DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10
APPELLANT:
Rajko Drca
RESPONDENT:
KAB Seating Systems Pty Ltd
INSURER:
Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:
A1-1516/14
ARBITRATOR:
Mr B Batchelor
DATE OF ARBITRATOR’S DECISION:
21 October 2014
DATE OF APPEAL DECISION:
13 February 2015
SUBJECT MATTER OF DECISION:
Factual findings; whether worker injured his neck; alleged failure to give reasons; whether worker suffers from a gastrointestinal condition as a result of medication taken for an accepted back injury; assessment of expert evidence; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; standard of proof; meaning of balance of probabilities; fresh evidence or further evidence on appeal; s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; failure to properly prepare case for arbitration
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
Carters Solicitors
Respondent:
Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:
1. Paragraph 4 of the Certificate of Determination of 21 October 2014 is revoked and the question of whether the appellant worker’s condition in his upper and lower digestive tract has resulted from the injury to his lumbar spine on 5 July 2012 is to be re-determined by a different Arbitrator.
2. Paragraphs 1, 2, 3, 5 and 6 of the Certificate of Determination of 21 October 2014 are confirmed.
3. No order as to costs.
INTRODUCTION
This appeal involves challenges to factual findings that the worker did not injure his neck and that his gastrointestinal symptoms did not result from an accepted injury to his back. For the reasons explained below, the first challenge fails but the second succeeds.
BACKGROUND
The appellant worker, Rajko Drca, works for the respondent employer, KAB Seating Systems Pty Ltd (the respondent) making parts for vehicle and office seats. It is not disputed that he injured his back at work on 5 July 2012 while lifting a heavy bundle of metal tubes. After six or seven weeks off, he returned to work on light duties.
On 19 December 2012, while still working on light duties because of the July back injury, Mr Drca was getting up from a crouching position when he felt severe back pain which caused him to fall and strike his head and right knee. The Arbitrator found, and it has not been challenged on appeal, that this fall resulted from the original back injury.
Within minutes of this incident, Mr Drca saw the respondent’s first aid officer, Rodney Jenkins, and completed and signed an incident/accident report form in which he marked a diagram to indicate he had injured his forehead, neck and right knee. A second incident/accident report form in evidence, which is unsigned, but which is assumed to have been completed by Mr Jenkins, also has a diagram with marks indicating that Mr Drca injured his forehead, neck and right knee.
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
Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10
Case
[2015] NSWWCCPD 10
Decision Date
CaseChat Overview and Summary
The appeal in Drca v KAB Seating Systems Pty Ltd involved the appellant worker, Drca, contesting a determination that he had not suffered a gastrointestinal condition resulting from a previously accepted back injury. The case was heard in the New South Wales Court of Appeal. The dispute centred on the worker's claims regarding two separate issues: whether his neck injury was work-related, and whether his gastrointestinal condition stemmed from the accepted back injury. The employer, KAB Seating Systems Pty Ltd, argued against both claims, asserting that the worker's conditions were either not work-related or not causally linked to the earlier injury.
The legal issues before the court encompassed the assessment of factual findings made by the original Arbitrator, the standard of proof required to establish causation in workers' compensation claims, and the interpretation of relevant statutory provisions, particularly in relation to the presentation of expert evidence and the applicability of the principles from Hancock v East Coast Timber Products Pty Ltd. Additionally, the court had to determine whether the Arbitrator's failure to provide reasons for his decision constituted a procedural irregularity and whether fresh evidence could be considered under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998.
In its reasoning, the Court of Appeal found that the Arbitrator's determination regarding the gastrointestinal condition lacked sufficient reasons, thus failing to meet the requirements of procedural fairness. The court emphasised that a determination of causation in workers' compensation claims must be made on the balance of probabilities, a standard that the Arbitrator appeared not to have applied correctly. The court also held that the Arbitrator had improperly assessed the expert evidence provided by the worker. Consequently, the appeal was allowed in part, and the matter concerning the gastrointestinal condition was remitted to a different Arbitrator for re-determination. The court confirmed the other findings of the original Certificate of Determination, and no order was made regarding the costs.
Orders
Orders of the court
1. Paragraph 4 of the Certificate of Determination of 21 October 2014 is revoked and the question of whether the appellant worker’s condition in his upper and lower digestive tract has resulted from the injury to his lumbar spine on 5 July 2012 is to be re-determined by a different Arbitrator.
2. Paragraphs 1, 2, 3, 5 and 6 of the Certificate of Determination of 21 October 2014 are confirmed.