Agserv Pty Ltd v Featon

[2005] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Agserv Pty Ltd v Featon [2005] NSW WCC PD 26

APPELLANT:  Agserv Pty Ltd

RESPONDENT:  Evelyn Marge Featon

INSURER GIO Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC19564-03

DATE OF ARBITRATOR’S DECISION:          24 March 2004

DATE OF APPEAL DECISION:  18 April 2005

SUBJECT MATTER OF DECISION: Death Benefit Claim; section 9A of the Workers Compensation Act 1987 (‘substantial contributing factor’); adequate reasons.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President.

HEARING:14 April 2005.

REPRESENTATION:  Appellant:    Moray & Agnew Solicitors

Respondent: Higgins & Higgins Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator is confirmed.

The Appellant is to pay the costs of the appeal, as agreed or assessed.

THE APPEAL

1. Leslie John Featon worked for Agserv Pty Ltd as a weed controller from 1996 until his death on 3 May 1999.  This work involved loading toxic chemicals onto a truck, driving from site to site and spraying/treating the designated areas.  On the day he died he had risen at about 4 am and left his home to drive to work.  At about 6 am he phoned his wife to report that he felt unwell.  She drove to meet him and found him walking around his truck and reporting to a co-worker on the phone that he felt unwell.  An ambulance was called.  Within minutes he had a fatal heart attack and was pronounced dead upon arrival at Bankstown Hospital. 

1. Evelyn Marge Featon is Mr Featon’s widow.  Following her husband’s death she made a claim upon Agserv Pty Ltd for a lump sum ‘death benefit’ under section 25 and section 26 of the Workers Compensation Act 1987 (‘the 1987 Act’). GIO Australia Workers Compensation (NSW) Limited, the employer’s workers compensation insurer, declined the claim on the employer’s behalf. GIO argues that Mr Featon’s employment was not a ‘substantial contributing factor’ to his injury and death and therefore the employer is not liable for workers compensation benefits.

1. The dispute was determined by a Commission Arbitrator who gave a decision in favour of Ms Featon at the conclusion of the conciliation and arbitration on 18 March 2004.  The decision was issued in the form of a Certificate of Determination, on 24 March 2004.  The Arbitrator awarded Ms Featon the sum of $196,440.  The reasons for decision were recorded and transcribed and form part of the documents before me on the appeal.

1. Agserv now seek to have the Arbitrator’s decision revoked on the grounds that: the Arbitrator failed to properly consider evidence of the factors that are relevant to whether Mr Featon’s work was a ‘substantial contributing factor’ to his injury, as required by section 9A of the 1987 Act; and, the Arbitrator failed to give adequate reasons for her decision.

1. Ms Featon submits that the Arbitrator’s decision was correct and should be confirmed.

1. Leave to appeal is granted.

Did the Arbitrator err in finding that Mr Featon’s employment was a ‘substantial contributing factor’ to his injury?

1. Agserv argues that there was no, or insufficient, evidence before the Arbitrator to support her conclusion that Mr Featon’s employment was a ‘substantial contributing factor’ to his injury and death.  Agserv submits that:

   “. . .after having identified pre-existing heart disease and the likelihood of a heart attack occurring in any event as substantial contributing factors, the arbitrator made an error in not considering the deceased worker’s decision to return to work as a separate factor from employment ‘per se’, i.e. the nature of the work performed and the particular tasks of that work ( s.9A(2)(b)), the time and place of the injury (s.9A(2)(a)), etc. Section 9A(2) clearly identifies these matters as separate issues to be considered in examining whether one particular factor is a substantial contributing factor.”

1. This ground of appeal is not made out.  It is clear law that employment need not be the only contributing factor to an injury (Mercer v ANZ Banking Group [2000] NSWCA 138). The Arbitrator accepted that Mr Featon had returned to work too early after his heart attack and that he would have been wiser to follow standard medical advice as to a slower rehabilitation. However she also accepted that the nature of his work was “heavy work”. There was ample evidence of this from his daughter Tracey’s evidence (who had accompanied him to work on a number of occasions) and from the description of the work itself. Mr Featon’s diary entries attest to the fact that the work was also constant and involved relatively long hours both on the road driving from site to site and using the chemical sprays. The Arbitrator expressly stated that there were “several substantial contributing factors”.

1. The Arbitrator refers to the fact that Mr Featon did not return to work on “light duties” or on a graded rehabilitation program.  This is a finding of fact that was open on the evidence that was before her.  She accepted the evidence of Dr Collins, that Mr Featon’s return to the nature of his work was a ‘substantial contributing factor’ to his injury and death.

