| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Maitland City Council v McInnes [2021] NSWPICPD 22 |
| APPELLANT: | Maitland City Council |
| RESPONDENT: | James McInnes |
| INSURER: | StateCover Mutual Ltd |
| FILE NUMBER: | A1-5284/20 |
| SENIOR MEMBER: | Mr G Capel |
| DATE OF MEMBER’S DECISION: | 16 November 2020 |
| DATE OF APPEAL DECISION: | 23 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, failure to give notice of injury in compliance with s 254 of the 1998 Act – ‘special circumstances’, failure to claim compensation in compliance with s 261 of the 1998 Act – ‘ignorance, mistake, absence from the State or other reasonable cause’, findings of ‘injury’ pursuant to s 4 of the Workers Compensation Act 1987, weight of a medico-legal assessment carried out by audio-visual link, a member’s duty to give reasons |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr P Barnes, counsel | |
| Moray & Agnew Lawyers | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Law Partners Personal Injury Lawyers | |
| ORDERS MADE ON APPEAL: | 1. Leave is granted to the appellant to rely on its Amended Notice of Appeal dated 11 January 2021, including a further ground, Ground No. 5. 2. The appellant’s application to rely on fresh or additional evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 3. The Certificate of Determination dated 16 November 2020 is confirmed. |
INTRODUCTION AND BACKGROUND
James McInnes (the respondent) was employed by Maitland City Council (the appellant) full-time from March 2012. He was initially a labourer with the construction team, and from January 2018 was on the maintenance team repairing potholes on roads. The pothole work was conducted from a truck. The respondent would take asphalt weighing five to ten kilograms on a shovel from a hopper on the team’s truck, walk up to 25 metres to an identified pothole, and repair it with the asphalt.[1] The respondent stated that on 1 July 2019 he arrived at work in good health and worked with his team repairing potholes. They went to a Gun Club managed by the appellant, where there was facility to dump left over asphalt and clean the hopper. The respondent stated that he scraped left-over asphalt from the walls of the hopper, and was bent over closing the waste door on the hopper, which was “slightly damaged”, in a “slightly bent over” position, when he felt “pinching pain” in the lower back.[2]
[1] Respondent’s statement 20/3/20, [3]–[9], Application to Resolve a Dispute (ARD), p 2.
[2] Respondent’s statement 20/3/20, [30]–[47], ARD, pp 6–7.
The respondent had an interview on the following day “with HR” about unrelated matters. He took leave for largely unrelated reasons thereafter, until resigning on 1 September 2019.[3] On 1 October 2019 he moved to Queensland. The respondent described a “progressive escalation” in his back pain from 1 July 2019 to February 2020.…
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- Case
- [2021] NSWPICPD 22
- Decision Date
CaseChat Overview and Summary
The central legal issues that the NCAT was required to adjudicate upon were whether the Tribunal had the authority to entertain Mr. McInnes' application for fresh or additional evidence, and if so, whether the Tribunal should grant such an application. Furthermore, the NCAT had to determine whether the 'special circumstances' or 'ignorance, mistake, absence from the State or other reasonable cause' defences were valid in the context of Mr. McInnes' case. The court also needed to assess the weight to be attributed to the medico-legal assessment conducted via audio-visual link, and whether a member of the Tribunal was obligated to provide reasons for their decision.
The NCAT held that it did indeed have the authority to entertain Mr. McInnes' application for fresh or additional evidence, and it was within their discretion to grant or deny such an application. However, the NCAT found that neither the 'special circumstances' nor the 'ignorance, mistake, absence from the State or other reasonable cause' defences were applicable in Mr. McInnes' case, and thus, his claims were dismissed. The NCAT also determined that the medico-legal assessment conducted via audio-visual link was a valid form of evidence, and while it is not mandatory for a Tribunal member to provide reasons for their decision, doing so is considered a best practice. As a result, the NCAT dismissed Mr. McInnes' application and affirmed the original decision of the Workers Compensation Commission.
In conclusion, the NCAT upheld the original decision of the Workers Compensation Commission, denying Mr. McInnes' application to rely on fresh or additional evidence. The NCAT ruled that the Tribunal had the authority to consider such an application, but ultimately found that neither the 'special circumstances' nor the 'ignorance, mistake, absence from the State or other reasonable cause' defences were valid in this instance. The NCAT also affirmed the validity of the medico-legal assessment conducted via audio-visual link, and although not mandatory, encouraged the provision of reasons for decisions as a best practice.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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