Issue 7: July 2009

Welcome to the Seventh edition of ‘On Appeal’.

Edition 7 - July 2009 includes a summary of the June 2009 decisions.

These summaries are prepared by the Presidential Unit and are designed to provide a brief overview of, and introduction to, the most recent Presidential and Court of Appeal decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for a decision maker’s independent research.

Please note that the following abbreviations are used throughout these summaries:

Index

Presidential Decisions:

Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71. 4

Commission’s jurisdiction - leave to appeal – section 352 of the 1998 Act - threshold of work injury damages claim

Walker v Roberts [2009] NSWWCCPD 66. 6

Two work injuries - claim for lump sum compensation –relevant particulars in a claim - section 282 of the 1998 Act - circumstances in which impairments from two separate injuries may be aggregated - application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6

Hunter New England Area Health Service v Patience & Anor [2009] NSWWCCPD 68. 7

Apportionment of liability between two employers – section 22 of the 1987 Act – weight of evidence – whether ‘injury’ consists of an injury simpliciter, a disease or aggravation of a disease - question of fact to be decided in each case

Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62. 9

Injury - causation – worker failed to establish injury to neck, back and right leg – weight of evidence – claim otherwise referred to AMS - AMS referral not interlocutory

Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70. 10

Injury - inappropriate use of the term “nature and conditions of employment”- admissibility of a supplementary forensic medical report - clause 43AA of the Workers Compensation Regulation 2003

Gorge v Paramount Global Protection Pty Ltd [2009] NSWWCCPD 67. 12

Assaulted at work in the course of employment - Injury - causation – delay in onset of back symptoms – back pain masked by pain from and focus on facial injury - medical evidence – Makita v Sprowles

Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now de-registered) [2009] NSWWCCPD 64  13

Leave to appeal refused – no reasonable prospects of success - whether a director of the Respondent company was a ‘worker’ - whether the injury arose out of or in the course of employment - section 4 of the 1998 Act

Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60. 14

Leave to appeal - no compensation in issue on appeal - unmeritorious appeal

Department of Education & Training v Hayward [2009] NSWWCCPD 65. 16

Substantial contributing factor s9A of the 1987 Act – finding of psychological injury – nature and conditions of employment - whether finding of fact supported by the evidence

Woolworths Ltd v Cosgrave [2009] NSWWCCPD 69. 17

Partial incapacity – section 40 of the 1987 Act – challenge to factual findings – decision open to Arbitrator on the evidence

Arup Pty Ltd v Wicks [2009] NSWWCCPD 59. 18

Partial incapacity - evidence and submissions misstated – section 40 calculation – need for revocation  

Awick v Formcorp Pty Ltd [2009] NSWWCCPD 61. 19

Leave to appeal - section 352(2) of the 1998 Act – scarring - no amount of compensation at issue on appeal

Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63. 20

Reconsideration - section 350(3) of the 1998 Act – unrepresented worker - appeals to superior courts - public policy – Commission to ensure litigation does not proceed indefinitely

Junsay v The Uncle Toby’s Company Ltd [2009] NSWWCCPD 71

Commission’s jurisdiction - leave to appeal – section 352 of the 1998 Act - threshold of work injury damages claim

Snell ADP

26 June 2009

Facts:

Following an award made by the Compensation Court and a subsequent section 66A agreement, the worker made a claim for further lump sum compensation and for work injury damages. The Respondent disputed any additional loss or impairment and served a section 74 notice:

(1) as an election to recover lump sum compensation had been made the worker could not proceed with a claim for work injury damages

(2) denying injuries were sustained due to the negligence of the employer and that impairment was at least 15% as required by section 151H of the 1987 Act.

At teleconference the parties reached agreement on issues such as injury, and referred specific questions on the levels of impairment resulting from the agreed injuries to an AMS.

The AMS assessed the worker as suffering from 7% WPI due to a frank injury, and 10% WPI resulting from the nature and conditions of employment, neither assessment separately exceeding the threshold of 15%.

