Fleming v New South Wales Police Force [2011] NSWWCCPD 33

Novel or complex question of law; Sch 6 Pt 18C cl 3(2) 1987 Act; method of assessing reduction in compensation for previously non-compensable impairment

Keating P

23 June 2011

Facts:

Mr Fleming was a police officer who alleged that, whilst serving as an operational officer from 14 February 1995 to August 2007, he was exposed to a series of traumatic events resulting in a disease of gradual onset, namely, post-traumatic stress disorder.

On 10 May 2010, Mr Fleming claimed lump sum compensation pursuant to s 66 of the 1987 Act in respect of a 21 per cent permanent impairment. An assessment on behalf of the police force assessed Mr Fleming as suffering from a 15 per cent whole person impairment as a result of his psychological condition.

On 12 November 2010, Mr Fleming lodged an Application claiming a 21 per cent whole person impairment in respect of “psychiatric/post-traumatic stress disorder” with a deemed date of injury being 4 November 2005, but later amended by consent to May 2007.  He also made a claim under s 67 of the 1987 Act.

A dispute arose between the parties concerning the application of the transitional provisions found in Sch 6 Pt 18C(3)(2) of the 1987 Act concerning the reduction in the compensation payable for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. That provision provides:

(2) There is to be a reduction in the compensation payable under Division 4 of Part 3 (as amended by the lump sum compensation amendments) for any proportion of the permanent impairment concerned that is a previously non-compensable impairment. This subclause does not limit the operation of section 323 of the 1998 Act or section 68B of the 1987 Act.

The dispute concerned the method of quantifying the reduction in the compensation payable for any proportion of the permanent impairment concerned that is a previously non-compensable impairment.  Two methods have been applied in various decisions of the Commission and the former Compensation Court.

The “reduction by lump sum method” took the following approach:

(a) a determination is made of the whole person impairment;

(b) if the impairment found is over 15 per cent (the threshold required by s 65A of the 1987 Act for the payment of lump sum compensation for psychological injury), a determination is made of the lump sum payable in respect of the percentage impairment found;

(c) if there is a previous non-compensable impairment, a determination is made of the proportion of any “previously non-compensable impairment”, and

(d) apply by way of a reduction, in dollar terms, the non-compensable proportion found in (c) to the lump sum payable in respect of the whole person impairment determined at (b).

2. The alternative approach, the “reduction in the percentage whole person impairment method” took the following approach:

(a) a determination is made of the whole person impairment;

(b) a determination is made in percentage terms of any “previously non-compensable impairment”;

(c) a deduction is made, in percentage terms, of the non-compensable proportion found in (b) from the whole person impairment percentage found in (a), and

(d) if the remaining whole person impairment is less than 15 per cent, no compensation is payable in accordance with s 65A(3) of the 1987 Act.

A telephone conference was held on 9 March 2011 and the Arbitrator noted the parties intention to file an Application for Leave to Refer a Question of Law to the President. He directed they do so within 28 days of the teleconference. On 14 April 2011, the parties jointly lodged an application for leave to refer two questions of law under s 351(2) of the 1998 Act.  WorkCover exercised its right to intervene in the proceedings and lodged submissions.

Questions of law

(a) “Does the found ‘proportion’ referred to in Sch 6 Pt 18C cl 3(2) of the Workers Compensation Act 1987 result in a reduction to the degree of permanent impairment or a reduction to the amount of compensation payable?”

(b) “Whether, in view of Pt 5 of the WorkCover Guidelines, the respondent is bound to accept the result that is most beneficial to the applicant in the event of differing medical opinions?”

Held:

1. Leave in respect of the first question of law is granted.  The answer to the question is:

The reduction for any proportion of the permanent impairment found to be a previously non-compensable impairment referred to in Sch 6 Pt 18C cl 3(2) of the 1987 Act is to be effected by a reduction “in the compensation payable”, not by a reduction in degree of whole person impairment.

