Chep Australia Ltd v Strickland - [2012] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*Status:* Appeal to the Court of Appeal dismissed - CHEP Australia Ltd v Strickland [2013] NSWCA 351
CITATION:		Chep Australia Ltd v Strickland [2012] NSWWCCPD 27
APPELLANT:		Chep Australia Ltd
RESPONDENT:		Michelle Strickland
INSURER:		Brambles Australia Ltd
FILE NUMBER:		A1-8855/11
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		17 February 2012
DATE OF APPEAL DECISION:		24 May 2012
SUBJECT MATTER OF DECISION:		Fresh evidence on appeal, s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; consequential conditions from the effect of medication prescribed in the treatment of work-related injuries; haemorrhage from a cerebral aneurysm; causation and the application of the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	HWL Ebsworth Lawyers
Respondent:	Turner Freeman Lawyers
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 17 February 2012 is confirmed. The appellant pay the respondent worker’s costs of the appeal.

INTRODUCTION

This appeal concerns whether the ingestion of Mobic, a medication used in the treatment of an orthopaedic injury sustained during the course of the worker’s employment, is causally related by reason of its effects on the worker’s blood pressure, to the haemorrhage from an aneurysm.

BACKGROUND

Ms Strickland was employed by the appellant, Chep Australia Ltd (Chep), as a machine operator/factory worker. She worked on a process line, which required her to undertake repetitive work lifting crates onto a conveyer line.
Commencing in around 2008, the worker began to experience symptoms in her right elbow, left shoulder and left wrist. The symptoms continued throughout 2009.
On 19 August 2010, the worker was prescribed Mobic for the treatment of her symptoms. It is accepted that taking Mobic can cause an elevation in blood pressure, a known risk factor in aneurysmal haemorrhage.
The worker ceased taking Mobic on 7 October 2010. On 11, 12 and 15 October, Ms Strickland complained to her general practitioner that she was experiencing symptoms of hypertension and headache. She resumed taking Mobic on 28 October 2010, when her blood pressure was 128/80, that is, normal.
On 17 November 2010, Ms Strickland experienced symptoms of extreme pain in her head and eyes, and other neurological symptoms. She was conveyed by ambulance to Liverpool Hospital, where she was diagnosed with a grade I subarachnoid haemorrhage secondary to a left posterior communicating artery aneurysm.
The aneurysm was treated with a procedure known as coiling, which involves the insertion of tiny platinum coils threaded through a catheter into the aneurysm, blocking blood flow into the aneurysm and preventing rupture. Ms Strickland remained in hospital until 1 December 2010. She was incapacitated from 17 November 2010 until 4 November 2011.
Ms Strickland alleged that the haemorrhage from the aneurysm was caused by a sudden increase in blood pressure brought about by consuming Mobic prescribed for the treatment of her elbow and neck injuries.
Ms Strickland’s claim for weekly workers…

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: [2012] NSWWCCPD 27
Decision Date: 24 May 2012

CaseChat Overview and Summary

Chep Australia Ltd has appealed against an Arbitrator's decision to the Supreme Court of Queensland. The matter concerns the assessment of the appellant's liability for a worker's compensation claim made by Mr. Strickland. Mr. Strickland suffered a haemorrhage from a cerebral aneurysm which he claimed was a result of his employment with the appellant. The Arbitrator found that the haemorrhage was a result of a pre-existing condition exacerbated by medication prescribed in the treatment of work-related injuries, and thus, the appellant was liable for the claim. The appellant argued that the Arbitrator erred in admitting fresh evidence and misapplied the causation principles.

The primary issue for the court was whether the Arbitrator was correct in admitting fresh evidence in the form of medical reports and opinions. The court also needed to determine whether the Arbitrator correctly applied the principles of causation in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452. The appellant argued that the Arbitrator should not have admitted the fresh evidence as it was not relevant to the issues before the Arbitrator and could not have reasonably been produced earlier. The respondent contended that the fresh evidence was relevant and material, and the Arbitrator was correct to admit it.

The court found that the Arbitrator correctly exercised their discretion under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 to admit the fresh evidence. The court held that the Arbitrator correctly applied the principles of causation as set out in Kooragang Cement Pty Ltd v Bates. The court found that the haemorrhage was a result of a pre-existing condition that was exacerbated by medication prescribed in the treatment of work-related injuries. The court held that the haemorrhage was a consequential condition of the work-related injuries, and thus, the appellant was liable for the claim.

The court dismissed the appeal and confirmed the Arbitrator’s determination of 17 February 2012. The court also ordered the appellant to pay the respondent worker’s costs of the appeal.

Orders

Orders of the court

The Arbitrator’s determination of 17 February 2012 is confirmed.

The appellant pay the respondent worker’s costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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