Brown v Maranatha Lodge Incorporated

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Brown v Maranatha Lodge Incorporated [2008] NSWWCCPD 113
APPELLANT:		Gail Maree Brown
RESPONDENT:		Maranatha Lodge Incorporated
INSURER:		Catholic Church Insurances Limited
FILE NUMBER:		WCC9590-07
DATE OF ARBITRATOR’S DECISION:		24 June 2008
DATE OF APPEAL DECISION:		13 October 2008
SUBJECT MATTER OF DECISION:		Reasons; failure to consider submissions as to consequences of injury
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Bussoletti Lawyers
Respondent:		Hicksons
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s determination of 24 June 2008 is confirmed.
Each party is to pay her or its own costs of the appeal.

BACKGROUND

1. Mrs Brown started work for Maranatha Lodge Incorporated (‘Maranatha’) in 1992.  On 28 February 2005, she walked from the kitchen to the staff area via a stairway.  As she reached a landing, she turned to walk down the second flight of stairs and felt a sharp pain behind her right knee.  She reported the incident to the employer’s registered nurse, ceased work and has not returned.

1. Mrs Brown subsequently developed deep vein thrombosis (‘DVT’) and pulmonary emboli involving the left and right pulmonary arteries.  Whilst she recovered from the DVT and pulmonary emboli, she has continued to experience significant symptoms in her right knee.  The cause of her right knee symptoms became the main area of dispute in the proceedings before the Arbitrator and on appeal.

1. Her claim was provisionally accepted by Maranatha’s workers compensation insurer, Catholic Church Insurances Limited, but ultimately denied by letter dated 20 April 2006, with weekly compensation ceasing on 1 June 2006.  The notice denying the claim is in a most unsatisfactory form.  It purported to deny the claim on the following grounds:

“Following investigations of your claim we wish to advise that liability has been disputed, pursuant to section 9A, 33 and 60.

In our opinion work is not a substantial contributing factor.” (emphasis included)

1. The two sentences quoted above are completely meaningless and demonstrate a fundamental lack of understanding of the legislation. As has been explained in many decisions, both in the Commission and in the former Compensation Court of NSW, section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’) only requires that a worker’s employment be a substantial contributing factor to his or her injury. Employment does not have to be a substantial contributing factor to the claimed incapacity, impairment or medical expenses (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 52; Matar and anor v Zeineddine [2008] NSWWCCPD 51). Whether the claimed incapacity is compensable depends on whether the condition causing the incapacity has resulted from the work injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452).

1. Nevertheless, the notice also quoted part of a report from Dr Hitchen, dated 24 March 2006, on which the insurer relied to support…