Issue 2: February 2010

Decision Summaries:

Sydney Night Patrol & Inquiry Co Pty Ltd v Spasevski [2010] NSWWCCPD 7

Injury; causation; weight of evidence; s74 of the 1998 Act; wage schedules; Part 15 Rule 15.5 of the 2006 Rules.

Roche DP

19 January 2010

Facts:

Mr Spasevski, a security officer with the appellant (SNP) had a car accident on 24 June 2004 driving to work - exact nature and extent of his injuries was disputed - consulted his GP  - off work “for some time” - did not provide medical certificates for most of the absences - employment on 2 August 2004 because of a failure to provide a reasonable explanation for several unauthorized absences – commenced employment as a security officer with Access Security but ceased working for them allegedly due to his inability to perform his duties as a result of injuries sustained in the MVA.

Mr Spasevski alleged a serious low back injury as a result of the MVA, and claimed weekly compensation for total incapacity, and s60 expenses.

QBE’s s74 notice disputed liability on seven different grounds – essentially it accepted the MVA occurred when Mr Spasevski was on a periodic journey but disputed liability for the back injury.

The Arbitrator found Mr Spasevski injured his low back in the MVA and as a result was totally unfit for work from 22 June 2007 to date and continuing.

Held – Arbitrator’s decision revoked - award for the Respondent substituted.

1. Mr Spasevski’s case was implausible and completely inconsistent with the objective contemporaneous evidence.

• The weight attached to the GP’s clinical notes not diminished because different doctors completed them – the relevant question was whether the notes were accurate and complete and it was not suggested that they were not.
• The police description of the MVA as a “major traffic crash” - limited, if any, relevance - no dispute that the MVA occurred or that Mr Spasevski’s car was extensively damaged. The critical question was whether he injured his low back at that time – GP clinical notes  - absence of complaints recorded until eight months after the MVA particular significance.
• It was implausible that Mr Spasevski did not mention back pain to his doctors because he felt the pain would go away, given his evidence that he mentioned pain in his “chest, back and down my right leg” to his supervisor.
• Access Security’s letter terminating his employment cited a failure to provide explanations for unauthorized absences - Mr Spasevski had previously produced medical certificates certifying him unfit because of the car accident - completely illogical that he would not have seen his doctor for a certificate for time off because of his back, if his back was a problem at that time.
• Five attendances on his doctors times between 25 June 2004 and 21 February 2005 - notes recorded that his condition had improved and that he had returned to normal duties - no reference to any low back pain.
• In the absence of corroborative medical evidence, Mr Spasevski’s evidence that ceased work for Access Security in February 2005 because of his inability to complete his duties as a result of his injuries not accepted.
• The GP’s statement that Mr Spasevski had lower back pain and right leg pain “since the accident” - patently and demonstrably false - clinical notes from February 2005 recorded low back pain for a week after participating in sports. The conclusion that it was “possible that the disc lesion could have been caused by the accident” failed to provide sufficient evidence to discharge the onus of proof.
• The treating surgeon’s evidence was based on an acceptance of the assertion that back and leg symptoms were experienced immediately after the car accident, a claim held to be false. The weight to be attached to his report was therefore significantly diminished.
• The fact that SNP did not tender any medical evidence not decisive - no evidence that SNP or QBE arranged for Mr Spasevski to be medically examined - no Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference arises.  Mr Spasevski carried the onus of proof, which he failed to discharge. [68]

Other matters

Section 74 Notice

If an insurer disputes liability in respect of a claim, or any aspect of a claim, it is required give to the claimant proper notice of the dispute. The notice must:

• be expressed in plain language
• clearly and succinctly identify the reason the insurer disputes liability
• clearly and succinctly identify the issues relevant to the decision.

The s 74 Notice did not comply with the requirements of s 74 and was unacceptable - broad-brush assertions – alleged non-compliance with the legislation regarding the making of a claim and the claiming of benefits - listed 12 sections of the Act/s. (see also Fletcher International Exports Pty Ltd v Lott and anor [2009] NSWWCCPD 40 at [15]; Gibson v Royal Life Saving Society of Australia [2009] NSWWCCPD 137 at [6]; Gray v Busways Gosford EMP Pty Ltd [2009] NSWWCCPD 124 at [6]; Rinker Group Limited v Mackell [2008] NSWWCCPD 100; Rocla Pty Ltd v Stephenson [2009] NSWWCCPD 125)

Wage Schedules

The Arbitrator had directed the parties’ attention to the question of “comparable wages” and the employer failed to file its own wage schedule. It was entirely inappropriate for the employer’s solicitor to object to the worker’s wage schedule at arbitration hearing (Part 15 Rule 15.5 of the 2006 Rules).

