Inghams Enterprises Pty Ltd v Sok - [2013] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal dismissed – Inghams Enterprises Pty Ltd v Sok [2014] NSWCA 217
CITATION:	Inghams Enterprises Pty Ltd v Sok & anor [2013] NSWWCCPD 39
APPELLANT:	Inghams Enterprises Pty Ltd
FIRST RESPONDENT:	Chan Tha Sok
SECOND RESPONDENT:	Integrated Parramatta Services Pty Ltd
APPELLANT’S INSURER:	Self-insured
SECOND RESPONDENT’S INSURER:	CGU Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-6074/12; A2-6074/12
ARBITRATOR:	Ms C Rimmer
DATE OF ARBITRATOR’S DECISION:	14 March 2013
DATE OF APPEAL DECISION:	17 July 2013
SUBJECT MATTER OF DECISION:	Challenge to factual findings; no relevant error demonstrated; s 105 of the Workplace Injury Management and Workers Compensation Act 1998; jurisdiction of the Commission to make award of weekly compensation; consequences of passage of Workers Compensation Legislation Amendment Act 2012
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Saul, instructed by Leigh Virtue & Associates
First Respondent:	Mr B Odling, instructed by Frisina Lawyers
Second Respondent:	Mr S Flett, instructed by Bartier Perry
ORDERS MADE ON APPEAL:	1. The findings and orders made in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are confirmed. 2. Paragraph 2 is revoked and the following orders are made in its place: “2. (a) The respondents are to pay weekly benefits pursuant to the former s 37 of the Workers Compensation Act 1987 as follows: i. $496 per week (being the statutory rate for a worker with a dependent child), as adjusted, from 10 May 2011 to 14 September 2012, and ii. $628 per week (being the statutory rate for a worker with a dependent spouse and dependent child), as adjusted, from 15 September 2012 to 31 December 2012. (b) The respondents are to pay weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $523.92 per week from 1 January 2013 and continuing.” 3. The appellants are to pay Ms Sok’s costs of the appeals, each appellant bearing one half of such liability.

BACKGROUND

Ms Chan Tha Sok alleged that she had received injury to her lumbar spine in the course of her employment with Integrated Parramatta Services Pty Limited (Integrated) and, subsequently, with Inghams Enterprises Pty Limited (Inghams). Ms Sok had been employed by Integrated, a labour hire company, to perform work at the premises of Inghams between mid 2001 and November 2002. On 18 November, 2002 Ms Sok commenced employment at the same premises with Inghams.
The injuries alleged as against Integrated were that a frank injury had occurred on 21 October 2002 as Ms Sok was lifting crates of chicken parts. It was also alleged against Integrated that further injury had been occasioned by reason of the arduous duties performed by her between 21 October 2002 and 17 November 2002. The allegation of injury made as against Inghams was that, as a result of the nature and conditions of her employment between 18 November 2002 and…

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: [2013] NSWWCCPD 39
Decision Date: 17 July 2013

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd and Integrated were respondents in proceedings before the Workers Compensation Commission of New South Wales, with Ms Sok as the appellant. The dispute centred on the extent of Ms Sok's work-related injuries and the appropriate level of compensation. The matter was ultimately appealed to the New South Wales Court of Appeal. The key legal issues before the court involved the interpretation and application of sections 105, 22, 9A, 15, 16, and 60 of the Workers Compensation Act 1987, as well as the impact of the Workers Compensation Legislation Amendment Act 2012 on the Commission's jurisdiction to award weekly compensation. The court had to determine whether the Commission's factual findings were flawed and whether there was a relevant error in law that necessitated a different outcome.

The court found that the Commission's factual findings were supported by the evidence and that no relevant error had been demonstrated in the Commission's approach. The court rejected the argument that the Commission had erred in law by not apportioning liability between the two employers as per section 22 of the 1987 Act. The court also found that the Commission was correct in its interpretation of section 9A, which pertained to the relevance of Ms Sok's employment with Inghams in relation to her injuries. Furthermore, the court upheld the Commission's decision that sections 15 and 16 of the 1987 Act did not apply to the circumstances of the case. The court concluded that the Commission had the authority to make an award of weekly compensation under the former section 37 of the 1987 Act, notwithstanding the changes introduced by the Workers Compensation Legislation Amendment Act 2012.

