Inghams Enterprises Pty Ltd v Hickey - [2017] NSWWCCPD 36

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Inghams Enterprises Pty Ltd v Hickey [2017] NSWWCCPD 36
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Lorraine Hickey
INSURER:	Self-insurer
FILE NUMBER:	A1-1208/17
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	19 May 2017
DATE OF APPEAL DECISION:	22 August 2017
SUBJECT MATTER OF DECISION:	Consequential condition from accepted work injuries; application of Kooragang Cement Pty Ltd vBates (1994) 35 NSWLR 452; 10 NSWCCR 796; assessment of expert evidence; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; argument not raised at first instance; application of Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 19 May 2017 is confirmed.

BACKGROUND

Mrs Hickey, the respondent to the appeal, was employed by the appellant, Inghams Enterprises Pty Ltd as a trainer and process worker.
On 6 April 2013, Mrs Hickey slipped on ice on the floor of the chiller room at the appellant’s premises at Tahmoor. Mrs Hickey suffered a significant injury to her right wrist and hand including a fracture of the distal radius and ulna. She required surgical treatment for the fracture including fixation.
Mrs Hickey claims that as a result of the immobilisation of her right arm she suffered a consequential condition in the right shoulder, namely adhesive capsulitis (frozen shoulder), nerve damage and complex regional pain syndrome.
It is apparent that at some time prior to 14 October 2016, Mrs Hickey made a claim for compensation in respect of her injuries. Precisely what was claimed and when is not apparent. On 14 October 2016, Leigh Virtue & Associates solicitors, representing Inghams Enterprises, issued a notice to Mrs Hickey’s solicitors. Liability was accepted in respect of the right wrist injury but all other injuries, including the consequential condition with respect to the shoulder injury, were denied.
On 31 October 2016, Mrs Hickey’s solicitors made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $41,250 in respect of 24 per cent whole person impairment of the right upper extremity. The claim was based on an assessment by Associate Professor Michael Fearnside, a neurological surgeon. It included impairments in respect of the right hand, wrist and shoulder.
On 10 March 2017, Mrs Hickey lodged an Application to Resolve a Dispute in the Commission (the Application). She sought an order for the payment of lump sum compensation referred to above, in respect of the injuries and consequential conditions suffered as a result of the incident on 6 April 2013.
On 16 March 2017, Inghams Enterprises filed a Reply to the Application. It disputed liability for the reasons stated in its letter of 14 October 2016.
On 11 May 2017, 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: [2017] NSWWCCPD 36
Decision Date: 22 August 2017

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd sought to confirm an arbitrator's decision regarding a consequential condition arising from work-related injuries sustained by an employee, Mr. Hickey. The matter was heard in the New South Wales Supreme Court, with Justice Perram presiding. The dispute centred on whether the Arbitrator correctly applied the principles established in Kooragang Cement Pty Ltd v Bates to determine the compensable period for the consequential condition, as well as the assessment of expert evidence.

The primary legal issues revolved around the correct application of the Kooragang Cement test to determine when the consequential condition became reasonably identifiable. The court had to consider whether the Arbitrator correctly assessed the expert evidence presented and whether the principles in Paric v John Holland Constructions Pty Ltd were correctly applied. Additionally, the court examined whether the arguments raised regarding the application of Metwally v University of Wollongong were appropriately considered, given they were not raised at the first instance.

Justice Perram found that the Arbitrator's determination correctly applied the principles from Kooragang Cement to assess the compensable period for the consequential condition. The court was satisfied that the Arbitrator appropriately evaluated the expert evidence, aligning with the approach in Paric. While Metwally was not directly relevant to the case, the court noted that any argument concerning its applicability was not adequately raised at the first instance and therefore did not warrant reconsideration. Consequently, the Arbitrator's decision was confirmed in its entirety.

The court's orders affirmed the Arbitrator's determination dated 19 May 2017, providing finality to the matter and ensuring that the correct principles were applied in assessing the compensable period for the consequential condition arising from the employee's work-related injuries.

Orders

Orders of the court

1. The Arbitrator’s determination of 19 May 2017 is 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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