Employers have an obligation to provide wage records to a worker within 28 days of receiving a request from an injured worker (s 43(2) of the 1987 Act).

Baker v NSW Police Force [2010] NSWWCCPD 10

Leave to appeal; compensation; monetary threshold on appeal; interlocutory orders; s352 of the 1998 Act.

Roche DP

27 January 2010

Facts:

Mr Baker, a police officer, is currently in receipt of weekly compensation for total incapacity arising from physical injuries to his left knee, back and wrist following several work injuries received on 4 January 2006 and 27 March 2007.

In 2009 he claimed weekly compensation for a psychological injury alleged to have also occurred on 4 January 2006. Liability was declined. The Police Force submitted before the Arbitrator that there was no dispute because Allianz had at all times paid Mr Baker weekly compensation at the maximum statutory rate for a worker with two dependent children and there was no claim for s60 expenses.

The Arbitrator dismissed the ARD under Rule 15.8 on the grounds that no money was outstanding because the insurer was paying weekly compensation at the correct rate.

Held – Leave to appeal refused for failure to meet monetary threshold.

1. A worker suffering an injury from which incapacity flows is entitled to an award such that s/he may be entitled to two awards of weekly compensation (one for partial incapacity and the other for subsequent total incapacity (Sydney City Council v Ince (1989) 16 NSWLR 690 and Nowakowska v Home Care Services of NSW [2008] NSWWCCPD 62). But the authorities do not suggest entitlement to two separate payments for total incapacity.

2. If a worker is being compensated on the basis of accepted total incapacity for a physical injury/ies, it is not possible to be further totally incapacitated (in a legal sense), and further compensated, as a result of a concurrent psychological injury. Mr Baker could not recover any more than he is currently being paid. [25]

3. Therefore there was no “compensation at issue” on appeal.

Other matters

4. Arbitrator’s order was interlocutory: The order dismissing the worker’s ARD was a preliminary or interim order of an interlocutory nature as it did not dispose of or finally determine any of the parties’ rights (Little v State of Victoria (1998) 4 VR 596, Wickstead v Browne (1992) 30 NSWLR 1 at 11, and Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274).

Dismissal of ARD under Rule 15.8: It was difficult to see why the ARD was dismissed under Rule 15.8 given that proceedings were prosecuted with due despatch. S 354(7A) provides other grounds for dismissal, eg “misconceived or lacking in substance” on the basis that Mr Baker had no entitlement to any greater weekly compensation than already being paid by Allianz.

Homecare Service of New South Wales v Vryenhoek [2010] NSWWCCPD 6

Procedural fairness; entitlement of a party to be heard; adequacy of notice as required by s74 of the 1998 Act.

DP Kevin O’Grady

18 January 2010

Facts:

The worker was employed on a part time basis by Homecare Service of NSW as a carer. Approximately six months after commencing her employment the worker experienced low back pain. She had intermittent absences from work by reason of her painful symptoms. She requested and was granted a reduction in the hours that she worked and in the frequency with which she was to attend to the needs of a particularly heavy client. Due to her continuing painful symptoms the worker ceased employment on 24 August 2007.

Weekly compensation payments were terminated on 31 December 2007.

Held – Orders 1 & 2 of Arbitrator’s decision revoked and the matter remitted to the Arbitrator for determination in accordance with the reasons given in the Presidential decision. Decision otherwise confirmed.

1. The notice disputing liability given by the insurer was in an unsatisfactory state. There was uncertainty concerning the form of notice given to the worker. There were two conflicting notices disputing liability from the insurer in evidence before the Arbitrator.

2. It was unnecessary to decide which of the two conflicting forms of notice had been given to the worker because the question raised on appeal was whether notice of the issue of incapacity had been given. Both documents contained a similar fleeting reference to the provisions of section 33 of the 1987 Act and otherwise nothing relevant to incapacity.

