Charles Sturt University v Manning

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Charles Sturt University v Manning [2016] NSWWCCPD 10
APPELLANT:	Charles Sturt University
RESPONDENT:	William Manning
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-1305/15
ARBITRATOR:	Mr G Brown
DATE OF ARBITRATOR’S DECISION:	19 October 2015
DATE OF APPEAL DECISION:	8 February 2016
SUBJECT MATTER OF DECISION:	Failure to engage with conflicting medical evidence; failure to properly analyse issue in dispute; whether process of fact-finding miscarried
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Lee Legal Group
Respondent:	Masselos & Co Lawyers
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 19 October 2015 is revoked and the matter remitted to a different Arbitrator for re-determination.

INTRODUCTION

1. This appeal involves a challenge to an Arbitrator’s determination that the worker’s need for proposed knee replacement surgery is reasonably necessary as a result of an accepted work injury. The main complaints on appeal are that the Arbitrator misunderstood the employer’s medical evidence and failed to give adequate reasons for his decision. For the reasons explained below, the appeal is successful, the Arbitrator’s determination is revoked and the matter remitted to another Arbitrator for re-determination.

BACKGROUND

1. Regrettably, due to the way the parties have presented the case, it has not been possible to prepare an entirely accurate or complete chronology of relevant events in the worker’s history. Doing the best I can, the following events are relevant.

2. The respondent worker, William Manning, who is currently 59, started work for the appellant employer, Charles Sturt University, in 1986 as a groundsman. The work required him to perform heavy physical work as a gardener and labourer.

3. Mr Manning had significant non-work related problems with his knees when he was in his twenties. As the current claim relates only to his left knee, it is only necessary to refer to the history relevant to that knee. In the 1980s, Mr Manning had, in separate operations, open medial and lateral meniscectomies performed on his left knee.

4. Mr Manning gave evidence that, over the 26 years when he worked for the appellant, he hurt his left knee numerous times while performing his regular duties for the appellant. He did not report these injuries, or take time off, as he considered them too minor.

5. He suffered a non-work related injury to his left knee on 29 December 2011. On that day, Mr Manning jarred his left knee when he jumped off his boat onto the garage floor at his home. The next day, his knee was swollen and he could not walk. He saw Dr Bartusek at Wagga Wagga Base Hospital on 30 December 2011, who referred him to Dr Van der Rijt, orthopaedic surgeon. X-rays on 30 December 2011 revealed degenerative changes both medially and laterally and a moderate effusion.

6. Mr Manning had four days off work and returned to his normal duties, though he was still limping on his return to work. He said that he was “extra careful”…