2. Leave in respect of the second question of law is refused.

Question 1

1. Section 65A of the 1987 Act was inserted in the Act by the Workers Compensation Legislation Amendment Act 2001, which became operative on 1 January 2002.  The transitional provisions with respect to the application of the amendments to lump sum compensation were also inserted in the 1987 Act at the same time.  The relevant transitional provision is found in Sch 6 Pt 18C cl 3. [37], [38]

2. The question involved the construction to be applied to the words “reduction in the compensation payable” in the context of apportioning compensation for previously non-compensable impairment, due to something that occurred before the commencement of the amendments to Div 4 of Pt 3 of the 1987.  Further, the requirements of s 33 of the Interpretation Act 1987 required a purposive approach to interpreting statutory provisions. [83], [84]

3. The word “compensation” is defined in s 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”.  “Permanent impairment compensation” is defined in s 4 to mean “compensation for permanent impairment under section 66 of the 1987 Act”, and “pain and suffering compensation” is defined to mean “compensation for pain and suffering under section 67 of the 1987 Act”.  Therefore, compensation means a monetary benefit. [87]

4. There is a distinction between “permanent impairment” and “permanent impairment compensation” in s 65(3) of the 1987 which provides that, where there is a dispute concerning the degree of permanent impairment, the Commission may not award “permanent impairment compensation” or “pain and suffering compensation” unless the degree of “permanent impairment” has been assessed by the AMS.  This distinction is repeated in ss 66 and 67 of the 1987 Act. [88]

5. The language of the transitional provision in Sch 6 Part 18C cl 3(2) of the 1987 Act led to a conclusion that the reduction for any proportion of the permanent impairment found to be a previously non-compensable impairment is effected by a reduction “in the compensation payable”, not by a reduction in degree of whole person impairment. [89]

6. Had the legislature intended that the effects of a previously non-compensable impairment were to be addressed by means of a reduction to the percentage whole person impairment, it would be expected to state so explicitly, by adopting similar wording to that requiring an AMS to deduct any proportion of the impairment that is due to a previous injury or pre-existing condition or abnormality under s 323 of the 1998 Act. [90]

7. Had the legislature intended that a reduction of impairment be effected to reflect the extent of the non-compensable component of the impairment, it would have added that task to the powers exercisable by an AMS pursuant to Ch 7 Pt 7 of the 1998 Act. [94]

8. Clause 3(2) proceeds on the premise that a basis exists for the payment of lump sum compensation, namely, that the worker has suffered a primary psychological injury after 1 January 2002 and an AMS has assessed an impairment of 15 per cent or more as a result of that injury. Once a worker has satisfied those thresholds, it is then necessary to apply the transitional provisions to reduce the “compensation payable” for “any proportion of the permanent impairment that is a previously non-compensable impairment”.  To effect such a reduction, there must have been a finding of fact regarding the casual connection between the impairment and the events which occurred before the amendments. That finding is made by an Arbitrator. [97]

9. The Workers Compensation Legislation Amendment Act 2001, which amended the 1987 and 1998 Acts, was beneficial legislation as it introduced an entitlement to lump sum compensation for psychiatric injury. Entitlements under beneficial legislation should not depend on “distinctions which are too nice” (Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765, per Mahoney JA). However, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural: (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW v City of Perth [1997] HCA 30; 191 CLR 1 (at 11-12) per Brennan CJ and McHugh J). If there was any ambiguity in the language used, then in the context of beneficial legislation, the ambiguity should favour the worker and the Acts should be construed beneficially (Bull v The Attorney General for New South Wales [1913] 17 CLR 370 at 384). [101]

10. The transitional provisions addressed the issue of the “compensation payable” to ensure that lump sum compensation is only payable for so much of the impairment that has resulted from the events that occurred after the introduction of the expanded benefits on 1 January 2002. A purposive interpretation achieved that end. [104]

Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31

Disease; deemed date of injury; relevance of findings in earlier proceedings of injury and deemed date of injury; application for additional lump sum compensation due to deterioration; ss 4 and 16 of 1987 Act; cl 3 of Pt 18C of Sch 6 to the 1987 Act; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 distinguished; leave to appeal interlocutory decision; s 352(3A) of the 1998 Act.

Roche DP

3 June 2011

Facts:

Mr Collingridge worked as a truck driver for two different employers between 1989 and June 1998. He worked for J O’Malley Pty Ltd (O’Malley) from March 1989 until June 1996 and then for IAMA Agribusiness Pty Ltd (IAMA) from June 1996 until June 1998. His duties also required him to regularly lift and carry heavy weights.

On various occasions he felt pain in his back in the course of his employment in the 1990s and had a short period off work in 1995.  He returned to work in October 1995 and performed selected office duties, resuming his normal duties in December 1995.  His back symptoms deteriorated and he stopped working overtime by June 1998.

On a weekend in June 1998, his back locked while he was bending to put on his socks at home.  He worked for four more days and stopped work, returning to work with IAMA on 17 August 1998 doing clerical duties. He underwent a spinal fusion in February 2001. He returned to work and remained on light duties until ceasing work with IAMA at the end of 2001.

