NSW WCC (NSW Workers Compensation Commission) Presidential Update ? July 2014

In July 2014, the NSW Workers Compensation Commission delivered a number of important Presidential decisions.  This bulletin is a summary of some key decisions.

30 June 2014

Sedrak v Rooty Hill RSL Club Ltd [2014] NSWWCCPD 40

Deputy President Roche

This case deals with a claim for weekly compensation in addition to payments being voluntarily made at the maximum statutory rate; whether the worker is entitled to two separate payments of weekly compensation for two injuries; Cordina Chicken Farms Pty Ltd v Thoa Hong Le [2008] NSWWCCPD 125 discussed and applied. It was held:

• It should not be assumed that a worker who received two injuries to two body parts will automatically be entitled to separate awards in respect of each injury.
• Whether a worker has suffered two separate and distinct incapacities is a question of fact which depends upon the circumstances of each case.     

4 July 2014

Boral Recycling Pty Ltd v Figueira [2014] NSWWCCPD 41

Deputy President Roche

This case deals with a finding of no current work capacity; weight of evidence; relevance of worker’s applications for full-time employment; assessment of medical evidence; s 32A of the Workers Compensation Act 1987; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; alleged failure to give reasons. It was held:

• The worker's applications for full-time employment did not establish she was of the view that she was fit for full-time work. Even if the worker thought she was fit for full-time work, it's not determinative of the issue of her capacity to work.
• The worker’s subjective view of his or her fitness for work will rarely be determinative, especially in a case involving a psychological injury, and an Arbitrator is not bound to accept the job applications as evidence of a capacity to work. The Arbitrator had to consider the whole of the evidence, including the medical evidence, and make an assessment of the worker's capacity based on that evidence.
• At best, the worker's applications for full-time work amounted to no more than an out of court admission or concession that was capable of being contradicted by other evidence. The Arbitrator is not bound to accept the admissions and is entitled to choose between the admission and other evidence and is not bound to accept the admission as correct, even if it is not contradicted by the evidence.
• The worker's fitness for suitable employment is assessed in light of all of the evidence.
• Where an expert has done more than one report, deficiencies in one report can be made good by other material such as another report or their clinical notes.
• The court must give reasons for its decision. The decision must be read as a whole and need not be lengthy or elaborate. The court does not have to give reasons why it accepted or rejected individual pieces of evidence.    

11 July 2014

South Western Sydney Area Health Service v Roodenrys [2014] NSWWCCPD 43

President Keating

This case deals with an application to strike out a pre-filing statement and section 151DA of the Workers Compensation Act 1987. It was held:

• The policy behind section 151DA(3) is to provide parties with sufficient time to finalise the pre-litigation phase of the proceedings, during which time does not run, and also to provide a degree of certainty by not extending time indefinitely while the pre-filing statement remains current.

• Matters which may be considered when exercising the discretion to strike out a pre-filing statement include the lack of any indication by the worker that they will pursue their claim and the substantial delay in taking any steps to progress the claim.

25 July 2014

Parallel Lines Design Construction Pty Ltd v Bevins [2014] NSWWCCPD 46

Deputy President O’Grady

This case deals with challenges to factual findings as to credibility of witnesses; procedural fairness. It was held:

• O’Grady DP declined to listen to sound recordings of the witnesses giving evidence in order to assess the witnesses’ credibility. It is not appropriate that the question of a witness’s demeanour be assessed in that manner on appeal when dealing with the issue of credit.
• An error of fact which does not affect the reasoning process or conclusions reached is not an appealable error.  

28 July 2014

Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47

Deputy President Roche

This case deals with a subarachnoid haemorrhage suffered at work after a “near miss” riding a motor scooter to work; whether worker received a personal injury on a journey to which s 10 of the Workers Compensation Act 1987 applies; meaning of “personal injury”; whether “shock” is a personal injury; whether elevated blood pressure is a personal injury; absence of evidence.  It was held:

• The Arbitrator found the worker sustained an injury while on a journey and referred the matter to an AMS to assess permanent impairment. The Arbitrator’s decision was interlocutory because the Commission had not made orders finally determining the parties’ rights. Leave to appeal was granted in order to have a proper and effective determination of the dispute.   
• The terms “shock and upset” have no real medical meaning and it was not open to the Arbitrator to find, in the absence of medical evidence, the worker had sustained a personal injury in the nature of “medical shock”.
• In order to establish a worker has suffered a personal injury, there needs to be “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.
• It has been held a personal injury has occurred when there is a sudden rupture of a blood vessel and consequent cerebral haemorrhage arising from a congenital weakness; a coronary occlusion caused by a piece of lining of an artery having loosened; the rupture of an aneurysm in the rupture of an oesophagus.
• Where the alleged condition suffered is “shock”, in order for the worker to have received a personal injury, it is necessary for the event or events complained of to have caused a physiological effect and not a mere emotional impulse. Whether a worker suffers a physiological effect depends upon the nature and severity of their symptoms.
• The shock suffered by the worker, while on a journey, caused by the near miss was not a personal injury.
• The worker had a history of high blood pressure before and after the “near miss”. The subarachnoid haemorrhage could satisfy the test of a personal injury. However, that occurred at work and not while the worker was on a journey.
• The evidence did not establish a causal connection between the “near miss” while on a journey and an increase in the worker’s blood pressure leading to the subarachnoid haemorrhage.

29 July 2014

Rodger W Harrison and Peter L Siepen t/as Harrison and Siepen v Craig [2014] NSWWCCPD 48

President Keating

This case deals with drawing of inferences on injury in the absence of expert medical evidence; judicial obligation to make findings of fact on proved evidence; circumstances in which the Commission’s members may rely on general knowledge acquired in their capacity as members of a specialist tribunal, interlocutory decisions. It was held:

• A finding of injury and referral to an AMS for assessment of permanent impairment is an interlocutory order as it does not finally dispose of the parties’ rights.
• Injury was in dispute. A successful appeal would finally determine the issue between the parties and would avoid the necessity of an assessment by an AMS and the unnecessary utilisation of the Commission’s resources. Leave to appeal was granted.
• The Commission is to make findings of fact on proved evidence, not being matters of common knowledge or judicial knowledge.
• Even if the judicial officer is experienced determining medical matters “that experience does not replace requirement to base findings on the evidence”.
• It is a denial of procedural fairness for a decision maker to make a finding of fact based on their own purported knowledge, or understanding of matters, that do not form part of the evidence.
• An Arbitrator can make findings of causation and/or injury by inference which is supported by appropriate lay and/or expert evidence. An Arbitrator cannot make a “finding that is inconsistent with the lay evidence and is unsupported by expert medical opinion”.

Author: Stephen Marsh