1. The Arbitrator’s determination dated 3 February 2016 is confirmed.
INTRODUCTION
This appeal raises issues about the construction of s 60AA of the Workers Compensation Act1987 (the 1987 Act).
BACKGROUND
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.
There is also a summary of the appellant’s surgical procedures at [2] of the Arbitrator’s reasons.
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.
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…
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
AGLC
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.