructions, is not performance appraisal (Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; 19 NSWCCR 135 at [33]). Nor is it discipline. [176]

Conclusion

20. The appeal was without merit and the arguments in support of it were untenable. It was therefore not established that, in exceptional circumstances, to lose the right to appeal would result in any injustice, let alone a “demonstrable and substantial injustice”, as required under Pt 16 r 16.2(1) of the Rules.

Albury City Council v Gunton [2011] NSWWCCPD 68

Failure to give reasons; injury; aggravation of disease; s 4(b)(ii) of the 1987 Act; determination of last employer who employed worker in employment that was a substantial contributing factor to the aggravation of the disease

Roche DP

30 November 2011

Facts:

Mr Gunton worked for the appellant, Albury City Council (the Council), from 1991 as a full-time meter reader. The work was repetitive and required him to read and replace meters, and get in and out of a car. Replacing a meter required a lot of bending, and forceful pushing and pulling to release the seal that held large nuts in place.

Mr Gunton first experienced back pain in the course of his employment in 1994. The Council’s records confirm that he injured his back in several specific incidents between 1994 and 2005. He resigned from the Council, effective on 16 September 2005, because he could not do the work (due to his back symptoms), he wanted to move to Queensland to be with his ex-partner and his son who had had a serious motorbike accident.

Mr Gunton worked part-time for Bob Crosby & Co Pty Ltd (Bob Crosby) assembling motor cycles from 26 October 2005 until 28 March 2006.

Mr Gunton suffered from depression (not related to his claim for compensation) between 2005 and 2008, and did not seek advice about his workers compensation rights until 2008. He completed a claim form on 1 December 2008 and his solicitors formally claimed compensation on his behalf on 21 January 2010.

The Council’s insurer, StateCover Mutual Limited (StateCover), disputed liability on the grounds that:

(a) the claim had not been duly made in accordance with the legislation;

(b) if the injury constituted an aggravation, acceleration, exacerbation or deterioration of a disease, employment (with the Council) was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration or, in the alternative, the Council was not the last employer that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease;

(c) any incapacity (which was disputed) did not arise out of or in the course of Mr Gunton’s employment with the Council;

(d) Mr Gunton was not incapacitated;

(e) Mr Gunton had no entitlement to lump sum compensation, and

(f) the claim was out of time under s 261 of the 1998 Act.

Mr Gunton filed an Application seeking weekly compensation from 18 September 2005 to date and continuing, lump sum compensation, and hospital and medical expenses. His injury was described as “[l]umbar spine, [t]horacic spine – disc bulges and developing derangement resulting in constant pain”, which had been caused by:

“Physically demanding position at work, involving heavy manual work, bending, lifting and working in confined spaces has, over time, caused, aggravated, exacerbated and/or accelerated debilitative, degenerative changes to lower and middle back.”

The Arbitrator found that:

(a) Mr Gunton suffered a serious and permanent disablement to his back as a result of his injury. His depression and personal difficulties constituted “other reasonable cause” under s 261(4) and his failure to claim within the time in s 261(1) was therefore not a bar to the recovery of compensation;

(b) it was more probable than not that Mr Gunton’s employment was a contributing factor to the worsening of the disease from which he suffered (Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch));

(c) Mr Gunton suffered injury at work with the Council and that work was a substantial contributing factor to the injury, and

(d) the short periods of work with Bob Crosby produced nothing more than flare-ups of Mr Gunton’s existing back condition.

(e) Mr Gunton was partially incapacitated and entitled to an award from 18 September 2005 to date and continuing.

The Council challenged the Arbitrator’s determination on liability and argued that:

(a) Mr Gunton was not unable to do the work, he resigned for other good reasons and, if there was an incapacity in 2008, it was due to a further aggravation injury with employers after September 2005;

(b) the Arbitrator erred in concluding that 17 September 2005 was the deemed date of injury and failed to explain the reasoning process that led him to that conclusion;

(c) in finding that the injury was an aggravation, the Arbitrator erred in failing to identify the disease, body part affected and the date of injury by reference to the time of the incapacity said to have resulted from the injury

Held: Arbitrator’s decision confirmed

1. The Arbitrator did not give adequate reasons for his conclusions (see Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]). He did not say why he found that the deemed date of injury was 17 September 2005 or why he rejected the Council’s case [129]. It was therefore necessary to re-determine the matter. The parties consented to the matter being re-determined by the Deputy President.

2. Mr Gunton had to establish that his employment was a substantial contributing factor to the aggravation of the symptoms of the disease in his spine, not to the disease process overall (Murray v Shillingsworth [2006] NSWCA 367). Given Mr Gunton’s age and general circumstances, the nature of his duties, and the lack of any persuasive evidence that he would have suffered an aggravation of the degenerative changes in his spine at about the same time or at the same stage of his life if he had not worked for the Council, and the medical evidence from Dr Machart and Dr Isbister, Roche DP was satisfied that employment with the Council up to 16 September 2005 was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the degenerative condition in Mr Gunton’s thoracic and lumbar spine. That is, he suffered an injury under s 4(b)(ii) of the 1987 Act to which his employment with the Council was a substantial contributing factor. Roche DP referred to the injury as the aggravation injury. [137]

3. The deemed date of injury was either the date of incapacity or, if incapacity had not resulted from the injury, the date Mr Gunton claimed compensation (s 16(1)(a)).

4. Mr Gunton’s back symptoms were one of the reasons for his resignation in September 2005.  Those symptoms incapacitated him on the open labour market. His complaints were corroborated by the fact that he sought regular chiropractic treatment for his back, and by evidence from Mr McDonald, a work mate.  The fact that he continued his normal work until his resignation did not mean that he was not incapacitated on the open labour market (Steggles v Aguirre (1988) 12 NSWLR 693). [143].

5. In determining a worker’s capacity to earn in the open labour market, there is a need to consider more than just the medical evidence (Campbell JA in Guthrie v Spence [2009] NSWCA 369). Mr Gunton’s evidence provided ample support for a finding of incapacity. The deemed date of injury for Mr Gunton’s aggravation injury was found to be the date of his incapacity, being 17 September 2005 (the day after he ceased work for the Council). [149]–[150]

6. The appellant’s submission that the Council was not the employer who last employed Mr Gunton in employment that was a substantial contributing factor to the aggravation injury was rejected. [152]

7. The work undertaken with Bob Crosby and Mr Harvey consisted of light duties, and whilst Mr Gunton did experience an increase in his symptoms whilst in those employments, the evidence was consistent with a continuation of the symptoms he had with the Council rather than a fresh aggravation injury.[157], [162]

8. As was observed by Evatt and Shepperd JJ in Commonwealth of Australia v Beattie (1981) 35 ALR 369 at 378 “[i]t does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have an aggravation of his injury”. [161]

9. No persuasive medical evidence supported the submission that Mr Gunton suffered an aggravation injury in the course of his employment for various employers in Melbourne.  Further, as that employment and the employment with Bob Crosby were outside NSW South Wales, it was not relevant to the claim because s 16 does not have extra-territorial operation (A & G Engineering Pty Ltd v Civitarese (1996) 41 NSWLR 41). [163]