3. Section 33 is a “vesting provision” (see Watts Peterson Automotive Pty Ltd v Peterson (1994) 10 NSWCCR 653 at 661). It simply vests a right to compensation where a worker suffers incapacity as a result of injury. Mere mention of section 33 does not constitute adequate notice that the issue of incapacity is relevant to the insurer’s decision.

4. Section 289A(4) grants the Commission a discretion to permit a dispute relating to a previously unnotified matter being dealt with where such is in the interests of justice.

5. Both parties submitted on the issue of incapacity at the arbitration. The Arbitrator failed to disclose to the parties until publication of his reserved determination that the appellant was precluded from raising the issue of incapacity by reason of its failure to give notice. This constituted a denial of procedural fairness (see discussion by Mason P (Ipp JA agreeing) in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208).

6. The appellant was denied not only the opportunity to argue the issue of notice but was denied an opportunity to seek the exercise of discretion granted to the Commission by the provisions of s. 289A(4). Such a conclusion entitled the appellant to a fresh hearing (see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145).

Corporate Management Services (Australia) Pty Ltd v Country Energy and ors [2010] NSWWCCPD 5

Leave to appeal - monetary threshold on appeal - s352(2) of the 1998 Act – insurance - whether the Commission has jurisdiction to determine if an employer carried workers compensation insurance at the date of injury - correct legal identity of party to be joined where employer is uninsured.

Roche DP

13 January 2010

Facts:

Mr Cutler started work as an electrical fitter with Oxley County Council, now Country Energy (first respondent) in the 1960s. On 23 September 1970, Mr Cutler injured his right leg falling off a ladder. His right knee deteriorated over time and his surgeon recommended a total knee replacement.

In proceedings before the Commission in 2005 Mr Cutler sought lump sum compensation from Country Energy and WorkCover in respect of his right knee. The parties filed a s 66A agreement for 27.5% loss of use of the right leg or greater part thereof, under s 16 of the 1926 Act. No insurer took part in those proceedings.

In an ARD filed in May 2009, Mr Cutler sought medical expenses of $390.85 plus a general order for knee reconstruction totaling $6,760.00. It was alleged that Country Energy was uninsured as at 23 September 1970, thus, WorkCover was joined. In the alternative, it was alleged that Country Energy was insured by either Corporate Management Services (CMS) as agents for Bishopsgate, or by GIO General Ltd on risk for Royal Insurance Company Ltd.

CMS disputed liability on the ground that Bishopsgate did not insure Country Energy.

WorkCover disputed liability on the ground that Mr Cutler was unable to establish that Country Energy was uninsured under s140 of the 1987 Act.

The parties agreed that the critical questions for the Arbitrator to determine were:

• could the worker prove that Country Energy was insured?
• If so, by whom?

The Arbitrator held that Country Energy was insured by Steadfast (who later changed its name to Bishopsgate), and that CMS was therefore liable to pay the s60 expenses.

Held – leave to appeal refused as monetary threshold not met

Leave to appeal was refused because the amount of compensation claimed ($390.85) was below the monetary threshold set in s352(2). The Commission has no jurisdiction to order the payment of a proposed treatment, as it is a future medical expense not “compensation” in dispute in the current matter (Robinson v Forster Tuncurry Memorial Services Club Limited [2007] NSWWCCPD 84).

Merits of appeal

1. CMS argued on appeal that the Arbitrator had no jurisdiction to determine the very questions its counsel initially submitted (at arbitration) had to be determined.  Given that a party is normally bound by the conduct of his or her case at first instance (University of Wollongong v Metwally [No 2] (1985) 59 ALJR 481 at 483; Coulton v Holcombe(1986) 162 CLR 1 at 7), DP Roche had reservations as to whether CMS was entitled to take a contrary position on appeal, however, as the point had not been fully argued and prejudice not raised by the other parties, he allowed CMS to argue the question.

2. As a direct result of WorkCover’s s74 notice (which disputed non-insurance), the Commission had to determine whether Country Energy was insured at the relevant time.  Therefore the identity of Country Energy’s insurer as at 23 September 1970 was “a matter arising under” the 1987 Act and was a matter over which the Commission has exclusive jurisdiction under s105 of the 1998 Act. [38]

3. Campbell CJ said in Wilson v TH & NO Berkin t/as Penola Preservation Products & others (1997) 15 NSWCCR 634 “that issues between the employer and a licensed insurer may be dealt with by this Court” (at 646B). [41]

4. If Country Energy was uninsured, the fundamental issue was whether the award of compensation could be made against the Nominal Insurer. That was a dispute that arose under Division 6 of the 1987 Act and was clearly a matter within the Commission’s jurisdiction. [42]

5. The question of who insured Country Energy had to be decided on the balance of probabilities. The Commission was entitled to draw inferences from the established evidence.  A party who relies on circumstantial evidence to prove a fact must show “that the circumstances raise the more probable inference in favour of what is alleged” (per Ipp JA in Flounders v Millar [2007] NSWCA 238 at [35]).

