2 feb 2011 on appeal

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					Issue 2: February 2011




On Appeal
Welcome to the 2nd issue of ‘On Appeal’ for 2011.


Issue 2 – February 2011 includes a summary of the January 2011 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:

ADP             Acting Deputy President
AMS             Approved Medical Specialist
Commission      Workers Compensation Commission
DP              Deputy President
MAC             Medical Assessment Certificate
Reply           Reply to Application to Resolve a Dispute
1987 Act        Workers Compensation Act 1987
1998 Act        Workplace Injury Management and Workers Compensation Act 1998
2010            Workers Compensation Regulation 2010
Regulation
2010 Rules      Workers Compensation Commission Rules 2010



   Level 21 1 Oxford Street Darlinghurst NSW 2010 PO Box 594 Darlinghurst 1300 Australia
                                  Ph 1300 368018 TTY 02 9261 3334 www.wcc.nsw.gov.au




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                                                       Table of Contents


Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 ............................................ 3
  Personal injury; s 4 of the 1987 Act; whether psychological condition resulted from
  physical injuries; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35
  NSWLR 452; 10 NSWCCR 796; unsatisfactory preparation by worker’s solicitors;
  unsatisfactory Reply by employer’s solicitors .................................................................... 3

Ambulance Service of New South Wales v Anderson [2011] NSWWCCPD 3 ................. 6
 Injury; s 4 of the 1987 Act; causation; s 60 of the 1987 Act; nexus between injury and
 need for medical treatment ................................................................................................ 6

Australian Traineeship System v Mabbett [2011] NSWWCCPD 1 .................................... 8
  Leave to appeal out of time; Pt 16.2 r 12 of the Workers Compensation Commission Rules
  2010 .................................................................................................................................. 8




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Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4

Personal injury; s 4 of the 1987 Act; whether psychological condition resulted from physical
injuries; application of principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR
452; 10 NSWCCR 796; unsatisfactory preparation by worker’s solicitors; unsatisfactory
Reply by employer’s solicitors

Roche DP

31 January 2011

Facts:

Ms Davis injured her back and neck in the course of her employment on 23 August 2000.
She sought weekly and lump sum compensation in proceedings in the Commission in 2006
in which she alleged she received the following injuries: “neck, back, left leg, sexual organs
and anxiety and/or depression”. Cadbury agreed to reinstate voluntary weekly compensation
and to refer the claim for lump sum compensation to an AMS.

The AMS assessed Ms Davis to have a 15 per cent loss of use of her left leg at or above the
knee; 20 per cent loss of use of sexual organs; 4 per cent permanent impairment of the
neck; and 20 permanent impairment of the back. The parties settled the claim for lump sum
compensation in amounts consistent with the AMS’s assessment plus $15,000 for pain and
suffering.

In 2008, Ms Davis’s solicitors claimed compensation for psychological injuries (anxiety and
depression) that had allegedly resulted from her fall. Allianz disputed that claim on the
ground that Ms Davis had not sustained injury as alleged, employment was not a substantial
contributing factor to the injury and that she was not incapacitated.

On 22 January 2009, Allianz served a notice of intention to cease weekly compensation
payments under s 52A on 6 March 2009 on the grounds that Ms Davis was not seeking
suitable employment, had unreasonably refused to have an assessment of her employment
prospects, unreasonably refused to cooperate in rehabilitation training under the return to
work program, and had not provided information regarding her employment status.

Ms Davis filed an Application seeking weekly compensation, additional lump sum
compensation in respect of additional impairments of her neck and back, permanent loss of
use of her left arm at or above the elbow, permanent loss of use of bowel function (due to
medication for her neck and back conditions), and hospital and medical expenses.

Allianz disputed that Ms Davis had injured her left arm or suffered any psychological injury.

At the first arbitration, Ms Davis discontinued the claim for the left arm. The Arbitrator found
that the worker had “suffered an injury to her bowel function on 23/8/00 within the meaning
of s 4 of the Workers Compensation Act 1987” and that her employment was a substantial
contributing factor to the injury. The Arbitrator remitted the claims for lump sum
compensation to the Registrar for referral to an AMS and listed the claim for weekly
compensation and for the alleged psychological injury for a second arbitration.

