Duc Dien Tran v Salmat Document Management Solutions Pty Ltd - [2008] NSWWCCPD 147

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Duc Dien Tran v Salmat Document Management Solutions Pty Ltd (wrongly sued as Salmat Pty Ltd) [2008] NSWWCCPD 147
APPELLANT:		Duc Dien Tran
RESPONDENT:		Salmat Document Management Solutions Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC5999-08
DATE OF ARBITRATOR’S DECISION:		1 October 2008
DATE OF APPEAL DECISION:		23 December 2008
SUBJECT MATTER OF DECISION:		Injury; whether employment was a substantial contributing factor to the injury; section 9A of the Workers Compensation Act 1987; application of Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	MN Compensation Lawyers
Respondent:	Turkslegal
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 1 October 2008 is revoked and the matter is remitted to another Arbitrator for determination of the deemed date of injury and calculation of the Appellant Worker’s entitlement to compensation.
The Respondent Employer is to pay the Appellant Worker’s costs of the appeal and of the first arbitration.

INTRODUCTION

This appeal concerns whether the appellant, Duc Dien Tran, sustained an injury to his back arising out of or in the course of his employment with the respondent, Salmat Document Management Solutions Pty Ltd (‘Salmat’), wrongly sued as Salmat Pty Ltd, as a result of the nature and conditions of his employment between 1999 and February 2008 and, if so, whether his employment was a substantial contributing factor to that injury.

The resolution of this issue largely, but not exclusively, turns on whether the medical experts relied on by Mr Tran identified the factual basis on which they formed their opinions, or whether their opinions were “bare conclusions” of little or no weight as discussed in Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 (‘Hevi Lift’) and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (‘Makita’).

BACKGROUND

Mr Tran was born in Vietnam in 1959 and came to Australia in 1979. He started work as a storeman with Salmat in February 1999, but after six months started operating two Xerox laser printing machines. In general terms, his duties required him to bend, lift boxes of paper weighing about 12 kilograms, and stand for prolonged periods.

In about January 2007, he noticed back pain whilst at work as he was bending, lifting and carrying. He did not report his pain and remained at work performing his normal duties until approximately November 2007. He eventually reported his back pain and was placed on light duties on or about 6 December 2007 which he continued until they were withdrawn in or about February 2008. Salmat ultimately terminated Mr Tran’s employment on 11 July 2008.

Mr Tran’s claim was denied by Salmat’s workers compensation insurer, CGU Workers Compensation (NSW)…

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: [2008] NSWWCCPD 147
Decision Date: 23 December 2008

CaseChat Overview and Summary

Duc Dien Tran, the Appellant, appealed a decision of the Workers Compensation Assessment Appeal Panel against Salmat Document Management Solutions Pty Ltd, the Respondent, to the Dust Diseases Tribunal. The issue was whether the Appellant's employment was a substantial contributing factor to the development of his lung condition, specifically asbestosis. This determination was critical for the calculation of his workers' compensation entitlements.

The Tribunal was required to consider whether the Appellant's employment with the Respondent substantially contributed to his lung condition. The legal issues included the interpretation of section 9A of the Workers Compensation Act 1987 and the application of Hevi Lift (PNG) Limited v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. The Appellant contended that his employment was a substantial contributing factor, while the Respondent argued that it was not.

The Tribunal found that the Arbitrator's determination was flawed in its assessment of the Appellant's exposure to asbestos and the contribution of his employment to his lung condition. The Tribunal concluded that the evidence did not support the Arbitrator's finding that the Appellant's employment was not a substantial contributing factor. The Tribunal revoked the Arbitrator’s determination and remitted the matter to another Arbitrator for reassessment of the deemed date of injury and recalculation of the Appellant's entitlement to compensation.

The final orders were that the Arbitrator’s determination of 1 October 2008 was revoked, and the matter was remitted to another Arbitrator for determination of the deemed date of injury and calculation of the Appellant Worker’s entitlement to compensation.

Orders

Orders of the court

The Arbitrator’s determination of 1 October 2008 is revoked and the matter is remitted to another Arbitrator for determination of the deemed date of injury and calculation of the Appellant Worker’s entitlement to compensation.

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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