Garcia v Sydcon Pty Ltd

[2008] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION

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

CITATION:Garcia v Sydcon Pty Ltd [2008] NSWWCCPD 4

APPELLANT:  Manuel Garcia

RESPONDENT:  Sydcon Pty Ltd

INSURER:GIO Insurance Ltd

FILE NUMBER:  WCC2541-07

DATE OF ARBITRATOR’S DECISION:          14 September 2007

DATE OF APPEAL DECISION:  15 January 2008

SUBJECT MATTER OF DECISION:                Treatment of the evidence

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant:      Villari & Co Lawyers

Respondent:    Hicksons Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 14 September 2007 is revoked and the following order made:

“1. Award for the Respondent.

2. No order as to costs.”

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

1. On 11 October 2007, Manuel Garcia sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 14 September 2007. The Respondent to the appeal is Sydcon Pty Ltd (‘Sydcon’) whose workers compensation insurer is GIO Insurance Ltd (‘GIO’).

1. Mr Garcia was born in Spain on 30 April 1943 and is aged 64. He migrated to Australia in April 1968 and was employed by various employers before commencing employment as a rigger for Sydcon from 27 August 1997. Mr Garcia claims that because of the heavy nature of the work, he began to experience back and neck pain, although he claims to have coped with this until about April 2002, when he began experiencing difficulty in straightening up after working in a crouching position and also began limping. Mr Garcia claims that he was retrenched in September 2002 because of the difficulty he was having carrying out his normal duties. He first consulted his solicitors about the possibility of claiming workers compensation in February 2005.

1. On 7 April 2005, Mr Garcia’s solicitors notified Sydcon of his claim for compensation specifying the date of injury as September 2002. GIO denied liability. On 22 January 2006, Sydcon was deregistered. On 13 April 2007, after further correspondence between Mr Garcia’s solicitors and GIO, the Commission registered Mr Garcia’s ‘Application to Resolve a Dispute’. GIO lodged a ‘Reply’ on 4 May 2007. On 18 May 2007, the Arbitrator conducted a teleconference with the parties. On 8 August 2007, conciliation having proved unsuccessful, she conducted an arbitration hearing. On 14 September 2007, the Arbitrator’s decision was issued in the terms set out below.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 14 September 2007, records the Arbitrator’s orders as follows:

“1. An award for the Respondent in respect of the claim for weekly compensation and medical expenses.
2. An award for the Respondent in respect of the claim for lump sum compensation for permanent impairment.
3. No order as to costs.”

1. In the Statement of Reasons for her decision, the Arbitrator noted, at paragraph 36:

“36. As stated above there is no dispute that the Applicant has a multi-level degenerative disc disease. The nature of the work performed by the Applicant with the Respondent was such that it would not be unusual to receive an injury in the form of aggravation, acceleration etc of a degenerative spinal condition. There is however simply no contemporaneous evidence that this in fact occurred. Dr Meneghetti’s notes only refer to the original injury with Transfield [in 1989], as do the Centrelink Medical Certificates prepared by her. Her report prepared in 2006 is not consistent with the clinical notes and the Centrelink Certificates.

37. Dr Rozario does not see the Applicant until 2005. She reports that the Applicant’s problem is primarily a degenerative disc disease. She comments retrospectively that there ‘may’ have been an aggravation caused by the work at Sydcon.

38. Dr Conrad takes a history of the Applicant seeing at least two doctors while employed by the Respondent with increasing pain due to work with the Respondent. As noted above those records have not been produced to establish that there was some aggravation, exacerbation, acceleration or deterioration of the disc disease while employed with the Respondent.

39. I therefore do not accept that the medical evidence before me is sufficient to establish that the Applicant sustained an injury arising out of or in the course of employment with the Respondent. I therefore do not find that the Applicant sustained an injury to his neck and back arising out of or in the course of his employment with the Respondent.”

ISSUES IN DISPUTE

1. The grounds of appeal identified by Mr Garcia’s solicitors are that the Arbitrator erred in law in considering that Mr Garcia required contemporaneous medical evidence to support his claim that employment with Sydcon aggravated the degenerative condition of his spine, erred in her treatment of the evidence, including allowing irrelevant considerations to influence her decision and not taking into account relevant considerations, made material factual errors, and gave inadequate reasons for her decision. The parties’ submissions on these grounds are discussed below.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. Neither party sought to adduce fresh evidence.