At teleconference, the parties consented to additional section 66 awards in accordance with the MAC findings.

At arbitration, on the issue of whether the two WPI figures could be aggregated, with the effect of meeting the threshold for work injury damages, the respondent argued they could not, applying the decision of Roche DP in Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6. The worker argued the impairments resulted from a single injury, the ‘nature and conditions’, and that the MAC was not conclusively presumed to be correct as regards causation. It was a matter for the Commission to determine issues of injury and causation.

The arbitrator held that the causation issue had been decided before the matter went to AMS and declined to aggregate the WPI assessments, applying the binding MAC.

Held – Commission does not have jurisdiction to hear the appeal.

(1) The meaning of “compensation” in section 4 does not include work injury damages, or the possible value of a potential claim for work injury damages, while the definition of “damages” in section 149, imported into chapter 7, specifically excludes “compensation under this Act”. [36]

(2) The Commission’s jurisdiction is conferred by section 105 of the 1998 Act. Section 105(2) provides the Commission does not have jurisdiction in respect of matters arising under Part 5 (common law remedies) of the 1987 Act save for the purposes of and in connection with the operation of Part 6 of Chapter 7 of the 1998 Act. Section 312, contained in Part 6 of Chapter 7, provides “proceedings in respect of a claim for work injury damages may be taken in any court of competent jurisdiction”. It was held in Orellana-Fuentes v Standard Knitting Mill Pty Ltd & Anor (2003) 57 NSWLR 282 that the Commission is not a court. [38] – [40]

(3) The issue raised by the parties before the arbitrator arose under Part 5 (common law remedies) of the 1987 Act. It went directly to the issue of whether the appellant could satisfy the threshold in section 151H of the 1987 Act, so that damages could be awarded. The issue fell outside the jurisdiction of the Commission conferred by section 105. [49]

(4) The orders in the Certificate of Determination therefore have no effect. [50]

(5)      The appeal cannot be properly brought pursuant to section 352. For the same reason that the Commission constituted by an arbitrator did not have jurisdiction to deal with the current dispute, nor does a Presidential member. [51] – [52]. The appellant was not a party to a dispute in connection with a claim for compensation, as the subject of the COD was not an award of compensation as defined in s 4. Thus it did not fall within s 352(1).

In any event, leave to appeal could not be granted as s 352(2) was not satisfied. No compensation was at issue on the appeal.

Walker v Roberts [2009] NSWWCCPD 66

Two work injuries - claim for lump sum compensation –relevant particulars in a claim - section 282 of the 1998 Act - circumstances in which impairments from two separate injuries may be aggregated - application of Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6

Roche DP

11 June 2009

Facts:

Mr Roberts, a labourer, injured his right shoulder whilst pulling bails of hay off the back of a utility. Five months later, as he was attempting to connect a battery charger he suffered an electric shock, causing a fracture of the mid-shaft of the right humerus.

The worker’s claim for lump sum compensation relied on a medical report by Dr Burgess, who assessed 16% WPI, equivalent to 26% of the right upper extremity. The 26% consisted of 7% of the right elbow (caused by the fracture) and 20% of the right shoulder. The impairment assessment from the two injuries were added together because the pathology relating to the two separate injuries was alleged to be the same.

CGU argued that the claim for lump sum compensation had not been duly made as the two incidents resulted in two different pathologies and the impairments could not be aggregated. Until such information about the separate assessments were received, relevant particulars about the claim could not be said to have been provided.

The Arbitrator held that the claim was duly made, and that impairments to the right shoulder and right elbow could be aggregated. The claim was referred to an AMS.