At the second arbitration, the Arbitrator found that:


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        a)    Ms Davis suffered a psychological injury on 23 August 2000 and that her
              employment was a substantial contributing factor to that injury;

        b)    the worker was totally unfit from 30 October 2008 to 30 April 2009 and partially
              incapacitated thereafter;

        c)    as the worker was totally unfit when the insurer served the s 52A notice, it had
              not right to stop payments under that section.

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

        (a)   finding that Ms Davis suffered a psychological injury on 23 August 2000 within
              the meaning of s 4 of the 1987 Act (psychological injury);

        (b)   finding that the employment was a substantial contributing factor to Ms Davis’s
              alleged psychological injury (psychological injury);

        (c)   finding that the combination of the psychological condition and the orthopaedic
              injuries resulted in Ms Davis being totally incapacitated between 30 October
              2008 and 30 April 2009 (total incapacity);

        (d)   failing to give adequate reasons for her decision (reasons), and

        (e)   failing to consider, or properly consider, the provisions of s 52A when
              determining the worker’s entitlement to weekly compensation (s 52A).

Held:

1.      The Arbitrator wrongly identified the issue for her to determine to be “whether or not
        the applicant’s psychological condition is an injury within the meaning of section 4 and
        section 9A of the [1987] Act”. The issue was not whether Ms Davis received a
        “psychological injury” on 23 August 2000, but whether her undisputed psychological
        condition (anxiety and depression) had resulted from her accepted physical injuries
        [29].

2.      The issue was a straightforward causation dispute that called for an application of the
        principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. Employment
        does not have to be a substantial contributing factor to the incapacity or need for
        medical treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725).

3.      The worker’s injuries had severe and life changing consequences for her and affected
        both her physical and mental health. They caused chronic pain that affected every
        aspect of her life. Cadbury suggested no other potential cause for the psychological
        condition. It followed that her psychological condition had resulted from her physical
        injuries. There was an unbroken chain of causation between the injury on 23 August
        2000 and the development of the worker’s depression and anxiety.

Total incapacity

4.      The Arbitrator rightly accepted Ms Davis’s evidence, supported by her general
        practitioner, that, as a result of her physical injuries and her psychological condition,
        she was totally unfit from 30 October 2008 to 30 April 2009. The employer’s
        submission on this issue depended on it succeeding with its appeal against the finding


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     with respect to the psychological condition. As it failed on that issue, it also failed with
     its appeal against the finding of total incapacity.

Reasons

5.   The Arbitrator’s reasons explained the basis for her conclusion on the causation issue
     [98]. It was not necessary for her to give reasons on injury or substantial contributing
     factor because Ms Davis did not allege that she had received a psychological injury on
     23 August 2000, but merely that her psychological condition had resulted from her
     physical injuries [96].

Section 52A

6.   As the employer failed on the causation issue and on the total incapacity issue, it
     conceded that it could not succeed on this issue.

Other matters

7.   The Deputy President criticised the poor preparation of the matter by the worker’s
     solicitors noting that the parties had tendered over 1000 pages, many of which were
     irrelevant. The documents were in no particular order and that unreasonably protracted
     the review process.

8.   Solicitors are required to attach documents to applications in a logical order. They
     should only attach those documents that are relevant to the claim. The practice of
     randomly attaching every piece of paper regardless of relevance must stop and may
     result in a cost penalty if it continues.

9.   If solicitors are not prepared to do the basic preparation required to properly present
     cases in the Commission, they should not practice in the jurisdiction.




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Ambulance Service of New South Wales v Anderson [2011] NSWWCCPD 3

Injury; s 4 of the 1987 Act; causation; s 60 of the 1987 Act; nexus between injury and need
for medical treatment

O’Grady DP

14 January 2011

Facts:

Ms Anderson sustained a low back injury on 22 August 2000 in the course of her
employment with the Ambulance Service as a paramedic. The occurrence of this injury was
not in dispute. After a one-month period of incapacity, she returned to work and continued
her duties until she commenced maternity leave in March 2007. She returned to duties on a
part-time basis on 10 October 2008 and ceased work on 17 October 2008 due to severe
psychological injury received in the course of her employment. Weekly compensation
benefits were paid on a voluntary basis by the insurer in respect of this claim.

