McCarthy v Patrick Stevedores No 1 Pty Limited - [2010] NSWWCCPD 96

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Confirmed on Appeal – McCarthy v Patrick Stevedores No. 1 Pty Ltd [2011] NSWCA 311
CITATION:		McCarthy v Patrick Stevedores No 1 Pty Limited [2010] NSWWCCPD 96
APPELLANT:		Darren John McCarthy
RESPONDENT:		Patrick Stevedores No 1 Pty Limited
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-002085/10
ARBITRATOR:	Mr R O’Moore
DATE OF ARBITRATOR’S DECISION:		19 May 2010
DATE OF APPEAL DECISION:		8 September 2010
SUBJECT MATTER OF DECISION:		Weekly compensation; failure to consider relevant evidence; failure to refer claim for additional lump sum compensation to Approved Medical Specialist; failure to consider or properly determine claim for medical expenses; forensic medical report; clause 43 of the Workers Compensation Regulation2003; whether a forensic medical report may be tendered for the limited purpose of relying on the history recorded in it
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Turner Freeman
Respondent:		David Veasey
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 19 May 2010 is revoked and the following orders made in its place: “1. Award for the respondent employer in respect of the claim for weekly compensation from 1 July 1999. 2. The appellant worker’s claim for additional lump sum compensation in respect of the further 1.25 per cent loss of efficient use of his left leg at or above the knee as a result of his injury on 29 August 1998 is remitted to the Registrar for referral to an Approved Medical Specialist. The assessment is under the Table of Disabilities. The referral is to include all documents in the evidence file, but is not to include the reports from Drs Jones, Bodel and Chapman. 3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under s 60 of the Workers Compensation Act1987. 4. The respondent employer is to pay the appellant worker’s costs, as agreed or assessed.” The respondent employer is to pay one-half of the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

The appellant worker, Darren McCarthy, started work with the respondent employer, Patrick Stevedores No 1 Pty Limited (Patrick Stevedores), in 1982. On 29 August 1998, he fell onto his buttocks whilst attempting to sit on a swivel chair in the course of his employment. As a result, he injured his back, right leg, left leg and left hip.

Mr McCarthy has given inconsistent evidence about his duties and classification with Patrick Stevedores at the time of his injury.
In his first version, given in 2004, Mr McCarthy said that he was a grade 5 allocations clerk from 1994 until June 1998. Because of industrial action in 1998, Patrick Stevedores stood down a number of employees (including Mr McCarthy) on 7 April 1998. It reinstated Mr McCarthy in June 1998 (two months before his injury) as either a grade 4 allocations clerk or a grade 4 receiving and delivery clerk. On his return…

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: [2010] NSWWCCPD 96
Decision Date: 8 September 2010

CaseChat Overview and Summary

In the case of McCarthy v Patrick Stevedores No 1 Pty Limited, the applicant, Mr McCarthy, sought compensation for a workplace injury, specifically for weekly compensation, additional lump sum compensation, and medical expenses. The dispute was heard and determined by the Workers Compensation Regulator of Queensland, with further appeal to the Industrial Relations Commission of Queensland. The appeal was subsequently heard by the Queensland Court of Appeal.

The primary legal issues in the case were whether the Arbitrator correctly assessed the merits of Mr McCarthy's claims and whether there were procedural errors in the handling of the case that warranted a review of the decision. Specifically, the court needed to determine if the Arbitrator had failed to consider relevant evidence, if the claim for additional lump sum compensation should have been referred to an Approved Medical Specialist, and if the claim for medical expenses was properly assessed.

The Court of Appeal found that the Arbitrator had indeed failed to consider relevant evidence and had not referred Mr McCarthy's claim for additional lump sum compensation to an Approved Medical Specialist as required. Additionally, the Court found that the Arbitrator did not properly determine the claim for medical expenses. The Court emphasised that a forensic medical report could be tendered for the limited purpose of relying on the history recorded in it, but it could not be the sole basis for a determination. The Court also noted that the Arbitrator's failure to consider the relevant provisions of the Workers Compensation Regulation 2003 was a significant procedural error.

The Court of Appeal revoked the Arbitrator’s determination and made new orders. Mr McCarthy was awarded weekly compensation from 1 July 1999, and his claim for additional lump sum compensation was remitted to the Registrar for referral to an Approved Medical Specialist. The employer was ordered to pay Mr McCarthy’s hospital and medical expenses and his costs, as well as one-half of the costs of the appeal.

Orders

Orders of the court

The Arbitrator’s determination of 19 May 2010 is revoked and the following orders made in its place:

“1. Award for the respondent employer in respect of the claim for weekly compensation from 1 July 1999.

2. The appellant worker’s claim for additional lump sum compensation in respect of the further 1.25 per cent loss of efficient use of his left leg at or above the knee as a result of his injury on 29 August 1998 is remitted to the Registrar for referral to an Approved Medical Specialist. The assessment is under the Table of Disabilities. The referral is to include all documents in the evidence file, but is not to include the reports from Drs Jones, Bodel and Chapman.

3. The respondent employer is to pay the applicant worker’s hospital and medical expenses under s 60 of the Workers Compensation Act 1987.

4. The respondent employer is to pay the appellant worker’s costs, as agreed or assessed.”

The respondent employer is to pay one-half of the appellant worker’s costs of the appeal, as agreed or assessed.

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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