Held – Arbitrator’s decision revoked and remitted

(1) Section 282 of the 1998 Act sets out the “relevant particulars” to be provided when making a claim for lump sum compensation. Its purpose is to enable claims to be resolved expeditiously, fairly and without unnecessary expense. [42]

(2) It was of no consequence that the letter of claim did not separately claim WPI for the shoulder impairment and WPI for the elbow impairment.  CGU had all “relevant” particulars to enable a decision to be made. Dr Burgess’ report provided full details of the impairment/s arising from each injury, both assessed to have reached maximum medical improvement. What Dr Burgess did not do was to convert the individual assessments of 7% (for the elbow) and 20% (for the shoulder) into a separate WPI, an exercise that required no medical expertise. [45] – [47]

(3) Impairments resulting from the “same injury” (the same pathology) are to be assessed together regardless of whether they arise from the same incident or separate incidents (Department of Juvenile Justice v Edmed [2008] NSWWCCPD 6 at [27]). The evidence was that the elbow fracture resulted from the later incident, separate to the first incident (the shoulder injury) and resulted in different pathology. Although it was possible that the right shoulder injury was aggravated in the second incident, it was still a separate injury to the elbow injury. Each injury, or pathology, must be assessed and compensated separately. [50] – [51]

Hunter New England Area Health Service v Patience & Anor [2009] NSWWCCPD 68

Apportionment of liability between two employers – section 22 of the 1987 Act – weight of evidence – whether ‘injury’ consists of an injury simpliciter, a disease or aggravation of a disease - question of fact to be decided in each case

17 June 2009

Moore ADP

Facts:  

Mr Patience was employed by the Heath Service as a plumber from 24 September 1990 until 2003 when the facility was taken over by the second respondent, Calvary Retirement Community Cessnock.  He injured his right knee at work on 15 April 1994 and then his left knee on 24 January 2001.  The Health Service accepted liability for the two injuries and Mr Patience was paid lump sum compensation pursuant to section 66.  He remained at work until June 2008 at which time he took long service leave, in part because of the increasing pain in his knees and has remained off work since.

On 17 November 2008 Mr Patience lodged an ARD with the Commission seeking weekly benefits from 1 September 2008 together with medical expenses claiming that as a consequence of the two frank injuries, together with the nature and conditions of his employment with both employers, he was incapacitated for work.

The Arbitrator found in favour of Mr Patience and also made an award in favour of Calvary Retirement. The Health Service was ordered to pay Mr Patience’s weekly benefits and medical expenses as claimed.

The Appeal:

The Health Service submitted that the evidence supported a finding of ‘injury’ in the nature of a disease in addition to the two frank injuries pleaded and that in those circumstances the Arbitrator should have apportioned the award pursuant to section 22 of the 1987 Act and in line with Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 (‘Dimovski’).

Held:

(1) There was no doubt that there was some divergence of opinion between the medical experts and that the Arbitrator’s task was to decide between the competing expert opinions (Wiki v Atlantis Relocation (NSW) Pty Ltd [2004] NSWCA 174 (‘Wiki’) [73] – [74].  A careful examination and analysis of the reports was required.

(2) There was some evidence in support of the argument that Mr Patience suffered from a ‘disease’ in the nature of osteoarthritis in both knees, however, the weight of evidence primarily attributed this condition to the two frank injuries and subsequent treatment [82]

(3) That there were degenerative changes present did not necessarily indicate that there was a disease contracted by a gradual process or the aggravation of such a disease (Kelly v Glenrock Pastoral Co Pty Ltd and another (1994) 10 NSWCCR 178 (‘Kelly’).  Whether ‘injury’ consists of an injury simpliciter, a disease or aggravation of a disease is a question of fact to be decided in each case [82].

(4) The weight of the evidence was against Health Service’s assertions and there was no need to consider the question of apportionment between the parties or the application of Dimovski.

Arbitrator’s decision confirmed.

Brasz v Department of Ageing, Disability and Home Care [2009] NSWWCCPD 62

Injury - causation – worker failed to establish injury to neck, back and right leg – weight of evidence – claim otherwise referred to AMS - AMS referral not interlocutory

Roche DP

3 June 2009

Facts:

The worker alleged injury to the right shoulder, neck, back, right arm and both legs when a patient ran into her at work.

The Arbitrator found that she had only injured her right shoulder and that her neck symptoms were only secondary to the shoulder injury.

