Dywidag Systems International Pty Ltd v Melksham

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:

Dywidag Systems International Pty Ltd v Melksham [2020] NSWWCCPD 41

APPELLANT:

Dywidag Systems International Pty Ltd

RESPONDENT:

Rodney Stephen Melksham

INSURER:

Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:

A1-5332/19

ARBITRATOR:

Mr P Young

DATE OF ARBITRATOR’S DECISION:

10 December 2019

DATE OF APPEAL DECISION:

30 June 2020

SUBJECT MATTER OF DECISION:

Section 4 of the Workers Compensation Act 1987 – whether the Arbitrator was required to determine the pathology arising from an injurious event – Jaffariev Quality Castings Pty Ltd [2014] NSWWCCPD 79 considered and applied

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Ms K Balendra, counsel

Hicksons Lawyers

Respondent:

Mr G Levick, counsel

Michael Evers & Co

ORDERS MADE ON APPEAL:

1. The Arbitrator’s finding that the respondent suffered injury to his right knee in the form of an aggravation or acceleration of a disease in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 as a result of the respondent’s employment between 26 June 2007 and 30 June 2013 to which employment was the main contributing factor is confirmed.

2.     The Arbitrator’s finding that the respondent suffered an injury to his left knee on 26 June 2007 is revoked.

3.     The issues of whether the respondent suffered:

(a)   an injury to the left knee (including the nature of the injury) on 26 June 2007, and

(b)   an injury to the left knee in the form of an aggravation or acceleration of a disease as a result of the nature and conditions of employment from 26 June 2007 to 30 June 2013

are remitted to a different arbitrator for determination.

4.     The Arbitrator’s orders remitting the matter to the Registrar for referral to the Approved Medical Specialists for assessment of the whole person impairment of the cervical spine, both upper extremities, gastrointestinal condition and the right lower extremity are stayed until the outcome of the determination of the injuries to the left knee referred above.

INTRODUCTION AND BACKGROUND

1. Mr Rodney Stephen Melksham (the respondent) brought proceedings for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of an injury on 26 June 2007 when he fell in the course of his employment. The respondent was employed by Dywidag Systems International Pty Ltd (the appellant) as a builder/carpenter. The respondent alleged injury to the neck, right shoulder, left shoulder, left knee and an upper and lower gastrointestinal condition consequent upon the ingestion of the medication required to treat those injuries.

2. The respondent also claimed s 66 entitlements in respect of injury to the right and left knees alleged to have occurred as a result of the “nature and conditions” of his employment, which required him to perform heavy lifting, climb up and down ladders and stairs, kneeling and squatting. This was described as an aggravation, acceleration, exacerbation or deterioration of osteoarthritis in both of the respondent’s knees and…