| 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
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.
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…
Keep reading for free
Create a free CaseChat account to read Dywidag Systems International Pty Ltd v Melksham and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] NSWWCCPD 41
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the arbitrator was required to determine the pathology arising from an injurious event, a question that was considered in light of the precedent set by Jaffarie v Quality Castings Pty Ltd. The court needed to decide if the arbitrator's role extended to identifying the specific pathology of the injuries, or if it was sufficient for the arbitrator to conclude that an injury occurred based on the evidence presented.
The court found that the arbitrator had not sufficiently identified the pathology of the injuries, particularly those to the left knee, and therefore did not properly address the nature and extent of the injuries. The court held that the arbitrator's role included determining the specific nature of the injuries, and not merely acknowledging that an injury occurred. Consequently, the findings regarding the left knee injuries were revoked and the matter was remitted to a different arbitrator for further determination. The court also stayed the orders regarding the referral to Approved Medical Specialists pending the outcome of the re-determination of the left knee injuries.
The court's orders confirmed the finding that Melksham had suffered an aggravation or acceleration of a disease in his right knee due to his employment. However, the findings related to the left knee were annulled, and the issues were remitted to a new arbitrator. The orders regarding the referral for assessment of other conditions were stayed until the left knee injuries were re-determined.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.