Issue 7: July 2015

Fairfield City Council v Arduca [2015] NSWCA 166

WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – whether applicant employer denied procedural fairness before Arbitrator – where employer relied on s 57 of the 1998 Act as disentitling worker to weekly compensation – where question raised as to reasonableness of worker’s failure to continue in employment – whether provision of “suitable duties” under injury management plan was put in issue

WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – where Presidential member determined whether applicant employer had given notice disputing liability in accordance with s 74 of the 1998 Act – whether when doing so Presidential member failed to engage with substance of employer’s argument

Court of Appeal

18 June 2015

Facts:

On 16 October 2008, the worker injured his back and groin whilst lifting (he suffered bilateral inguinal hernias). From that time until he resigned on 19 April 2010, the worker worked intermittently. The worker had returned to work on 19 January 2010, performing ‘light duties’ as proposed by an injury management plan established by the employer. On 8 April 2010, the worker’s general practitioner recommended that the worker cease work. The worker did so on 19 April 2010, “due to ill health”.

On 22 April 2010, the employer wrote to the worker, noting his decision to resign “rather than elect to continue to participate in [his] Injury Management & Return to Work plans, directed at returning [him] to [his] employment”.

On 1 July 2011, solicitors acting for the worker served a notice of claim on the employer in respect of the hernia injuries. The employer’s solicitor gave a notice disputing liability for that claim on 13 October 2011. That notice purported to be given under s 74, sub-s (1). The employer’s letter stated that it disputed liability to pay medical, hospital and treatment expenses as well as lump sum compensation and relied on “Sections 57, 74, 254, 255, 260, 261 and 323” of the 1998 Act.

In proceedings before the Commission, the Arbitrator determined that the worker sustained bilateral hernia injuries arising out of or in the course of his employment with the employer on 16 October 2008 and from 2005 to 19 April 2010. The Arbitrator also determined that the worker’s employment was a substantial contributing factor to his hernia injuries. The matter was referred to an AMS for assessment of the whole person impairment due to hernia injuries sustained on 16 October 2008 and from 2005 to 19 April 2010.

The employer appealed and the Arbitrator’s determination was confirmed. The employer appealed from the Presidential member’s determination of the appeal.

The issues in dispute on appeal were:

• whether the employer was denied procedural fairness in relation to the Arbitrator’s conclusion that s 57 of the 1998 Act did not disentitle the worker to weekly compensation payments, and
• whether the Presidential member failed to address the employer’s argument that its letter of 13 October 2011 had sufficiently complied with s 74 of the 1998 Act in relation to its reliance on the worker’s non-compliance with s 254 of the 1998 Act.

Held: Leave to appeal was refused.  

Proposed Grounds 1 and 2: the applicant’s reliance upon s 57

1. The Arbitrator correctly formulated the question of whether the employer had discharged its onus of establishing that “the [worker] failed unreasonably to comply with the [employer’s] injury management and return to work plans” [12].

2. To establish that the worker was not entitled to weekly payments of compensation after 19 April 2010, the employer had to establish that he had failed unreasonably to comply with its injury management plan [17].

3. The employer did not lead any evidence as to what its injury management plan required of the worker or address the alleged unreasonableness of the worker’s actions in resigning rather than continuing to undertake the tasks that plan required. The employer’s submissions before the Arbitrator disavowed any criticism of the worker’s decision to retire, relying instead on the mere fact that he had elected to do so. That submission ignored the requirement that the worker’s conduct be unreasonable and was made in the face of the worker’s evidence, and that of Dr Sanki, that he could not perform the light duties assigned to him without experiencing physical discomfort and further injury [18]–[19].

4. The Arbitrator may have confused matters by referring to “suitable employment”, as defined, until its repeal in 2012, by s 43A of the 1987 Act, and by framing his findings in those terms. However, his conclusion that he was not satisfied that the employer had provided the worker with “suitable duties” was another way of stating that the duties which the worker was required to perform under the injury management plan aggravated his existing injuries, thereby rendering the worker’s failure to continue in that employment not unreasonable in the terms of s 57 [24].

5. The rules of procedural fairness required that the employer be given the opportunity of ascertaining the relevant issues and addressing them by evidence. That happened before the Arbitrator. The ultimate issue was whether the worker’s failure to continue in his employment was not unreasonable. That issue turned on whether he could do so without further injury. The employer bore the burden of proof, and despite the evidence adduced by the worker that he could not continue in his employment, the employer led no evidence that really contradicted it. In the course of addressing that issue there was, at worst, a minor infelicity of expression in the Arbitrator’s reference to “suitable duties”. It necessarily followed from his earlier conclusions that the worker’s refusal to continue in that work was not unreasonable. There was no denial of procedural fairness and no error on the part of the Deputy President in so concluding [25].

Proposed Grounds 3 and 4: the applicant’s argument concerning the efficacy of the s 74 notice

6. The Deputy President addressed whether the employer was able to rely upon an asserted failure of the worker to give notice of the hernia injuries in accordance with s 254 of the 1998 Act [27].

7. It could not be concluded that the Deputy President overlooked the contents of what the employer submitted was an express reference to failure to give notice in accordance with the requirements of the legislation appearing on the first page of the letter dated 13 October 2011 [32].

8. Accepting that a notice given under s 74 must be “expressed in plain language” (s 74(2B)), what the Deputy President was concerned with was whether the notice was in boilerplate form and did not specifically flag the issue or issues on which the employer wished to rely, notwithstanding that in March 2009 it had admitted liability to pay compensation for the hernia injuries [33].

9. If, contrary to the Court of Appeal’s view, the Deputy President overlooked the terms of paragraph 8 when considering the efficacy of the notice, there was no error in his ultimate conclusion that it did not comply with s 74. Although paragraph 8 referred to the worker not having given “notice of injury”, it did not specify the injury referred to [34].

10. The failure of the employer’s letter to specify the injury for which timely notice had not been given was problematic. As Deputy President Roche observed in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488 at [45], an employer’s obligations under s 74 are not satisfied by a document that leaves “the worker to work out exactly which issues are disputed” [35].

11. There were two further matters that weighed strongly against any grant of leave to argue grounds 3 and 4. They were, first, that the Arbitrator found that the worker had given oral notice of his injury to the employer on 16 October 2008, which was prior to the notification on 13 February 2009 that the employer argued was too late, and second, that even if the employer established that there was a failure to give notice under s 254(1), that non-compliance may not be a bar to recovery of compensation, given that the employer subsequently admitted liability and did not appear to have been prejudiced by any delay: s 254(3) [36].

Trustees of the Roman Catholic Church for the Diocese of Parramatta v Barnes [2015] NSWWCCPD 35

Claim for lump sum compensation for permanent impairment; multiple injurious incidents/injuries affecting the lower back; terms of remittal to Registrar for referral to an AMS for assessment of whole person impairment; meaning of “injury” in s 4 of the 1987 Act; whether “an injury” in s 66(1) of the 1987 Act is restricted to a single injury or can include multiple injuries; ss 5 and 8 of the Interpretation Act 1987; application of principles in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354; non-compliance with Practice Direction No 6; when point not argued at arbitration may be raised on appeal; difference between apportioning liability and making an initial determination of liability

Roche DP

15 June 2015

Facts:

This appeal concerned the meaning of the phrase “an injury” in s 66(1) of the 1987 Act and whether it is restricted to a single injury, or whether it can include more than one injury.

The worker was a teacher’s aide employed by the appellant. She injured her lower back in the course of her employment with the appellant on three separate occasions, first, on 24 February 2006, second, on 13 March 2008 and last, on 21 July 2011. The respondent’s insurer accepted liability for each incident. As a result of the injuries to her lower back, the worker underwent extensive surgery to her lumbar spine on 12 April 2012.

