Andersen v J & M Predl Pty Limited

[2018] NSWWCCPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40
APPELLANT:	Shane Lee Andersen
RESPONDENT:	J & M Predl Pty Limited
INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:	A1-845/18
ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	29 May 2018
DATE OF APPEAL DECISION:	20 September 2018
SUBJECT MATTER OF DECISION:	Causation; application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796; procedural fairness; adequacy of reasons; test of causation; disturbing findings of fact on appeal
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Carroll & O’Dea Lawyers
Respondent:	McCabe Curwood
ORDERS MADE ON APPEAL:	1.   The Certificate of Determination dated 29 May 2018 is confirmed.

INTRODUCTION

1. This appeal concerns a claim that the worker sustained injuries in a fall as a result of an accepted pre-existing injury to the left shoulder and a consequential condition in the right shoulder. In particular, the issues on appeal concern whether the Arbitrator took into account irrelevant considerations and denied the appellant procedural fairness, because the Arbitrator failed to determine the matter on the basis of whether an inference could be drawn that the worker would not have sustained the injuries had he braced for the fall. It also concerns whether the Arbitrator provided adequate reasons for rejecting the worker’s argument as to causation and whether the Arbitrator applied the correct test of causation.

BACKGROUND

1. The appellant, Mr Andersen, was employed by the respondent, J & M Predl Pty Limited, as a tyre fitter and a wheel aligner. On 13 July 2010, Mr Andersen sustained an accepted injury to his left shoulder when a car on which he was working rolled causing a dislocation injury to his left shoulder.

2. Thereafter Mr Andersen suffered a series of dislocations of his left shoulder. This resulted in surgery to the left shoulder on 11 August 2016.

3. Mr Andersen alleged that following the surgery he became solely reliant on the use of his right shoulder and began to experience right shoulder dislocations with increasing frequency and severity. On 16 February 2017, Mr Andersen submitted to surgery on the right shoulder.

4. On 2 July 2017, when alighting from a car, Mr Andersen fell and suffered a fractured right clavicle and other associated injuries. There is some confusion about the date the injuries were sustained, namely 2 or 3 July 2017. As nothing turns on the precise date and as the majority of the evidence refers to the injuries being sustained on 2 July 2017, for the purpose of this decision, that is the date I will refer to throughout this decision.

5. Mr Andersen alleges that the condition of his right shoulder and the injuries sustained in the fall on 2 July 2017 are consequential conditions on the accepted left shoulder injury sustained on 13 July 2010.

6. The respondent’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Limited, issued a series of…