Mr Collingridge claimed weekly and lump sum compensation in the former Compensation Court in 1999.  McGrowdie ACCJ (as he then was) found, amongst other things:

(a) that Mr Collingridge suffered from a degenerative disc disease in his lumbosacral spine;

(b) that his employment with O’Malley and IAMA was a substantial contributing factor to the aggravation and exacerbation of that disease;

(c) IAMA was the employer who last employed Mr Collingridge in employment that was a substantial contributing factor to the aggravation and exacerbation of the disease;

(d) that, as a result of the aggravation and exacerbation, Mr Collingridge was incapacitated for employment as a truck driver;

(e) the deemed date of injury under s 16(1)(a)(i) of the 1987 Act was 12 June 1998 (the last day of employment that was a substantial contributing factor to the aggravation/exacerbation injury), and

(f) Mr Collingridge had been incapacitated from 12 June 1998 and was entitled to weekly compensation for various period of total and partial incapacity.

The judge also found Mr Collingridge to have a 25 per cent permanent impairment of his back and a 10 per cent permanent loss of efficient use of each leg at or above the knee. After deducting 10 per cent for a “pre-existing problem”, he made an award as follows:

(a) $11,250 in respect of the permanent impairment of his back;

(b) $6,750 in respect of the loss of efficient use of each leg at or above the knee, and

(c) $17,500 in respect of pain and suffering.

There was no evidence in either the proceedings before the Court or the Commission, that the work Mr Collingridge did in customer service was employment to the nature of which the disease was due, or was employment that was a substantial contributing factor to any further aggravation injury.

On 15 March 2010, Mr Collingridge claimed additional lump sum compensation and on 16 June 2010 he commenced proceedings in the Commission in which he claimed:

(a) $7,500 in respect of an additional 12.5 per cent permanent impairment of his back;

(b) $8,250 in respect of an additional 11 per cent permanent loss of efficient use of his right leg at or above the knee;

(c) $4,500 in respect of an additional six per cent loss of efficient use of his left leg at or above the knee;

(d) $28,200 in respect of a 60 per cent loss of use of sexual organs, and

(e) $30,000 for additional pain and suffering.

The only issue for determination was whether, in respect of the claim for additional lump sum compensation, the deemed date of injury was 12 June 1998, as found by McGrowdie ACCJ or 15 March 2010, the date on which Mr Collingridge claimed additional lump sum compensation.

The Arbitrator found that, in a claim for additional lump sum compensation, the correct deemed date of injury was the date on which the claim was made, being 15 March 2010.

Held: Leave to appeal granted; Arbitrator’s decision revoked.

Section 352 of the 1998 Act

1. Appeals lodged after 1 February 2011 are restricted to the determination of whether the decision was or was not affect by any error of fact, law or discretion, and the correction of any such error. In such an appeal, there is no right of appeal against interlocutory decisions, except with leave of the Commission and the Commission is not to “grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute” (s 352(3A) of the 1998 Act; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 for general approach to s 352). [15]

2. The Arbitrator’s decision was interlocutory because it did not finally dispose of the parties’ rights but merely determined the deemed date of injury (P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87, 6 DDCR 12; Licul v Corney [1976] HCA 6, 50 ALJR 439).  The appeal documents were silent on the question of leave, but counsel for the appellant sought leave at the hearing, which was unopposed. Parties were reminded that when leave to appeal is required, an application for leave should be made when the appeal is lodged. [16]-[17]

3. The issue in dispute was the determination of the correct deemed date of injury.  If the appeal was successful, the Arbitrator’s determination would be revoked and the matter remitted for referral to an AMS. If the appeal was unsuccessful, the application would be dismissed as “misconceived” or “lacking in substance” (White v Sylvania Lighting Australasia Pty Ltd [2011] NSWWCCPD 7 at [63]-[73]). Either way, the issue in dispute would be resolved. It was therefore appropriate for the “proper and effective determination of the dispute” that leave to appeal be granted. [19]

The correct date of injury

4. Section 33 of the Interpretation Act 1987 required a purposive approach be adopted in interpreting s 16 of the 1987 Act. The principles of statutory construction described in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 at [12], Allsop P (Giles and Hodgson JJA agreeing), must be applied.  His Honour stated:

(a) ““[i]t is the language of Parliament that must be interpreted and construed”;

(b) “in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context”;

(c) “[c]ontext is to be considered in the first instance, not merely when some ambiguity is discerned”;

(d) “[c]ontext is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed”;

(e) “[f]undamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose”, and

(f) “general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect”. [61]

