Issue 10: October 2016

Avni v Visy Industrial Plastics Pty Ltd [2016] NSWWCCPD 46

Clause 11 of Sch 8 to the 2016 Regulation; formerly cl 11A of Sch 8 to the 2010 Regulation; whether the worker’s entitlement to make a further claim for permanent impairment compensation is exhausted by an intermediate claim that was withdrawn

Keating P

16 August 2016

Facts

This appeal concerned the operation of cl 11 of Sch 8 of the 2016 Regulation (formerly cl 11A of the 2010 Regulation) and the entitlement of a worker to pursue one further claim. This was in circumstances where the first claim for permanent impairment compensation was resolved by a Complying Agreement and a second claim was withdrawn following referral to an AMS and the issue of a MAC.

The Complying Agreement entered into on 18 August 2010 documented the resolution of a claim for whole person impairment for an accepted work injury for 10 per cent impairment. The injuries included the worker’s upper extremities, comprising of eight per cent impairment for the right upper extremity (wrist) and two per cent impairment for the left upper extremity (wrist). The impairment was based on a report of Dr Conrad, and also included an assessment of seven per cent impairment in respect of the right shoulder.

In June 2012, the worker made a further claim for lump sum compensation in respect of an additional three per cent whole person impairment, in relation to an injury deemed to have occurred on a different day, based on a further report of Dr Conrad. Dr Conrad confirmed his original assessment, however he included an assessment of five per cent impairment of the left shoulder to conclude that the worker’s whole person impairment was 13 per cent at that time. An AMS subsequently assessed the worker to have an eight per cent whole person impairment for the left upper extremity. However, this claim for lump sum compensation was withdrawn and no compensation was paid.

In November 2014, the worker’s general practitioner assessed her to have a 15 per cent whole person impairment. This comprised of eight per cent impairment in respect of the right upper extremity and eight per cent impairment in respect of the left upper extremity. As a result of this assessment, in December 2014, the worker made a further claim for lump sum compensation for the difference between her general practitioner’s assessment of 15 per cent whole person impairment and the 10 per cent whole person impairment agreed to in the Complying Agreement. The insurer denied the claim.

In proceedings before the Commission, the Arbitrator was not persuaded that the worker had any entitlement to bring a further claim for lump sum compensation in respect of her injuries.

The worker appealed.

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

(a)    misconstruing and misapplying sub-cl (4)(b)(i) and (ii) and sub-cl (4)(c) of cl 11, and

(b)    by misconceiving the effect of cl 11 as not being “a beneficial and exceptional entitling regulation” for the worker.

Relevantly, cl 11 provides savings and transitional provisions with respect to the operation of s 66, which provides amongst other things that only one claim can be made under the 1987 Act for “permanent impairment in respect to the permanent impairment that results from an injury”. Amongst other things, cl 11 provides that a further lump sum compensation claim may be made in respect of an existing impairment.

Held: The Arbitrator’s determination was revoked and remitted to the Registrar for referral to an AMS for assessment.    

Consideration

1. The President accepted the appellant’s submission that the Arbitrator misinterpreted the correct application of cl 11. The President found sub-cl (4)(b)(i) and (ii) to expressly exclude from the operation of sub-cl (1) and (2) a claim for lump sum compensation in respect of an existing impairment that was withdrawn and in respect of which no compensation was paid. As the appellant submitted, on the facts of this case, as the worker withdrew her second claim for lump sum compensation and as no compensation was paid in respect of that claim, no regard was to be had to it in determining whether she had any further entitlement to compensation ([53]–[54]).

Is there one injury or more than one injury?

2. The President rejected the submission that the subject of the second claim was a further injury. The submission that the referral to the AMS, couched in terms of “further injury” with a deemed date different to the original claim, “raises the spectre” of a further injury was dismissed. There was no evidence that the worker suffered an injury on the deemed date identified in the second claim, and reference to it in the AMS referral was clearly an error ([56]).

3. The claim pressed was for a further three per cent whole person impairment in respect of the accepted disease injury. The President observed that where the injury is a disease of gradual onset, either caused by the employment or aggravated by it, the injury is for the purposes of the 1987 Act deemed to have happened at the time of the worker’s death or incapacity (ss 15 and 16 of the 1987 Act). That was the date of injury which was pleaded and was clearly correct. The description of the injury was in identical terms to that claimed in the second claim; it was the same injury ([57]­­–[59]).

