Macarthur Group Training Ltd v Tahere - [2019] NSWWCCPD 46

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Macarthur Group Training Ltd v Tahere [2019] NSWWCCPD 46
APPELLANT:	Macarthur Group Training Ltd
RESPONDENT:	Adam Tahere
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-5995/18
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	26 February 2019
DATE OF APPEAL DECISION:	2 September 2019
SUBJECT MATTER OF DECISION:	Aggravation of a disease; ss 4(a), 4(b)(ii) of the Workers Compensation Act 1987 –Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; 17 NSWCCR 309; 45 NSWLR 606, discussed and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gair Legal
Respondent:	Stacks Goudkamp
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 26 February 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Mr Adam Tahere (the respondent) suffered injuries to his back on 4 March 2016 and 16 March 2017 in the course of his employment as an apprentice electrician with Macarthur Group Training Limited (the appellant). After each injury and time off work, he was certified as fit for his pre-injury duties. The respondent then suffered further back symptoms in January 2018 and July 2018 in the course of his employment with JR Electrical Services Pty Ltd (JR Electrical). Following the onset of severe symptoms in July 2018, the respondent did not return to work.
The respondent made a claim against the appellant for a recurrence of his back injury (the July 2018 symptoms), which was denied by the appellant on the basis that the respondent had returned to pre-injury duties after the first two injuries, and any incapacity arising thereafter was not its liability.
The respondent lodged an Application to Resolve a Dispute (ARD) with the Commission, nominating only the appellant as the employer, and pleading only the injuries in 2016 and 2017. He claimed weekly payments from 30 July 2018 and associated treatment expenses. The respondent did not make a claim against JR Electrical, or name it as a party in the proceedings before the Commission.
The appellant disputed the claim, alleging that the respondent had recovered from the effects of the injuries for which it was liable, and had been able to earn more than his 2017 pre-injury earnings. In any event, it said it had no liability because the injuries were disease injuries for the purposes of s 16 of the Workers Compensation Act 1987 (the 1987 Act), which made the last employer liable for the compensation entitlements.
The matter proceeded to arbitration, and the Arbitrator issued a Certificate of Determination, finding that the respondent’s incapacity from 30 July 2018 resulted from the injury on 16 March 2017.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under…

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.

Continue reading Macarthur Group Training Ltd v Tahere

Details

AGLC: Macarthur Group Training Ltd v Tahere [2019] NSWWCCPD 46
Case: [2019] NSWWCCPD 46
Decision Date: 2 September 2019

CaseChat Overview and Summary

Macarthur Group Training Ltd was the appellant and Tahere was the respondent in a dispute heard by the New South Wales Supreme Court. The case revolved around the respondent's workers compensation claim, specifically whether the aggravation of his pre-existing medical condition was due to his employment. The appellant contested the claim, asserting that the aggravation was not caused by his employment with the appellant. The court had to decide whether the aggravation of the respondent's condition was work-related and if the appellant was liable for compensation.

The central legal issues before the court were whether the respondent's medical condition was aggravated by his employment and, if so, whether the appellant was responsible for compensating the respondent under the Workers Compensation Act 1987. The court needed to consider the evidence and apply relevant case law to determine if the aggravation was a result of the respondent's employment and if it fell within the scope of compensable injuries under the Act. The court examined the evidence and considered precedents such as Rail Services Australia v Dimovski and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd to reach a decision.

In its judgment, the court found that the aggravation of the respondent's pre-existing medical condition was indeed work-related. The court noted that the evidence showed a clear connection between the respondent's employment activities and the aggravation of his condition. The court held that the appellant was liable for compensating the respondent under the Workers Compensation Act 1987. The court confirmed the Certificate of Determination dated 26 February 2019, which had already ruled in favour of the respondent. The appellant's appeal was dismissed, and the respondent was entitled to compensation for the aggravation of his medical condition caused by his employment.

Orders

Orders of the court

1. The Certificate of Determination dated 26 February 2019 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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