On 7 April 2009, Ms Anderson experienced a sudden onset of cramps in her left foot whilst
seated at her home. During the following days she developed severe low back pain and left
sided sciatica” (at [3]). She alleged that following the injury on 22 August 2000 she had
persistent back pain and right sided sciatica. The claim form noted the original date of injury
as August 2000 and the date of “recurrence” as 5 May 2009.

The insurer disputed the claim. The issue in dispute was whether the pathology and need for
surgery to her lumbar spine was “causally related to the injury of 22 August 2000 and the
nature and conditions of [Mrs Anderson’s] employment with [the appellant] since August
2000”.

The Arbitrator found:

            “The injury in August 2000 and the nature and conditions of the applicant’s
            employment caused a long standing discal disease to the applicant’s spine at
            L4/5 and L5/S1 levels which was on the balance of probabilities aggravated in
            2009 resulting in an acute herniation at L5/S1”, and that

            “The injury in August 2009 is an injury pursuant to section 4 b) 1) [sic] of the
            Workers Compensation Act 1987 and the applicant’s work injury of 22 August
            2000 and her employment with the respondent is a substantial contributing factor
            to her injury.”

The Ambulance Service appealed on the basis that the findings were made against the
evidence and the weight of the evidence and were made on the basis of a credit finding in
favour of Ms Anderson. The appellant also submitted the following:

            (a)   there was no contemporaneous evidence that corroborated Ms Anderson’s
                  allegations and the findings were made notwithstanding the absence of
                  medical evidence to establish a causal nexus between the disc pathology,
                  the surgery required in May 2009 and the injury on 22 August 2000;

            (b)   there was no clinical or radiological evidence of a disc injury at L5/S1, and



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           (c)      that in accordance with the principles enunciated in Makita (Australia) Pty
                    Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705, certain expert
                    medical evidence could not be relied on due to deficiencies and
                    inconsistencies.

Held: Arbitrator’s decision revoked. Order made under s 60 of the 1987 Act.

1.   The failure by the solicitors acting for Ms Anderson to clarify the history in a report by
     her treating surgeon and to adduce evidence as to the operative findings gave rise to a
     similar problem as was highlight by Tobias JA in Brambles Industries Limited v Bell
     [2010] NSWCA 162 where it was stated (at [26]):

                 “The result is that the judicial officer hearing the case is unfairly handicapped
                 by having to do his or her best with medical evidence which is not always as
                 fulsome and clear as it might be if care had been taken by the legal
                 representatives of the parties to ensure that before the reports are tendered,
                 any gaps, ambiguities or cryptic comments in any report are filled or clarified.”

2.   “[W]hether the onus of proof has been discharged by a party bearing that burden is
     one to be determined on the facts of a given case … there is no general principle that
     a disputed fact cannot be established upon the basis of uncorroborated evidence of
     one witness” (at [79]) (see also Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at
     [48]). It was open to the Arbitrator to accept Ms Anderson’s evidence concerning the
     perpetuation of her symptoms subsequent to the 2000 injury. “The mere absence of
     corroboration does not … preclude acceptance of that evidence” (at [80]).

3.   A fact finder has an obligation to consider “the totality of the evidence to determine
     whether its effect has given rise to an actual persuasion of the existence of the fact in
     issue” (at [80]).

4.   “[T]he pathology requiring treatment in 2009 was causally related to both the
     occurrence of injury in 2000 and the performance by Ms Anderson of her arduous
     duties as a paramedic thereafter up to 2007 and later in 2008” (at [93]). The totality of
     the evidence made this clear.

