Inghams Enterprises Pty Ltd v Thoroughgood

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Leave to appeal to the Court of Appeal refused – Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166
CITATION:	Inghams Enterprises Pty Ltd v Thoroughgood [2013] NSWWCCPD 29
APPELLANT:	Inghams Enterprises Pty Ltd
RESPONDENT:	Brett Thoroughgood
INSURER:	Self-insured
FILE NUMBER:	A1-4147/12
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	18 January 2013
DATE OF APPEAL HEARING:	14 May 2013
DATE OF APPEAL DECISION:	27 May 2013
SUBJECT MATTER OF DECISION:	Aggravation of disease of varicose veins; meaning of incapacity in s 16 of Workers Compensation Act 1987; application of principles in P & O Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481 and Stone v Stannard Brothers Launch Services Pty Ltd [2004] NSWCA 277; 1 DDCR 701; notice of injury; notice of claim; WorkCover Provisional Liability and Claims Guidelines issued December 2001; whether Arbitrator entitled to refer to findings by Delegate of the Registrar in an Application for Expedited Assessment; procedural fairness; ss 74, 254, 255, 260 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; cl 46 of the Workers Compensation Commission Regulation 2010
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr D Saul, instructed by Leigh Virtue & Associates
Respondent:	Mr T Edwards, instructed by Bale Boshev Lawyers
ORDERS MADE ON APPEAL:	1.       The Arbitrator’s determination of 18 January 2013 is revoked and the matter remitted to a different Arbitrator for re-determination of the deemed date of injury. 2.       The appellant employer is to pay part of the respondent worker’s cost of the appeal, assessed at $1,750 plus GST. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

INTRODUCTION

1. Section 16(1)(a) of the Workers Compensation Act 1987 (the 1987 Act) deems an injury within that section (an aggravation of a disease) to have happened either at the time of the worker’s incapacity or, if incapacity has not resulted from the injury, at the time the worker makes a claim for compensation. This appeal concerns the meaning of “incapacity” in that section and, in particular, the correct deemed date of injury where the worker has claimed compensation for a whole person impairment, but not claimed weekly compensation for an alleged incapacity to perform his pre-injury work.

2. The appeal also raises issues about notice of injury, notice of claim, whether an Arbitrator is entitled to take into account comments made by a Delegate to the Registrar in a direction issued in response to an Application for Expedited Assessment, procedural fairness arising from the refusal to admit into evidence research articles relied on by a medical expert but not served with that expert’s report, and whether the Arbitrator determined the matter on a basis different to that put by the worker.

BACKGROUND

1. The respondent worker, Brett Thoroughgood, worked for the appellant employer, Inghams Enterprises Pty Ltd (Inghams) between 2003 and 10…