Inghams Enterprises Pty Ltd v Belokoski

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Belokoski [2016] NSWWCCPD 31
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Dejan Belokoski
INSURER:	Self-insured
FILE NUMBER:	A1-4346/15
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	23 December 2015
DATE OF APPEAL HEARING:	8 April 2016
DATE OF APPEAL DECISION:	7 June 2016
SUBJECT MATTER OF DECISION:	Interlocutory decision; procedural fairness; drawing inferences from issues not raised at hearing; whether voluntary payments of compensation can constitute binding admissions; defective s 74 notice; application of principles discussed in Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr Stockley instructed by Leigh Virtue & Associates
Respondent:	Mr Tanner instructed by Carroll & O’Dea
ORDERS MADE ON APPEAL:	1.       The Senior Arbitrator’s determination dated 23 December 2015 is revoked and the matter is remitted to a different Arbitrator for re-determination.

INTRODUCTION

1. This appeal concerns alleged denials of procedural fairness. The first allegation is that the Senior Arbitrator drew an adverse inference from the appellant’s failure to rely on or explain the absence of a treating doctor’s reports: Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel). The second allegation concerns the finding that voluntary payments of compensation, in the circumstances of this case, constituted a binding admission of injury.

2. In both instances, as the issues had not been the subject of evidence or submissions, it is alleged that the Senior Arbitrator denied the appellant procedural fairness by failing to indicate her intention to make such findings and afford the appellant the opportunity to address them. For the reasons which follow, the appeal is successful.

PROCEDURAL BACKGROUND

1. The respondent worker, Dejan Belokoski, worked for the appellant employer, Inghams Enterprises Pty Ltd, as a process worker. His case was and is that, on 25 March 2009, he injured his neck and left shoulder while carrying a 25 kg bag of marinade. He also alleged that, as a result of the injury to his neck, he suffered a consequential condition in his right shoulder.

2. The appellant accepted liability, paid compensation benefits, and provided Mr Belokoski with light duties for just over three years. Radiological investigations showed disc pathology at three levels in Mr Belokoski’s cervical spine at C3/4, C4/5 and C5/6, for which Mr Belokoski underwent surgery in September 2012 and April 2013.

3. The appellant later disputed liability in a written notice dated 7 June 2012. It asserted that, based on a report from Dr Stephen Potter, rheumatologist, Mr Belokoski had “sustained a simple strain” on 25 March 2009 and that he had recovered from it. In a second s 74 notice, prepared by the appellant’s solicitor on 28 April 2015, it was asserted, among other things, that Mr Belokoski had “not sustained injury”.

4. In an Application to Resolve a Dispute (the Application) registered in the Commission on 30 July 2015, amended at the arbitration…