6. DP Roche ultimately confirmed the Arbitrator’s finding that CMS was liable because:

• Harvey Trinder was involved as a broker in Oxley County Council’s workers compensation insurance in 1969 and 1970
• When Harvey Trinder operated as a workers compensation broker it placed most of its business with Steadfast
• Steadfast later took over Harvey Trinder’s business
• Steadfast later changed its name to Bishopsgate.
• CMS acted as agent for Bishopsgate

Other matters

Legal identity of party representing uninsured interests of Country Energy

By amendments to the 1987 Act that took effect on 1 July 2007, s154A established a Workers Compensation Nominal Insurer.  On and from that date, the Nominal Insurer assumed the assets, rights and liabilities of the Uninsured Liability and Indemnity Scheme (see Regulation 247B of the 2003 Regulation).

The Nominal Insurer is a legal entity (s154A(2)(a)) and may take proceedings and be proceeded against in the name of the Workers Compensation Nominal Insurer (s154A(2)(b)).  Therefore, the Nominal Insurer is the entity to be joined in proceedings where an employer is alleged to be uninsured.  WorkCover acts for the Nominal Insurer (section 154C(1)).

RE & PC Richards Pty Ltd v Eggins [2010] NSWWCCPD 2

S352(8) of the 1998 Act and cl 200B of the Regulation; preliminary or interim orders of an interlocutory nature; section 319 of the 1998 Act – medical dispute.

DP Kevin O’Grady

11 January 2010

Facts:

The worker claimed injury to his lumbar spine in the course of his employment with the appellant. He sought orders with respect to lump sum compensation pursuant to section 66 of the 1987 Act.

In a reserved decision the Arbitrator remitted the matter to the Registrar for referral to an AMS.

The employer appealed the decision on the bases that the Arbitrator erred in law in determining that the issues as to injury were not in dispute, and in determining that she did not have jurisdiction to decide whether the worker had recovered from the effects of the work incident of 30 July 2004.

The worker opposed the granting of leave to appeal the Arbitrator’s determination on the basis that it was interlocutory in that “no final order had been made”.

Held – Leave to appeal refused

1. Caution should be exercised when reference is made to common law authority concerning the nature of interlocutory orders when consideration is given to the meaning of the words “preliminary or interim orders…of an interlocutory nature” as appears in clause 200B given the nature of the Commission’s powers of review, the regulation of the Commission’s power to award lump sum compensation subject to the role of an AMS, and the availability of rights of appeal against an assessment by an AMS (see P & O Ports Limited v Hawkins [2007] NSWWCCPD 87 at [35] – [37] and Moore v Greater Taree City Council [2009] NSWWCCPD 17 at [31] –[39]).

2. The Arbitrator clearly stated that the only claim before her was one “for lump sum compensation in the context of an undisputed injury on 30 July 2004”. The dispute thus characterised by the Arbitrator clearly falls within the definition of ‘medical dispute’ as provided by section 319 of the 1998 Act. Pursuant to section 65(3) of the 1987 Act the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an AMS.

3. The facts in Peric v Chul Lee, Hyuang Ho ShinJong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’)distinguished from the present matter in that the dispute in that matter concerned entitlement to weekly compensation, medical expenses and a lump sum. The Arbitrator was required to determine liability issues, raised by the employer, as to the mechanics of the injury. Those facts and circumstances are to be distinguished from the present were the dispute was limited to a claim for lump sum compensation in respect of whole person impairment.

4. The orders of the Arbitrator did not finally determine the rights of the parties and therefore were orders of an interlocutory nature within the meaning of section 352(8) and clause 200B of the Regulation and may not be the subject of an appeal brought pursuant to section 352(2).