In a letter dated 20 February 2013, the worker claimed $49,087.50 lump sum compensation for permanent impairment under s 66 of the 1987 Act. The claim was supported by a report from Dr Assem, dated 30 October 2012, in which he assessed the worker to have a 26 per cent whole person impairment as a result of the three incidents. In addition to assessing her to have a 26 per cent whole person impairment, Dr Assem said that he “apportioned the injuries as follows”: 5 per cent due to the first injury, 5 per cent due to the second injury and 16 per cent due to the third injury. In a later report, Dr Assem said that “[t]he symptoms were similar on each occasion and consistent with the pathology at the L4/5 level”.

The Arbitrator accepted that the worker had “really only made a claim for one impairment and that it related to three incidents [did] not detract from the fact that she has one impairment”. The Arbitrator remitted the matter to the Registrar for referral to an AMS to assess the permanent impairment from the three incidents. The employer appealed the referral of the first two injuries, contending that they were under the 10 per cent threshold (the claim was governed by the amended s 66(1), requiring a greater than 10 per cent whole person impairment before there was entitlement to lump sum compensation).

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

• finding that the three injurious events resulted in only “an injury” pursuant to s 66(1);
• finding that “injury” in s 66(1) means “pathology”;
• incorrectly interpreting Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Jaffarie), and
• accepting the worker’s submission that she “really only made a claim for one impairment”.

Held: The Arbitrator’s determination was confirmed.  

Discussion and findings

1. In a claim for lump sum compensation under s 66, the authorities are clear that, in context, the relevant “injury” is the pathology (see Wyong Shire Council v Paterson [2005] NSWCA 74 at [38], Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; 200 CLR 286, and Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; 61 CLR 120 at 129) [44].

2. Assuming (without deciding) that the worker suffered the same pathology in each incident, it would have been open to the Arbitrator to make the remittal to the Registrar in the terms she made it and she did not misinterpret Jaffarie. Jaffarie made it clear that in the context of a claim for permanent impairment compensation, the relevant “injury” is the pathology [47].

3. If the worker had suffered only one pathology in the three incidents, and Dr Assem seemed to suggest that that was so, it may well be open to find that the worker had suffered only one injury. Under s 322(2), the impairments from the same injury are to be “assessed together” to assess the degree of permanent impairment of the injured worker. Counsel’s submission that, because of Sukkar v Adonis Electrics Pty Ltd [2013] NSWWCCPD 59, Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 was wrong, was open to doubt. However, given the way the case was presented, it was not necessary to decide that issue [49].

4. The basis for the Arbitrator’s decision was that Dr Assem attributed the 26 per cent whole person impairment to the combined effect of all the separate incidents, that he did not assess the impairment separately for each event, and that the worker did not claim separate lump sum compensation for each incident. In this context, the Arbitrator accepted the worker’s submission that she had really only made a claim for one impairment. The fact that the impairment related to three incidents did not detract from the fact that the worker had one impairment. That finding was open on the evidence and involved no error [50].

5. Even if the appellant’s submission that the worker suffered three discrete injuries was correct, it did not follow that each of those injuries must reach the 10 per cent threshold before they can be considered in her current claim for permanent impairment compensation. This was because the appellant wrongly assumed that the worker had separately claimed permanent impairment compensation for each of the three incidents. She did not do so. It was open to the worker to make the claim she made and the use of the singular (“an injury”) in s 66(1) did not prevent her doing so. That is because a single loss can have multiple causes (ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]) [51]–[53].

6. The worker’s submissions, which were consistent with Dr Assem’s evidence, made it clear that the worker was claiming that, as a result of the three incidents pleaded, she had suffered one impairment and that was the basis of her claim. Cases are determined on the evidence and arguments presented (Banque Commerciale SA (in liq) v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279 at 296–297), not on the pleadings or particulars, which are only a “means to an end” (Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15])). Thus, if the particulars did claim separately for each incident, and it was held that they did not, then, having regard to the way the case was argued, that made no difference to the result [54].

7. As a matter of statutory interpretation, in the appropriate case, “injury” in s 66(1) can include “injuries” and is not confined to a single injurious incident or single injury (ss 5 and 8 of theInterpretation Act1987). In the circumstances of this case, it did not matter whether “an injury” in s 66(1) means “injurious event” or “pathology” [56], [58].

8. Just as it is for plaintiffs, in a claim for work injury damages, to plead their claims and to establish that any claimed impairment has resulted from the pleaded injury (or injuries) (Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354 (Serna) at [20]), so it is for applicants to do the same in proceedings in the Commission (NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [114]). The employer in Serna challenged the approach in Leppington Pastoral Co Pty Ltd v Juweinat [2002] NSWCA 228 (Juweinat) on grounds virtually identical to those argued by the appellant in the present matter [59], [63].

9. The principles discussed in Serna and Juweinat were applicable in this matter. They establish that a single impairment or condition can result from more than one injury [66].

10. It would be completely illogical and unacceptable for there to be one approach to the assessment of whole person impairment for the threshold for work injury damages in s 151H, which states that no damages may be awarded unless “the injury” results in a degree of permanent impairment that is at least 15 per cent, and a different approach to the threshold for permanent impairment in s 66(1), which refers to a worker who receives “an injury” that results in a degree of permanent impairment greater than 10 per cent being entitled to receive compensation for that permanent impairment [67].

11. The appellant’s submission that Dr Assem assessed the degree of permanent impairment that resulted from each of the three separate incidents, and assessed the impairment from the first two to each be under 10 per cent, was not an accurate summary of the evidence. The doctor “apportioned the injuries”. Apportioning liability for a single impairment is not the same as determining the degree of impairment that has resulted from each event or incident, though the results may appear similar. Apportionment attributes liability for the found loss or liability to one or more employers according to the contribution each employer has made to that loss or liability. That only occurs after an initial determination on liability (see Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCR 716) [71]–[73].

12. The worker did not claim compensation separately for each incident. She claimed $49,087.50 in respect of her 26 per cent whole person impairment. The fact that Dr Assem offered an opinion on apportionment was of no consequence [74].

13. Nothing in the amendments introduced by the 2012 amending Act undermined the clear statements of principle in Serna and Juweinat. The amendments merely restrict workers to making only one claim for permanent impairment compensation in respect of the permanent impairment that results from an injury (s 66(1A)) and eliminate any entitlement to compensation for pain and suffering. The worker had only made “one claim” [76].

14. Provided a worker has made only one claim for permanent impairment compensation, then no difficulty would arise if he or she has worked for different employers at the time of each incident. If that occurs, s 22 will apply to apportion liability for the loss between the different employers [77].

Woolworths Ltd v Stafford [2015] NSWWCCPD 36

Claim for permanent impairment compensation; meaning of “claim” in s 66(1A) of the 1987 Act; whether a “claim” for permanent impairment compensation can be amended

Roche DP

24 June 2015

Facts:

This appeal concerned the meaning of the word “claim” in s 66(1A) of the 1987 Act. The main issue was whether, as the employer contended, “claim” in s 66(1A) meant “a demand” for payment of permanent impairment compensation, or, as the worker contended, and the Arbitrator found, it meant a claim for compensation which is capable of payment in accordance with the 1987 Act. A second issue concerned whether, as the Arbitrator found, a claim for permanent impairment compensation can be amended.

On 14 June 2010, the worker suffered a serious head injury in the course of his employment with the appellant employer. The injury caused a left temporal extradural haemorrhage, which required surgery. The worker submitted a claim form on 29 June 2010. The appellant accepted liability and paid compensation.

On 13 November 2013, Dr Davies, neurosurgeon, assessed the worker to have a seven per cent whole person impairment as a result of the injury. On 7 April 2014, based on Dr Davies’ assessment, the worker’s solicitors wrote to the appellant claiming permanent impairment compensation of $9,625 under s 66.

This was prior to the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 308 ALR 213 (Goudappel No 2) being delivered on 16 May 2014. Following Goudappel v ADCO Constructions Pty Ltd [2013] NSWCA 94, which was the law at the time of 7 April 2014, the worker was entitled to recover permanent impairment compensation for his loss, even though it was below the 10 per cent threshold in the amended s 66(1).

In a s 74 notice dated 19 May 2014, the appellant disputed liability on the ground that, under the amended s 66(1), no permanent impairment compensation is payable for a degree of permanent impairment of 10 per cent or less. No steps were taken to advance the claim particularised in the letter of 7 April 2014.