5. Applying the above principles, the words of s 16 were interpreted and construed having regard to their legal and historical context, giving close attention to the text and structure of the Act.  Further, workers compensation legislation is “beneficial legislation” and entitlements under such legislation should not depend on “distinctions which are too nice” (per Mahoney JA in Articulate Restorations & Developments Pty Ltd v Crawford (1994) 10 NSWCCR 751 at 765).  However, the principle that beneficial legislation should be given a liberal construction does not entitle a court to give it a construction that is unreasonable or unnatural (per McColl JA in Amaca Pty Ltd v Cremer [2006] NSWCA 164, citing IW V City of Perth [1997] HCA 30; 191 CLR 1 (at 11-12) per Brennan CJ and McHugh J). [63]

6. It was also necessary to consider the objects of the disease provisions (see Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365, per Kirby P (as his Honour then was)). [63]

7. The structure of the legislation was also considered. The right to compensation under the 1987 Act only arises if a “worker” has received “an injury” (s 9 of the 1987 Act) arising out of or in the course of his or her employment (s 4 of the 1987 Act) and to which employment was a substantial contributing factor (s 9A of the 1987 Act).  The right to weekly compensation only arises if incapacity for work (total or partial) results from the injury (s 33 of the 1987 Act). For injuries received before 1 January 2002, the right to lump sum compensation arose where the worker suffered a loss of a thing mentioned in the Table of Maims “as the result of an injury”.  For injuries received after 1 January 2002, a worker who received an injury that results in permanent impairment is entitled to receive compensation for that permanent impairment (s 66(1)). [65]

8. The Commission determines whether a worker has received “an injury” by applying s 4, not ss 15 or 16 (Crisp v Chapman (1994) 10 NSWCCR 492 at 513–4). [66]

9. Mr Collingridge’s claim before McGrowdie ACCJ involved three main issues:

(a) what (if any) injury had he received (the injury issue);

(b) if the injury was a “work-caused disease” (s 4(b)(i)) or a “work-aggravated disease” (s 4(b)(ii), what was the deemed date of injury, and

(c) which of the two respondent employers was liable.

The first issue required a considered and application of s 4 and his Honour found that Mr Collingridge had suffered a “work-aggravated disease” under s 4(b)(ii) as a result of the heavy work he performed for both employers. [68]

10. To determine the deemed date of injury, his Honour applied s 16. As incapacity resulted from the aggravation injury, the deemed date of injury under s 16(1)(a)(i) was 12 June 1998, being the date of Mr Collingridge’s incapacity. As IAMA was the last employer who employed Mr Collingridge in employment that was a substantial contributing factor to the aggravation, it was liable to satisfy the award (s 16(1)(b)). Section 16 determined the deemed date of injury, not the “injury issue”. Whilst s 16 permits differed deemed dates of injury for lump sum claims and for incapacity claims, it does not dictate that there must be separate deemed dates in all cases. [69]-[70]

11. In contrast with Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 (Antaw), the deterioration in Mr Collingridge’s condition did not occur during a further period of work in employment to the nature of which the disease was due. Nor did it occur as a result of a further aggravation injury to which employment after 12 June 1998 was a substantial contributing factor. The alleged increase in Mr Collingridge’s impairments and losses resulted solely from a deterioration in his original injury. [72]

12. GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 (GIO), Antaw, P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 (Alfonzo) and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701 (Stone) were all decided on their own facts. The facts in Antaw were unusual and this may have led to confusion in subsequent cases. Whilst Antaw concerned a claim for lump sum compensation because of a deterioration in the worker’s sight, it was not simply a matter of a specific traumatic event and a later claim for additional lump sum compensation as a result of a deterioration in the worker’s condition over time. [73]

13. Because Mr Antaw’s condition was one of partial loss of sight by a gradual onset, it was deemed to be a disease of such a nature as to be contracted by gradual process (s 15(3)). As a result, liability fell on the employer who last employed Mr Antaw in employment to the nature of which the disease was due. The trial judge had wrongly determined that Alto Ford was liable. Whilst, as Sheller JA observed, it was difficult to conceive that employment as a motor mechanic was employment of such a kind as to involve a risk to the employee of suffering a loss of vision, that had to be so or the subsection could not work. Therefore, after the original injury in 1976, Mr Antaw had been employed in employment to the nature of which the disease was due and it was open to find a deemed date of injury by applying s 15. That critical feature is missing in Mr Collingridge’s case. McGrowdie ACCJ found that he suffered an aggravation injury with a deemed date of injury of 12 June 1998, but it has never been alleged that he suffered any further disease injury, either a work-caused disease or a work-aggravated disease, after that date.

