Marsh v NAZ Pty Limited - [2006] NSWWCCPD 356

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Marsh v NAZ Pty Limited [2006] NSWWCCPD 356
APPELLANT:  Cheryl Anne Marsh
RESPONDENT:  NAZ Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18628-05
DATE OF ARBITRATOR’S DECISION:          9 August 2006
DATE OF APPEAL DECISION:  20 December 2006
SUBJECT MATTER OF DECISION:                Estoppel; causation; application of Rail Services Australia v Dimovski [2004] NSWCA 267; two injuries and section 67 threshold.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Leitch Hasson Dent
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: Time to appeal extended to 13 September 2006.

The decision of the Arbitrator dated 9 August 2006 is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 6 September 2006 Cheryl Anne Marsh (‘the Appellant Worker/Ms Marsh’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 9 August 2006.

The Respondent to the Appeal is NAZ Pty Limited (‘the Respondent Employer/NAZ’).

Ms Marsh was born on 17 July 1957. She started work for the Respondent Employer on 18 July 2000 at Khan’s IGA store at Lightning Ridge where she worked in the fruit and vegetable department for two years before becoming the manager of the dairy and freezer section. She was the only employee in that section. Her duties required her to load and unload stock, check on stock levels, clean fridges and freezers, and remove stock from freezers if they broke down.

On 28 July 2004 she was cleaning a shelf in the dairy case. As she was replacing the shelf it slipped from its clip fastener and fell striking the top of her right hand causing a lump to immediately develop. She completed her shift and took pain killers that night but was suffering increasing discomfort the following day when she reported the injury to her manager, Pat Adams. She worked for the remainder of the week when she took a one week holiday that had been arranged before her accident. Her hand remained painful during her holiday and she had difficulty using it so spent most of her time resting at home.

On 6 August 2004 Ms Marsh attended on her local general practitioner, Dr Nashed, complaining of pain and swelling over the back of her right hand. Tests were carried out and she was given another week off work and prescribed anti inflammatory medication. She was referred to Dr O’Connor, a specialist at Dubbo’s hand clinic who suggested her condition was synovitis. A bone scan was performed on 27 August 2004 which showed “low level post traumatic changes throughout the right wrist” (report Dr Vu 27 August 2004).

On 2 September 2004 Ms Marsh attended on Dr Nashed complaining that her symptoms were much worse, she was not tolerating wearing a splint, could not sleep at night and that she also had pain in her left wrist (see…

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.

Keep reading for free

Create a free CaseChat account to read Marsh v NAZ Pty Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWWCCPD 356
Decision Date: 20 December 2006

CaseChat Overview and Summary

Cheryl Anne Marsh, an employee of NAZ Pty Limited, appealed a decision of an Arbitrator who found that she was not entitled to compensation under section 67 of the Workers Compensation Act 1987 as she had sustained two separate injuries. The appeal was heard by Deputy President Bill Roche, who was tasked with determining whether the Arbitrator erred in her findings. The key issues were whether the injury to the left hand was a consequence of the scrubbing and not a sequelae of the injury to the right wrist, whether the Arbitrator failed to apply the law set out in Rail Services Australia v Dimovski, whether the loss of use of the left upper extremity arose out of the original injury to the right hand, and whether the two injuries should have been aggregated to determine if the threshold for compensation under section 67 had been satisfied. The Deputy President concluded that the Arbitrator's findings on the cause of the injuries were final and binding, and that the Appellant was estopped from arguing the issue of causation. Therefore, the appeal was unsuccessful, and the Arbitrator's decision was confirmed. No order was made as to the costs of the appeal.

Orders