On 14 April 2014, the worker underwent a neuropsychological assessment at the Illawarra Brain Injury Service, who reported their findings on 27 May 2014. After reviewing the neuropsychological assessment report, Dr Davies reported on 19 September 2014 that it would be appropriate to “modify” his previous “assessment of impairment regarding cognitive function”, assessing the worker to have a 12 per cent whole person impairment. On 26 September 2014, the worker’s solicitors wrote to the appellant “amend[ing] his claim to claim $17,050.00 in respect of 12% whole person impairment”.

On 26 November 2014, the appellant’s insurer declined the claim on the ground that the worker had made a claim on 7 April 2014 for $9,625 in respect of a seven per cent whole person impairment and “the provisions of s 66(1A) prohibit the further claim for lump sum compensation dated 26 September 2014”.

On 12 December 2014, the worker filed an Application to Resolve a Dispute with the Commission, claiming permanent impairment compensation of $17,050.00 in respect of the 12 per cent whole person impairment assessed by Dr Davies in his report of 19 September 2014. The appellant disputed liability on the grounds set out in the letter of 26 November 2014.

The issue before the Arbitrator was whether the delivery of the letter of 7 April 2014, with its enclosure of Dr Davies’ report of 13 November 2013, constituted “a claim for the purposes of s 66(1A) of the 1987 Act”.

On 25 March 2015, the Arbitrator determined that the worker had made only one claim for lump sum compensation pursuant to s 66 of the 1987 Act. He held, in the alternative, that the earlier claim was unresolved and there was no provision that prohibited the worker from amending the claim to render it capable of providing a basis upon which the appellant would be justified in making a payment under s 66. The employer appealed.

The issues in dispute on appeal were whether the Arbitrator erred in finding that the letter of 7 April 2014:

• did not constitute a claim under s 66, as it was not capable of payment, and
• constituted an “unresolved” claim, such that it was capable of amendment.

Held: The Arbitrator’s determination was confirmed.  

Does the letter of 7 April 2014 constitute a claim under section 66?

1. Interpreting “claim” in its proper context, it was open to the Arbitrator to find that a “claim” in s 66(1A) imports more than a “mere demand for payment but rather is to be read as referring to a claim made in accordance with the 1987 and 1998 Acts”. Further, as the Arbitrator determined, a “claim for compensation” means a claim for compensation that is capable of payment in accordance with the 1987 Act. Though there was some merit in the worker’s submission that “one claim” means “one determined claim”, for the purposes of the appeal, it was not necessary to decide that issue [58].

2. The legislation and the WorkCover Guidelines for Claiming Compensation Benefits (the Guidelines) demonstrated that in the context of Ch 7, a “claim” is, as was observed by Basten JA in Tan v National Australia Bank Ltd [2008] NSWCA 198 at [43], “a means of providing certain information”. In other words, the making of a “claim” provides the trigger for the operation of the “New Claims Procedures” in Ch 7 of the 1998 Act. In that context, it is simply a demand for compensation that a person has made or is entitled to make. In Ch 7, a claim is merely the first procedural step in the dispute resolution process (see also [89] of Ottomen Pty Ltd ATF Labour ADM t/as Otto Design Interiors v Lee-Chee[2013] NSWWCCPD 42) [59]–[61].

3. If the “claim” is defective, in that, for example, insufficient particulars had been provided, the legislation provides ample opportunity for the deficiency to be corrected. However, for the purposes of Ch 7, the claim is no less a claim. The legislation gives workers a broad and liberal protection against the potentially adverse consequences of non-compliance with the various claims provisions in Ch 7 [62]–[63].

4. Section 66 of the 1987 Act is quite different to the provisions in Ch 7 of the 1998 Act. Section 66 is a substantive provision that provides for the recovery of compensation for permanent impairment. McColl JA described the right to permanent impairment compensation as “significant statutory entitlements” (see Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 at [77]). A worker should not be deprived of that entitlement unless the legislation clearly leads to that result [64].

5. As a worker may now only make “one claim” for permanent impairment compensation in respect of the permanent impairment that results from an injury, it followed that the making of that “one claim” will be much more significant for a worker than in the past, when a worker was not restricted to the recovery of only one amount of lump sum compensation. For the first time, the legislature has introduced into workers’ compensation law the common law concept that damages are awarded once-and-for-all. Therefore, the term “claim” should not be narrowly construed to mean any “demand” [65].

6. If, by the making of one claim for permanent impairment compensation, a worker is to be prevented from making any further claim for such compensation, the word “claim” should be interpreted to mean, at the least, a valid claim. There were a number of reasons for adopting this interpretation [66].

7. First, any other result would lead to the situation where a worker who makes any demand for permanent impairment compensation, no matter how defective, is permanently prevented from recovering such compensation. There was no justification, either in the text or in the context of the legislation, for such an illogical and arbitrary result [68].

8. Second, as accepted by the plurality in Goudappel No 2, the 1987 Act’s remedial character reflects a beneficial purpose which requires a beneficial construction, if open, in favour of the injured worker. Whilst not every provision or amendment to a provision was beneficial, the 1987 Act remains beneficial legislation and s 66 continues to have a beneficial purpose, namely, the payment of permanent impairment compensation. A beneficial interpretation merely interprets “claim” as one valid claim capable of payment in accordance with the legislation. That was perfectly consistent with the intention of the legislation [69]–[71].

9. Third, a “claim” for permanent impairment compensation is, by definition, a claim for a “monetary benefit under” the legislation. A monetary benefit under the legislation is compensation that is paid or payable. If the claim cannot succeed, because it is under the s 66(1) threshold, it cannot be a “claim” for a monetary benefit under the Act, because in respect of that claim, no compensation is payable [72].

10. Fourth, the submission that “claim” in s 66 means any “demand for permanent impairment compensation”, seeks to take the meaning of “claim” in Ch 7, a Chapter that deals with “New Claims Procedures”, and impose that meaning on “claim” where it is used in a compensation benefit provision (s 66), thus taking the meaning of “claim” out of context. The purpose of the amendments to s 66, as manifested by the legislation, is achieved if workers are restricted to making one valid claim for permanent impairment compensation that is capable of payment in accordance with the legislation [75], [77].

11. Fifth, the appellant’s submission that the “plain meaning” of “claim” is “a demand” ignored the fact that the “whole notion of words having a natural meaning is not a very helpful one. Because the meaning of words is so sensitive to syntax and context, the natural meaning of words in one sentence may be quite unnatural in another” (Charter Reinsurance Co Ltd v Fagan [1997] AC 313 at 391, quoted with approval by Leeming JA (Macfarlan JA agreeing) in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [55]). It is trite that the ordinary grammatical or literal meaning of any legal text is not necessarily its legal meaning [79].

12. In this case, we were not merely dealing with “claim” in a different sentence, and therefore a different context, we were dealing with it in a different provision, where it performs a completely different function to that which it performs in Ch 7 of the 1998 Act. This distinction was valid even though the 1987 Act and the 1998 Act are to be read together (s 2A of the 1987 Act and s 60 of the 1998 Act; Griffiths v Wakelin Plumbing Pty Ltd [1998] NSWCC 36; 16 NSWCCR 675). In the context in which “one claim” appears in s 66(1A), it was not open to interpret “claim” to mean any “demand”, however defective that demand may have been [80].

13. Sixth, the respondent’s submission that the letter of 7 April 2014 was not a valid claim because, in breach of Pt 6.1 of the Guidelines, it did not include a permanent impairment claim form, was rejected. A claim that is invalid, because it purported to claim something that was not “a monetary benefit under” the 1987 Act, as it did not meet the greater than 10 per cent threshold in s 66(1), cannot be a “claim” under s 66(1A) [81].

14. The appellant submitted that it had waived the requirements in the Guidelines and, by doing so, if its argument as to the meaning of “claim” was accepted, the worker had made one claim and was prevented from obtaining any permanent impairment compensation. Such a position treats the Guidelines as setting requirements that can be waived by the insurer to advance its position. That is not how the waiver provision works. It is designed to allow an insurer to waive a requirement that a worker has not met, thus allowing the claim to proceed and be determined on its merits. The appellant’s position sought to turn the relevant provisions upside down so it could take advantage of the worker’s default. That approach was plainly wrong [85].