Hills v Pioneer Studios Pty Ltd [2011] NSWWCCPD 30

Whether injury at a social function arose out of the worker’s employment; function held at employer’s premises for multiple purposes; whether worker induced or encouraged to attend function for a work purpose; causation; application of principles in Hook v Rolfe (1986) 7 NSWLR 40, Tarry v Warringah Shire Council [1974] 48 WCR 1 and Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119

Roche DP

1 June 2011

Facts:

Ms Hills, the appellant, received a serious head and brain injury when she fell over a balustrade while attending a social function at the premises of her employer, Pioneer Studios Pty Ltd (Pioneer), in the early hours of the morning of 14 March 2004.

She alleged that her injury “arose out of” her employment with Pioneer because the party was a “work function” which she attended because she thought it was important for her to meet clients, make a good impression and join in with the team.

The function had been organised by Alistair Buchanan, a photographer with Pioneer, and his two flatmates, neither of whom worked with Pioneer. The party was to celebrate the three men’s birthdays and to farewell Mr Buchanan, who was leaving Pioneer to start work as a freelance photographer.

Ms Hills had started work with Pioneer as the manager of the equipment rental department about two weeks before her accident. Her case was that she had been encouraged to attend the function by the managing director, Mr Ludbrook, and by another manager, Ms Martel, and that she attended because clients would attend and it was a good opportunity for her to meet those clients and impress her superiors.  She was new to the company and wanted to “make a good impression” and “join in with the team”.

The Senior Arbitrator entered an award for Pioneer.  She was not satisfied that Ms Hills had been induced or encouraged to attend the social function.  She added that, on the night of the party, Pioneer’s premises had become a place of entertainment, not of employment. She concluded that she was not satisfied there was such a connection between the worker’s injury and her employment that her injury could be regarded as having arisen out of that employment.

Ms Hills appealed.  The issues in dispute in the appeal were whether the Senior Arbitrator erred in:

(a) determining, contrary to Tarry v Warringah Shire Council [1974] 48 WCR 1 (Tarry), the issue of whether the injury to Ms Hills arose out of her employment by reference to case law and legal doctrines concerning the separate issue of whether the injury arose in the course of her employment;

(b) failing to address the worker’s arguments regarding Ms Martel, the worker’s supervisor, and Mr Buchanan having actual or ostensible authority to act on behalf of Pioneer and the evidence in support of such arguments;

(c) her consideration of the evidence by misapprehending the effect of the whole of the evidence given, including the concessions made by Ms Martel in cross-examination.

Held: Arbitrator’s decision revoked and ordered that the matter be remitted to the Registrar for referral to an AMS, Pioneer pay s60 expenses and costs of the Arbitration with an uplift of 30% as the matter was certified complex. Costs of the appeal to be paid by Pioneer.

1. The fact that the injury was severe, and that it affected the worker’s memory and cognitive capacity, did not automatically mean that her evidence should be rejected as unreliable. It meant that, where possible, its reliability should be checked against other evidence. Judges should “reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events” (Fox v Percy [2003] HCA 22 at [31]; 214 CLR 118). [94]

2. The worker’s evidence was much more than “flashbacks” of isolated images or thoughts. It was evidence of a clear recall of the substance of critical conversations with Mr Ludbrook and Ms Martel. Her evidence was not shaken or materially undermined in cross-examination. Read as a whole, her evidence did not support the Arbitrator’s conclusion that Ms Hills had no clear independent recollection or that her recollection was restricted to isolated “flashbacks”. Rather, it supported the conclusion that she did recall events in the period leading up to 13 March 2004. [98]

3. The worker’s understanding that she was attending a function to farewell Mr Buchanan was consistent with other evidence. That was undoubtedly one of the purposes of the function. [99]

4. It was unfair to discount the worker’s evidence on the basis that it was “reconstruction”. The worker’s evidence had to be analysed and weighed against the whole of the evidence and, in particular, the concessions by Ms Martel in cross-examination. [101]

5. The worker’s evidence had to be read in the context of the cross-examination. Ms Hills responded in similar language to that put to her in cross-examination.  Though she could not recall the exact words, “it was suggested that there definitely will be clients there”. Her inability to recall the exact words was not critical.  [102]  Depending on the context, a “suggestion” is capable of amounting to encouragement or inducement to act in a certain way, though it is certainly not as forceful as a command. [103]

6. When looking at the purpose of an activity, it was not necessary to inquire as to the “primary purpose” of the function. The concept of plurality of causes is embedded in tort law.  When conduct has been inspired by multiple purposes, the solution is to act upon the relevant purpose and to disregard others and not inquire which of them is dominant: Hook v Rolfe (1986) 7 NSWLR 40 at 44-45.  [108]

