McDonald v MW & JM Riddiford - [2014] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	McDonald v MW & JM Riddiford [2014] NSWWCCPD 27
APPELLANT:	Duane Russell McDonald
RESPONDENT:	MW & JM Riddiford
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-14722/12
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	9 December 2013
DATE OF APPEAL HEARING:	6 May 2014
DATE OF APPEAL DECISION:	13 May 2014
SUBJECT MATTER OF DECISION:	Disease provisions; ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987; failure to determine all issues in dispute; principles in Crisp v Chapman (1994) 10 NSWCCR 492 and Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd (1995) 12 NSWCCR 365 discussed
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Dodd, instructed by McCabe Partners Lawyers
Respondent:	Mr B Odling, instructed by Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. Save to the extent that the Arbitrator’s determination of 9 December 2013 relates to the alleged hearing loss injury, the alleged umbilical hernia, and the alleged injury under s 4(b)(ii) of the Workers Compensation Act 1987, which determinations are confirmed, that determination is revoked. 2. The claim relating to the appellant worker’s alleged disease injury under s 4(b)(i) of the Workers Compensation Act 1987 is remitted to a different Arbitrator for re-determination. 3. The respondent employers are to pay the appellant worker’s costs of the appeal, as agreed or assessed. 4. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

BACKGROUND

The appellant worker, Duane McDonald, is a retired shearer. He is currently 53 years old. He worked continuously as a shearer from 1976 until he stopped in 2002. Over the years up to 2002, Mr McDonald noticed increased pain in his neck, shoulders, elbows, wrists, back, knees and feet. He also noticed deafness and an umbilical hernia. He stopped shearing in 2002 because he could no longer put up with pain in various parts of his body, but made no claim for compensation.
At some time in or about 2008, Mr McDonald worked as a shearer for National Grazing Services (NGS), which was a trading name for Grazcos. At the last shed at which Mr McDonald worked in that year, he noticed that the pain in his knees, wrists, neck and back were getting worse and he was struggling to get going in the morning. Again, he made no claim for compensation in respect of this period of shearing.
Mr McDonald last worked as a shearer from 26 August 2010 to 1 September 2010, when he worked for the respondents to the appeal, MW and JM Riddiford. Through his solicitor, Mr McDonald claimed weekly compensation from the respondents in a letter dated 3 February 2012 and lump sum compensation in a letter dated 18 September 2012.
In an Application to Resolve a Dispute (the Application) filed in the Commission on 20 November…

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: [2014] NSWWCCPD 27
Decision Date: 13 May 2014

CaseChat Overview and Summary

McDonald, a worker, appealed against the decision of an Arbitrator who had rejected his claim for workers’ compensation in relation to a disease sustained during his employment. The dispute was heard in the Industrial Court of New South Wales. The central issue before the court was whether the Arbitrator had properly considered and determined all of the issues in dispute as required by relevant case law. Specifically, the court needed to decide if the Arbitrator had adequately addressed the disease provisions under sections 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987.

The court examined the Arbitrator's decision to determine if he had followed the principles outlined in Crisp v Chapman and Grate Lace Pty Ltd t/as Grate Lace Bricklaying Co v Theiss Watkins White (Constructions) Pty Ltd. The Arbitrator had dismissed the worker's claim for disease under section 4(b)(i) but had accepted claims relating to hearing loss, umbilical hernia, and injury under section 4(b)(ii). The court found that the Arbitrator had failed to determine all issues in dispute as required by the cited authorities. Consequently, the Arbitrator's decision was revoked in part and the matter was remitted to a different Arbitrator for re-determination of the disease claim under section 4(b)(i).

The court ordered that the Arbitrator’s determinations regarding the hearing loss, umbilical hernia, and section 4(b)(ii) injury be confirmed. However, the claim for disease under section 4(b)(i) was to be re-determined by a different Arbitrator. The respondent employers were ordered to pay the worker's costs of the appeal, as agreed or assessed, while the costs of the arbitrations were to follow the outcome of the second arbitration.

Orders

Orders of the court

1. Save to the extent that the Arbitrator’s determination of 9 December 2013 relates to the alleged hearing loss injury, the alleged umbilical hernia, and the alleged injury under s 4(b)(ii) of the Workers Compensation Act 1987, which determinations are confirmed, that determination is revoked.

2. The claim relating to the appellant worker’s alleged disease injury under s 4(b)(i) of the Workers Compensation Act 1987 is remitted to a different Arbitrator for re-determination.

3. The respondent employers are to pay the appellant worker’s costs of the appeal, as agreed or assessed.

4. Costs of the first arbitration, and of the second arbitration, are to follow the outcome of the second arbitration.

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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