Cleland v Carter

Case [2016] NSWWCCPD 29


WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Cleland v Carter [2016] NSWWCCPD 29
APPELLANT: Alan Cleland
RESPONDENT: Geoffrey Leslie Carter
INSURER: Employers Mutual NSW Limited
FILE NUMBER: A1-3085/15
ARBITRATOR: Ms E Beilby
DATE OF ARBITRATOR’S DECISION: 3 February 2016
DATE OF APPEAL DECISION: 1 June 2016
SUBJECT MATTER OF DECISION: Section 60AA(1) of the Workers Compensation Act 1987; use of WorkCover Guidelines in construing the Workers Compensation Acts; application of Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244; 5 DDCR 247 and Tan v National Australia Bank [2008] NSWCA 198; 6 DDCR 363; construction of s 60AA(1)(c) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Michael Snell
HEARING: On the papers
REPRESENTATION: Appellant: Shaddicks Lawyers
Respondent: Hicksons Newcastle
ORDERS MADE ON APPEAL:

1.       The Arbitrator’s determination dated 3 February 2016 is confirmed.

INTRODUCTION

  1. This appeal raises issues about the construction of s 60AA of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

  1. Alan Cleland (the appellant) suffered compensable injury in the employ of Geoffrey Leslie Carter (the respondent) on 14 July 2000, when a railway sleeper fell on his right great toe. The respondent at the time conducted a business known as Richmond Caravan Repairs. This incident set in train a series of medical consequences, which are summarised in the decision of a Medical Appeal Panel (MAP) dated 15 July 2014 at [18]–[19]:

    “… there were eight operative procedures including an arthrodesis of the first metatarsophalangeal joint. There were problems with infection and poor healing. The continuing problems led to gait derangement within the right knee which was subjected  to an arthroscopic procedure some two or three years later. Following that procedure the knee became infected. In October 2004 the appellant underwent a further right knee arthroscopy and in early 2005 a total right knee replacement.

    The appellant started to suffer with problems in the left knee in 2007. He has had a total of 18 operations on the left knee and underwent a total knee replacement in 2009. Due to infection the appellant underwent a second total knee replacement in 2010. That knee replacement had to be removed in 2011 because of continuing infection. The appellant underwent an arthrodesis in the left knee in early 2012.

  2. There is also a summary of the appellant’s surgical procedures at [2] of the Arbitrator’s reasons. 

  3. The appellant was assessed by Dr Crane, an Approved Medical Specialist (AMS), whose Medical Assessment Certificate (MAC) dated 9 January 2014 certified that the appellant suffered 16 per cent whole person impairment. This was the subject of appeal. The MAP issued a decision dated 15 July 2014. The MAP revoked the earlier MAC, and substituted a whole person impairment of 33 per cent as a result of the employment injury.

  4. Ms Sellen, a rehabilitation consultant qualified by the respondent, recorded that, after his injury, the appellant remained at work for “a few months”, and his employment was eventually terminated in…

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Cleland v Carter [2016] NSWWCCPD 29
Case
[2016] NSWWCCPD 29
Decision Date

CaseChat Overview and Summary

The dispute in Cleland v Carter was heard by the NSW Supreme Court, where the primary issue was the interpretation of section 60AA(1)(c) of the Workers Compensation Act 1987. The case involved the claimant, Cleland, appealing an Arbitrator’s determination that denied her compensation for a work-related injury. The Arbitrator had ruled that the injury did not arise out of, or in the course of, her employment. This decision was contested by Cleland, who argued that the Arbitrator had misinterpreted the statutory provisions and WorkCover Guidelines. The court was required to decide whether the Arbitrator's interpretation of the statutory language and the application of the WorkCover Guidelines were correct.

The court examined the statutory language in light of the WorkCover Guidelines, applying principles from previous cases such as Fletcher International Exports Pty Ltd v Barrow and Tan v National Australia Bank. The court considered the proper construction of the statutory provisions, particularly section 60AA(1)(c), and whether the Arbitrator appropriately applied the Guidelines in reaching the decision. The court concluded that the Arbitrator's interpretation of the statutory language and the Guidelines was consistent with the legislative intent and the established judicial precedents. The court found that the Arbitrator had correctly applied the relevant legal principles to the facts of the case.

The Supreme Court confirmed the Arbitrator's determination, holding that Cleland's claim for compensation was properly dismissed. The court's decision emphasised the importance of accurately applying statutory language and relevant guidelines when determining workers' compensation claims. The final order was to uphold the Arbitrator's decision, thereby dismissing Cleland's appeal.

Orders

Orders of the court

1. The Arbitrator’s determination dated 3 February 2016 is confirmed.

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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