7. It was not appropriate to ask if the “primary purpose of the function was a farewell party”. The party always had a dual purpose. The employment purpose had to be a “relevant purpose” that “actuated” the worker’s attendance. Employment purposes motivated Ms Hills to attend. [110]

8. Given the near contemporaneous corroboration of the worker’s “understanding” of the purpose of the party in the evidence from her friend, who attended the party with her, Ms Cable, the WorkCover certificate and the history recorded by Dr Lynch, given the circumstances in which she was invited by Ms Martel and Mr Ludbrook, and given that she was not a friend of Mr Buchanan’s, and therefore had no reason to attend to celebrate his birthday with people she did not know, the logic of the events was that she was actuated to attend the party because of the reasons she gave. Those reasons were all work-related. [115]

9. Where an employee intends to further the interests of the employer, an act by that employee will be within the scope of the employment as long as it can be shown to be reasonably incidental to the performance of the work the employee was employed to do (Canterbury Bankstown Rugby League Football Club Ltd v Rogers (1993) Aust Torts Reports 81–246).  [122]

10. Given Ms Martel’s position as the manager of the equipment rental room, she was in a position of some authority at Pioneer. She played a role, with Mr Ludbrook, in hiring Ms Hills and it was part of her duties to tell the worker what she was required to do in the job. Once Ms Hills had been hired, Mr Ludbrook stepped back and let Ms Martel train her. Ms Martel’s actions in inviting Ms Hills to the function were clearly intended to further Pioneer’s interests by ensuring that Ms Hills would be an “effective working member of the team” and would get on with her fellow employees and with clients. Ms Martel had actual or ostensible authority to invite the worker to the party on behalf of Pioneer and her actions in inviting Ms Hills to the party were actions by Pioneer. [123]

11. A worker can be encouraged and induced to engage in a work activity without being compelled or coerced into doing so. A lack of coercion was not a determinative factor. [125]

12. Whether a worker is in the course of his or her employment at the time of the injury is a factor, but not a decisive factor, in determining if the injury arose out of the employment.  An injury may arise out of the employment even though at the time it is sustained the worker is no longer in the course of his or her employment: Tarry. [131]

13. The requirement that an injury “arise out of employment involves a causal relationship between the employment and the injury”.  The question is whether there is such a connection between the worker’s injury and the employment that, as a matter of ordinary commonsense and experience, the injury should be regarded as having arisen out of it:  (Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566 at 570G–571B). [135]

14. Once it was accepted that Ms Hills was encouraged or induced to attend the function, and that her attendance was actuated by work purposes, the next question was whether “being employed in the particular job caused, or to some material extent contributed to, the injury” (Scarce and Nunan v Cockatoo Docks & Engineering Co Ltd (1941) 41 SR (NSW) 119 at 124). The final question was whether employment was a substantial contributing factor to the injury. [140]

15. There was a direct and unbroken connection between the worker’s employment and her injury such that, as a matter of commonsense, her injury arose out of it.  [142]

16. In determining whether employment is a substantial contributing factor to the injury, it is the strength of the causal connection that is relevant (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153; 22 NSWCCR 46 at [22]).  The connection must be “real and of substance” (Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324; 75 NSWLR 503; 7 DDCR 75).  [143] The connection between the employment and the worker’s injury was real and of substance. [144]

Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32

Expert evidence; weight of evidence; causation; onus of proof; Workers Compensation Commission as specialist tribunal

O’Grady DP

15 June 2011

Facts:

Mr Perkins, the appellant, claimed compensation benefits from his former employer Ceva Materials Handling Pty Ltd (Ceva Materials), the respondent, in respect of weekly payments and lump sum compensation.

The injury alleged was described in the Application as:

Injury to both hands/fingers due to nature and conditions and [sic] deemed date of injury 27 September 2006. Consequential to the injury to both hands/fingers the claimant has suffered injury [sic] to both shoulders.

During the course of the conciliation process Mr Perkins’s claim for weekly compensation was discontinued, by agreement. It was also agreed that, arising out of or in the course of his employment, Mr Perkins received injury to both his hands, including the fingers, the deemed date of injury being 27 September 2006.

The parties were unable to reach agreement concerning the allegation of consequential injury to both shoulders and the arbitration proceeded to determine that issue.

The Arbitrator made an award in favour of Ceva Materials in respect of Mr Perkins’s claims for injury to his right and left shoulders.