Held – Arbitrator’s decision confirmed

(1) The worker’s assertion of neck pain from the injury was contrary to objective evidence from her treating doctors in the first four weeks after the incident. Where medical evidence did support the connection between symptoms and employment, it was based on an incorrect history of neck pain starting on the day of the incident. [81], [89]

(2) The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (Spigelman CJ in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 275 [80]). Although an inference may be drawn from evidence as to the possibility that a causal relationship exists (McDougall JA in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [61]), such an inference was not open in the present case because the assumption upon which assertions of a possible connection was based was incorrect. [91]

(3) Applying a “commonsense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452), the worker failed to establish that her neck symptoms resulted from the work incident. [99]

(4) The evidence for the alleged injury to the back and right leg was even less persuasive, and therefore was not established.

Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70

Injury - inappropriate use of the term “nature and conditions of employment”- admissibility of a supplementary forensic medical report - clause 43AA of the Workers Compensation Regulation 2003

Roche DP

19 June 2009

Facts:

The worker claimed injuries to his neck, back and legs “as a result of lifting a box of soft drinks” on 26 November 2007 (conceded by Coles), and due to the nature and conditions of employment from March 2002 to 26 November 2007 (disputed by Coles).

The worker first complained of symptoms while lifting at work on 26 November 2007. X-rays revealed mild to moderate mid thoracic scoliosis convex to the right as well as prominence of the thoracic kyphosis.  The x-ray also revealed “mild stable anterior wedge fractures” involving the mid to lower thoracic vertebral bodies with a loss of approximately 20 to 25% of the anterior vertebral body height.  The radiologist, Dr Sacks, stated that the fractures appeared “to be long standing and stable with early spondylitic change involving the mid to lower thoracic spine”.

The issues on appeal concerned the Arbitrator’s decision to refuse the worker’s application to rely upon a supplementary forensic medical report from Dr Matalani, whose previous report had been admitted; and the Arbitrator’s finding that injury due to the nature and conditions of employment was not established.

Held – Arbitrator’s decision confirmed

(1) The supplementary report by Dr Matalani came into existence as a result of a request to respond to another expert’s opinion, and in light of the opposing expert’s opinion, Dr Matalani clarified the opinion he expressed in his original report. It was therefore admissible (cl 43AA of the Regulations). [62]

(2) However the admission of Dr Matalani’s supplementary report did not alter the outcome. The doctor’s explanation of a possible connection between heavy work over the years and the worker’s multiple fractures was unpersuasive, especially because the worker himself stated he had experienced no symptoms until 26 November 2007. [72]

(3) The assertion that Coles’ medical evidence did not specifically exclude the possibility that the worker’s fractures might be related to the nature of the work reversed the onus of proof. It was for the worker to prove that he sustained an injury, not for Coles to disprove it. The worker failed to do that. [76]

(4) Dr Bodel concluded that Mr Toplis suffered a musculo-ligamentous strain in the interscapular region of the thoracic spine and the lower part of the back “aggravating long standing pre-existing degenerative change and wedge compression fractures in this region” as a result of the lifting incident on 26 November 2007. Though the injury caused an aggravation of degenerative changes and aggravation of the wedge compression fractures, it did not mean it was an aggravation injury under section 4(b)(ii) (Rail Services Australia v Dimovski and anor [2004] NSWCA 267; (2004) 1 DDCR 648; Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52), but the pathology revealed on the radiological investigations would be relevant to the assessment of Mr Toplis’ whole person impairment, especially in circumstances where the evidence is that he was asymptomatic prior to 26 November 2007. [77]

Gorge v Paramount Global Protection Pty Ltd [2009] NSWWCCPD 67

Assaulted at work in the course of employment - Injury - causation – delay in onset of back symptoms – back pain masked by pain from and focus on facial injury - medical evidence – Makita v Sprowles

Roche DP

12 June 2009

Facts:

Mr Gorge suffered facial and dental injuries following an assault at work whilst working as a security guard. Some weeks or months after the assault, Mr Gorge experienced back pain which he claimed was as a result of the assault incident, although initially masked by facial injuries.