4. It followed that the President rejected the submission that the AMS’s assessment was a further injury pertaining to the left shoulder ([60]).

Was the impairment of the left shoulder an existing impairment?

5. The President referred to his previous finding that the impairment of the worker’s left shoulder arose from the original injury, and was not a new injury. He observed that impairments that result from one injury are to be assessed together to assess the degree of permanent impairment of the injured worker (s 322(2) of the 1998 Act) ([61]–[62]).

6. It was immaterial to an assessment of the worker’s current whole person impairment arising from the accepted work injury, that the original claim did not seek compensation in respect of a particular body part, namely the left shoulder. It followed that if the worker’s condition had deteriorated such that she was now symptomatic in the left shoulder, the effect of cl 11 was to preserve her entitlement to make one further claim in respect of all impairments arising from her accepted injury ([63]).

The effect of the MAC

7. The President rejected the submission that the second claim proceeded to finality by reason of the MAC issued. That submission wrongly assumed that the mere issuing of a MAC resolved the issues in dispute and that a MAC issued in one set of proceedings therefore bound the parties in subsequent proceedings. Whilst a properly constituted and issued MAC is conclusively presumed to be correct in any proceedings with which the certificate is concerned, a MAC does not determine the parties’ rights (Jopa Pty Ltd t/as Tricia’s Clip-n-Snip v Edenden [2004] NSWWCCPD 50; 5 DDCR 321) ([65]).

8. The President observed that a dispute is not determined unless and until the Commission determines liability and issues a Certificate of Determination (s 294 of the 1998 Act). It followed that, as an AMS is not a member of the Commission, the MAC issued by the AMS did not amount to an award of the Commission ([66]–[67]).

The effect of the discontinuance

9. The President found that the discontinuance of the lump sum compensation claim did not finally determine the worker’s entitlement to compensation for whole person impairment. On the contrary, it preserved her right to pursue her entitlements, if any, in the future ([72]).

The no prior claim submission

10. The submission that the worker’s claim in respect of the left shoulder impairment could not succeed because there was no claim made by the worker before 19 June 2012 was rejected ([73]).

11. The President observed that the fact that not all body parts affected are mentioned in the initial notification of injury is not a bar to recovery of compensation in respect of those body parts: Shoalhaven City Council v Schutz [2012] NSWWCCPD 14. He also observed that the fact the worker made a claim in respect of the disease injury meant that she was considered to have made a claim for any compensation in respect of the injury concerned (Warwick Hobart t/as Terry White Chemists v Pietrzak [2006] NSWWCCPD 315) ([74]).

12. It followed that ground one was upheld. It was therefore unnecessary to consider the remaining ground of appeal.

Richardson v Turfco Australia Pty Ltd [2016] NSWWCCPD 43

Death benefits, s 25 of the 1987 Act; dependency; meaning of “wholly or partly dependent for support”

Keating P

6 September 2016

Facts

This matter concerned a claim in respect of a lump sum death benefit pursuant to s 25 of the 1987 Act. It was not disputed that the deceased died in the course of his employment. The issue on appeal concerned the Senior Arbitrator’s finding on dependency. In particular, the appellant challenged the Senior Arbitrator’s finding that she was not dependent upon her deceased son for support at the date of his death.

The deceased was the appellant’s third child. At the time of his death, the deceased was 19 years old and lived with his younger brother and the appellant. The appellant was a single parent and had been for several years. The appellant claimed that the deceased provided her with significant financial support, which included $70 per week for board to cover utilities and the purchase of groceries for the household. The deceased also undertook the “lion-share” of major renovations to the house and provided a significant amount of domestic assistance and personal care, including caring for the dog and chickens.

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

(a) reading a “gloss” into the definition of dependants under s 4 of the 1998 Act and finding that dependant means only a person who receives “financial support” from the deceased;

(b) failing to construe the legislation by giving it a beneficial interpretation as required for remedial legislation;

(c) failing to find that dependency was not established by the provision of practical physical support;

(d) failing to give any or any adequate weight to the evidence, and

(e) rejecting the appellant’s evidence of support by the deceased to the appellant.

Held: The Arbitrator’s determination was revoked and remitted to another Arbitrator to determine afresh.  

