Ky v Blue Leaf Food Group Pty Ltd

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ky v Blue Leaf Food Group Pty Ltd [2016] NSWWCCPD 55
APPELLANT:	Ly Meng Ky
RESPONDENT:	Blue Leaf Food Group Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-440/16
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	18 May 2016
DATE OF APPEAL DECISION:	15 November 2016
SUBJECT MATTER OF DECISION:	The test to establish ‘injury’ in the primary sense pursuant to the definition in s 4(a) of the Workers Compensation Act 1987 – application of Military Rehabilitation and Compensation Commission v May [2016] HCA 19; ‘injury’ in the primary sense and ‘disease’ injury not mutually exclusive – application of Zickar v MGH Plastic Industries Pty Ltd[1996] HCA 31; 187 CLR 310
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gajic Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1.       The Certificate of Determination dated 18 May 2016 is revoked. 2.       The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

1. This appeal raises issues going to the characterisation of ‘injury’. There were valid tactical reasons for how the appellant conducted his case, associated with the threshold in s 66(1) of the Workers Compensation Act 1987 (the 1987 Act). On the evidence overall, can the alleged injury resulting from the “nature and conditions” of employment be characterised as a ‘personal injury’ pursuant to the definition in s 4(a) of the 1987 Act, even if it is also a ‘disease injury’ pursuant to the definition in s 4(b) of the 1987 Act? There are issues going to the appropriate test to establish ‘injury’ in the primary sense, pursuant to the definition in s 4(a) of the 1987 Act.

BACKGROUND

1. Ly Meng Ky (the appellant) was employed by Blue Leaf Food Group Pty Ltd (the respondent) as a picker and packer, and forklift driver, from 1988. The appellant’s employment was terminated on 13 January 2012, when the business closed. He was subsequently employed by TK Pacific Marketing Pty Ltd as a picker and packer, from early 2014 to about March 2015, when he was retrenched.

2. The appellant was assessed at his solicitors’ request by Dr Dias, an occupational physician, who reported on 6 March 2015. Dr Dias assessed the appellant to have suffered nine per cent whole person impairment in respect of the right upper extremity (shoulder), four per cent in respect of the right lower extremity (knee) and four per cent in respect of the left lower extremity (knee). The appellant, on 9 April 2015, claimed lump sum compensation in respect of 16 per cent whole person impairment, consistent with this assessment (when the figures are combined).

3. The respondent’s insurer denied liability for the lump sum claim, in a s 74 notice dated 16 June 2015. The notice denied ‘injury’ and that section 9A of the 1987 Act was satisfied, in respect of the appellant’s right shoulder and trigger fingers (the fingers are not…