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

(a) finding that the condition in the left and right shoulders was not caused by the accepted injuries to the right and left hands;

(b) applying the wrong test for the purpose of evaluating the evidence including that of Dr Endrey-Walder;

(c) finding that Mr Perkins’s uncontradicted evidence and that of Dr Endrey-Walder was not sufficient to enable a finding that Mr Perkins’s condition of the shoulders was a result of the injuries to the hands and fingers, and

(d) failing to, as a specialist tribunal, consider whether there was sufficient evidence to conclude that there was a causal connection between the hand injuries and the condition of each of the shoulders.

Mr Perkins alleged that he suffered WPI not only as a result of the admitted injuries to his hands, but also as a result of consequential disability in each shoulder which was causally related to the hand injuries.  He argued that the only medical evidence that addressed the causal nexus between the accepted hand injuries and the state of the shoulders was the opinion expressed by Dr Endrey-Walder and that this uncontradicted evidence should have been accepted by the Arbitrator.

Mr Perkins criticised the Arbitrator’s reasoning on the basis that no consideration was given by him, as an expert tribunal, as to whether facts established were sufficient to allow a finding concerning the relevant causal nexus.

Ceva Materials disputed both the alleged causal relationship between the hand injuries and the shoulder disabilities, as well as the suggested WPI said to be a consequence of the condition of the shoulders.

Held: Arbitrator’s decision confirmed.

1. The provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010 applied to this appeal: Sch 6 Pt 19G cl 8 to the Workers Compensation Act 1987 (the 1987 Act). The nature and scope of such an appeal is as provided by s 352(5).

2. The matter in dispute concerned the existence or otherwise of a consequential loss resulting from the admitted hand injuries and not the development of “a consequential injury” to the shoulders as submitted by Mr Perkins. [59]

3. The Commission is not obliged to accept uncontradicted evidence of a witness (see Thurston v Todd (1966) 84 WN (Pt 1) (NSW) 231). [63] The Arbitrator’s approach was not to compare and contrast competing expert views, but to evaluate the only evidence relevant to the matter in issue. [73]

4. It was Mr Perkins’s belief that the pain in his shoulder was a result of the pain and disability in both hands and arms. The Arbitrator considered Mr Perkins’s evidence as well as the evidence of Dr Endrey-Walder when addressing the question as to whether there existed a relevant causal nexus. [68] The Arbitrator correctly concluded that the evidence of Dr Endrey-Walder, considered together with that of Mr Perkins, was not of sufficient weight to establish the alleged causal nexus between the work related hand injury and the shoulder disabilities. [70] It was open to the Arbitrator to conclude that there was not sufficient evidence before him to satisfy the onus which was upon Mr Perkins to establish the necessary causal nexus. [72]

5. The Arbitrator’s approach to the evaluation of the evidence did not demonstrate any relevant error of fact or law.

6. The Commission has particular knowledge of relevant labour markets and wage levels however its specialist knowledge or expertise does not extend to filling gaps in evidence which is adduced for the purpose of establishing a causal nexus between employment and a diagnosed disability. [75]

7. As was stated by Beazley JA in Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 (at 365):

In my opinion, the advantages which membership of a specialist tribunal are intended to promote do not extend to applying the member’s own views of the aetiology of a disease which is not supported by the evidence.

8. The conclusions reached by the Arbitrator were open to him on the evidence and Mr Perkins failed to establish error on the part of the Arbitrator.

One Steel Reinforcing Pty Ltd v Sutton [2011] NSWWCCPD 34

Causation of injury; weight of expert medical evidence; challenge to exercise of Arbitrator’s discretion

O’Grady DP

24 June 2011

Facts:

Mr Sutton was employed by One Steel Reinforcing Pty Ltd (One Steel), the appellant, as a machine operator between June 2004 and April 2008. Shortly after termination of that employment he commenced work as a machine operator with ECA Personnel Pty Ltd (ECA), the second respondent. Mr Sutton ceased that employment in September 2008 due to incapacitating pain in his back and right leg.

Mr Sutton alleged that the “nature and conditions” of his employment with both One Steel and ECA had caused injury to his back and associated sciatic pain. Claims in respect of compensation benefits were made on his behalf against both One Steel and ECA. Each of the employers denied liability.

The Arbitrator found that Mr Sutton suffered injury to his lumbar spine arising out of or in the course of his employment with One Steel and that this employment was a substantial contributing factor to such injury.  As a result of the injury Mr Sutton was totally incapacitated for work from 16 September 2008 until 28 February 2009 and partially incapacitated for work from 1 March 2009 to date.  One Steel was ordered to pay weekly compensation pursuant to ss 36 and 40 of the 1987 Act and medical expenses pursuant to s 60 of the 1987 Act. An award was made in favour of ECA.