LEAVE

1. Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. First, the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. Second, section 352(2) requires that the amount of compensation at issue in the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against. I note that since the Arbitrator awarded no compensation, the amount of compensation at issue is determined by reference to the amount of compensation claimed in the ‘Application to Resolve a Dispute’. (See, for example, the discussion in Fine Meats (Boners PM) Pty Ltd v Hart [2007] NSWWCCPD 164 (‘Hart’), at paragraphs 15 to 17, including reference to the decisions in Grimson v Integral Energy [2003] NSWWCCPD 29 and Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7.) In his ‘Application to Resolve a Dispute’, Mr Garcia claimed weekly compensation totalling $167,921.40, together with compensation for permanent impairment and pain and suffering of $64,125.00. Thus, the amount of compensation at issue exceeds the $5,000 threshold (section 352(a)) and, because no compensation has yet been awarded, the 20% threshold (section 352(b)) does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5, at paragraph 22). Accordingly, I am satisfied that the section 352 threshold has been met, and I grant leave to appeal.

SUBMISSIONS, DISCUSSION AND FINDINGS

1. The role of the Presidential Member on appeal is to review the Arbitrator’s decision as a whole. The review is not a rehearing. In this case, Mr Garcia’s solicitors must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act.

1. The first ground of appeal is that the Arbitrator erred in law in considering that Mr Garcia required contemporaneous medical evidence to support his claim that employment with Sydcon aggravated the degenerative condition of his spine. Mr Garcia’s solicitors’ contend that whether a “report of pain is contemporaneous is not determinative of injury but rather goes to the weight of such evidence, if adduced, or the credibility of the worker, if challenged”. They submit there is no requirement at law for there to be contemporaneous medical evidence to prove injury: rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’). In Mr Garcia’s case, there was ample evidence that his employment aggravated his disease.

1. GIO submits that the Arbitrator’s finding that that there was no contemporaneous medical evidence was a finding of fact, rather than a finding of law, and was made pursuant to her discretion to determine the matter and, in particular, whether Mr Garcia had sustained an injury arising out of or in the course of his employment. The Arbitrator considered and commented upon the medical evidence and concluded that Mr Garcia had not discharged his evidentiary onus in proving injury because of a lack of contemporaneous evidence. This was a matter for the Arbitrator’s discretion: Claverie v State Transit Authority [2004] NSWWCCPD 39.

1. I am not satisfied from my review of the Arbitrator’s decision that she considered there to be a requirement in law for contemporaneous medical evidence. Her discussion of the evidence indicates she considered the principal issue to be whether Mr Garcia received an injury arising out of or in the course of his employment with Sydcon, as required by section 4 of the Workers Compensation Act 1987. The Arbitrator discussed the medical evidence and found there to be no contemporaneous medical evidence to support Mr Garcia’s claim that his employment with Sydcon aggravated the degenerative condition of his spine. She noted that there was no medical evidence of any complaint of pain in the back until nearly two and a half years after Mr Garcia ceased employment with Sydcon and, in the case of his neck, until three years after this: Statement of Reasons, paragraph 34.

1. In my view, the Arbitrator was rightly concerned with the weight of evidence and whether Mr Garcia had established that he received an injury arising out of or in the course of his employment with Sydcon. I am not satisfied that she made any error of law or fact in making her determination on this issue. Mr Garcia’s solicitors have, therefore, failed to establish the first ground of appeal.

1. The second ground of appeal is that the Arbitrator did not exercise her discretion fairly by failing to have proper regard to Mr Garcia’s evidence, both written and oral, and making a decision against the weight of evidence. Mr Garcia’s solicitors’ contend that the Arbitrator “totally disregarded” Mr Garcia’s evidence of his ongoing neck and back problems while working with Sydcon. There were clearly issues as to the credibility of Mr Garcia’s evidence that the Arbitrator failed to address.