The meaning of dependency (ground (a))

1. The President observed that prior to 1964, under the Workers Compensation Act 1926, compensation to dependants of deceased workers was intended to compensate for the money loss resulting from the loss of the worker’s earning power (New Monckton Collieries Ltd v Keeling [1911] AC 648; Hall v Metropolitan Water, Sewerage and Drainage Board (1926– 27) WCR 146). However, that concept was broadened in 1964 to one of dependence on the worker “for support” extending the range of matters in respect of which dependants are entitled to be compensated ([70]).

2. The President found that a careful reading of the authorities upon which the Senior Arbitrator relied to support the finding that the words “for support” in s 25 means “financial support” did not support that finding. That finding was contrary to accepted authority (Cooper v Commissioner for Railways (1972) WCR 47; Warilla Timber and Hardware Pty Ltd v Newton (1995) 11 NSWCCR 546 (Newton); Albury Real Estate Pty Ltd v Rouse and anor [2006] NSWWCCPD 139 (Rouse); Abraham Seda Ghati v Sayan [2010] NSWWCCPD 74 (Ghati) considered and applied) ([71]–[75]).

3. The President found, whether other family members are capable of providing the practical physical support provided by the deceased is irrelevant. In addition, a dependant does not have to prove that the practical physical support was provided out of need for such support. The question is whether any person was wholly or partly dependent for the support on the worker at the date of death ([77]).

4. The President noted that the Senior Arbitrator stated that assistance around the home in a family relationship can create a financial dependency where it obviates the need for dependants to expend money on the provision of those services. However, he found that the Senior Arbitrator again focused on the need to establish a financial dependency which is not in accordance with the language of s 25 and contrary to accepted authority (Newton, Rouse and Ghati) ([78]).

5. It followed that the Senior Arbitrator proceeded on the basis of an incorrect statement of legal principle which constituted an error in point of law ([79]).

Interpretation of remedial legislation (ground (b))

6. The President found it was unnecessary to deal with this ground due to the above findings ([81]).

Was dependency established by the provision of practical physical support? (ground c)/weight of evidence (grounds (d) and (e))

7. While the evidence was poorly presented and some attempt should have been made to detail and quantify the extent of practical physical support provided by the deceased to the appellant, the President was of the view that the evidence properly considered was potentially capable of supporting a finding of dependency ([88]).

8. The President found that it was open to conclude that the deceased’s contribution to the renovation work was substantial. The evidence suggested that the deceased participated on at least three occasions undertaking renovation work. The appellant’s evidence that the deceased undertook the “lion’s share of the major renovation” was corroborated by photographic and video evidence. The fact that the deceased intended to make it his “mission” to fully renovate the house was evidence which was unchallenged ([89]–[91]).

9. The President also found no support for the proposition that practical physical support should be discounted on the basis that it forms part of the “give and take of family life”. He did not consider that the support provided by the deceased to the appellant should be discounted unless it could be shown to be trivial in nature (McKenzie v Baddeley [1991] NSWCA 197 applied) ([94], [99]).

10. The President accepted the appellant’s submission that the Senior Arbitrator erred in overlooking or giving the following activities/tasks little or no weight. Those activities/tasks included, among other things: buying groceries for the household; providing additional moneys in addition to regular board; purchasing petrol; attending to domestic duties; performing home renovations and maintenance of the house ([95]–[96]).

11. The President found that the absence of evidence that the performance of the above tasks avoided the need for the appellant to incur expenses was not fatal to her application (Rouse) ([97]).

Edwards v Secretary, Department of Education and Communities [2016] NSWWCCPD 45

Section 11A(1) of the 1987 Act: “wholly or predominantly caused by”; “reasonable action taken or proposed to be taken”

Snell DP

14 September 2016

Facts

The appellant was a teacher employed with the respondent.

The Arbitrator found that the appellant suffered psychological injury as a result of her employment from January 2008 to 29 November 2011. However she concluded that the psychiatric disability was due to events falling within s 11A of the 1987 Act, which provided a complete defence to the claim for compensation on the basis that the injury was wholly or predominately caused by reasonable action taken or proposed by or on behalf of the employer.

The appeal, which related solely to the Arbitrator’s finding that a defence was made out, raised grounds concerning the following two issues:

(a)  whether the psychological injury resulted wholly or predominantly from matters falling within the scope of s 11A(1), and

(b)    whether the employer’s action was reasonable.

Held: The Arbitrator’s determination was confirmed.

Did the injury result wholly or predominantly from those matters falling within the scope of s 11A(1)?

1. The appellant’s submissions in this respect concerned two specific matters that arose in the course of her employment: disciplinary problems in 2008 in the appellant’s class, and her interaction with a colleague Mr Burke.

2. The appellant argued that these two matters did not fall within the scope of s 11A(1). It was submitted that the Arbitrator had approached the two matters as trivial events on the scale applicable to a normal person, and she did not appropriately take into account the appellant’s proneness to misperceive the actions of others and her psychological fragility. It was submitted that such an approach was flawed and amounted to an error of fact ([29]–[36]).

3. The Arbitrator found the disciplinary problems in 2008 constituted a stressor, but concluded that they were “relatively minor as compared with the other work-related causal factors”. Snell DP noted that the history of the disciplinary problems in the appellant’s classes, as a cause of the appellant’s psychological problems, was not recorded in the majority of the medical reports. Dr Stewart referred to the disciplinary problems in the classroom during 2008, but commented that the appellant had made a positive recovery after she returned to work following treatment ([54]–[60]). The appellant in the statements of 14 May 2009 and 11 November 2014 did not place great emphasis on the disciplinary problems and associated pressures as a source of stress ([61]–[63]).

4. Having considered the Arbitrator’s reference to the history recorded by psychologists who saw the appellant closer in time to the events of 2008, the chronology of various events and her reference to authorities on the meaning of “wholly or predominantly caused”, Snell DP found that the Arbitrator was correct in finding that the employer’s actions taken with respect to performance appraisal, discipline, dismissal and transfer were the predominant cause of the appellant’s psychiatric injury ([64]–[68]).

5. Events involving the interaction with Mr Burke were only mentioned in the appellant’s statement of 11 November 2014 ([70]–[71]). They were not recorded in most medical reports. Dr McMahon attributed the aggravation of the appellant’s underlying psychological condition partly to her perception of being bullied and harassed by a male teacher, but noted that the appellant’s personality structure may have caused her to construe innocuous events as personal attacks ([72]–[73]). The letters and statements from the appellant’s colleagues did not support the occurrence of bullying and harassment ([74]–[79]). The Arbitrator considered and addressed both the witness statements and medical evidence before she concluded that the interaction with Mr Burke was not causative of the appellant’s injury ([80]–[85]).

6. Snell DP observed that the “eggshell psyche” principle is a rule of compensation, not of liability (State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286) ([88]). He agreed that the events involving Mr Burke did appear to be “minor and insignificant”, but noted that the Arbitrator had approached the issue mindful of the principles in Attorney-General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120, that the triviality of the events did not preclude the possibility that they caused or contributed to the appellant’s psychological injury, given her vulnerability. The appellant’s evidence in this regard was essentially uncorroborated. The Arbitrator specifically avoided making a positive finding of the interpersonal conflict involving the appellant and Mr Burke. She preferred the evidence of other witnesses to that of the appellant. Her finding disclosed no error ([88]–[97]).

7. With respect to the credit issues going to the difference between the appellant’s evidence and that of the respondent’s lay witnesses, the appellant argued that the Arbitrator failed to evaluate the actions of the respondent and its other employees based upon the appellant’s perception. Snell DP observed that whether the respondent’s actions were reasonable within the meaning of s 11A(1) was a factual issue to be assessed objectively (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138; Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie)). The Arbitrator’s approach therefore was correct. Snell DP accepted the respondent’s arguments that the questions of reasonableness are to be determined by facts known to the respondent at the time, not what may become apparent at some later stage (Heggie) ([99]–[105]).

8. The appeal in this aspect failed [106].

Were the respondent’s actions reasonable?

9. Snell DP went through the leading authorities on the test of reasonableness of an employer’s action for the purposes of s 11A(1) before he considered the circumstances of the case ([122]–[126]).

10. The appellant in essence submitted that the actions of the employer were not reasonable given her psychiatric condition, vulnerability and fragility ([107]–[114]).

11. Snell DP accepted that it was appropriate to have regard to the appellant’s circumstances, including health considerations, in determining whether the actions or proposed actions of the employer were reasonable within the meaning of s11A(1) (Commissioner of Police v Minahan [2003] NSWCA 239 (Minahan)). It was further observed that it remains necessary to take into account the rights of the employee, although the weight to be attached to that consideration depends on the circumstances of each particular case (Heggie) ([163]–[164]).

12. Snell DP found that the Arbitrator analysed the reasonableness of the respondent’s actions by specific reference to the fact that it was dealing with an employee who was affected by a psychological condition. He held that the approach was consistent with Minahan ([165]–[169]).

13. There was no evidence indicating that the respondent was or should have been on notice of the appellant’s specific psychological condition prior to 10 September 2008. The respondent acted responsively after the appellant put it on notice of her psychological condition. The argument that the respondent should have had access to “proper advice” in dealing with people with psychiatric symptoms was not raised before the Arbitrator and therefore could not be raised in the appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481). The appellant’s proneness to misperceive the actions of others was not known, or could not have been ascertained with reasonably diligent inquiries, at the relevant time (Heggie). Snell DP concluded that the Arbitrator’s finding on this issue was not in error ([170]–[180]).

14. The appeal in this regard failed ([181]–[182]).

Mannie v Bauer Media Pty Ltd [2016] NSWWCCPD 47

Aggravation of disease; s 4(b)(ii) of the 1987 Act; alleged error of fact; adequacy of reasons; onus of proof

Keating P

22 September 2016

Facts

This appeal challenged an Arbitrator’s finding that the worker had failed to discharged his onus of proof that his employment aggravated his disease (s 4(b)(ii) of the 1987 Act).

The worker was a graphic artist and was required to use a graphics tablet to fine detail and retouch photographs. In 2007 the worker reported injury to his right hand and neck from repetitive retouching of images, for which he underwent treatment at the expense of the employer until September 2008.

In August 2013 the worker underwent anterior cervical decompression and fusion. Following which, in August 2015 he made a claim for lump sum compensation in respect of the above injury. He alleged that his cervical myelopathy disease had been aggravated by the work he performed with the respondent employer and accordingly claimed compensation. The claim for compensation was denied and the matter came before a Commission Arbitrator who found in favour of the respondent employer due to the lack of contemporaneous evidence in support of the worker’s claim.

The worker appealed. The issues on appeal were whether the Arbitrator erred in:

(a)    finding that the worker failed to seek medical treatment for his neck condition until four months after the worker left work with the respondent;

(b)    not applying the correct test for a disease or aggravation of a disease process;

(c)    rejecting the worker’s expert medical evidence on causation, and

(d)    finding that the employer’s medical evidence supported the notion that the worker’s duties did not cause the aggravation of his condition.

Held: The Arbitrator’s determination was confirmed.  

The alleged factual error concerning absence of treatment (ground (a))

1. The President observed that the appellant’s submissions under this ground were not directed to the alleged error. He further observed that the worker attended his general practitioner’s medical centre on several occasions following his last day of work. However there was no reference in any of those consultations to symptoms in relation to the worker’s neck until four months after he ceased work. In addition, there was no evidence that the worker sought treatment for his neck condition other than at the medical centre ([72]–[74]).

2. It followed that the Arbitrator’s factual finding that the worker did not seek treatment for his neck condition until four months after he ceased work was incontestable. This ground of appeal failed ([75]).

The alleged error of law (ground (b))

3.The President found that the appellant provided no reasoned argument in support of its submission that the Arbitrator failed to determine “whether the employment is capable of causing aggravation” ([77]).

4. The President rejected the appellant’s submission that the Arbitrator’s finding, that the worker did “light work” and therefore this did not aggravate the condition, did not answer the test “in s 15/16 of the Act” ([78]).

5. Firstly, it was not alleged that the worker’s employment was causative of the myelopathy and therefore s 15 was irrelevant. Section 15 can only be relevant where the disease injury is of such a nature as to be contracted by a gradual process. If such an injury is proven s 15 operates as a deeming provision to determine when the disease is deemed to have been sustained and the employer liable for the compensation payable ([79]).

6. Secondly, s 16 may only operate after it is established that an injury has been sustained in accordance with s 4(b)(ii) of the 1987 Act, that is, an aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, etc, of the disease ([80]).

7. It was accepted that the worker suffered from a congenital condition diagnosed as cervical myelopathy. It was not contended that the condition was caused by the worker’s employment and therefore s 4(b)(i) of the 1987 Act had no application. The application was pleaded and presented as a s 4(b)(ii) aggravation of disease case ([81]–[82]).

8. The Arbitrator correctly identified that s 4(b)(ii) will be satisfied where it has been established that the aggravation, acceleration, exacerbation or deterioration of the disease occurs in the course of employment, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The Arbitrator also correctly referred to and applied Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626. It followed that the Arbitrator applied the correct test. No error of law was identified ([81]–[85]).

The worker’s medical expert evidence (ground (c))

9. The President found that the appellant’s submissions under this ground appeared to be directed to a question of onus of proof. However, the submissions failed to identify any error in respect of the Arbitrator’s finding in relation to the worker’s medical expert evidence ([94]–[95]).

10. If it was submitted that the Arbitrator failed to give adequate reasons for not accepting that evidence, the President rejected it. The Arbitrator’s reasons were in sufficient conformity with her statutory obligation under s 294 of the 1987 Act and r 15.6 of the 2011 Rules, to provide a brief statement of reasons. The Arbitrator recorded that the worker’s medical expert accepted that heavy work, smoking and genetics presented higher risk factors for aggravating myelopathy but did not refer to the worker’s mother who had suffered from myelopathy. The Arbitrator also recorded that the worker’s medical specialist failed to provide an analysis of the nature of myelopathy, any explanation for the worsening of symptoms months after the worker ceased work, and any reasoning to explain how the work duties aggravated the worker’s condition. The Arbitrator further noted that the medical evidence preferred was obtained at a time that was more contemporaneous to the cessation of work than the worker’s medical expert ([96]­–[97]).

11. The President further observed that the appellant has the onus of proof. Injury cannot be established, as the appellant submitted, merely because no other injury had been identified as the cause of the worker’s symptoms. It followed that this ground of appeal failed ([94]–[99]).

The employer’s medical expert evidence (ground (d))

12. The President rejected the appellant’s submission that the employer’s medical expert evidence did not contain a history that considered the effect of the worker’s posture at work on the disease process. The President found that the history contained in the medical expert’s report was consistent with the evidence presented to the Arbitrator and provided a fair climate for the acceptance of his opinion that the worker’s condition was entirely constitutional and would have been evident irrespective of the worker’s employment (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 62 ALR 85; 59 ALJR 844 applied). It followed that this ground of appeal failed ([100]–[103]).

He v Glemaro Pty Ltd [2016] NSWWCCPD 48

‘Relevant’ evidence – r 15.2 the 2011 Rules, s 55 of the Evidence Act 1995; raising an argument for the first time on appeal – application of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481; failure to cross-examine – application of the rule in Browne v Dunn (1893) 6 R 67 in the Commission; alleged errors in fact finding; entitlement to weekly compensation – s 33 the 1987 Act – Williams v Metropolitan Coal Co Ltd [1948] HCA 8; 76 CLR 431

Snell DP

23 September 2016

Facts

The appellant worker claimed weekly payments, medical expenses and lump sum compensation in respected of injury to her neck, lumbar spine and left wrist.

Approved Medical Specialist Dr Boyce certified that the appellant suffered zero per cent whole person impairment. The appellant’s claim for lump sum compensation failed accordingly.

In respect of the claim for weekly payments and medical expenses, the Arbitrator was not satisfied that the effects of any injury continued beyond 27 July 2013, the date to which payments had been made on a voluntary basis. An award was entered in the respondent’s favour.

The issues on appeal were whether the Arbitrator erred in:

(a) failing to objectively consider the surveillance DVDs, and giving them too much weight;

(b) failing to identify errors in Dr Bruce’s report dated 14 August 2014;

(c) preferring the report of Dr Bruce, over those of Dr Costa and Dr Conrad;

(d) making the findings which he did about the appellant’s “physical abilities, capacity to perform the duties of a process worker and entitlement to benefits”;

(e) failing to consider and apply the Court of Appeal decision in Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 6 DDCR 339, and

(f)     considering irrelevant material.

Held: The Arbitrator’s determination was confirmed.

Ground 6

1. The appellant submitted that the two MACs of Dr Boyce dated 13 August 2015 and 17 February 2016 were obtained outside the period for which weekly benefits were potentially recoverable (up to 31 August 2015), and were irrelevant. It was submitted that Dr Boyce showed bias against the appellant. It was submitted that the Arbitrator placed too much weight on the MACs in such circumstances ([30]–[32]).

2. Snell DP found that the two MACs constituted relevant evidence going to the weekly payments claim. It was noted that the Evidence Act 1995 does not apply to proceedings in the Commission, however, it provides a “guide to the determination of the weight to be given to certain evidence” (Liverpool City Council v Trovato [2004] NSWWCCPD 15 at [32]–[33]). The question of the acceptability of expert evidence in the Commission was not one of admissibility, but one of weight (Byrom v Inghams Enterprises Pty Limited and Spectrum Employment Services [2008] NSWWCCPD 67 at [80]; Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399 (Hancock)) ([36]–[40]).

3. Snell DP considered s 55 of the Evidence Act and found that the MACs, if accepted, could rationally affect proof of facts at issue in the proceedings, including the existence, extent and duration of any ongoing incapacity and whether any incapacity resulted from the work injury ([44]–[46]). The relevance of the MACs was not affected even if the referral was in respect of the heads of claim which ultimately were abandoned ([47]–[50]).

4. The allegation of bias was not made at the arbitration hearing and was not substantiated ([51]).

5. The appeal on this ground failed ([52]).

Ground 1

6. The appellant submitted that the surveillance DVDs could not be relied on for a number of reasons. In reply to the respondent’s submissions, the appellant further submitted that the adverse finding about her credit was made without cross-examination and was unsafe, particularly given her limited English language ability ([53]–[54]).

7. Snell DP noted that this submission was not raised at the arbitration hearing or in the Application to Appeal. The new issue could not properly be raised on appeal (Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 at [7], see also Australia and New Zealand Banking Group Ltd v Haq [2016] NSWCA 93 at [98]) or in submissions in reply (NSW Police Force v Gurnhill [2014] NSWWCCPD 12 at [30], Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13 at [14]) ([62]–[64]).

8. Snell DP observed that there was no right to cross-examination in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [37]. The rule in Browne v Dunn did not require that matters in respect of which notice had already been given be put in cross-examination (NSW Police Force v Winter [2011] NSWCA 330 [77]–[85], Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3) ([68]–[69]). The material exchanged between the parties and the expert opinions in respect of the DVDs were sufficient to put the appellant on notice of the case the respondent was presenting. The Arbitrator’s conclusion on the appellant’s credit would not have been affected by her language difficulties, in view of her access to legal representation, interpreter’s assistance and the available evidence ([70]-[75]).

9. The parties were aware of the Arbitrator’s intention to consider the DVDs and to form his own view of their evidentiary weight and significance. The DV’s were considered specifically by a number of medical experts. The Arbitrator noted the DVDs were inconsistent with the appellant’s portrayal or problems and made an unfavourable finding as to the appellant’s credit. Such a finding was open to him based on the evidence and the principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston) ([83]–[103]).

10. The appeal on this ground failed ([104]).

Ground 2

11. The appellant submitted that Dr Bruce erred in assessing the right upper extremity when it was not one of the body parts claimed and his comments in respect of the DVDs contained subjective conclusions that were inconsistent with objective evidence ([105]–106]).

12. Examination of the available evidence revealed that the appellant’s argument was inconsistent with the lump sum claim made by the appellant, based on a report of Dr Conrad. DP Snell found no error in the Arbitrator’s decision ([112]–[115]).

13. The alleged inconsistencies between the DVDs and other evidence were not raised at the arbitration hearing. It was not an error that the Arbitrator did not deal with issues not raised (Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111). The argument could not be raised on appeal (Metwally). The Arbitrator made no error in light of the principle set out in Raulston ([118]–[119]).

Ground 3

14. The appellant, in reliance on errors in Dr Bruce’s report, submitted that the evidence of Dr Conrad and Dr Costa should be preferred to that of Dr Bruce ([121]–[122]).

15. Snell DP said that the Arbitrator provided adequate reasons for his preference of Dr Bruce’s opinion, rather than the opinions of Drs Costa and Conrad. The greater weight given by the Arbitrator to Dr Bruce’s views was justified on the principles in Hancock ([134]). The Arbitrator reached his conclusion based on the totality of the evidence ([135]).

16. Ground three failed ([136]).

Grounds 4 & 5

17. The appellant submitted that DVDs did not establish that the appellant could work as a process worker in her pre-accident employment. The Arbitrator failed to consider her age, illiteracy, lack of English language skills and physical abilities, and therefore erred in the finding on the appellant’s capacity to work. The appellant sought to rely on Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155; 71 NSWLR 593; 6 DDCR 339 (Muir) and Muir v Ric Developments Pty Ltd t/as Lane Cove Poolmart [2007] NSWWCCPD 161 ([137]–[139]).

