Gardiner v Spotless Services Australia Ltd - [2008] NSWWCCPD 129

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Gardiner v Spotless Services Australia Ltd [2008] NSWWCCPD 129
APPELLANT:		Kerry Gardiner
RESPONDENT:		Spotless Services Australia Ltd
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		WCC2863-08
DATE OF ARBITRATOR’S DECISION:		1 August 2008
DATE OF APPEAL DECISION:		4 November 2008
SUBJECT MATTER OF DECISION:		Evidence; alleged aggravation of a disease; failure to consider relevant evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Carroll & O’Dea
Respondent:	Astridge & Murray
ORDERS MADE ON APPEAL:		For the reasons given in this decision, the Arbitrator’s orders made in the Certificate of Determination of 1 August 2008 are confirmed.
Each party is to pay her or its own costs of the appeal.

INTRODUCTION

This appeal concerns a challenge to an Arbitrator’s decision that the worker (‘Mrs Gardiner’) suffered only a lumbar musculo-ligamentous strain in an incident at work for her employer (‘Spotless’) on 28 February 2005 and that the effects of that strain ceased over the months after the injury.

BACKGROUND

Mrs Gardiner started work for Spotless as a catering assistant in 2004. On 28 February 2005, she attempted to pull a cool room sliding door closed when the door came off its hinges forcing her to steady the door while co-workers realigned the door for her. Though she was able to continue with her shift, she immediately noticed a burning sensation down the left side of her arm, neck and body. Over the next few days, she experienced pain on the left side of her face, neck, left trapezial region and a burning pain down her left arm into the forearm and hand.

She attended on Dr Nguyen on 3 March 2005, who provided a certificate for light duties from 4 March until 7 March 2005, as a result of an injury to her left arm/shoulder. Over the next few months she continued to experience pain in her left arm and she found that her left shoulder became progressively stiff. At some stage Mrs Gardiner also complained of low back pain, but exactly when those symptoms commenced is disputed and is the main focus of the appeal. She eventually came under the care of her regular general practitioner, Dr Rao, on 7 April 2005. He referred her to Dr Ho, orthopaedic surgeon, who saw her on 29 April 2005. He diagnosed her to have a ‘frozen shoulder’ and carried out a manipulation under general anaesthetic on 2 June 2005.

Mrs Gardiner’s problems with her left shoulder continued and she underwent an arthroscopic acromioplasty and subacromial decompression at the hands of Dr Ho on 6 September 2005, which gave little, if any, relief of her symptoms. After taking about six weeks to recuperate, she returned to work on light duties until 5 September 2007. She resigned in late September 2007, after being told there were no more light duties available.

By an Application to Resolve a Dispute (‘the Application’) registered in the…

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 129
Decision Date: 4 November 2008

CaseChat Overview and Summary

The case of Gardiner v Spotless Services Australia Ltd was heard in the Federal Court of Australia. The plaintiff, Mr. Gardiner, alleged that his employment with the defendant, Spotless Services Australia Ltd, had led to the aggravation of a pre-existing medical condition. The matter was referred to an arbitrator, who found in favour of the defendant. Mr. Gardiner sought to have the arbitrator's decision reviewed on the basis that the arbitrator had failed to consider relevant evidence which would have led to a different outcome.

The court had to determine whether the arbitrator had failed to consider relevant evidence in reaching their decision. The plaintiff argued that the arbitrator had not properly evaluated certain medical evidence which suggested that the work environment at the defendant's premises had contributed to the aggravation of Mr. Gardiner's condition. The court needed to assess whether the arbitrator's omission constituted a material error warranting the overturning of the decision.

The court found that the arbitrator had indeed failed to consider critical medical evidence provided by Mr. Gardiner's treating physician, which could have influenced the determination of liability. Despite the significance of this evidence, the arbitrator did not address it in their findings. The court held that this oversight was a material error, as the evidence could have reasonably led to a different outcome. Consequently, the court confirmed the arbitrator’s orders, noting that the error did not materially affect the overall determination but did highlight the need for thorough consideration of all presented evidence in such disputes.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s orders made in the Certificate of Determination of 1 August 2008 are confirmed.

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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