Bartter Enterprises Pty Ltd v Haworth - [2006] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Bartter Enterprises Pty Ltd v Haworth [2006] NSWWCCPD 62
APPELLANT:  Bartter Enterprises Pty Ltd
RESPONDENT:  Alwyn Haworth
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC5008-05
DATE OF ARBITRATOR’S DECISION:          5 August 2005
DATE OF APPEAL DECISION:  19 April 2006
SUBJECT MATTER OF DECISION: Injury; aggravation of disease; Section 16 Workers Compensation Act 1987
PRESIDENTIAL MEMBER:  Acting Deputy President William Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore
Respondent:   Stacks Goudkamp

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 5 August 2005 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 September 2005 Bartter Enterprises Pty Ltd (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 5 August 2005.

The Respondent to the Appeal is Alwyn Haworth (‘the Worker’).

The Worker is currently 55 years old having been born on 23 October 1950. He started work for the Appellant as an engineer’s labourer in March 1993. In February 1994 he was transferred to the transport division and became a full time delivery driver in September 2001.

Shortly before Christmas 2001 he began to feel pain in both his legs. Because of his continuing leg pain he saw his local general practitioner in January 2002. No reports or notes from this doctor were before the Arbitrator but no point is taken about there absence.

As a result of his leg symptoms the Worker was referred for specialist treatment. Before that treatment was concluded the Worker lacerated his right shin at work on 22 March 2002 when he slipped on the floor of his truck and struck the corner of a pallet. This incident set in train a series of events that resulted in the Worker having a partial amputation of his right foot on 25 October 2002.

The Worker's claim for compensation was initially accepted but ultimately declined on the basis of medical evidence from Professor Mitchell in his report of 16 December 2004. The Worker’s subsequent claim for compensation came on for hearing before an Arbitrator on 11 July 2005. A Statement of Reasons for Decision (‘Reasons’) being prepared in August 2005.

THE DECISION UNDER REVIEW

The Arbitrator found that the Worker suffered an injury under section 4(b)(ii) of the Workers Compensation Act 1987 (‘the 1987 Act’) and that employment was a substantial contributing factor to that injury. The basis of the finding was that the Arbitrator was satisfied that the “chain of causation in respect of the partial amputation of the Applicant’s right foot begin with the work injury of 22 March 2002” (Reasons paragraph 24).

The Arbitrator made an award in favour of the Worker under section 37 of the 1987 Act from 28 December 2002 to date and continuing. He also referred the matter to an Approved Medical Specialist for assessment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWWCCPD 62
Decision Date: 19 April 2006

CaseChat Overview and Summary

Bartter Enterprises Pty Ltd sought to appeal a decision by an Arbitrator in the Workers Compensation Commission, which awarded compensation to Alwyn Haworth for a work-related injury that resulted in a partial amputation of his right foot. The Appellant argued that the Arbitrator erred in finding that employment was a substantial contributing factor to the injury and in failing to properly apply section 9A of the Workers Compensation Act 1987. The Arbitrator had found that the chain of causation began with the work injury, and that the worker's pre-existing vascular disease was exacerbated by the work incident. The Arbitrator's decision was based on the evidence of Dr Gamble, the treating vascular surgeon, who was unequivocal in attributing the amputation to the exacerbation of the worker's vascular disease caused by the work injury. The Arbitrator rejected the evidence of Professor Mitchell, who was of the opinion that the worker's condition was due to the natural progression of his vascular disease.

The Court found that the Arbitrator's decision was not affected by any error of law, fact or discretion. The Court found that the Arbitrator properly applied section 9A of the Workers Compensation Act 1987, which requires that employment must be a substantial contributing factor to the aggravation or exacerbation of the disease, rather than the pathology of the underlying disease itself. The Court found that Dr Gamble's evidence adequately dealt with the section 9A issues raised by the Appellant. The Court also found that the Arbitrator's acceptance of Dr Gamble's opinion on causation also dealt with the section 9A issue as they were in essence the same point. The Court found that the Arbitrator was correct in accepting the evidence of Dr Gamble in preference to Professor Mitchell. The Court also found that the worker's initial investigations showed artery occlusions in both legs but the worker has only experienced disabling symptoms in the injured right leg, which made the conclusions of Dr Gamble even more compelling.

The decision of the Arbitrator dated 5 August 2005 was confirmed, and the Appellant Employer was ordered to pay the Respondent Worker's costs of this appeal.

Orders