CGU accepted liability for the facial and dental injuries but disputed the back injury.

The first Arbitrator found for Mr Gorge on all accounts but this decision was revoked on appeal (Paramount Global Protection Pty Ltd v Gorge [2008] NSWWCCPD 127). The second arbitrator dismissed the back claim.

Held – Arbitrator’s decision confirmed

(1) The worker failed to discharge the onus of proof in respect of his back claim.

(2) The worker’s medical evidence included a report from Dr Guirgis wherein he made an assertion, unsupported by any reasoning and analysis, that the assault “resulted in…post-traumatic mechanical derangement of the lumbar area of the spine”. There was no explanation given for that conclusion therefore the doctor’s opinion was of limited or no probative value (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705). [59]

(3) The connection between the assault and the development of back symptoms several weeks (or more) later is not within “the realm of common knowledge and experience” (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 at [91]) that would enable an Arbitrator or a Presidential member to rely on his or her “commonsense” to conclude that the back symptoms had resulted from the assault. [60]

Lawrence-Plant v J & S Plant Pty Ltd t/as Bluey’s Hire (now de-registered) [2009] NSWWCCPD 64

Leave to appeal refused – no reasonable prospects of success - whether a director of the Respondent company was a ‘worker’ - whether the injury arose out of or in the course of employment - section 4 of the 1998 Act

Moore ADP

10 June 2009

Facts:

This is an appeal from the Arbitrator’s decision made in favour of the respondent company, on the basis that the appellant was not a ‘worker’ within the meaning of section 4. The Arbitrator determined that even if the appellant was a deemed worker, his psychiatric condition arose as a consequence of his role as a director and owner of the respondent company, not as a worker.

Held – leave to appeal refused

(1) The appeal was filed out of time, the Appellant submitting that it was due to receipt of late advice from counsel. But delays by counsel in providing timely advice are regularly encountered and that factor by itself does not constitute exceptional circumstances (Rule 16.2(11)). (Department of Education and Training v Mekhail [2006] NSWWCCPD 1; Department of Corrective Services v Buxton [2007] NSWWCCPD 55, O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224; New South Wales Fire Brigades v Turton [2008] NSWWCCPD 66 considered). [29]

(2) Even if “exceptional circumstances” existed, the appeal did not demonstrate reasonable prospects of success such that it would be inappropriate to exercise the discretion to extend (Howell v Stringvale Pty Limited [2004] NSWWCCPD 22; Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479) [31]:

(a) there was no evidence of a relevant “contract of service” in order to establish that the appellant was a “worker”. [38]

(b) It was not disputed that the appellant suffered from a depressive illness but the evidence pointed to the condition arising from the Appellant’s concerns as a director and owner of the respondent company, not as an employee. The condition did not arise from his employment nor was employment a substantial contributing factor.

Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60

Leave to appeal - no compensation in issue on appeal - unmeritorious appeal

1 June 2009

President, His Hon. Judge Keating

Facts:

The appellant submitted at arbitration that because the insurer had failed to comply with a Notice for Production in respect of the production of a report from Dr Christie the matter should be referred to the Registrar under section 75 of the 1998 Act, for a report to be made to the WorkCover Authority.

Arbitrator’s decision:

The Arbitrator in his ex tempore decision stated that he would refer the matter to the Registrar for referral to the Authority pursuant to section 75.

Twelve days after delivering his decision, a Certificate of Determination issued. It included the Arbitrator’s findings, orders and short written reasons on “complexity” and “as to refusal to refer to the Registrar”.

In relation to the referral to the Registrar, the Arbitrator revoked his ex tempore decision and declined to refer the matter to the Registrar.

Appeal:

Mr Beale sought leave to appeal only that part of the Arbitrator’s decision in respect of his declining to refer the matter to the Registrar/WorkCover.

The appeal was filed out of time and an extension of time to appeal was sought.

Held:

(1)      Whilst there was clearly a procedural irregularity in the Arbitrator revoking part of his ex tempore decision, without notifying the parties and giving them an opportunity to make further submissions, it was irrelevant to the appeal because the appeal was without merit and misconceived.

(2)      No “compensation” was “at issue” on appeal and the appeal did not meet the thresholds in section 352(2).

(3)      Therefore there was no basis upon which to exercise discretion to extend time to appeal.

(4)       Leave to appeal is refused.

Other:

The President however identified a number of inaccuracies in the Arbitrator’s reasons as follows:

(i) The Arbitrator’s reference to section 75 of the 1998 was misguided.  Section 75 deals with unreasonable conduct by insurers in several specific circumstances, none of which applied in this case.

(ii) Section 119 of the 1998 Act deals with medical examinations of workers at the direction of employers.

(iii) Although clause 40 of the 2003 Regulation was repealed on 1 November 2006, clause 37 became operational on that day. The Regulation expressly applies to reports obtained under section 119 of the 1998 Act.

(iv) The sanctions for non-compliance in relation to reports obtained under section 119 of the 1998 Act are set out in section 119(6).

(v) If production of the report of Dr Christie was requested under a Notice for Production, under Part 12 of the Rules, the requirements for service of the notice, compliance with the notice and objection to the notice are spelt out clearly in the Rules. Strict time limits apply to each step.

Solicitor Certification:

Appeal completely without merit.

Disregard by solicitor of duty under section 345 of the Legal Profession Act 2004

and section 352(7A) of the 1998 Act

Previous examples of unmeritorious appeals filed by solicitor noted. Repeated breaches, notwithstanding warning that such conduct may constitute unsatisfactory professional conduct or professional misconduct.

The matter referred to the Legal Services Commissioner of NSW.

Department of Education & Training v Hayward [2009] NSWWCCPD 65

Substantial contributing factor s9A of the 1987 Act – finding of psychological injury – nature and conditions of employment - whether finding of fact supported by the evidence

11 June 2009

Handley ADP

Facts:  

Mr Hayward was employed by the Department as a teacher and ‘year adviser’, which included addressing issues of bullying and harassment at the school.  Mr Hayward’s daughter, a student at the school, withdrew from the school with depression as a result of bullying.

Mr Hayward claimed to have suffered a psychological injury (mixed anxiety and depression) arising out of the nature and conditions of his employment on the basis that he could not maintain his teaching responsibilities to a satisfactory level, which created feelings of guilt because of his high teaching standards.

The Department denied he had suffered injury or in the alternative that his employment was a substantial contributing factor.

The Arbitrator found that Mr Hayward’s tasks and conditions of employment were a contributing factor to the injury, which arose as a consequence of a long-term inability to remedy the problem of bullying at the school and that the ‘micro-traumata’ caused by the nature and conditions of his employment led to the onset of his psychological condition.

The Appeal:

The Department appealed submitting (1) there was no evidence of Mr Hayward displaying any symptoms of psychological injury or seeking treatment for such symptoms from 2000 until he ceased employment in 2007, (2) no evidence that the injury was by way of “micro-traumata” as found by the Arbitrator (3) the onset of Mr Hayward’s daughter’s psychological injury was the direct cause of his injury.

Held:

(1) The evidence of his employment background - of his role as year adviser dealing with the bullying at the school - supported the Arbitrator’s finding that this “led to the onset of his psychological condition”, and justified a finding that his injury arose out of his employment, meeting the definition of ‘injury’ in section 4, and also established a sufficient causal link (see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463) [30].

(2) Employment only needs to be a contributing factor to injury not the sole contributing factor.

(3) The evidence supported a finding that employment was a substantial contributing factor to his injury and that his daughter’s condition was another contributing factor.

Arbitrator’s decision confirmed.

Woolworths Ltd v Cosgrave [2009] NSWWCCPD 69

Partial incapacity – section 40 of the 1987 Act – challenge to factual findings – decision open to Arbitrator on the evidence

17 June 2009

O’Grady DP

Facts:

Mr Cosgrave has a pre-existing left shoulder disability from non-work related injuries. In 2005 he suffered injury in the course of his employment in two separate incidents, injuring his back and then his back, left arm, shoulder and neck.  His claim for weekly compensation and medical expenses was accepted by Woolworths.