1. The argument that the Arbitrator erred by finding that Mr Featon’s employment was a ‘substantial contributing factor’ to his injury “merely because” it arose ‘out of and in the course of his employment’ and resulted in his death, is not sustained.  The Arbitrator identified a number of relevant contributions to his injury.  Ultimately she was satisfied that it was not probable that Mr Featon’s injury would have happened at the time that it did, if he had not been at work.  This finding took into account the specific nature and conditions of Mr Featon’s work.

Did the Arbitrator give adequate reasons?

1. The Arbitrator’s reasons are found at pages 49-56 of the transcript of the proceedings (produced by ComputerReporters).  She begins by briefly setting out the facts upon which the decision is based; as follows:

   ·Mrs Featon was dependent or partially dependent upon Mr Featon at the time of his death.

   ·Mr Featon had worked for Agserv since 13 May 1996.

   ·He suffered a previous heart attack on 15 March 1991.

   ·On 20 April 1999 while driving to work he suffered pain in his chest and had a myocardial infarction.  In the evening of the same day he was admitted to St George Hospital and suffered two myocardial infarctions. 

   ·While he was in hospital Mr Featon spoke to a social worker and expressed concern about the need to return to work because of fear that he may lose his job, his financial commitments and the health of his wife and daughter.  The social worker expressed concern about him returning to work before he had sufficiently recovered.

   ·Mr Featon remained in hospital until 24 April 1999, when he was discharged. 

   ·He returned to work on Tuesday 27 April and worked on normal duties until Friday 30 April 1999.  He had the weekend off.

   ·On Monday 3 May 1999 he left for work at the usual time, however he died at about 6.30 am that day, shortly after phoning his wife because he felt ill.

1. The Arbitrator accepted the reports of Dr Collins, who, in his later report, stressed that Mr Featon’s premature return to work, after having a myocardial infarction, was a substantial contributing factor to his injury and death. 

1. The Coroner’s report states that Mr Featon died of “ischaemic heart disease”.

1. Dr Hickie, for the Employer, considered that Mr Featon’s heart disease in 1991 amounted to a ‘whole person impairment’ of between ten and twenty-nine percent.  In considering Dr Hickie’s report, the Arbitrator also considered the evidence that Mr Featon had no other reported incidents of heart disease between 1991 and 1999 and had been working for Agserv since 1996.  She found that his work was heavy and involved long hours, and travel.  She rejected the suggestion of a causal connection between Mr Featon being stressed and his heart disease.

1. The Arbitrator found that Mr Featon’s early return to work, following his admission to hospital on 20 April 1999, was a substantial contributing factor to his injury and death.

1. Commission Arbitrators have a common law and statutory obligation to provide adequate reasons for their decisions (section 294(2) of the 1998 Act; Rule 73 of the Workers Compensation Commission Rules 2003; Absolon v NSW TAFE [1999] NSWCA 311; Fox v Percy (2003) 214 CLR 118). Failure to do so constitutes an error of law and may be a ground to set aside the Arbitrator’s decision. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court, and its proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. Lengthy written reasons will not generally be necessary to convey simply, clearly and concisely, the reasons why a decision has been made.

1. To succeed on the ground of ‘inadequate reasons’, Agserv must demonstrate not only that the reasons are inadequate, but that their inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247 (26 July 2002); Absolon v NSW TAFE [1999] NSWCA 311).

1. In this matter the Arbitrator gave her reasons orally, on the record.  This provided the parties with a timely resolution of their dispute.  Those reasons are sufficient to allow the parties to identify, on appeal, her findings of fact and application of the relevant law (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). It is not necessary for the Arbitrator to set out every fact in evidence (Williams v Boambee Bay Time Share Resort Pty Limited & Anor [2004] NSWCA 59). She has set out her review of the relevant evidence, including the medical evidence, she has identified the correct issue (the relevance of Mr Featon’s return to work) and the correct law (section 9A of the 1987 Act) and has given reasons for her conclusions on the application of the law to the facts.

1. This ground of appeal is not made out.  The Arbitrator has given adequate reasons.

Decision

1. The decision of the Arbitrator is confirmed.

Costs

1. The Appellant is to pay the costs of the appeal, as agreed or assessed.

Dr Gabriel Fleming

Deputy President  

18 April 2005.

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE