Brambles Industries Limited v Bell and Anor

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS:  Confirmed on Appeal: See Brambles Industries Limited v Bell [2010] NSWCA 162
CITATION:		Brambles Industries Limited v Bell and Anor [2009] NSWWCCPD 115
APPELLANT:		Brambles Industries Limited
FIRST RESPONDENT:		Timothy Bell
SECOND RESPONDENTS:		Justine Peta Morrison and Paul Morrison t/as Morrison Recruitment
APPELLANT’S INSURER:		Self Insurer
SECOND RESPONDENTS’ INSURER		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-6907/08
ARBITRATOR:	Mr M Oldfield
DATE OF ARBITRATOR’S DECISION:		2 June 2009
DATE OF APPEAL DECISION:		17 September 2009
SUBJECT MATTER OF DECISION:		Section 4 of the Workers Compensation Act 1987; causation of injury
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
REPRESENTATION:		Appellant:		HWL Ebsworth
First Respondent:		Devine Ens Lawyers
Second Respondents:		Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:		1.   The decision of the Arbitrator dated 2 June 2009 is confirmed.
2.   In addition the following order is made:
“5. Award for the second respondents.”
3.   The appellant is to pay the worker’s and second respondents’ costs of the appeal.

BACKGROUND TO THE APPEAL

1. Brambles Industries Ltd (‘the appellant’) employed Timothy Bell (‘the worker’) in June 2000 as a truck driver.  On 20 January 2003 in the course of that employment the worker suffered injury to his back. He reported the injury and sought treatment from his general practitioner.  It appears that he lost no time from work however for some time, probably a matter of weeks, he performed suitable duties in the appellant’s office.  The worker returned to his pre-injury duties and remained in that employ until approximately March 2007.  The evidence establishes that the worker suffered recurrence of his back disability on at least three occasions during the currency of that employment requiring medical treatment and presentation of claims.

1. The worker commenced employment with the second respondents in approximately May 2007.  He was engaged as a truck driver operating a side loading garbage truck.  Other than the driving duties there were no physical requirements of that job.  On 12 June 2007 the worker was involved in a motor vehicle accident whilst in the course of that employment when the garbage truck he was driving overturned as he was negotiating a roundabout.  The worker suffered numerous injuries in that accident and was conveyed by ambulance to hospital.  A claim for compensation benefits lodged with the second respondents was accepted.  He did not resume his employment with the second respondents but commenced work on 31 July 2007 with an employment agency described as Integrated Group (“Integrated”).  The worker’s duties with Integrated involved the driving of prime movers and making deliveries to major shopping centres. 

1. On 21 September 2007 the worker awoke at his home suffering from a recurrence of painful symptoms in his lower back.  Those symptoms prevented him from resuming his work and he sought medical treatment.  A claim in respect of workers compensation benefits was made against the appellant which claim was declined. He has not resumed employment.

1. The dispute between the worker and the appellant…