He returned to work on selected duties during which time he received treatment of his left shoulder and in December he underwent surgery on his left shoulder. His duties were upgraded in February 2007 at which time Woolworths declined liability. He resigned in March 2007.  In his statement reference was made to an incident in November 2007 (not work-related) in which the condition of his shoulder had worsened.  He underwent further surgery on his left shoulder in July and August 2008.  Since this surgery he had been unfit for work.

Mr Cosgrave filed an ARD in the Commission, the Arbitrator awarding weekly compensation pursuant to sections 37 and 40 of the 1987 Act and medical expenses.

The Appeal:

Woolworths appealed submitting that the arbitrator’s erred in determining that (1) Mr Cosgrave worked 50 hours per week pre-injury (2) that from March 2007 he was partially incapacitated and that his ability to earn was 25 hours per week engaged in suitable duties (3) from 15 August 2008 he was totally incapacitated and (4) in failing to give appropriate weight to evidence of an intervening injury in November 2007.

Held:

The Arbitrator’s acceptance of Mr Cosgrave’s evidence, regarding hours per week worked pre-injury, without reference to Woolworth’s evidence on the point, constituted an error, being a failure to adequately provide reasons for the relevant conclusion of fact [75].  This required a review of the Arbitrator’s award of entitlement to weekly compensation during partial incapacity, adhering to the steps in Mitchell.

(1) It was open to the arbitrator on the evidence to make the finding that Mr Cosgrave was fit to work “only 25 hours per week” at the date of his resignation in March 2007.

(2) While it was true that Mr Cosgrave had a complex history of pre-injury treatment concerning his significant left shoulder disability, it was clear that the incident in 2005 was one of significance. Having regard to the evidence as a whole, including the November 2007 “incident”, the Arbitrator’s conclusion with respect to ongoing total incapacity resulting from the 2005 injury was open to him on the evidence.

Paragraph 1 of the Arbitrator’s decision revoked and replaced by a revised Award pursuant to section 40. Paragraphs 2, 3 and 4 confirmed.

Arup Pty Ltd v Wicks [2009] NSWWCCPD 59

Partial incapacity - evidence and submissions misstated – section 40 calculation – need for revocation

1 June 2009

O’Grady DP

Facts:

Ms Wicks commenced employment with Arup in 1996 as an administrative assistant.  She received an injury to her back and left shoulder in the course of her employment on 6 November 2003 while lifting boxes and remained off work for two weeks.  She returned to work performing light duties, remaining on these until she ceased work on 1 October 2006 to commence maternity leave.

Ms Wicks was due to recommence work on 1 October 2007 however in August 2007, whilst undergoing physiotherapy treatment her symptoms were exacerbated causing disability and further incapacity.

A further claim for compensation benefits was made and weekly payments up to 13 July 2008 were paid.  Payments were terminated by the employer by way of a section 74 notice, asserting that Ms Wicks had recovered from her work related injury.  An ARD was filed in the Commission by Ms Wicks on 22 September 2008.

The Arbitrator awarded Ms Wicks weekly compensation pursuant to s40 for a closed period from 14 July 2008 to 17 November 2008 and necessary s60 expenses.  The employer appealed this decision submitting that the arbitrator had erred in finding that the worker was only capable of working ten hours per week which, was against the weight of evidence, and in his calculation of the s40 compensation.

Held:

(1) The Arbitrator in proceeding to calculate the worker’s entitlement to weekly compensation, at [40] – [41] of his decision, made errors in which he misstated the gender of the worker, the evidence and the employer’s submissions concerning the worker’s incapacity.  These statements were incorrect however the figures which followed coincided with the economic evidence before the Commission.

(2) The errors and misstatements were unexplained.  The parties on appeal did not address these errors.