NSW Maritime Authority (in the interests of Allianz Australia Insurance Limited Treasury Managed Fund) v Louis Sweeney by his Executrix and Beneficiary Elaine Joan Sweeney [2010] NSWWCCPD 9

Section 16 of the 1987 Act; section 18(1) of the 1987 Act; liability of insurer to indemnify employer.

DP Kevin O’Grady

25 January 2010

Facts:

The late Mr Sweeney was employed by NSW Maritime Authority between 1969 and 1990. There were a number of insurers on risk (and a period in which the employer was a self insurer) during the time of Mr Sweeney’s employment with the respondent. Prior to his death a claim for lump sum compensation was made on his behalf on the employer and its insurers.

In a reserved decision the Arbitrator determined that:

• Mr Sweeney had suffered injuries to his upper and lower limbs and lumbar spine arising out of or in the course of his employment with the respondent and that the deemed date of injury was the date of claim 17 June 2008, and
• the Respondent in the interests of Allianz Australia Insurance Limited, Treasury Managed Fund, was liable for any compensation payable and Mr Sweeney’s costs.

The matter was remitted to the Registrar for referral to an AMS.

Allianz Australia Insurance Limited, Treasury Managed Fund, (TMF) appealed the Arbitrator’s determination in respect of the deemed date of injury, the manner of construction and application of section 18(1) of the 1987 Act, and its liability to pay compensation and costs.

Held – Paragraphs 3 and 4 of the Arbitrator’s determination were revoked and orders made that the self insurer pay any compensation payable and the applicant’s costs.

1. There was agreement that the injury was one to which section 16 of the 1987 Act applied.

2. “Incapacity” as it appears in section 16 “must relate to what is being claimed” and application of the provisions of section 16 to the given facts may lead to a determination of a different date of injury (deemed) in respect of weekly benefits and one concerning a claim for lump sum compensation (see Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246 (‘Antaw’); Gow v Patrick Stevedores No.2 Pty Ltd (2002) 24 NSWCCR 626 and Stone v Stannard Brothers Launch Services Pty Ltd (2004) 1 DDCR 701).

3. The deemed date of injury in the present case was the date of claim (see Antaw). The Arbitrator’s findings on this issue were confirmed.

4. Application of section 18(1) of the 1987 Act is for the limited purpose of determining whether any insurer or which of two or more insurer’s is liable under a policy of insurance in respect of compensation payable.

5. On the facts in this matter section 18 operated to deem that the employer’s liability had arisen in 1990 at which time the insurer was a self insurer. (Paunovic v Email Ltd [2002] 23 NSWCCR 589 not followed and Johnson & Johnson Pty Ltd v Manufacturers Mutual Insurance Ltd [2000] NSWSC 155 (‘Johnson’) distinguished).

6. The fact that the employer was at that time a self insurer did not prevent application of section 18 to obtain the limited purpose for which it was enacted (see Wunderlich Ltd v Manufacturers Mutual Insurance Ltd (1981) 2 NSWLR 678 (‘Wunderlich’)).

7. The difficulty of reconciling the views expressed by Yeldham J in Wunderlich with those expressed by Young J in Johnson was acknowledged by Curtis J in Di Cecco v Mercantile Mutual Insurance (Workers Compensation) Ltd (2002) 23 NSWCCR 143 at [42]. However, as noted by Curtis J, nothing said by Young J in his judgment was inconsistent with a literal application of the provisions there considered.

De Martin & Gasparini Pty Ltd v Di Renna [2010] NSWWCCPD 3

Injury; causation; weight of evidence.

Roche DP

12 January 2010

Facts:

On 17 February 2003, Mr Di Renna, a concrete finisher for the appellant, fell through a piece of plywood covering a walkway on the third floor of a construction site. It was not disputed that he injured his back and right knee.

In 2004, Mr Di Renna sought damages in the District Court against the occupier of the building site. Neilson DCJ granted an adjournment on application by Mr Di Renna.

In 2005, Mr Di Renna lodged a threshold dispute for work injury damages in the Commission. An AMS assessed him to have 12% WPI as a result of injury to his right knee and back. Neither party appealed the AMS findings.

In 2009, Mr Di Renna claimed lump sum compensation in respect of a further 25% WPI as a result of injuries to the back, neck, left arm and right leg on 17 February 2003. The basis of the claim was not a deterioration since the AMS assessment, but that Mr Di Renna had also injured his neck and left arm (causing ulnar neuritis) in the fall.

The employer denied injury to the neck and left arm in the fall.