1. GIO submits the Arbitrator exercised her discretion fairly and lawfully and her decision “was reasonably open to be drawn from the evidence admitted in proceedings”. GIO contends it is clear from the Arbitrator’s Statement of Reasons that she considered Mr Garcia’s evidence. She was not compelled to make a finding as to Mr Garcia’s credibility: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 281. The issue of injury could not be determined on Mr Garcia’s testimony alone without consideration of the medical evidence.

1. The Arbitrator found that it was not in dispute that Mr Garcia “has a multi-level osteoarthritic degenerative disc disease of the spine”. The issue therefore was whether there was an “aggravation, exacerbation, acceleration or deterioration” of that disease to which Mr Garcia’s employment with Sydcon was a substantial contributing factor. In her Statement of Reasons, the Arbitrator refers to Mr Garcia’s evidence. I reject Mr Garcia’s solicitors’ submission that she “totally disregarded” his evidence. She noted his statement (9 May 2006, paragraph 9) that while working for Sydcon: “he suffered back and neck pains. He coped quite well until April 2002.” She also noted that Mr Garcia saw a doctor at Villawood Medical Centre (statement, paragraph 10), but that the Medical Centre had no record of Mr Garcia as a patient, and Mr Garcia had not produced any clinical notes or reports from treating doctors during the time he was employed by Sydcon.

1. I note there is no specific reference in Mr Garcia’s statement as to when he attended Villawood Medical Centre although an implication could be drawn that it was around the time of his retrenchment in September 2002. In cross-examination at the arbitration hearing, Mr Garcia was asked about seeing Dr Lim at the Medical Centre, with reference to the period between April and September 2002 (transcript pages 8 to 9). Mr Garcia was unable to identify the “pain tablets” prescribed by Dr Lim except to say that these were “very strong” and of “500 milligrams”. The only other treatment Mr Garcia identified as being recommended by Dr Lim was to take a form of tea because “the tablets were causing me trouble in the stomach” (transcript page 10).

1. The Arbitrator noted that Mr Garcia’s solicitors had been give ample opportunity to produce contemporaneous medical evidence but had not done so. Having discussed the medical evidence before her, the Arbitrator concluded that the evidence was not sufficient to establish that Mr Garcia sustained an injury arising out of his employment with Sydcon.

1. In my view, in the particular circumstances of this case, there was no requirement that the Arbitrator make a finding as to Mr Garcia’s credibility. Her conclusion did not involve her not believing that Mr Garcia suffered back and neck pain during his employment with Sydcon. Rather, it involved her not being satisfied on the evidence before her that Mr Garcia sustained an aggravation of his existing degenerative disease of the spine during this period to which his employment with Sydcon was a substantial contributing factor. I therefore reject the second ground of appeal.

1. The third ground of appeal is that the Arbitrator erred in finding insufficient evidence on the issue of causation when such a finding was against the evidence before her, and gave inadequate reasons for her determination. Mr Garcia’s solicitors refer to the medical evidence and contend that it was sufficient to support a finding that Mr Garcia did suffer a work injury, namely the aggravation of a disease.

1. GIO rejects these contentions. The Arbitrator referred to the medical evidence before her and formed a view which was open to her on the evidence. GIO submits that the medical evidence failed to show that Mr Garcia’s incapacity “resulted from” his alleged injury: Bartter Enterprises Pty Ltd v Haworth [2006] NSWWCCPD 62 (‘Haworth’), at paragraph 57. GIO also submits that the Arbitrator’s Statement of Reasons adequately explains her decision.

1. As Deputy President Roche recognised in Haworth, there must be a commonsense evaluation of the causal connection between, in this case, the nature and conditions of Mr Garcia’s employment with Sydcon and his incapacity. Did Mr Garcia suffer an injury arising out of that employment, namely the aggravation of his pre-existing degenerative disease, which gave rise to his incapacity? In my view, the Arbitrator properly considered the relevant evidence and formed a view that was open to her on that evidence. I note that in the course of discussing the evidence, the Arbitrator referred to the opinion of Mr Garcia’s treating Rheumatologist, Dr Loretta Rozario, (to whom Mr Garcia was first referred on 21 January 2005), expressed in a report dated 21 December 2006, that his employment at Sydcon “may have aggravated his condition”, thereby increasing his disability.