(3) By reason of the Arbitrator’s errors the parties were denied procedural fairness and the orders could not stand.  The matter was remitted to another arbitrator for determination.

Awick v Formcorp Pty Ltd [2009] NSWWCCPD 61

Leave to appeal - section 352(2) of the 1998 Act – scarring - no amount of compensation at issue on appeal

3 June 2009

O’Grady DP

Facts:

On the first day of his employment with Formcorp Mr Awick suffered injury when falling pipes struck him on the forehead and chest.  He was taken to hospital and received treatment, which included the insertion of four nylon sutures for a scalp laceration.  Mr Awick did not return to work due to his injuries and made a claim for workers compensation.  Formcorp’s insurer accepted liability on a provisional basis and weekly payments were made.  A dispute arose between the parties concerning ongoing liability and an ARD was filed by Mr Awick alleging injuries to his head, neck, right arm, chest, back, right leg, right foot, left leg, bowel function, sexual organs, scarring and anxiety/depression.

At the arbitration Formcorp denied employment, disputed the injuries claimed and denied the alleged incapacity.

The Arbitrator found in favour of Mr Awick with respect to issues of employment and incapacity (combined effects of neck and psychological injury only) and made an award for ongoing weekly payments pursuant to section 40. She remitted the claim for permanent impairment to the Registrar for a referral to an AMS.  An award was entered in favour of Formcorp in relation to the other injuries alleged.

Mr Awick’s only challenge to the Arbitrator’s decision was her finding and award made in favour of Formcorp concerning the alleged injury of “scarring”.  Mr Awick, on appeal, had declined to provide any submissions concerning the monetary thresholds prescribed by section 352(2).

Held:

(1) The proper construction and application of the provision of section 352(2) of the 1998 Act was considered in Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’) at [30].

(2) In his claim for scarring Mr Awick failed to particularise any monetary sum, being medical expenses incurred with respect to the treatment of the scarring and there was no evidentiary material that suggested incapacity for work had been caused by the scarring.  In those circumstances it cannot be said that there was “an amount of compensation at issue on the appeal” that met the threshold specified by section 352(2) as construed in Grimson.

(3) Leave to appeal Arbitrator’s decision refused.

Yun Fu Wang v Botany View Hotel Limited [2009] NSWWCCPD 63

Reconsideration - section 350(3) of the 1998 Act – unrepresented worker - appeals to superior courts - public policy – Commission to ensure litigation does not proceed indefinitely

10 June 2009

O’Grady DP

Facts:

Mr Wang, an unrepresented worker, requested a reconsideration of the Commission’s decision in Yun Fu Wang v Botany View Hotel Limited [2008] NSWWCCPD 25 (dated 26 February 2008) (‘Wang’), in which leave to appeal the Arbitrator’s decision was refused.

Mr Wang had previously sought leave to appeal Wang to the NSW Court of Appeal. On 17 September 2008 the Court refused leave to appeal.  Mr Wang then brought an application for special leave to that decision to the High Court of Australia.  That application was dismissed by the High Court on 1 April 2009.

The Employer in response to the reconsideration application noted the fact that prior to the Court of Appeal decision, Mr Wang had instituted a fresh application in the Commission, with allegations identical to those previously dealt with by the Commission, and that that application had been dismissed.  It submits that Mr Wang had unsuccessfully pursued all avenues available to him with respect to his claim and that the reconsideration application should be declined.

Held:

(1) None of the material produced in support of the reconsideration application could be described as “new evidence” (Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141). The voluminous material accompanying the application included much of the material considered on earlier occasions by both the Commission and the superior courts [15].

(2) Mr Wang appeared to be seeking to re-agitate matters dealt with on earlier occasions before the Commission, and during the course of leave applications brought before the superior courts.

(3) The Commission must ensure for reasons of public policy that litigation does not proceed indefinitely.  Upon an analysis of the evidentiary material the reconsideration application was without merit and the conduct of Mr Wang conflicted with public policy in respect of need for finalization of litigation [22].

Application for reconsideration refused.  No order as to costs.