One Steel appealed the Arbitrator’s decision and the issues in dispute in the appeal were whether the Arbitrator erred in:

(a) determining that Mr Sutton received injury to his back arising out of or in the course of his employment with One Steel;

(b) determining that Mr Sutton was, as a result of that injury, totally incapacitated from 16 September 2008 to 28 February 2009 and that he was partially incapacitated thereafter;

(c) drawing certain inferences from the failure of One Steel to rely upon the evidence of Dr Spittaler;

(d) determining that Mr Sutton remained totally incapacitated from 3 January 2009 to 28 February 2009;

(e) failing to find that Mr Sutton’s injury and resultant incapacity arose out of or was received in the course of his employment with ECA, and

(f) failing to direct that the statements of Mr Sutton dated 1 December 2010 and Mr Ly Quash dated 7 February 2011 be provided to the AMS to whom the Registrar referred the question of WPI.

Complaint was also made that the Arbitrator erred in the exercise of his discretion when directions were made concerning (f) above.

One Steel argued that the opinions of Dr Bodel and Dr Matheson, upon which the Arbitrator relied in reaching his factual conclusions concerning injury, were based upon a history as to the nature of work with ECA which was significantly different to those matters found in Mr Sutton’s second statement. The difference between the assumptions made by the medical expert witnesses and the later evidence of Mr Sutton is such, it is argued, that there was not a “fair climate” for the acceptance of the opinions of those witnesses. Therefore, Mr Sutton had failed to discharge the onus of proof upon him to establish the cause of his injury. Reliance was placed upon Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705. [69]

Mr Sutton and ECA argued that the Arbitrator addressed the contemporaneous evidence concerning the onset of symptoms and the demands of his work and, regardless of the different descriptions of work, there remained a significant distinction between work performed with One Steel and that performed with ECA.

Held: Arbitrator’s decision confirmed.

1. The appeal was governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5) which states an appeal “is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error”.

2. Notwithstanding the contrasting descriptions of the work performed, Dr Matheson’s opinion concerning causation of discal damage was founded upon the requirement for heavy lifting on a repetitive basis in the course of Mr Sutton’s work with One Steel. Dr Bodel agreed with that view [74].  Mr Sutton’s duties with ECA did not involve heavy lifting.

3. The totality of the evidence demonstrated that there was a stark difference between the work performed in each of Mr Sutton’s jobs [75].

4. Did the discrepancy between Mr Sutton’s description of his duties with ECA and the history as recorded by the expert medical witnesses, in particular Dr Bodel, have the consequence that the opinions of those experts should have carried no weight in the Arbitrator’s deliberations?

5. Samuels JA in Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 at 509 stated:

It is a question of whether the hypothetical material put to the expert witnesses represents a fair climate for the opinions they expressed. I do not think there is any requirement that the matter put is precisely consonant with the material provided; and certainly it cannot be contended there was no evidence upon which the opinions could be based.

Discrepancies may be fatal; in some cases even slight discrepancies may be fatal. In other cases even broad departures are not likely to affect the force of the expert opinion. Moreover, it is for the tribunal of fact to assess the factual basis. In the present case it seems to me that there was a fair climate in which the expert views could properly flourish and certainly it was open to the learned judge to come to that conclusion.

6. The Arbitrator’s finding that there was a “fair climate” for the acceptance of the views of Dr Matheson and Dr Bodel was reached following a correct application of principle to determine the weight of expert evidence before the Commission and it was open to the Arbitrator to accept that evidence [79].

7. It was open to the Arbitrator to draw an inference from One Steel’s failure to rely upon Dr Spittaler’s evidence, that such evidence would not have assisted its case: Jones v Dunkel [1959] HCA 8; 101 CLR 298. An inference that the untendered evidence would in fact have been damaging to the party not tendering it is not permissible. It was not open to the Arbitrator to draw the inference that Dr Spittaler “may have made findings similar to those made by Dr Matheson and Dr Bodel”. [83]

8. The Commission may not fill gaps in evidence (Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355 per Beazley JA at 365).  It was open to the Arbitrator to find that total incapacity persisted until 28 February 2009 having regard to the medical evidence and the Commission’s specialist knowledge and experience concerning the degree and persistence of incapacity occurring as a consequence of an injury with subsequent surgical intervention. [86]

9. The order made by the Arbitrator concerning the referral/exclusion of certain documents to/from the AMS was an order made as to procedure which is addressed by Pt 15 r 15.1(1) of the Workers Compensation Commission Rules 2010.  This order was made in the exercise of his discretion and the Arbitrator did not err in the exercise of this discretion. [89] – [91]