The court confirmed the majority of the Commission's findings and orders, with specific adjustments to the weekly benefit payments to align with the statutory rates applicable from 10 May 2011 onwards. The court also modified the costs order, requiring the appellants to pay Ms Sok's costs of the appeals, with each appellant bearing half of the liability. This decision underscored the importance of the Commission's ability to interpret and apply the relevant statutes accurately, while also acknowledging the need for adjustments in light of legislative amendments.

Orders

Orders of the court

1. The findings and orders made in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are confirmed.

2. Paragraph 2 is revoked and the following orders are made in its place:

“2. (a) The respondents are to pay weekly benefits pursuant to the former s 37 of the Workers Compensation Act 1987 as follows:

i. $496 per week (being the statutory rate for a worker with a dependent child), as adjusted, from 10 May 2011 to 14 September 2012, and

ii. $628 per week (being the statutory rate for a worker with a dependent spouse and dependent child), as adjusted, from 15 September 2012 to 31 December 2012.

(b) The respondents are to pay weekly benefits pursuant to s 37(1) of the Workers Compensation Act 1987 at the rate of $523.92 per week from 1 January 2013 and continuing.”

3. The appellants are to pay Ms Sok’s costs of the appeals, each appellant bearing one half of such liability.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Also in evidence was a report relating to MRI lumbar spine conducted on 6 June 2011 at the request of Dr New which included the following conclusion:“CONCLUSION:* Multilevel degenerative disc change most prominent at L4/L5 level where there is a fairly broad-based central disc protrusion with annular fissuring with evidence of contact of the disc protrusion with the facet joints and bilateral subarticular recess/lateral recess stenosis. The traversing left L5 nerve root appears to bypass the subarticular recess/lateral recess stenosis whereas the traversing right L5 nerve root appears to be impinged upon within the right subarticular recess/lateral recess.*Small central disc protrusion with annular fissuring L5/S1.*Mild facet joint and legamentum flavum hypertrophy L4/L5 and mild to moderate facet joint and legamentum flavum hypertrophy at L5/S1.” It is common ground among the medical practitioners whose evidence is before the Commission, with the exception of Dr Edwards, that Ms Sok suffers significant disability by reason of the abnormalities demonstrated at the level of the lumbar spine by the various radiological studies and that such disability is work related. There is some divergence of opinion as to what particular work activities have caused the relevant injury and there are also differing views as to whether Ms Sok suffers or has suffered from relevant disease at that level of her spine. It is not proposed to summarise that evidence, which was addressed with particular care by the Arbitrator in the course of her Reasons, but reference will be made to that material, where relevant, in the course of discussion which appears below. Relevant issues were identified by counsel for each employer. Counsel appearing on behalf of Integrated conceded the occurrence of injury in the course of Ms Sok’s employment in October 2002. Counsel stated that it was Integrated’s case that there had been a subsequent injury which had given rise to relevant incapacity and the need for surgical treatment. It was put on behalf of Integrated that, should a finding be made that injury had been relevantly caused by work related incidents whilst Ms Sok was employed by both Integrated and Inghams, it would be appropriate to apportion liability pursuant to s 22 of the 1987 Act. Counsel appearing on behalf of Inghams stated that his client denied injury and, further, placed reliance upon the provisions of s 9A of the 1987 Act in that it asserted that employment with Inghams was not a substantial contributing factor to injury. It was also put that ss 15 and 16 “do not apply”. Inghams also disputed “incapacity” and denied that the surgery recommended by Dr New was reasonably necessary in terms of s 60 of the 1987 Act. Counsel also made the statement “if … you find that there is a disease, we say that [Inghams] is not the last employer …”. Counsel appearing on behalf of Ms Sok noted that the claim for weekly payments commenced on 10 May 2011 and that total incapacity was alleged. Counsel placed reliance upon the opinion of Dr Holman concerning Ms Sok’s allegation that the surgery recommended by Dr New was reasonably necessary within the meaning of the Act.

Ratio Decidendi

Legal Principle Established

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