1. With regard to the adequacy of the Arbitrator’s Statement of Reasons, in my view, her Statement of Reasons satisfies the requirement set out in section 294(2) of the 1998 Act and rule 15.6 of the 2006 Rules. The Statement sets out her findings on material questions of fact, referring to the evidence on which those findings are based, and sets out her understanding of the applicable law and the reasoning process that lead to her determination. I therefore reject the third ground of appeal.

1. The fourth ground of appeal is that the Arbitrator made a material factual error in finding that the first medical record of neck pain occurred in November 2005, such error contributing to her finding of insufficiency of evidence on causation/injury. Mr Garcia’s solicitors note that various medical reports dating from as early as January 2005 refer to Mr Garcia’s neck.

1. GIO disputes that the Arbitrator made any factual error in this regard. At paragraph 22 of her Statement of Reasons, the Arbitrator referred to the clinical notes of Mr Garcia’s general practitioner, Dr Alicia Meneghetti, in which she first records Mr Garcia suffering severe cervical pain in November 2005. GIO contends that this is in fact correct. However, GIO submits, in the alternative, that if Mr Garcia’s solicitors’ submission is found to be correct, then the first record of cervical spine pain was made in January 2005.

1. A review of the Arbitrator’s Statement of Reasons at paragraph 22 indicates that the Arbitrator’s comment that the first record of severe cervical spine pain in Dr Meneghetti’s clinical notes was in November 2005 is correct. The Arbitrator goes on to discuss the other medical evidence, including reports by Dr Rozario, Dr Peter Conrad, Surgeon, Dr Paul Teychenne, treating Neurologist, and Dr Neal Thomson, Orthopaedic Surgeon, which refer to neck symptoms occurring before November 2005.

1. I note, for example, in a report dated 14 November 2005, Dr Teychenne stated that Mr Garcia began to experience neck-related pain seven months ago. In a report dated 29 March 2005, Dr Conrad referred to Mr Garcia experiencing neck pain, as did Dr Thomson in a report dated 3 May 2005.

1. At paragraph 34, the Arbitrator stated:

“In relation to the neck, the first medical record of pain occurs six months later in November 2005, over three years after ceasing employment with the Respondent.”

1. I agree that in terms of the medical evidence as a whole, this statement of the Arbitrator’s is incorrect. However, it is clear from her discussion of the medical evidence that the Arbitrator was aware of other evidence of Mr Garcia having experienced neck pain earlier in 2005, and I am not satisfied that her error warrants my interfering with her decision in circumstances where there is no contemporaneous medical evidence of neck pain prior to January 2005.

1. The fifth ground of appeal is that the Arbitrator allowed irrelevant considerations to influence her decision when considering documents produced by Villawood Medical Centre, and failed to take into account relevant and material considerations in the documents produced and Mr Garcia’s evidence in relation to these. Mr Garcia’s solicitors contend that the Arbitrator drew a negative inference against Mr Garcia as a result of documents produced by Villawood Medical Centre, contrary to Mr Garcia’s evidence of seeing Dr Lim, which is corroborated by a medical report addressed to Dr Lim from Dr G Cohen, dated 29 November 2004, concerning x-rays of Mr Garcia’s lumbar-sacral spine and right hip. The history provided to Dr Conrad also supports Mr Garcia’s evidence as to his seeing Dr Lim.

1. GIO submits that there is no inference adverse to Mr Garcia in the Arbitrator’s finding, on the basis of the evidence before her, that the Villawood Medical Centre had no record of Mr Garcia as a patient. With regard to Dr Cohen’s report dated 29 November 2004, this gives no address or contact details for Dr Lim and merely establishes that Dr Lim was Mr Garcia’s treating doctor on 29 November 2004. It does not establish that Mr Garcia sought medical treatment from Dr Lim in 2002. GIO rejects the contention that the fact of there being no evidence from Villawood Medical Centre was an irrelevant consideration. A finding of no evidence will only constitute an error of law where material and uncontested facts have been ignored. This was not the case here. As the Arbitrator noted, Mr Garcia’s solicitors had ample opportunity to produce further evidence concerning the Medical Centre, but failed to do so.

