Cathay Pacific Airways Pty Ltd v Ralph

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Cathay Pacific Airways Pty Ltd v Ralph [2019] NSWWCCPD 21
APPELLANT:	Cathay Pacific Airways Pty Ltd
RESPONDENT:	Peter Henry Ralph
INSURER:	GIO NSW Workers Compensation
FILE NUMBER:	A1-3874/18
ARBITRATOR:	Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:	27 November 2018
DATE OF APPEAL DECISION:	24 May 2019
SUBJECT MATTER OF DECISION:	Proof of injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Baker & Borthwick
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 27 November 2018 is revoked, and in substitution an award is entered in favour of the respondent employer.

BACKGROUND

1. Peter Henry Ralph (the worker) was employed by Cathay Pacific Airways Ltd (the employer) as a commercial pilot. When he last flew for the employer, in 2011, he was a Senior Captain.

2. The worker was assaulted by a passenger on 23 January 1998, on a flight from Hong Kong to London. He suffered a contusion to the kidney, together with neck and back pain. On his return to Hong Kong, the worker was admitted to hospital, and then returned to Australia, where he resided. He was off work until 1 May 1998, when he resumed flying duties. This incident was not relied on in the current proceedings. The explanation may well lie in correspondence from solicitors then acting for the employer, dated 8 September 2015.[1] It was there stated that the worker’s contract of employment at the time of the 1998 injury was not with the employer, but “with a separate entity of the same name which was registered in Hong Kong”. It was stated that the worker’s employment with the employer did not commence until 17 January 2011.

   [1] Application to Resolve a Dispute (ARD), pp 149–150.

3. The worker had difficulties with his lower back. He eventually came under the care of Dr Kahler, a neurosurgeon in Brisbane, who performed surgery on 24 July 2006, decompressing the right S1 nerve root. The doctor carried out revisionary surgery on 28 July 2006, to repair a dural tear. The worker resumed flying on 8 December 2006.

4. The worker suffered worsening back symptoms in 2011. On 15 September 2011 Dr Redmond, a neurosurgeon in Brisbane, performed a laminectomy at L5/S1 to excise protrusion at L5/S1, and then re-operation to deal with “fragments of discs still protruding”, on 30 September 2011. The worker developed a locked knee whilst undergoing rehabilitation in hospital, which required arthroscopic meniscectomy.[2] The worker suffered from a staph infection at the site of the lumbar surgery. There was necrosis of the residual L5/S1 disc and localised bone destruction.[3] The worker came under the care of Dr Askin, an orthopaedic surgeon in Brisbane, on 23 November 2011. He performed debridement of the L5/S1 disc and an instrumented fusion.[4]

   [2] Dr Askin’s report dated 28 November 2011, ARD, p 603.

   [3] Dr Cock’s report dated 5…