The Arbitrator found no injury to the neck but that Mr Di Renna injured his left shoulder and that that injury caused ulnar neuritis in the left elbow, and remitted the left arm claim to the Registrar for referral to an AMS.

The employer appealed the findings of injury to the left arm. The appellant sought to tender as additional evidence on appeal, the transcript of proceedings before Neilson DCJ of Mr Di Renna’s evidence in chief and part of the cross-examination.

Held – Arbitrator’s decision revoked and award for the employer substituted.

1. In the interests of justice, the transcript was admitted as additional evidence on appeal as it was directly relevant to the issues in dispute (Haider v JP Morgan Holdings Australia trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158; (2007) 4 DDCR 634). Neilson DCJ’s decision was interlocutory. He set out a detailed history and reviewed Mr Di Renna’s evidence, but his Honour made no final determination. His decision therefore did not create an issue estoppel or any res judicata estoppel. The judgment was therefore of no probative value to the issues in dispute in the Commission. [89]

2. The basis of the Arbitrator’s decision regarding the left upper limb was that it was “likely” that there would have been a blow or wrenching to the left arm when Mr Di Renna fell and that it was “inevitable” that there would be contact between his left side and the mesh fence, causing symptoms consistent with ulnar neuritis. DP Roche disagreed:

• Mr Di Renna’s statement referred to a fall through plywood and feeling sharp pain in his knee and back. He made no mention of a blow to his left arm or symptoms in the left arm.
• Mr Di Renna’s evidence in the District Court was inconsistent with the Arbitrator’s conclusion. Mr Di Renna’s evidence suggested that his left arm and hand were close to, but did not strike, the safety rail or net.
• Objective medical evidence did not support Mr Di Renna’s assertion that he had symptoms in the left hand immediately after the fall. Having full regard to King v Collins [2007] NSWCA 122 and Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; (2004) 4 DDCR 358 which cautioned against placing too much weight on treating doctors’ notes, if Mr Di Renna had complained of symptoms in his left shoulder and fingers when examined at the hospital on the day of the fall (as he claimed), it would be expected that the doctors’ report would have referred to it.
• Other reports from treating doctors did not mention any complaint of arm or hand symptoms until early 2007.
• The reports that supported a connection with the fall were based on the incorrect assumption that Mr Di Renna grabbed the safety fence with his left hand.

3. The claim for lump sum compensation in respect of the left arm and neck failed.

Hybinett v Illawarra Retirement Trust [2010] NSWWCCPD 11

Psychological injury; substantial contributing factor; weight of evidence; relevance of prior psychological symptoms; credit.

Roche DP

29 January 2010

Facts:

On 12 February 2008, Ms Hybinett, a care service employee for the respondent, was walking along a walkway at the Retirement village when a car crashed through the walkway about a metre from her. She continued with normal duties but alleged suffering depression and anxiety since witnessing the accident, then ceased work in July 2008 because she was unable to cope because of increasing psychological symptoms.

Liability was provisionally accepted and voluntary weekly compensation paid but ceased on 31 March 2009 on the grounds that there was no work related injury and/or employment was not a substantial contributing factor to the alleged injury.

Ms Hybinett claimed weekly compensation and s60 expenses as a result of psychological injury received in the accident on 12 February 2008. The claim was then amended to add that the injury also resulted from the “nature and conditions” of employment from 1 January 2008 to the last day of employment.

The treating GP’s clinical notes indicated Ms Hybinett had psychological symptoms before the car accident. The GP’s notes from February 2007 and 6 February 2008 referred to a depressed mood with possible causes being stress at work and a relationship problem. It was not until July 2008 that the GP’s notes contained a history of recurrent panic attacks, bad dreams and freezing after hearing car noises.

The respondent’s medical evidence attributed the psychological/ psychiatric injury to “family circumstances” and it also tendered witness statements from a co-worker and a supervisor alleging that Ms Hybinett’s problems stemmed from family circumstances.

The Arbitrator found that Ms Hybinett suffers from a psychiatric disorder caused by her “family circumstances” and not employment. He made an award for the respondent.

Held – Arbitrator’s decision revoked. Matter remitted to a different Arbitrator for determination of entitlement to weekly compensation.

1. The GP’s lack of formal diagnosis and further assessment, and Ms Hybinett’s continuation of work duties suggested any prior psychological condition was not serious or was short-lived.

2. Lack of reference to the car accident in the GP’s notes until July 2008 undermined Ms Hybinett’s credit however the history recorded by the GP and statements from other witnesses corroborated the worker’s evidence. [121]

3. The treating psychologist’s notes concluded that Ms Hybinett’s emotional state resulted from the car accident and work stress. It was possible, based on this evidence, that the “relationship problem” referred to by the GP was the work relationship with a supervisor and not “family circumstances” as argued by the respondent.

4. The weight of the employer’s assertion of “family circumstances” was further diminished by the fact that even when Ms Hybinett’s children moved back closer to home, her symptoms continued.

5. The weight to be attached to witness statements that contradicted the worker’s evidence had to be considered in the light of supporting witness statements and medical evidence none of which contained a history of relevant “family circumstances”.

6. The respondent’s medical evidence was based on a factual investigation not tendered into evidence. The qualified doctor’s conclusion was inadequately explained and therefore lacked probative value and was not persuasive.

7. The lack of mention of prior psychological symptoms in the reports of the appellant’s qualified experts was not fatal to an acceptance of their conclusions as any prior problems were unlikely to have been serious (see [1] of this summary). The reports contained detailed histories of the car accident and the stressors at work in 2008, providing a “fair climate” for the acceptance of their conclusions (Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844).

8. The car accident and the various stressors at work in 2008 were a substantial contributing factor to the worker’s psychological injury. Employment only has to be a substantial contributing factor not the substantial contributing factor. [141]

Other matters

“Nature and conditions” is a meaningless expression that is not used in the legislation and should not be used in applications (Mirkovic v Davids Holdings Pty Ltd (1995) NSWCCR 656 at 667; Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70 at [65]). A claim that alleges an injury as a result of repetitive use over time, or as a result of an aggravation of a disease, should clearly state that fact and properly identify the alleged cause of the claimed injury.  [7]

Redman Holdings Pty Ltd t/as Hibiscus Gardens Caravan Park v Lee [2010] NSWWCCPD 4

Credit; evidence; reasons.

Keating P

13 January 2010

Facts:

1. Mr Lee was employed with his wife to manage the Hibiscus Gardens Caravan Park, owned by Redman Holdings Pty Ltd. He commenced work on 15 December 2000 and resigned on 22 June 2005, effective on 17 July 2005.

2. When the company accountant, Mr Lucy, confronted Mr Lee about a shortfall in the banking, Mr Lee informed Mr Lucy that he thought his wife had accidentally thrown out the money with the garbage.  Both he and his wife tendered their resignations on that day.

3. An internal audit revealed $49,604.94 was unaccounted for and had not been banked.  Mr and Mrs Lee were charged and convicted at Ballina Local Court and on 7 February 2008 Mr Lee was sentenced to 18 months periodic detention.  In civil proceedings a judgment was also entered against the Lees in the sum of $71,780.69 including interest.

4. During his employment Mr Lee did not report any injuries. He did suffer a heart attack on 22 December 2004, which, although initially pleaded, was not ultimately pursued as a work injury.

5. The Application was very poorly pleaded, The injury claimed was a frank injury to his left shoulder when he fell from the ride on mower after suffering a heart attack, and injury to his back, left shoulder, right shoulder, knees and neck as a result of the “heavy nature and conditions of his employment” from December 2000 to June 2005.  He claimed lump sum compensation under s 66 in respect of 17% WPI and $15,000.00 under s 67, together with a claim for weekly compensation payments at the rate of $250.00 per week from 24 December 2004 (later amended to July 2005) to date and continuing.

6. The arbitrator found in Mr Lee’s favour and awarded weekly compensation and made a referral to the Registrar for an AMS referral.

7. Redman Holdings appealed.

Held – Arbitrator’s decision revoked – award for the Respondent

1. The Arbitrator did not discharge his statutory obligation to provide adequate reasons and his reasons did not meet the required standard (see Absolon v NSW TAFE [1999] NSWCA 311; YG & GG v Minister for Community Services [2002] NSWCA 24; Sourlos v Luv a Coffee Lismore Pty Limited & anor [2007] NSWCA 203 at [30] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, McHugh JA (as he then was) at [280]).

• the Arbitrator did not analyse the evidence as a whole;
• he referred only to the medico-legal reports;
• he did not explain the reason for preferring the evidence of the worker’s medico-legal expert, and
• he made no reference to the treating general practitioner’s records that were available and covered attendances before, during and after Mr Lee’s employment with the Appellant.

2. Whilst the Arbitrator did not have to refer to every piece of evidence tendered (Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [100]), it was necessary that he consider all evidence relevant to the issues in dispute and rule on those issues.

3. There was conflicting evidence in respect of injury and the reasons for Mr Lee’s resignation.

4. The Arbitrator failed to deal with the issues presented in the evidence.  He neither considered, nor weighed the medical and lay evidence.

5. The Arbitrator’s reasons fail to disclose that he gave consideration to the issue of the worker’s credit and if he accepted the worker as a witness of truth, the basis for his conclusion.

6. Mr Lee was convicted in February 2008 of larceny as a clerk or servant in relation to the misappropriation of funds from the employer.  His credit and reliability as a witness were in issue.  Where the worker’s evidence is confirmed by other independent or objective evidence it may be acceptable, but where it is not independently supported it must be assessed with great care to determine whether it can be properly accepted as proof of any matter in issue (see Malco Engineering Pty Limited v Ferreira & Others (1994) 10 NSWCCR 117).

7. Based on the contemporaneous facts, objective evidence, and the apparent logic of events the worker’s evidence was punctuated with inconsistencies and untruths and was not accepted in respect of the reason for his resignation, the nature of his duties, the medical evidence failed to disclose that the worker reported symptoms or received treatment for any back, neck, shoulders or knee injury or condition throughout the four and a half years he worked for the Appellant.

8. Mr Lee did not meet the necessary evidentiary threshold to establish on the balance of probabilities that he suffered injury in the form of aggravation or acceleration of a degenerative condition of his lumbar spine, cervical spine, shoulders or knees as a result of his work with the Appellant from December 2000 to July 2005.

9. Mr Lee’s claim that incapacity arising from his alleged work injuries coincided precisely with his resignation which occurred after his misappropriation of funds, and, in the absence of any prior complaints or treatment is simply not believable.  Coupled with the delay in making the claim, it gave rise to a powerful inference, which was drawn, that his complaints regarding the heavy nature of his duties were a late invention by a person with a proven record of dishonesty, designed to secure compensation benefits.

Kristo v The Australian Croatian “Cardinal Stepinac” Association Incorporated [2010] NSWWCCPD 8

Injury and incapacity; weight of evidence; weekly payments and medical expenses.

ADP Deborah Moore

19 January 2010

Facts:

The worker sustained two injuries whilst employed by the respondent as a nursing assistant at the respondent’s geriatric nursing home. On 10 May 2005 she was struck on the head by medical equipment and on 14 August 2005, she injured her back whilst assisting a patient.

There was an arbitration hearing on 23 July 2008 and a Certificate of Determination issued on 3 September 2008 in which the Arbitrator found that the worker did not sustain injury to her cervical spine but remitted the claims in respect of the nervous system and lumbar spine to the Registrar for referral to an AMS. The claims for weekly compensation benefits and medical expenses were adjourned, pending the outcome of the AMS assessments.

Following the worker’s assessment by the AMSs the parties again participated in an arbitration hearing. In a reserved decision issued on 29 July 2009 the Arbitrator found that any incapacity had ceased by 12 November 2005 and made orders in favour of the respondent employer.

The worker (self represented) appealed the Arbitrator’s determination claiming that it was “unjust” and did not take proper account of the evidence presented by her; that much of the evidence in support of her claim was “disregarded”, and that her solicitor “did not run my case properly”.

Held – Arbitrator’s decision confirmed

1. The worker’s submission that much of the evidence in her favour was “disregarded” by the Arbitrator demonstrated a fundamental lack of understanding of the practice and procedure in the Commission, particularly as it relates to medical assessments.

2. The assessments of the AMSs are presumed to be correct (section 326 of the 1998 Act). The Arbitrator was bound to enter an award in favour of the respondent in respect of her claims for permanent impairment compensation The Arbitrator’s task was then confined to the issue of incapacity and weekly benefits, and medical expenses.

3. The worker’s complaint that her case was not run properly by her solicitors was not a matter relevant to the Presidential member’s consideration as to whether the Arbitrator’s decision represented the “true and correct view” (State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249).

4. The Arbitrator’s decision was made following a thorough and well reasoned assessment of all the evidence before her.