1. At paragraph 21 of her Statement of Reasons, the Arbitrator stated: “The Villawood Medical Centre has no record of the Applicant as a patient.” This was a statement of fact based on the response from the Medical Centre to a summons. At paragraph 32, the Arbitrator referred to the Respondent relying on this. At paragraph 35, she commented that Mr Garcia’s solicitors had “ample opportunity to produce” contemporaneous medical evidence to support his claim, the arbitration hearing, originally scheduled on 10 July 2007, having been adjourned because no interpreter was available.

1. I am not satisfied that the Arbitrator erred as contended by Mr Garcia’s solicitors. Her discussion focused on the principal issue of whether Mr Garcia sustained an injury arising out of his employment with Sydcon. Having reviewed the evidence, she concluded that the medical evidence was not sufficient to establish this. As stated above, in my view, such a conclusion was open to her on the evidence before her.

1. The sixth ground of appeal is that the Arbitrator erred in the consideration and weight given to the medical report of Dr Thomson. Mr Garcia’s solicitors contend it is clear from reading Dr Thomson’s report that he was under the misapprehension that he was being asked to comment on Mr Garcia’s earlier work accident (in February 1990) while working with Transfield. They contend the Arbitrator incorrectly relied upon Dr Thomson’s report when Dr Thomson does not comment on the question of injury in relation to Mr Garcia’s employment with Sydcon.

1. GIO contends that while the Arbitrator summarises Dr Thomson’s opinion in her Statement of Reasons, she does not appear to rely on or mention this in relation to her determination. GIO submits that unlike other medical evidence specifically referred to in the Arbitrator’s summation at paragraphs 34 to 39 of her Statement of Reasons, in the absence of any specific reference to Dr Thomson’s report in that summation, it is reasonable to infer that the report was considered by the Arbitrator but was not instructive to her determination of the matter.

1. The Arbitrator referred to Dr Thomson’s report of 3 May 2005 at paragraphs 30 and 31 of her Statement of Reasons during the course of her review of the medical evidence. My review of Dr Thomson’s report suggests that he may well have been under the misapprehension that he was being to comment on the connection between Mr Garcia’s present condition and his work injury (which Dr Thomson mistakenly thought took place on 22 August 1997) while employed with Transfield. The Arbitrator noted Dr Thomson’s opinion that Mr Garcia suffers from a constitutional degenerative arthritis of the cervical and lumbar spines, but also his opinion that there was no relationship between his employment with Transfield and his current disability. The Arbitrator made no further reference to Dr Thomson and, notably, omitted any reference to him in her summation of the evidence in relation to Mr Garcia’s employment with Sydcon. I agree with GIO that it is reasonable to infer from the absence of any reference to Dr Thomson in that summation that his report was not instructive to her determination of the issue of injury. I therefore reject this ground of appeal.

1. The seventh ground of appeal is that the Arbitrator made a factual error in considering that Dr Meneghetti’s medical report is inconsistent with her clinical notes and Centrelink Certificates. Mr Garcia’s solicitors note that at paragraph 36 of her Statement of Reasons, the Arbitrator commented:

“Dr Meneghetti’s notes only refer to the original injury with Transfield, as do the Centrelink Medical Certificates prepared by her. Her report prepared in 2006 is not consistent with the clinical notes and the Centrelink Certificates.”

1. Mr Garcia’s solicitors refer to the Centrelink Certificates dated 13 April 2005, 14 November 2005, 23 February 2006 and 16 April 2007, which refer not only to the fractures at L1 - L2 (which occurred in the earlier accident at Transfield), but also to other cervical and lumbar problems. The only Centrelink Certificate that refers exclusively to the original accident with Transfield is that dated 17 January 2005 which predates cervical and lumbar spine tests showing degenerative disc disease. Mr Garcia’s solicitors submit there is no inconsistency if Dr Meneghetti mentions the disease in Mr Garcia’s cervical and lumbar spine. There is no requirement and it is not reasonable to expect Dr Meneghetti to mention the aggravation or exacerbation of the disease as a result of work in the Centrelink Certificates.