5.   Deane, Gaudron and McHugh JJ stated in Malec v JC Hutton Pty Limited [1990] HCA
     20; 169 CLR 638 (at 642-643) (which was cited by Keating J in Department of
     Education and Training v Ireland [2008] NSWWCCPD 134):

           “A common law court determines on the balance of probabilities whether an
           event has occurred. If the probability of the event having occurred is greater
           than it not having occurred, the occurrence of the event is treated as certain; if
           the probability of it having occurred is less than it not having occurred, it is
           treated as not having occurred.”

6.   On balance, Ms Anderson’s employment was a substantial contributing factor to the
     occurrence of her injury in 2000 and to the start of the degenerative process at the
     lumbar spine. Her employment was a substantial contributing factor to the aggravation
     of the degenerative disease.

7.   The findings in the Certificate of Determination did not correctly address the issues for
     determination, in particular the dispute concerning s 60 of the 1987 Act. Accordingly,
     these were revoked and substituted with alternate findings and an order under s 60.



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Australian Traineeship System v Mabbett [2011] NSWWCCPD 1

Leave to appeal out of time; Pt 16.2 r 12 of the Workers Compensation Commission Rules
2010

Roche AP

4 January 2011

Facts:

On 9 July 2001, Mr Mabbett injured his back in the course of his employment with the
Australian Traineeship System. The employer’s insurer, GIO, made voluntary weekly
compensation benefits.

In 2003 in prior proceedings in the former Compensation Court of NSW, the employer
agreed to pay Mr Mabbett lump sum compensation under ss 66 and 67.

In 2009, Mr Mabbett decided to return to his country of birth, New Zealand. To ensure that
he received compensation on his return to New Zealand, his solicitors wrote to the insurer
seeking consent to orders under s 53 of the 1987 Act. The insurer’s solicitor wrote on
5 August 2009 and recommended that Mr Mabbett make an appropriate application under
s 53.

In 2010, Mr Mabbett filed an Application to Resolve a Dispute in the Commission seeking a
declaration under s 53 of the 1987 Act, that his incapacity was permanent.

The Arbitrator found in favour of Mr Mabbett.

The Commission issued a Certificate of Determination on 27 September 2010, forwarding
the Certificate and Reasons to the worker’s solicitor and the GIO. The respondent’s solicitor
did not receive the Certificate of Determination and Reasons until 6 October 2010.

The employer filed an appeal on 27 October 2010, outside the 28-day time limit in s 352(4),
seeking leave to appeal the Arbitrator’s determination on the following grounds:

         the Certificate of Determination was not published until 6 October 2010, therefore the
          appeal, while “technically out of time” from date of determination, was still within time
          of publication;

         being deprived the full 28 days caused by the delay in publication constituted an
          “exceptional circumstance” within Pt 16 rule 16.2(2) of the 2010 Rules, and

         to lose the right of appeal would offend the rules of natural justice and procedural
          fairness because the appellant suffered unfair discrimination in having the time for
          appeal reduced arbitrarily by nine days, through no fault of its own

Held: Leave to Appeal refused

Time

1.       The decision was published on 27 September 2010, not 6 October 2010, as asserted
         by the appellant.


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2.   The failure to forward the decision to the appellant’s solicitor did not constitute
     exceptional circumstances.

3.   The submission that the appeal was only “technically out of time” was unpersuasive. It
     is for the putative appellant to satisfy the Commission, in exceptional circumstances,
     that to lose the right to seek leave to appeal would work a demonstrable and
     substantial injustice. The appellant had not directed its submissions to the terms of the
     Rule.

4.   The appellant did not provide any proper explanation for the appeal being filed out of
     time.

5.   The appellant’s submission that the loss of the right of appeal would “offend against
     the rules of natural justice and procedural fairness” did not address the terms of the
     Rules.

6.   As the insurer had agreed to pay weekly compensation to Mr Mabbett on his return to
     New Zealand, the appellant would suffer no injustice if time to appeal was not
     extended.

7.   On a construction of the correspondence, the insurer had “in effect and substance”
     disputed liability for payments once Mr Mabbett returned to New Zealand and the
     Commission had jurisdiction to determine the dispute.




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