BlueScope Steel Limited v Dafkovski - [2006] NSWWCCPD 306

WORKERS COMPENSATION COMMISSION

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

CITATION:BlueScope Steel Limited v Dafkovski [2006] NSWWCCPD 306
APPELLANT:  BlueScope Steel Limited
RESPONDENT:  Peter Dafkovski
INSURER:Self insurer
FILE NUMBER:  WCC17041-05
DATE OF ARBITRATOR’S DECISION:          17 February 2006
DATE OF APPEAL DECISION:  14 November 2006
SUBJECT MATTER OF DECISION:                “Injury”; “substantial contributing factor”; onus of proof; incapacity.
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore Lawyers
Respondent:   Carroll & O’Dea Lawyers

ORDERS MADE ON APPEAL: (1) The decision of the Arbitrator dated 17 February 2006 is confirmed.
(2)The appellant employer to pay the costs of the respondent worker.

BACKGROUND TO THE APPEAL

Peter Dafkovski (‘the worker’) was employed by BHP Steel Port Kembla to work at No 5 Blast Furnace in June 1995. He transferred to work as a shunter in 1997. BHP Steel at some stage became BlueScope Steel Limited (‘the employer’).
In April 2004 the worker commenced training as a train driver and several months later commenced that work. In about February 2005 the worker started to wake up at night with numbness and tingling during use of the left hand and forearm. On 6 April 2005 he awoke and found that his left hand was swollen and could not squeeze his fingers together. The worker attended work that day because he said he feared dismissal if he took time off. The worker spoke to his supervisor, Mr Abe Robertson, and told him that he did not think he would be able to work. The worker was then taken to the employer’s medical centre where he was seen by a nurse, Ms Rhona Stephens, who expressed the view that the worker was suffering from carpal tunnel. The worker was then told to see the manager, Samantha Knight.
The worker saw his general practitioner, Dr Theresa Ong, the same day and told her that he had a similar episode at the end of the preceding year. Dr Ong referred the worker for nerve conduction studies which were performed on 12 April 2005 and showed moderate to severe left and minor right carpal tunnel syndrome. Dr Ong continued to see the worker and first gave him a WorkCover Medical Certificate on 18 May 2005. On that certificate the doctor has recorded under the heading “How the injury occurred”:
“Repetitive wrist movements – symptoms recurred – commenced 6-8 months previously.”
The date of injury is given as 6 April 2005. Dr Ong certified him unfit for work from 24 April 2005 to 30 May 2005 and then from 30 May 2005 to 8 June 2005.
The worker had seen another general practitioner, Dr J. Martel, on 28 April 2005 and was certified unfit by that doctor up until 1 November 2005 in a number of medical certificates.
On 13 April 2005 Dr Ong referred the worker to Dr Mark Nabarro, a hand and microsurgeon. Dr Nabarro saw him on 11 May 2005 and recommended that a left open…

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 306
Decision Date: 14 November 2006

CaseChat Overview and Summary

BlueScope Steel Limited appealed a decision of the Workers Compensation Commission finding that Peter Dafkovski suffered an injury arising out of and in the course of his employment as a train driver, that the employment was a substantial contributing factor to the injury and that the worker was totally incapacitated. The employer argued that the worker had not suffered an injury, that employment was not a substantial contributing factor to the injury, that the Arbitrator had erred in rejecting the evidence of the investigator, that the onus of proof was on the employer and that the Arbitrator had erred in finding that the worker was entitled to be compensated as totally incapacitated. The Arbitrator had found that the worker had suffered an injury caused by the repetitive wrist movements required by his employment, that the employment was a substantial contributing factor to the injury and that the worker was totally incapacitated. The Arbitrator ordered the employer to pay weekly compensation to the worker. The appeal was dismissed and the Arbitrator's decision was confirmed. The employer was ordered to pay the worker's costs of the appeal.

Orders