1. GIO contends that the Arbitrator’s finding with respect to the relationship between Dr Meneghetti’s records, her report dated 24 January 2006 and the Centrelink Certificates being inconsistent is correct. The detailed evidence of Mr Garcia’s conditions of work while employed by Sydcon and the circumstances of his ceasing work in 2002 are not replicated in her clinical notes. She took a history of the previous injury with Transfield, but there is no reference to his work with Sydcon or his evidence as to the onset of symptoms alleged at the time he ceased work. Further, GIO notes that Dr Meneghetti did not mention Mr Garcia’s employment with Sydcon in the Centrelink Certificates nor any alleged injury sustained during that employment. She stated only that Mr Garcia’s symptoms and the reasons for his incapacity are related to an old lumbar spine accident and degenerative processes.

1. GIO contends Dr Meneghetti was required to list all injuries or illnesses on the Centrelink Certificates but only referred to the earlier lumbar spine accident and to severe osteoarthritis and chronic disc disease. GIO submits Dr Meneghetti’s clinical notes and Centrelink Certificates are not consistent with her medical report dated 24 January 2006.

1. I have reviewed Dr Meneghetti’s clinical notes. While referring to Mr Garcia’s employment with Transfield and the injury he suffered to his spine at L1 - L2 during that employment, she made no specific mention of his employment with Sydcon. I note, however, that Dr Meneghetti referred Mr Garcia to Dr Teychenne who, in his report dated 14 November 2005, referred to the onset of symptoms in July 2002, although making no mention of Mr Garcia’s employment with Sydcon.

1. With regard to the Centrelink Certificates, while there is mention of the “Injury to lower back / Old fracture” (Certificate dated 17 January 2005) and to “Injury to lumbar spine / Accident” (Certificate dated 13 April 2005), and to severe osteoarthritis, chronic pain and chronic disc disease, there is no mention of Mr Garcia’s later employment with Sydcon being a cause of his condition.

1. In her report dated 24 January 2006, Dr Meneghetti referred to Mr Garcia’s accident while working with Transfield, and noted that that he “worked as a rigger most of his life”, involving heavy repetitive work, and “was retrenched by September 2002, as he could not comply with his job tasks”. She stated that in 2002 Mr Garcia “began to suffer constant pain radiating to both legs ... exacerbated by bending and carrying weights”, and that in May 2005, he started “suffering from pain extending over the left side of the head extending to the arms noting weakness on the left arm”, sometimes with numbness in the hands. Dr Meneghetti made no specific reference to Mr Garcia’s employment with Sydcon but, while recognising “there is a component of degenerative disease on the whole condition”, expressed the opinion “that Mr Garcia’s condition is related to his repetitive work as a rigger”.

1. The Arbitrator discussed Dr Meneghetti’s clinical notes, Centrelink Certificates and report dated 24 January 2006 at paragraphs 22 to 25 of her Statement of Reasons. In her summation of relevant evidence at paragraph 36, she made the statement quoted in paragraph 40, above. To the extent that Dr Meneghetti’s clinical notes and Centrelink Certificates only refer to the original injury with Transfield and make no reference to any injury sustained arising out of Mr Garcia’s employment with Sydcon, they do not support the statements made in her report as to Mr Garcia’s condition in 2002 (after working with Sydcon) and the reason for his retrenchment.

1. In my view, the Arbitrator’s comments about Dr Meneghetti’s evidence should be seen in the context of her discussion of the relevant evidence and her conclusion, after reviewing that evidence, that it did not establish that Mr Garcia sustained an injury arising out of his employment with Sydcon. I am not therefore satisfied that the Arbitrator made a factual error as contended by Mr Garcia’s solicitors and I reject this ground of appeal.

1. In conclusion, Mr Garcia’s solicitors have failed to establish grounds for my interfering with the Arbitrator’s decision, the substance of which must, therefore, be confirmed.

FORMAL ORDERS

1. I note, however, that Mr Garcia’s failure to discharge the onus of proof in the original proceedings before the Arbitrator means that Mr Garcia failed in the entirety of his claim and Sydcon is therefore entitled to an award in its favour on all issues. The formal orders made by the Arbitrator do not reflect this outcome and this constitutes an error which must be corrected on appeal. To give proper give effect to the findings made, the order should be “Award for the Respondent”.

DECISION

1. The decision of the Arbitrator dated 14 September 2007 is revoked and the following order is substituted:

“1. Award for the Respondent.

2. No order as to costs.”

COSTS

1. There is no order as to the costs of this appeal.

Robin Handley

Acting Deputy President  

15 January 2008

I MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE