BHP Billiton Ltd v Bourke

[2009] NSWWCCPD 117

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reported Decision: BHP Billiton Ltd v Bourke (2009) 7 DDCR 535
CITATION:			BHP Billiton Limited & Anor v Bourke & Ors [2009] NSWWCCPD 117
FIRST APPELLANT:			BHP Billiton Limited
SECOND APPELLANT:			BlueScope Steel Limited
FIRST RESPONDENT:			Jeffrey Thomas Bourke
SECOND RESPONDENT:			Toll Pty Ltd
INSURERS:			Self insured
FILE NUMBERS:			A1-10403/08
A2-10403/08
ARBITRATOR:	Mr M Oldfield
DATE OF ARBITRATOR’S DECISION:			4 June 2009
DATE OF APPEAL DECISION:			22 September 2009
SUBJECT MATTER OF DECISION:			Adequacy of reasons; causation; apportionment under sections 22 and 22A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:			Acting Deputy President Michael Snell
HEARING:			On the papers
REPRESENTATION:			First Appellant:	Sparke Helmore
Second Appellant:	Sparke Helmore
First Respondent:	Whitelaw McDonald
Second Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:			1.   The decision of the Arbitrator dated 4 June 2009 is amended as follows:
(i) Delete paragraph [1] in its current form, and substitute the following:
“1. That the Second and Third Respondents pay the Applicant weekly payments of compensation of $422.20 per week pursuant to section 40 of the Workers Compensation Act 1987 from 1 July 2005 to date and continuing in accordance with the maximum statutory rate for a worker with a dependant spouse. The said weekly payments are to be contributed one third by the Second Respondent and two thirds by the Third Respondent.”
(ii) Delete the sentence “The First Respondent is liable for expenses only in relation to the Applicant’s left great toe.” from paragraph [2].
(iii) In paragraph [4] insert the words “Second and Third” immediately before the word “Respondents”.
(iv) Add the following paragraph: “Award in favour of the First Respondent.”
2. The balance of the decision is confirmed.

BACKGROUND TO THE APPEAL

1. Jeffrey Thomas Bourke (‘Mr Bourke’) is 60 years of age, left handed, and has a dependant wife. He worked as a stevedore from about 1968, and was employed at Port Kembla from 1979. The work, according to the medical histories, was heavy. The identity of his employer changed from time to time, although there is no indication this was accompanied by a change in the nature of his work. This has resulted in the multiplicity of parties in the current proceedings. He ceased working in July 2005.

1. The first of the employers in time, at least for the purposes of these proceedings, was BHP Billiton Limited (‘BHP’). This company employed Mr Bourke at the time of injuries to the right foot alleged to have occurred on 7 October 1984 and 28 June 1986. An injury book setting out Mr Bourke’s reported injuries from 15 July 1981 to 26 February 2001 is attached to BlueScope’s Reply. It confirms injuries to the right foot and/or lower leg on the two days alleged, together with an earlier incident involving the right foot on 15 July 1981. The precise nature of these injuries was the subject of controversy. An x-ray of the right foot on 12 January…