Central Coast Coolrooms Pty Ltd v Tate - [2017] NSWWCCPD 30

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Central Coast Coolrooms Pty Ltd v Tate [2017] NSWWCCPD 30
APPELLANT:	Central Coast Coolrooms Pty Ltd
RESPONDENT:	Colin Tate
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6511/16
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	17 March 2017
DATE OF APPEAL DECISION:	17 July 2017
SUBJECT MATTER OF DECISION:	Workers Compensation Act 1987; s 4(b)(ii)
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Peninsula Law Solicitors
ORDERS MADE ON APPEAL:	1. The decision of the Arbitrator is confirmed.

INTRODUCTION

On 17 March 2017 an Arbitrator of the Workers Compensation Commission issued a Certificate of Determination pursuant to s 294 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) as follows:
“1.     The applicant suffered an injury to his cervical spine on deemed date of 11 July 2016.
2.     I find the proposed surgery by Dr Coughlan to be reasonable and necessary.
3.     The PIAWE is agreed at $1,347.40.
4.     The respondent will pay the applicant the sum of $1,280.04 from 11 July 2016 to 10 October 2016 pursuant to s 36.
5.     The respondent will pay the applicant the sum of $1,077.92 per week from 11 October 2016 to date and continuing pursuant to s 37.
6.     The respondent will pay the costs of the surgery as proposed by Dr Coughlan in his report of 22 August 2016 together with incidental expenses.
7. The respondent will pay the applicant’s s 60 expenses otherwise incurred.”
I note that the test as formulated in [2] of the Certificate of Determination is incorrect but no ground of appeal turns on that incorrect formulation.
The Appeal is from that determination. Five grounds of Appeal (for convenience identified by the headings in the submissions made by the appellant), are relied upon namely:
Ground 1 – Absence of Evidence for s 4(b)(ii) Finding.
Ground 2 – Absence of Evidence for s 60 Finding.
Ground 3 – Error of Fact Regarding Lay Evidence.
Ground 4 – Denial of Procedural Fairness.
Ground 5 – Failure to Engage with the Evidence.
In my view, the appeal should be dismissed and the Arbitrator’s decision encompassed in the Certificate of Determination dated 17 March 2017 should be confirmed. My reasons follow.

NATURE OF THE APPEAL

The appeal is pursuant to s 352 of the 1998 Act. The jurisdiction is:
“352(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”

THRESHOLD MATTERS

The respondent concedes that the appeal has been brought in time (Notice of Opposition to Appeal Against Decision of Arbitrator, page 5, 2.1).
The respondent concedes that there is no threshold issue either as to quantum or the percentage amount awarded by…

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: [2017] NSWWCCPD 30
Decision Date: 17 July 2017

CaseChat Overview and Summary

Central Coast Coolrooms Pty Ltd v Tate is an appeal by the appellant, Central Coast Coolrooms Pty Ltd, against the decision of an Arbitrator who found that the respondent, Colin Tate, had suffered a compensable injury under the Workers Compensation Act 1987. The Arbitrator awarded Mr Tate weekly compensation, medical expenses, and treatment costs, and ordered the appellant to pay the costs. The appeal focuses on five grounds: the absence of evidence for the finding of injury under s 4(b)(ii), the absence of evidence for the s 60 finding, error of fact regarding lay evidence, denial of procedural fairness, and failure to engage with the evidence. The appeal was dismissed, and the Arbitrator's decision was confirmed.

The Arbitrator concluded that Mr Tate's condition worsened after a fall on 2 November 2015 and that his continued employment in heavy work after that date aggravated his pre-existing condition of central canal stenosis in the neck. The Arbitrator accepted Mr Tate's narrative evidence and the medical evidence provided by Drs Coughlan, Higgs, and Jaafar, which supported the conclusion that the aggravation of Mr Tate's condition was due to his employment activities after the fall. The Arbitrator rejected the evidence of Dr Breit, who concluded that the fall did not cause the injury, based on an incorrect history and failure to consider the nature of the fall and the heavy work performed by Mr Tate. The Arbitrator's conclusion that the appellant's employment activities aggravated Mr Tate's pre-existing condition was supported by the evidence, and the appeal against this finding was dismissed.

The court also rejected the appellant's argument that there was no medical evidence to support the finding that surgery was necessary as a result of the aggravation caused by events after 2 November 2015. The Arbitrator accepted the medical evidence that surgical intervention became reasonably necessary due to the worsening of Mr Tate's condition after the fall. The appeal against the s 60 finding was also dismissed.

The court found that the appellant was not denied procedural fairness as it had an opportunity to address the allegation under s 4(b)(ii) at the hearing before the Arbitrator. The appellant did not submit that it would have advanced any different material to the Arbitrator, rather it argued that it could have led to a different result had it been given the opportunity to make certain submissions. However, the court held that the appellant plainly had such an opportunity but did not address s 4(b)(ii) or, if it did, it did only in a passing reference. There is no submission that additional material would have been advanced as distinct from making a submission.

The court also rejected the appellant's argument that the Arbitrator failed to engage with the evidence of Drs Coughlan and Higgs. The Arbitrator adequately dealt with the evidence and rejected the opinion of Dr Breit on sufficient grounds. The Arbitrator was entitled to reject Dr Breit's opinion based on the incorrect history, failure to consider the nature of the fall and heavy work performed by Mr Tate, and the lack of discussion on the nature of the fall in Dr Breit's report. The Arbitrator's reasons for rejecting Dr Breit's opinion were sufficient and adequate.

In conclusion, the appeal was dismissed, and the Arbitrator's decision was confirmed. The court found that the Arbitrator's decision did not show error of fact, law, or discretion and that the decision was based on the evidence and applicable legal principles.

Orders