1. The Arbitrator’s determination of 6 January 2017 is confirmed.
INTRODUCTION
This appeal concerns a challenge by the appellant employer to the Arbitrator’s finding that the worker’s employment was a substantial contributing factor to his injury, pursuant to s 9A of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns the application of s 9A(2)(d), namely, the probability that the injury would have happened anyway if the worker had not been at work or working in the appellant’s employment.
For the reasons explained below, this appeal is unsuccessful.
BACKGROUND
In November 2015, Danaan Ker, the respondent worker, commenced employment for E-Dry Pty Ltd (E-Dry), the appellant employer. He was employed as a carpet cleaner. Part of his role required him to attend the residences of potential customers and provide quotes for carpet cleaning or restoring.
On 21 March 2016, Mr Ker was crossing a road (Ocean Street, Woollahra) to attend a job at a customer’s residence when he injured his right knee. The mechanism of injury is the subject of dispute. He was certified to have no current work capacity for approximately two months, following which E-Dry was unable to provide him with suitable duties.
Sometime prior to 4 May 2016, Mr Ker made a claim for compensation for medical expenses arising from the injury on 21 March 2016. In particular, he sought compensation for proposed right knee reconstruction surgery. (Mr Ker had two previous right anterior cruciate ligament reconstructions, in June 2011 and July 2013.)
On 4 May 2016, E-Dry’s insurer, Employers Mutual, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It claimed, amongst other things, that pursuant to s 9A of the 1987 Act, Mr Ker’s employment with E-Dry was not a substantial contributing factor to any injury he may have sustained. It further claimed that the injury could have happened at any time and the link to work was not substantial.…
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
E-Dry Pty Ltd v Ker [2017] NSWWCCPD 26
Case
[2017] NSWWCCPD 26
Decision Date
CaseChat Overview and Summary
The case of E-Dry Pty Ltd v Ker was heard by the New South Wales Workers Compensation Commission. The dispute arose from an injury claim made by Ms. Ker against her former employer, E-Dry Pty Ltd. Ms. Ker alleged that she sustained an injury in the course of her employment, and sought compensation under the Workers Compensation Act 1987. The central legal issue before the Commission was whether Ms. Ker's injury fell within the scope of section 9A of the Act, which pertains to the probability of the injury or a similar injury occurring irrespective of employment. Specifically, the court had to determine if section 9A(2)(d) applied, which involves drawing inferences concerning the mechanism of injury.
The Commission considered the relevant legal principles, including the case of Badawi v Nexon Asia Pacific Pty Ltd t/as Commander Australia Pty Ltd [2009] NSWCA 324, which outlined the criteria for assessing whether a workplace injury was significantly related to employment. The Commission also referred to Awder Pty Ltd t/as Peninsular Nursing Home v Kernick [2006] NSWWCCPD 222, which emphasised that determining whether section 9A was satisfied was not purely a medical question but involved a broader assessment of the circumstances. After examining the evidence and the arguments presented by both parties, the Commission concluded that the injury sustained by Ms. Ker did not meet the criteria under section 9A(2)(d). The Arbitrator's determination of 6 January 2017 was confirmed, and Ms. Ker's claim for compensation was dismissed.
The final orders of the Commission were to confirm the Arbitrator's determination dated 6 January 2017, effectively dismissing Ms. Ker's claim for workers' compensation. The decision underscored the importance of considering both medical evidence and the broader circumstances of the injury when assessing claims under section 9A of the Workers Compensation Act 1987.
Orders
Orders of the court
1. The Arbitrator’s determination of 6 January 2017 is confirmed.