Department of Corrective Services v Bryce

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Decision confirmed on Appeal: Andrew Bryce v Department of Corrective Services [2009] NSWCA 188
CITATION:		Department of Corrective Services v Bryce [2008] NSWWCCPD 116
APPELLANT:		Department of Corrective Services
RESPONDENT:		Andrew Bryce
INSURER:		Employers Mutual Limited
FILE NUMBER:		WCC509-08
DATE OF ARBITRATOR’S DECISION:		27 May 2008
DATE OF APPEAL DECISION:		16 October 2008
SUBJECT MATTER OF DECISION:		Injury; causation; evidence; application of Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Kells The Lawyers
ORDERS MADE ON APPEAL:		Time to appeal is extended until 25 June 2008. The Arbitrator’s determination dated 27 May 2008 is revoked and the following orders made: “1.     Award for the Respondent employer. 2.      Each party is to pay his or its own costs of the arbitration.”
Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. On 12 March 2007, Mr Bryce jerked his body when the right armrest of a chair on which he was sitting suddenly gave way.  The consequences of this incident are disputed.  Mr Bryce alleges that the incident caused an injury to his neck resulting in him having to undergo surgery to his neck on 5 October 2007.  His employer, the Department of Corrective Services (‘the Department’), argues that the incident resulted in no more than a temporary aggravation to Mr Bryce’s pre-existing back condition and that he sustained no injury to his neck.

1. The Department’s insurer (Employers Mutual Limited) denied the claim by notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) dated 3 September 2007. The decision to decline the claim was made for the following reasons:

“1.Your employment is not a substantial contributing factor to your current symptoms.

2.Any aggravation (which is denied) is [sic] now ceased.” (emphasis added)

1. Unfortunately, the terminology in the notice is inconsistent with the legislation and displays a fundamental misunderstanding of the Workers Compensation Act 1987 (‘the 1987 Act’). As has been explained in many decisions, both in the Commission and in the former Compensation Court of NSW, section 9A of the 1987 Act only requires that a worker’s employment be a substantial contributing factor to his or her injury. Employment does not have to be a substantial contributing factor to the “current symptoms” (see Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725; Bielecki v Rianthelle Pty Ltd t/as Belflora [2008] NSWWCCPD 52; Matar and anor v Zeineddine [2008] NSWWCCPD 51).

1. Nevertheless, the medical evidence served with the notice made it reasonably clear that the insurer in fact disputed whether Mr Bryce had injured his neck in the incident on 12 March 2007. Whilst the insurer had not properly complied with section 74 of the 1998 Act (see Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227