18. Snell DP held that the submissions on these grounds were misconceived ([142]).

19. Snell DP observed that compensation for weekly payments was only payable for incapacity that resulted from the work injury (s 33 of the 1987 Act; Williams v Metropolitan Coal Co Ltd [1948] HCA 8; (1948) 76 CLR 431 and Arnotts Snack Products Pty Ltd v Yacob [1985] HCA 2; 155 CLR 171) ([146]–[147]). The Arbitrator’s finding that the work injury had ceased to affect the appellant after 26 July 2013 was a finding on causation ([148]–[149]).

20. It followed that the grounds of appeal failed ([180]).

Marra v Siena Function Centre Pty Ltd [2016] NSWWCCPD 44

Entitlement to weekly benefits and medical expenses in respect of lumbar spine and right hip; whether these body parts injured as a result of a fall in which the left wrist was injured as a matter of common ground between the parties

King ADP

12 September 2016

Facts

The appellant slipped and fell on the kitchen floor at his work place and fractured his left wrist on 21 May 2001. He suffered symptoms in the right hip and low back subsequently.

Liability for the lower back and right hip condition was disputed in the Commission. The Arbitrator was not satisfied that the causal connection between the subsequent condition and the fall had been made out. A finding was made in favour of the respondent.

The issues on appeal were:

(a)    whether leave should be granted to extend the appeal period, and

(b)    whether the Arbitrator should have found that the lower back and hip condition resulted from the fall of 21 May 2001.

Held: Leave to extend the appeal period was granted. The Arbitrator’s decision was confirmed and the appeal dismissed.

Leave to extend the appeal period

1. By way of an amended application, the appellant conceded that the appeal was filed out of time.

2. The appellant explained that two matters caused the delay: there were difficulties in obtaining transcripts of the arbitration hearing and that counsel made a mistake as to the deadline for the appeal; both matters were beyond his control. It was submitted that extending the appeal period would not prejudice the respondent, but a refusal to grant the extension would work substantial injustice on the appellant ([7]–[8]).

3. Having considered the circumstances of the current case, King ADP concluded that it was reasonable to grant leave for the appeal to proceed (r 16.2(12) of the 2011 Rules; Gallo v Dawson [1990] HCA 30; 64 ALJR 458; Bryce v Department of Corrective Services [2009] NSWCA 188 considered and applied) ([11]–[14]).

Did the injury to the lower back and right hip result from the fall of 21 May 2001?

4. The appellant submitted that when the evidence is properly considered as a whole, the Commission would be satisfied that he sustained an injury to the lumbar spine and right hip as a consequence of the fall. The Arbitrator made an error of fact to find otherwise.

5. King ADP noted that, in the Application to Resolve a Dispute, the injury to the lumbar spine, right hip and scarring was described as injury resulted from the fall of 21 May 2001. Although Dr Giblin viewed the low back symptoms and the subsequent altered gait pattern as directly or indirectly related to the fall of 21 May 2001 and the subsequent altered gait pattern from the hip symptoms, the appellant did not press on this basis. The Arbitrator approached the claim as a case of direct injury, rather than an aggravation of a rheumatoid arthritis condition. His approach disclosed no error ([19]–[21]).

6. King ADP commented that the symptoms in the low back and right hip started about two months after the fall. The onset of symptoms was not supported by contemporaneous medical records or evidence. The causal connection between the onset of the symptoms and the fall was not explained by expert medical evidence. But the evidence of the appellant’s arthritis condition “provided an explanation and fitted chronologically” with the onset of the symptoms. The Arbitrator was correct in giving greater weight to the contemporaneous records (Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 applied) ([23]–[24], [29]–[30]).

7. King ADP found that the Arbitrator’s decision was well open to him on the evidence, in view of the chronology of events, an absence of hip and back complaints for about two months after the fall and the alternative explanation in the form of the appellant’s arthritic condition ([35]–[36]).

8. King ADP acknowledged that it was understandable that the appellant would connect his fall and the subsequent back and hip problems, noting the sequence of events. An example in relation to the sequential approach to legal cause and effect was considered (Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538) ([37]).

9. King ADP observed that the sequence of events is compelling in cases where there is no troublesome lapse of time between trauma and symptoms and no other pathology to be brought into account. In those cases the respondent bears the onus of proof on the issue of causation in order to avoid liability. However, King ADP observed that that was not the appellant’s case ([38]).