Did the letter of 7 April 2014 constitute an unresolved claim?

15. The suggestion that a claim for permanent impairment compensation, whether valid or invalid, cannot be amended prior to its resolution or determination was clearly wrong and was rejected [90].

16. It is true that neither the legislation nor the 2011 Rules deal with the amendment of the initial letter of “claim” for permanent impairment compensation or a permanent impairment claim form. That was hardly surprising. When a claim is at that informal stage, the purpose of making a “claim” is merely to start the claims procedures in Ch 7. It is not a formal pleading. To suggest that, prior to the resolution or determination of the claim, by making a demand for permanent impairment compensation for a certain level of permanent impairment, the worker is permanently locked into that claim, and cannot amend it, was untenable and contrary to all principles of justice [91].

17. Once an Application to Resolve a Dispute is filed with the Commission, Pt 4 r 4.2 of the Rules provide that the Commission may, on the application of a party, give the party leave to amend any document lodged by the party in the proceedings “if the Commission considers the amendment to be necessary for the avoidance of injustice” (Pt 4 r 4.2(1)) [92].

18. As an applicant is permitted, with leave, to amend the formal Application to Resolve a Dispute, “for the avoidance of injustice”, so too must a claimant be permitted to amend a letter of claim, or a permanent impairment claim form, prior to the resolution or determination of the claim and prior to commencement of proceedings in the Commission. It is clearly preferable that a letter of claim for permanent impairment compensation, or a permanent impairment claim form, should not be served until the worker’s condition is stable and has reached maximum medical improvement. If that is done, as it should be, the issue of amending the claim will rarely arise [93].

19. However, there will be rare cases where there is a change in impairment between the date of the initial claim and the date of resolution or determination of that claim. In such cases, it is appropriate that the claim be amended to reflect the correct position. It is clearly in the interests of justice that, subject to any prejudice to the appellant, and none was suggested in the present case, particulars of the worker’s claim properly reflect the claim that is being pursued [94].

20. It followed that if, contrary to the Arbitrator’s finding, the letter of 7 April 2014 was the worker’s “one claim” under s 66(1A), it was open to him to amend that claim prior to it being resolved or determined. In other words, an amendment of a claim is not a second claim. Amendments to pleadings take effect from the date of the original document which it amends. There was no reason why this principle should not apply to a document prepared prior to the commencement of proceedings. Thus, the amendment effected by the letter of 26 September 2014 took effect from the date of the first claim on 7 April 2014 [95], [97].

JR & DI Dunn Transport Pty Ltd v Wilkinson [2015] NSWWCCPD 38

Altercation on employer’s premises during working hours; whether CCTV images support factual findings; whether injuries sustained during altercation arise out of or in the course of employment, s 4 of the 1987 Act; serious and wilful misconduct; serious and permanent disablement: s 14(2) of the 1987 Act; sufficiency of evidence to support finding of injury to lumbar spine in the absence of contemporaneous complaints of back injury

Keating P

30 June 2015

Facts

The worker and a fellow employee were involved in a physical altercation at the employer’s premises which resulted in the worker allegedly sustaining injuries to his left shoulder, neck and back.

The issues on appeal concerned, firstly, whether there was sufficient evidence to support the Arbitrator’s finding that the worker sustained the alleged injuries in the course of his employment, and whether his employment was a substantial contributing factor to those injuries. Secondly, the Arbitrator’s finding that the injuries were not solely attributable to the serious and wilful misconduct of the worker. Thirdly, the Arbitrator’s finding that the injury resulted in serious and permanent disablement. Last, whether, as the Arbitrator found, the worker suffered an increase in back symptoms as a result of the injuries received in the altercation.

Held: The Arbitrator’s determination was confirmed.  

The factual issues

1. The appellant alleged that the Arbitrator erred in failing to refer to counsel’s written submissions, in respect of the CCTV footage which captured the altercation, lodged with the Arbitrator’s leave at the conclusion of the hearing. While the Arbitrator did not expressly refer to the appellant counsel’s written submissions, those submissions, in substance, merely repeated the submissions made by counsel at the hearing. The Arbitrator’s reasons clearly indicated that he considered the substance of the appellant counsel’s submissions. Any failure to expressly refer to the written submissions could not and did not involve error [81].

2. The Arbitrator’s description of the manner of the worker’s driving of the forklift, prior to the altercation, was an accurate description of the CCTV footage and provided a solid foundation for the Arbitrator’s findings [83].

3. The Arbitrator accepted that the CCTV footage did not support the allegation that the worker was punched in the shoulder by the co-worker whilst on the forklift. Consistent with the CCTV footage, it was open for the Arbitrator to find that the co-worker was seen “to have his left arm directly out from the shoulder and apparently in contact with [the worker]” [85].

4. Although parts of the worker’s evidence, as to the circumstances of the altercation, were rejected by the Arbitrator it did not follow that he was therefore bound to reject all of the worker’s evidence. There is no requirement for a judge (or an Arbitrator) to accept the whole of the evidence of any one witness (Chanaa v Zarour [2011] NSWCA 199) [92]–[93].

5. The Arbitrator had the advantage of seeing and hearing the witnesses give evidence. No submissions were advanced which would support the conclusion that the Arbitrator “failed to use or palpably misused his advantage” (Midcoast County Council t/as Midcoast Water v Reed Constructions Australia Pty Ltd [2011] NSWCA 268). The Arbitrator did what he was required to do, namely, resolve the contested factual issues having regard to the witness’s evidence, the contemporaneous statements, and the CCTV footage [97].

6. The finding that the worker did not approach the co-worker to initiate a fight, but to remonstrate about the physical contact whilst he was driving the forklift, was open on the evidence and did not involve error [98].

Was the injury sustained in the course of or arising out of the employment?

7. The President found that it was not open to dispute that the origins of the conflict between the two workers resulted from employment related matters. The genesis of the disagreement concerned the worker’s purported authority to direct workers, including the co-worker, in the performance of their duties. Further, it concerned the manner in which any purported authority was exercised [105].

8. Applying Tarry v Warringah Shire Council [1974] WCR 1, the President found that there was an unbroken causal connection between the work related matters and the altercation. He noted thatthe antecedent background to the altercation took place within a short time. The final altercation occurred within ten minutes of an angry exchange over a work-related instruction. For those reasons the “arising out of” test was satisfied [106].

9. The appellant attempted to distinguish Evans v Australian Gas Light Company [1958] WCR 30 (Evans), submitting that the Arbitrator placed undue emphasis on work issues and personal animosity between the worker and the co-worker and insufficient weight on the immediate circumstances of the fight itself. However, the President found that the facts in the present case were not dissimilar to those in Evans. In the present matter, there was a remonstration between co-workers regarding the striking incident while the worker was driving a forklift. The injuries were sustained as a result of the remonstration and subsequent altercation. Therefore, applying Evans, the worker was in the course of his employment when those events unfolded and this ground of appeal failed [107]–[111].

Serious and wilful misconduct

10. In view of the President’s findings, noted above, it was not strictly necessary to deal with the appellant’s submission that the worker was not entitled to compensation as he allegedly engaged in serious and wilful misconduct (s 14). However, the President made the following observations. He accepted the Arbitrator’s finding that the span of time between the worker receiving the blow to his arm while on the forklift and the altercation took place within a matter of seconds and was insufficient to enable the worker to form the necessary intention to undertake a deliberately wilful act of misconduct. While the forklift was driven close to the co-worker, as the Arbitrator found, it was not directed at him or used in any manner that was likely to cause injury to the co-worker. For these reasons this ground of appeal also failed [112]–[119].

Did the worker suffer serious and permanent disablement?

11. As the defence under s 14 failed, it was not necessary for the President to deal with the appellant’s submission that compensation was not payable in respect of the injury as it did not result in serious and permanent disablement (s 14(2)). However, the President made the following observations [120]­–[121].

12. It was open to the Arbitrator to conclude, on the basis of expert medical evidence, that the requirements of s 14(2) as stated in Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 were satisfied. The worker suffers a disability, which is permanent and adversely impinges on his capacity to work, which was, in any event, irrespective of the back condition [126]–[127].

Did the Arbitrator err in finding injury to the lumbar spine?

13. The President accepted that a complaint recorded by the worker’s medical expert, of immediate symptoms in the back after the altercation, was not supported by any contemporaneous objective evidence. However, he noted that, it was not in dispute that the worker suffered from a long term chronic lower back condition for which he undertook regular exercise [132].

14. The worker’s medical expert recorded that it was through undertaking a regular exercise regime that the worker managed to keep the symptoms of his back injury at bay. However, by reason of the limitations imposed on the worker because of the accepted shoulder injury, he was prevented from pursuing a regular exercise regime and as a result his back became “more sore” [133].

15. The President was satisfied that the history recorded by the worker’s medical expert provided a fair climate for the acceptance of his opinion that the worker suffered a consequential back condition by reason of the accepted injuries: Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85 [135].

16. The evidence of the worker’s medical expert supported a causal connection between the injuries received from the altercation and the back symptoms. The appellant called no contrary evidence. Because the worker proved the back symptoms constituted a consequential condition he did not have to show that the altercation caused a pathological change in his back, such as to support a s 4 injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796) [136].

Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32

Whether applicant a deemed worker; applicant a working director of own company; whether counsel submitted on lifting the corporate veil; if submission made, whether failure to record counsel’s submission was an error on the face of the record; relevance of alleged error on the face of the record in appeal from Arbitrator to Presidential member; whether Senior Arbitrator failed to deal with all submissions; obligation of counsel to clearly articulate submissions at arbitration; whether contract made between applicant and the respondent or between applicant’s company and the respondent; application of principles in Scerri v Cahill (1995) 14 NSWCCR 389; issues not argued at arbitration; lifting the corporate veil; relevance of indicia of employment in a deemed worker case; whether principles in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; 165 CLR 107 apply to a claim for workers’ compensation benefits; statutory policy of insurance; interpretation of beneficial legislation; s 352 and cl 2(1) of Sch 1 to the 1998 Act

Roche DP

1 June 2015

Facts:

The issue in this appeal was whether the Senior Arbitrator erred in finding that, because his own company employed him as a working director, the applicant was not a person who contracted to perform work for the respondent and was therefore not a deemed worker under the legislation.

The worker was aged 66 years. Up until his retirement, the worker, a carpenter, had been exposed to loud noise from power tools. He alleged that, as a result of exposure to loud noise, he had suffered a loss of hearing. On 10 June 2014, the worker claimed lump sum compensation in respect of binaural hearing loss of 27.2 per cent, which equalled 12 per cent whole person impairment, together with the cost of hearing aids. He claimed permanent impairment compensation from the respondent, on the basis that it was the last employer to employ the worker in employment to the nature of which his injury was due.

The insurer disputed liability on the grounds that, at all relevant times, the worker was a working director employed by his own company, K & B Ceilings Pty Ltd (K & B), and that, with respect to the respondent, he was neither a worker nor a deemed worker within the terms of the 1998 Act.

The Senior Arbitrator could not be satisfied that the worker was a deemed worker employed by the respondent and his claim failed. On 10 March 2015, the Commission issued a Certificate of Determination making an award in favour of the respondent. The worker appealed.

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

• failing to give due or any consideration to the evidence that the corporate entity of K & B existed only as a vehicle to gain an ABN (ABN);
• failing to lift the corporate veil to allow the worker to bring his claim (failing to lift the corporate veil);
• failing to give sufficient weight to the indicia of the worker’s employment with Itxcel to deem him an employee irrespective of K & B (indicia of employment);
• failing to account for the fact that K & B did not perform the work (K & B did not perform the work);
• taking into consideration irrelevant matters (irrelevant matters), and
• failing to find that the worker had discharged the onus of proof that he was a deemed worker (whether the worker discharged the onus of proof).

There was also an issue regarding the worker’s counsel’s submission that the audio recording of the arbitration, that was in two parts, was incomplete and failed to record her submission that the corporate veil be lifted. She contended that this was an “error on the face of the record within the meaning of s 352(5)” of the 1998 Act.

Held: The Senior Arbitrator’s determination was confirmed.

Error on the face of the record

1. The authorities are clear that, at common law, “the record” does not include the transcript of the proceedings under challenge (Craig v South Australia [1995] HCA 58; 184 CLR 163 at 180–181; applied in Kirk v Industrial Court of New South Wales [2010] HCA 1 at [84]; 239 CLR 531 at 577) [25].

2. Except as provided by the 1998 Act, a decision of the Commission under the Workers Compensation Acts “is final and binding on the parties and is not subject to appeal or review” (s 350(1) of the 1998 Act). It was not appropriate to challenge an Arbitrator’s decision by reference to the administrative law principle of error on the face of the record. Any challenge must come within the terms of the legislation, which expressly provides for a challenge if the decision appealed against is affected by any error of fact, law or discretion [26], [28].

3. In the appropriate case, error may be established if an Arbitrator has failed to deal with a relevant submission (Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463). That is because the failure “to respond to a substantial, clearly articulated argument relying upon established facts” is a failure to accord the relevant party natural justice (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 per Gummow and Callinan JJ at [24]). It is not an error on the face of the record [29].

4. Deputy President Roche did not accept that the worker’s counsel made any relevant submission that the corporate veil should be lifted. Submissions must be clearly articulated and, where appropriate, supported by evidence and appropriate authority. Merely posing a question during informal discussions seeking to clarify the issues in dispute (as the worker’s counsel did in this case by merely saying “what about lifting the corporate veil”) does not amount to a formal submission that an Arbitrator has to deal with in their reasons for decision. It followed that the Senior Arbitrator did not err in not referring to a point never properly articulated (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111) [37]–[38].

ABN

5. The fact that K & B existed as a vehicle to get an ABN was irrelevant to the determination. It was to the worker’s advantage to form a company. In these circumstances, unless the company was a sham, it was a valid legal entity entitled to contract on its own behalf and to employ its own workers, such as the worker. It did so. The fact that K & B did not have any workers compensation insurance was irrelevant to the issue in dispute. This ground of appeal was rejected [43]–[44].

Failing to lift the corporate veil

6. It had not been suggested that K & B was a sham, or a façade formed to conceal the true facts (see Lee v Lee’s Air Farming Ltd [1961] AC 12 per Lord Morris at 26). It was “a legal person apart from the legal personality of the individual controller of the company” (R v Goodall (1975) 11 SASR 94 per Bray CJ at 101, applied by Mason CJ, Wilson and Toohey JJ in Hamilton v Whitehead [1988] HCA 65; (1988) 166 CLR 121 at 128) [50]–[51].

7. Though there may well be cases where the existence of a company may not be incompatible with the relationship of employment (or deemed employment) (see ACE Insurance Ltd v Trifunovski [2013] FCAFC 3), as the evidence was presented, this case was not one of them. The evidence accepted by the Senior Arbitrator was that the contract to perform work was between the respondent and K & B. That precluded the worker being a deemed worker because he was not a party to a contract with the respondent. The contract was between the respondent and K & B. It followed that the worker had established no basis upon which the corporate veil should be lifted [55], [57].

8. The worker’s submissions regarding beneficial legislation were not relevant to the present matter. They do not mean that every provision or amendment to a provision in beneficial legislation has a beneficial purpose, or is to be construed beneficially (ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 at [29]). More importantly, a beneficial interpretation of legislation cannot be used to fill gaps in the evidence or allow an extension of sympathy to a case that falls outside the legislation as interpreted (Kowalski v Repatriation Commission [2011] FCAFC 43 at [36]). The Senior Arbitrator’s finding that, because his own company employed him, the worker had not contracted with the respondent was open on the evidence [59]–[62].

Indicia of employment

9. By only arguing that the worker was a deemed worker, his counsel had effectively conceded that he was an independent contractor and therefore not a worker. To succeed, the worker had to be a deemed worker within the meaning of cl 2 of Sch 1. To be a deemed worker, the worker had to establish the matters identified in Scerri v Cahill (1995) 14 NSWCCR 389. Because his own company employed him, and because that company contracted with the respondent, he was unable to establish that he was a party to a contract with the respondent to perform work and unable to rely on cl 2 of Sch 1 [67].

K & B did not perform the work

10. A company must act through its directors and employees. It was not disputed that the worker performed the services that K & B contracted to provide to the respondent. This ground was rejected [69].

Irrelevant matters

11. This submission seemed to relate to the Senior Arbitrator’s statement that the respondent’s counsel submitted that the worker had his own tools and equipment and that, through his company, the worker claimed “deductions and depreciation in respect of a lot of his business expenses”. Other than confirming that K & B was not a sham, the reference to deductions and depreciation was not critical to the determination. The finding was open on the evidence and disclosed no error [72]–[73].

Whether the worker discharged the onus of proof

12. The Senior Arbitrator’s conclusion was open on the evidence and disclosed no error [75].

Alternative approach – reliance on Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; 165 CLR 107

13. This point had not been argued before the Arbitrator. Reluctantly, leave was granted for the point to be raised on appeal as it did not cause any prejudice to the respondent [78].

14. McNiece Bros had no application whatsoever to the present case, and counsel for the worker’s submissions on this point were fundamentally misconceived [79].

15. The liability of the respondent’s insurer, if any, arises under a mandatory statutory policy of insurance that is in the terms set out in Sch 3 of the 2010 Regulation. Under that policy the insurer is liable to indemnify the respondent against compensation the respondent becomes liable to pay under the 1987 Act “to or in respect of any person who is a worker of the [respondent] (including any person to whom the [respondent] is liable under section 20 of the 1987 Act)”. As the worker was neither a worker nor a deemed worker under the legislation the respondent had no liability. It followed that no liability arose under the statutory policy. The worker did not rely on s 20 and it was not necessary to consider that provision. This ground of appeal was rejected [83]–[85].

Forestry Corporation of New South Wales v Mawson [2015] NSWWCCPD 34

Challenge to finding of fact where concessions made by a party are disregarded by Arbitrator; Arbitrator’s duty to do justice to the issues posed by the parties; AMS to have access to decision made on appeal

O’Grady DP

11 June 2015

Facts:

The worker was employed by the appellant since 2001. Her duties involved the handling and planting of seedlings at the respondent’s nursery. The work was performed on a seasonal basis, usually commencing in August and continuing through until April or May the following year.

The worker alleged that she received injury to her lower back in the course of that work. The worker alleged that she suffered injuries to her lower back on 13 April 2005, 13 March 2007 and 5 November 2008. By reason of incapacitating symptoms experienced by her, she ceased work on 5 November 2008 and had not returned to work since that date. The worker made a claim for workers compensation benefits on 12 November 2008, particularising the date of injury on the claim form as being 5 November 2008 at “3.30 approx pm”.

On 30 December 2008, the appellant issued a s 74 notice disputing the claim and declining liability. Among the matters particularised was a denial that the worker suffered injury as alleged. The notice included reference to other facts and circumstances which the respondent relied upon when denying the claim.

The worker took no further action concerning her claim immediately following receipt of that notice. The worker remained absent from work and sought medical treatment from time to time. On 22 September 2009, the worker underwent a laminectomy and discectomy at the L4/L5 level of her spine as a public patient. She continued to experience incapacitating symptoms arising from her back disability and ultimately underwent a spinal fusion between L3 and S1 on 17 October 2011.

On 5 August 2011, that is prior to the surgery, the worker’s solicitors gave notice of a claim to the appellant in respect of lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. It appeared that nothing relevant occurred until the solicitors wrote again to the appellant on 4 April 2013. An attempt at settlement failed.

The worker filed an Application to Resolve a Dispute with the Commission on 27 September 2013, seeking orders with respect to her alleged entitlement to lump sums pursuant to ss 66 and 67 of the 1987 Act as it stood before the 2012 amendments.

On 22 January 2015, the Commission issued a Certificate of Determination, making an award for the appellant in relation to the claim for injury to the lower back on 13 March 2007 and 5 November 2008 and remitted the matter to the Registrar for referral to an AMS for a whole person impairment assessment. The employer appealed.

The issues in dispute on appeal were whether there was:

• “[a]n error of law in that the Arbitrator failed to provide for referral to an AMS of the issue of whether whole person impairment had resulted from the undisputed injury which the worker had received to her lower back in April 2005”;
• “[a]n error of law in failing to issue an Order (to be included in the Registrar’s referral to the AMS) directing the AMS to the finding that the worker had injured her back when lifting her father on the night of 4 November 2011 and suffered a non-work injury to her lumbar spine – a matter of material relevance to the assessment to be made as to impairment resulting from compensable injuries, as distinct from non-compensable events.”;
• “[a]n error of law in that the Arbitrator made ‘an award for the respondent in relation to the claim for injury to the lower back on 13 March 2007’, when there was no dispute between the parties, and before the Arbitrator, that the worker had sustained a compensable injury to her back on 13 March 2007; the Arbitrator was bound to provide for the issue of whether whole person impairment had resulted from that injury to be referred to an AMS”, and
• “[a]n error of mixed fact and law in determining that any [sic] of the frank injuries (which included the undisputed injuries of 13 April 2005 and 13 March 2007) did not fall within the definition of injury contained in section 4(a) of the 1987 Act or, in the alternative, an error of mixed fact and law and jurisdiction in determining that the effects of those injuries were self-limiting and had resolved.”

Grounds (a) and (b) suggested error of law on the part of the Arbitrator having regard to the terms in which the remitter to the Registrar for referral to the AMS had been made.

Grounds (c) and (d) suggested that the Arbitrator erred in determining that particular injuries alleged by the worker, the occurrence of which was conceded by the appellant, had not been established on the evidence or, in the alternative, in finding that such injuries “were self-limiting and had resolved”.

Held: The Arbitrator’s determination was in part revoked.  

Grounds (c) and (d)

1. The appellant conceded that the worker had received back injury on 13 April 2005 and 13 March 2007 and disputed the allegation of injury resulting from the nature and conditions of her employment and the alleged injury on 5 November 2008 [32].

2. The dispute before the Arbitrator had been conducted by the parties in circumstances where the worker alleged, and the appellant did not dispute, that she had received injury to her back on 13 April 2005 and on 13 March 2007. No finding was made by the Arbitrator concerning the alleged injury which was said to have been received in April 2005. Notwithstanding the concession made by the appellant concerning the occurrence of injury in March 2007, the Arbitrator concluded that proof of injury on that occasion had not been made out. A similar finding was made that no injury had been received on 5 November 2008. That last finding was not challenged on this appeal [50].

3. Regarding the submission by the appellant that suggested error of law concerning the Arbitrator’s finding of no injury in March 2007 in circumstances where “there was no dispute between the parties” (ground (c)), the appellant’s concession cannot bind the Commission and such concession may be disregarded by the Arbitrator in circumstances where there is some sound basis to question the admission or concession (see Comcare v Fiedler [2001] FCA 1810 at [39] albeit in circumstances where the Court was considering the function of a tribunal that was reviewing an administrative decision) [52].

4. It was nevertheless clear that both the appellant and the worker anticipated findings in accordance with the matters not in dispute, namely injury received on 13 April 2005 and 13 March 2007. It was clear that the Arbitrator’s failure to address the injury agreed to have occurred in April 2005 constituted error in failing to do justice to the issues posed by the parties. It was appropriate to determine on the appeal that the worker received a back injury on 13 April 2005 [53]–[54].

5. Leaving aside the Arbitrator’s failure to alert the parties to his intention to disregard the concession or admission made by the appellant, Deputy President O’Grady was of the opinion that, having regard to the unchallenged evidence of the worker concerning the events and consequences of work performed on 13 March 2007, the Arbitrator had erred in fact. The Arbitrator’s conclusion that no injury as defined in the legislation had been received was be revoked. Deputy President O’Grady was satisfied, and found on the appeal, that the worker received a back injury arising out of or in the course of her employment on 13 March 2007 [55].

