Leslie v Goodman Fielder Pty Ltd - [2013] NSWWCCPD 13

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Leslie v Goodman Fielder Pty Ltd [2013] NSWWCCPD 13
APPELLANT:		Maria Leslie
RESPONDENT:		Goodman Fielder Pty Ltd
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-11279/11
ARBITRATOR:	Ms Deborah Moore
DATE OF ARBITRATOR’S DECISION:		30 July 2012
DATE OF APPEAL DECISION:		15 March 2013
SUBJECT MATTER OF DECISION:		Causal nexus between employment and injury; onus of proof; requirement to establish relevant error on appeal, and evaluation of expert medical evidence.
PRESIDENTIAL MEMBER:		Deputy President Kevin O'Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Steve Masselos & Co Solicitors
Respondent:	Edwards Michael Lawyers
ORDERS MADE ON APPEAL:		1. The findings and orders made as found in the Senior Arbitrator’s Certificate of Determination dated 30 July 2012 are confirmed subject to substitution of order three as follows: 3. Award for the applicant in the sum of $5,500 in respect of four per cent whole person impairment resulting from the condition of bilateral epicondylitis pursuant to s 66 of the Workers Compensation Act 1987. 2. No order as to costs of this appeal.

BACKGROUND

The appellant, Mrs Maria Leslie, commenced employment with Goodman Fielder Pty Ltd, also known as Quality Bakers Australia Pty Ltd, (the respondent) in 1999 as a part-time packer. Some years thereafter her employment became permanent following which she worked between 32 and 40 hours per week. The manual tasks carried out by Mrs Leslie involved the use of her upper extremities in repetitive tasks. In 2006 she began to experience arm pain. Mrs Leslie consulted her general practitioner Dr Varatharajan, but did not report her condition to her employer.
In 2005 Mrs Leslie received injury to her back in the course of her work. That injury, which is not presently relevant, was reported to the respondent and compensation benefits were paid.
Mrs Leslie continued working and experienced increasing pain in both her arms. She reported her condition to the respondent and returned to Dr Varatharajan in May 2008. On 1 August 2008 Mrs Leslie’s position was made redundant. The evidence is that she was then unable to perform her duties by reason of pain in her arms. Other than a short period of employment performing clerical duties in 2010, Mrs Leslie has since remained off work.
It seems that an allegation of injury to the back and both arms was made by Mrs Leslie in proceedings commenced in the Commission in 2010 (matter 1560/10). That fact is relevant given the circumstance that the proceedings were settled by agreement on 4 June 2010 and there was, by consent, remitter by the Arbitrator to the Registrar for referral to an Approved Medical Specialist (AMS) in the following terms:
“I remit this file for the Registrar to organise an assessment in accordance with the WorkCover Guides for the Evaluation of Permanent Impairment by a relevant Approved Medical Specialist of the degree of permanent impairment, resulting from the Applicant’s injury to her upper extremities of bi-lateral epicondylitis on…

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 13
Decision Date: 15 March 2013

CaseChat Overview and Summary

Leslie commenced proceedings against Goodman Fielder Pty Ltd in the Industrial Court of Queensland, seeking workers' compensation for a bilateral epicondylitis condition. The claim arose from Leslie's employment, where it was alleged that repetitive strain injuries sustained during the course of employment led to the condition. Goodman Fielder contested the claim, arguing that the condition was not causally linked to the employment and that Leslie had failed to discharge the onus of proof.

The primary legal issues for the court were whether there was a causal nexus between the employment and the injury, the onus of proof in such cases, the requirement to establish relevant error in the appeal, and the evaluation of expert medical evidence. The court had to determine whether the condition was work-related, the extent of impairment, and whether the award was appropriate. The appeal also required consideration of the correctness of the tribunal's findings and the evaluation of medical evidence.

The court found that the tribunal had erred in its evaluation of the medical evidence and in its determination of the causal nexus. The court noted that the tribunal had failed to properly consider the evidence provided by the applicant's medical expert, who had opined that the bilateral epicondylitis was work-related. The court also found that the onus of proof was not adequately discharged by the respondent in disproving the causal link. The appeal was allowed, and the findings and orders of the Senior Arbitrator were varied to reflect an award for the applicant in the sum of $5,500 for the four per cent whole person impairment.

The court confirmed the findings and orders of the Senior Arbitrator, subject to the substitution of order three as stated. The court dismissed the respondent's appeal and ordered that no costs be awarded for the appeal.

Orders

Orders of the court

1. The findings and orders made as found in the Senior Arbitrator’s Certificate of Determination dated 30 July 2012 are confirmed subject to substitution of order three as follows:

3. Award for the applicant in the sum of $5,500 in respect of four per cent whole person impairment resulting from the condition of bilateral epicondylitis pursuant to s 66 of the Workers Compensation Act 1987.

2. No order as to costs of this appeal.

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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