Grounds (a) and (b)

6. The consequence of the Arbitrator’s error in failing to make a finding concerning the April 2005 injury was that a relevant injury was not the subject of referral to the AMS. That omission by the Arbitrator constituted error which had to be corrected on appeal. In the circumstances, it was appropriate that the terms of referral made by the Arbitrator be amended to include reference to injury occurring on 13 April 2005 [57].

7. It was appropriate, as acknowledged by the Arbitrator, that the Arbitrator’s findings concerning the comments made by the worker to the then foreman/manager of the nursery (which concerned the question as to whether the worker might have injured her back at her parents’ home on 4 November 2008 when she lifted her disabled father), and her probable physical state when commencing work on 5 November 2008, be brought to the attention of the AMS. Given the manner in which the matter was conducted by the parties, Deputy President O’Grady concluded that the Arbitrator’s failure to direct that his findings, concerning the worker’s comments and her probable experience of pain, be brought to the attention of the AMS constituted error. It was appropriate to make an order on this appeal that the AMS have access to this decision [61].

Spencer v State of New South Wales [2015] NSWWCCPD 37

Assessment of probable earnings but for injury; s 40(2)(a) of the 1987 Act, as it stood prior to the amendments introduced by the 2012 amending Act

Roche DP

26 June 2015

Facts:

The worker was a casual security guard with the respondent at Wollongong Hospital. On 6 October 2000, the worker injured his right knee while restraining a patient. He took no time off work and continued to perform his usual duties.

In January 2001, the worker was demoted to the position of hospital assistant grade 2 (cleaner) because of disciplinary reasons unrelated to his injury.

On 22 August 2002, the worker injured his left knee while squatting to connect a hose. On 12 November 2002, the respondent terminated the worker’s employment on medical grounds, effective on 20 November 2002.

The parties did not dispute that, as a result of his injuries, the worker was partially incapacitated for work as a cleaner and as a security guard. Nor was it disputed that, between 2003 and 2013, the worker had various periods of partial and total incapacity. During those periods, he was paid voluntary weekly compensation.

On 4 March 2013, the worker’s voluntary weekly compensation payments were reduced on the basis that he had returned to full-time employment (in fact he had commenced part-time employment in June 2012).

The claim before the Commission concerned the worker’s entitlement to weekly compensation under s 40 from 4 March 2013 until 9 March 2014. That claim turned on the calculation of the worker’s probable earnings but for injury. The dispute was whether, as the Arbitrator found, the worker’s probable earnings were those as a cleaner, or, as the worker contended, the much higher amount as a security guard.

The Arbitrator stated that there was no evidence that the worker would have worked as a security guard after his employment was terminated if not for the injury.

The Arbitrator assessed the worker’s incapacity by reference to the amount he was earning at the time his injury resulted in an incapacity for work and by reference to his job at that time. That job was as a cleaner. She therefore found probable earnings to be $677.81 per week (being the wages payable for a cleaner). The worker appealed.

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

• there was no evidence that, but for injury, the worker would have worked as a security guard after his termination (no evidence), and
• the worker’s incapacity for work should be assessed by reference to the amount he was earning at the time of his injury resulting in his incapacity for work and by reference to his job (as a cleaner) at that time (assessment of incapacity for work).

Held: The Arbitrator’s determination was confirmed.  

No evidence

1. The fact that the worker commenced work with the respondent as a security guard was of limited relevance to whether, in the circumstances, he would have continued to work in that role after the respondent terminated his employment. One would have thought that, if the worker wanted to continue to work as a security guard, he would have sought out such a position after he was demoted in January 2001. There was no evidence that he did so [27].

2. The fact that the worker worked as a security guard, his “chosen” capacity, for longer than he worked as a cleaner was irrelevant. The question was what he would have earned, but for his injury, had he continued to be employed in the “same or some comparable employment” (s 40(2)(a)). On that issue, the critical evidence was that the worker’s demotion was unrelated to his first injury [28].

3. The fact that the worker was a security guard at the time of the first injury was of limited relevance. It might have had some relevance, to the exercise of the s 40 discretion, if the worker had only received the first injury. That was not the case. His incapacity had resulted from two injuries. At the time he stopped work, he was employed as a cleaner and, on the evidence presented, the Arbitrator was entitled to conclude that his probable earnings were the earnings he would have received as a cleaner [29].

4. The nature and extent of the worker’s ongoing treatment was irrelevant to the determination of probable earnings. The question for the Arbitrator was to determine the weekly amount the worker would probably have been earning if uninjured [30]–[31].

5. The relevance of the fact that the worker’s employment was terminated after his second injury, which occurred while he was employed as a cleaner, was not explained in the submissions. Work as a cleaner was the last work performed by the worker prior to ceasing work. In the absence of evidence to the contrary, that was the work the worker would have continued to perform but for his injury. The Arbitrator was justified in stating that there was no evidence that, but for his injury, the worker would have worked as a security guard after the respondent terminated his employment [32], [34].

Assessment of incapacity for work

6. The Arbitrator’s statement that the worker’s “incapacity should be assessed by reference to the amount he was earning at the time his injury resulted in incapacity for work and by reference to his job at the time” must be read in the context of the issue in dispute. That issue was the determination of the correct amount for probable earnings but for the injury. It was open to the Arbitrator to determine that the worker’s probable earnings were those of a cleaner [40].

7. The relevance of the submission that there should be a logical, coherent and reasonable basis for inferences drawn from the primary facts made no sense and had no relevance to the case. The Arbitrator did not draw an inference from the primary facts. She did not accept the submission that the worker’s probable earnings were those of a security guard. That conclusion was open and disclosed no error [42].

8. The Arbitrator’s reference to there being no basis for finding that there was a “real prospect” that, but for his injury, the worker would have worked as a security guard after the respondent terminated his employment was a reference to that phrase in the decision by Kirby P in Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 at 540. The Arbitrator’s reliance on that phrase in the circumstances of this case did not involve any relevant error [44].

9. The submission that “the employment transfer” (which was a reference to the demotion to the job of cleaner) was against the worker’s wishes did not advance the worker’s position on appeal. He was demoted to the position of cleaner because of disciplinary reasons, which were entirely unrelated to his injury. This point supported the Arbitrator’s conclusion that probable earnings were those of a cleaner [45].

10. The relevance of the submission that, ordinarily, people are not apt to work in demoted roles on less pay, unless there are “circumstances” for doing so was unclear. Rather than resigning, and seeking work elsewhere as a security guard, the worker continued to work as a cleaner. In these circumstances, it could not be said that, but for the injury, the worker would have continued working as a security guard after the respondent terminated his employment. The worker gave no evidence that, but for his injury, he would have resumed work as a security guard [46].

11. The reference to the fact that the worker had had surgery to his knees was irrelevant to the issue of probable earnings [47].

12. The fact that the respondent terminated the worker’s employment while he was working as a cleaner was not determinative of the issue in dispute (NSW Harness Racing Club Ltd v Forrest (1995) 12 NSWCCR 217 at 220E) and the Arbitrator did not treat it as such [48].

13. Contrary to the worker’s submission, the use of the phrase “but for the injury” in s 40(2)(a) does not include consideration of the circumstances surrounding the injury. It merely indicates that the determination of probable earnings is a hypothetical exercise. One looks at what the worker would have earned if he or she had not been injured [49].

Atkins v City of Canada Bay Council [2015] NSWWCCPD 33

Failure to consider lay evidence alleged to corroborate alleged injury; assessment of medical evidence; failure to comply with Practice Direction No 6

Roche DP

3 June 2015

Facts:

This matter involved a claim for hospital and medical expenses under s 60 of the 1987 Act for proposed surgery to the worker’s cervical spine/neck.

The worker was a concreter and his duties included hard manual labour in the construction and maintenance of pavements, kerbs and guttering, minor landscaping and asphalting. He alleged that he injured his neck and right shoulder as a result of using a 10-12 kg crowbar and hammer to dig holes in a footpath on 2 December 2010. In addition or in the alternative, he alleged that he suffered the same injuries as a result of his employment duties with the respondent over an extended period of time, which duties required him to perform “repetitive and physically demanding tasks including but not limited to concreting and placing strain upon his neck and right shoulder”.

The worker asserted that his case was corroborated by the evidence of two co-workers who were working with him on 2 December 2010.

At the arbitration, the worker’s counsel relied upon evidence from Dr Kam, neurosurgeon, that the worker’s ongoing neck symptoms  were related to the heavy physical work he had been involved in as a concreter, which work substantially contributed to his ongoing (neck) pain and discomfort. He also relied on evidence from Dr Vote, orthopaedic surgeon qualified by the respondent, to the effect that his employment was a substantial contributing factor to his ongoing symptoms and that it was “understandable” that any repetitive work or manual work with the worker’s left upper limb would “to some extent precipitate some discomfort in relation to his neck and left shoulder”.

The respondent conceded that the worker injured his right shoulder on 2 December 2010, but disputed that he injured his neck on that day or as a result of the physical nature of his employment up to that day. If he did injure his neck, the respondent asserted that the surgery proposed by Dr Kam was not reasonably necessary as a result of the injury.

The respondent relied on the fact that the worker made no complaint of pain in his neck when he completed the Incident/Hazard Reporting Form on 2 December 2010, nor complained of neck symptoms in his statement of 8 July 2012. The respondent contended that the first mention of neck symptoms was to Dr Maniam, a specialist who treated the worker’s right shoulder symptoms in 2011, but that was not until about August 2012.

The Arbitrator made an award for the respondent in respect of an injury to the cervical spine in the course of employment and in respect of the nature and conditions of the worker’s employment with the respondent. The worker appealed the Arbitrator’s findings on injury.

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

• overlooking, or failing to give weight to, evidence from the worker and from two co-workers (Fernando Horcada and Domenico Ranieri) to the effect that he had made contemporaneous complaints of neck pain (contemporaneous complaints);
• failing to accept the unchallenged evidence of the worker, Mr Horcada and Mr Ranieri that the worker made contemporaneous complaints of pain in the neck (contemporaneous complaints);
• overlooked, or failed to give weight to the expert evidence of Dr Maniam, Dr Bentivoglio and Dr Vote (expert medical opinion);
• failing to find that the preponderance of expert opinion indicated that the worker’s condition was work related, thus establishing injury pursuant to s 4 of the 1987 Act (expert medical opinion);
• failing to provide adequate reasons that might explain whether she accepted or rejected the evidence of Mr Horcada and Mr Ranieri, and the basis for any such acceptance or rejection (contemporaneous complaints);
• failing to provide adequate reasons that might explain whether she rejected the opinions of Dr Maniam, Dr Bentivoglio and Dr Vote, and the basis for any such rejection (expert medical opinion);
• stating that the preponderance of medical opinion was to the effect that the worker has longstanding degenerative changes, without considering the residual question of whether the worker’s undoubted heavy work contributed to that condition (expert medical opinion), and
• failing to find that the worker suffered a compensable injury to his neck and was entitled to be compensated under s 60.

Held: The Arbitrator’s determination was revoked.  

Grounds 1, 2 and 5 – contemporaneous complaints

1. An Arbitrator does not have to make express findings in respect of every fact leading to his or her conclusion. When considering a challenge to the adequacy of reasons, it must be remembered that the decision must be read as a whole and that “reasons need not be lengthy or elaborate” (Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443). Moreover, the extent and scope of a trial judge’s (or Arbitrator’s) duty to give reasons depends upon the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed)). The obligation to give reasons is related to and dependent upon the submissions presented to the particular judicial officer [28]–[29].

2. The Arbitrator had an obligation to deal with the evidence from Mr Horcada and Mr Ranieri and determine if she accepted it or rejected it and, if she rejected it, why. It may well be that it can be inferred that the Arbitrator did not accept the evidence from Mr Horcada and Mr Ranieri. However, the question remained, where injury (to the neck) was disputed, and where the complaint of pain in the neck at work on 2 December 2010 (and subsequently so far as Mr Horcada’s evidence was concerned) was alleged to be corroborated, what weight did the Arbitrator give to evidence from the co-workers. The answer was not clear from a reading of the decision as a whole [31].

3. Though, when summarising the evidence, the Arbitrator referred to the evidence from Mr Horcada and Mr Ranieri, she did not refer to it again. If her statements that the worker made “no complaint of neck problems for some considerable period” and that there was a “lack of any reporting of neck symptoms for some considerable time” were restricted to the worker’s complaints to medical experts, they were correct. The first reference to the worker complaining of his neck to a medical expert after December 2010 was when he saw Dr Maniam in August 2012 [43].

4. Other than summarising the evidence from Mr Horcada and Mr Ranieri, the Arbitrator did not say if she accepted it or rejected it. The only conclusion available, given that the evidence was not overlooked, was that the Arbitrator did not accept it. However, if that was so, given that it was important evidence, she was obliged to explain why she did not accept it. In the circumstances of this case, given the issues involved and the submissions made at the arbitration, that was a failure to properly determine the dispute according to law [44].

5. The corroborative value of Mr Horcada’s and Mr Ranieri’s evidence was limited because their assertion that the worker complained to them about his neck on 2 December 2010 was not consistent with the worker’s statement of 8 August 2014 [47].

Grounds 3, 4, 6 and 7 – expert medical opinion

6. The Arbitrator’s statement that the weight of the medical opinion did not relate the worker’s neck problem to his employment or the injury on 2 December 2010 was incorrect [52].

7. Dr Casikar and Dr Davies only considered if the worker injured his neck on 2 December 2010 and did not consider if he may have suffered an injury due to his heavy duties with the respondent. Therefore, while it was true that they both said that the worker had degenerative changes in his neck, which were not caused by the events on 2 December 2010, they did not address the additional or alternative part of the claim [55].

8. The evidence from Drs Maniam, Vote, Kam and Bentivoglio related the worker’s neck problem to his employment with the respondent, either because of the incident on 2 December 2010 (Dr Maniam) or because of the heavy physical work he did with the respondent (Drs Kam, Vote and Bentivoglio), or because of a combination of the incident on 2 December 2010 and the heavy duties (Dr Bentivoglio) [56].

9. This evidence was far from ideal. That was because, apart from Dr Vote, who referred to the heavy work having caused an aggravation of underlying degenerative changes, the doctors did not express themselves in the terms of the legislation. However, if accepted, the “weight of the medical opinion” does relate the worker’s neck problem to his employment, in one way or another, and the Arbitrator erred in stating the contrary. The Arbitrator’s conclusion on this point was a critical part of her reasoning and clearly played a role in the outcome. As a result, the matter must be re-determined [57].

Other matters

10. The worker relied upon reports from two orthopaedic surgeons in breach of cl 49 of the 2010 Regulation. As that matter has to be re-determined anew, the worker must elect which of those reports he wishes to tender [58].

11. It was assumed that the worker sought to rely on the disease provisions, though that was not clear from the pleadings. Merely alleging an injury is due to the “nature and conditions of employment” does not necessarily raise reliance on the disease provisions. The Application alleged a “deemed” date of injury of 2 December 2010. As the worker continued work in his usual duties until July 2011, that date could not be correct. If the worker wished to rely on the disease provision, the Application would have to be amended to properly plead the alleged injury, the deemed date of injury and the period over which the injury was alleged to have been caused [58].

12. Though several doctors suggested that the worker’s neck symptoms were related to his heavy duties with the respondent, save for one, they did not express their opinions in the terms of the legislation. That has to be addressed before the re-determination [58].

13. If the disease provisions were to be relied on, and the alleged injury is, for example, an aggravation of a disease, it would be necessary for the medical evidence to address whether the proposed surgery is reasonably necessary as a result of the aggravation. It would also be necessary to obtain a further non-binding report from an AMS dealing with whether the proposed surgery is reasonably necessary as a result of that injury. [58].