McNamara v Government Cleaning Service of NSW, Berkeley Challenge Pty Limited and Tempo Services Limited and Stonefed Pty Limited final decision
[2005] NSWWCCPD 114
•23 September 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:McNamara v Government Cleaning Service of NSW, Berkeley Challenge Pty Limited, Tempo Services Limited, Stonefed Pty Limited [2005] NSW WCC PD 114
APPELLANT: Brendan McNamara
FIRST RESPONDENT: Government Cleaning Service of NSW
SECOND RESPONDENT: Berkeley Challenge Pty Limited
THIRD RESPONDENT: Tempo Services Limited
FOURTH RESPONDENT: Stonefed Pty Limited
INSURER:Government Cleaning Service of NSW (GIO) on risk 9.11.93 – 28.1.94.
Berkeley Challenge Pty Limited (Allianz) on risk 29.1.94 – 30.12.95.
Berkeley Challenge Pty Limited (CGU) on risk 31.12.95 – 28.1.99.
Tempo Services Limited (Allianz) on risk 29.1.99 – 30.6.00
Stonefed Pty Limited (Allianz) 1.7.00 – August 02.
FILE NUMBER: WCC18477-03
DATE OF ARBITRATOR’S DECISION: 10 June 2004
DATE OF APPEAL DECISION: 23 September 2005
SUBJECT MATTER OF DECISION: Sections 4 and 16 of the Workers Compensation Act 1987; whether frank injury or disease, or both.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Steve Masselos & Co
FirstRespondent: (No appearance on appeal)
Second Respondent in the interests of Allianz and Fourth Respondent: Goldberg’s Lawyers
Second Respondent in the interests of CGU: Rank & Nathan, Lawyers
Third Respondent: (No appearance on appeal).
ORDERS MADE ON APPEAL: 1. The appeal is dismissed.
2. The decision of the Arbitrator is
confirmed.
3. No order as to costs of the Appeal.
BACKGROUND TO THE APPEAL
Brendan McNamara (‘the Appellant’) was employed as a school cleaner from approximately March 1987 to approximately August 2002. His duties, as he described them in his statement, involved “heavy cleaning work”. His employers over the years were as follows:-
(i) Government Cleaning Service of NSW
(ii) Berkeley Challenge Pty Limited
(iii) Tempo Services Limited
(iv) Stonefed Pty Limited
As a result of a number of frank injuries and the nature and conditions of his work over the years with the various Respondents, the Appellant claims to have suffered injuries to his back and right leg. He ceased work in August 2002.
The Arbitrator had nominated five Respondents. She had recorded Berkeley Challenge Pty Limited in the interests of Allianz as the Second Respondent and Berkeley Challenge Pty Limited in the interests of CGU as the Third Respondent. This is clearly an error. Berkeley Challenge Pty Ltd can only be one Respondent, albeit having representation by two insurers. I have corrected this obvious error on appeal and the parties are correctly named as the four Respondents.
On 20 November 2003, the Appellant filed an ‘Application to Resolve a Dispute’ seeking payment of medical expenses and lump sum compensation pursuant to sections 60, 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).
At a teleconference on 19 March 2004, the issues in dispute were identified as essentially the relevant date of injury and the basis upon which the injury ought to be categorised, in particular, whether it constituted a disease within the meaning of section 16 of the 1987 Act. The matter proceeded to arbitration hearing on 21 April 2004.
On 10 June 2004, a Certificate of Determination with Reasons was issued. The Arbitrator determined as follows:
·“The deemed date of injury is August 2002.
·The Applicant’s degree of impairment should be assessed as a whole person impairment.
·The Fifth Respondent, [Fourth] Stonefed Pty Limited … was the employer at the relevant time of August 2002 being the deemed date of injury.”
An Application to Appeal against the Decision of the Arbitrator was signed by the Appellant’s solicitor on 8 July 2004. It has been twice date stamped by the Commission, both the 8th and 9th July 2004. The Grounds of Appeal are extensive, but in summary, the Appellant submits that the Arbitrator made errors of fact, law and jurisdiction, and erred in characterising the injuries as a disease, which the Appellant submits was not supported by the evidence. The Appellant seeks orders that the Appeal be allowed and the determination of the Arbitrator set aside.
Submissions on the appeal were filed by Berkeley Challenge Pty Ltd in the interests of CGU, and by the solicitors for Berkeley Challenge Pty Ltd in the interests of Allianz, (Second Respondent) and Stonefed Pty Limited (Fourth Respondent). No submissions were filed by the First or Third Respondents.
In essence, the various Respondents to the appeal submit that there has been no error by the Arbitrator because her determination was consistent with the evidence available to her at the arbitration hearing.
ON THE PAPERS REVIEW
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 this Act without holding any conference or formal hearing.”
The Appellant submits that the appeal may be determined on the papers, as does Berkeley Challenge Pty Ltd in the interests of CGU. The other Respondents have made no submissions in this regard. Having carefully read all of the documents before me, including the evidence that was before the Arbitrator, the transcript of the arbitration proceedings, and the submissions made by the parties on appeal, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL
The amount of compensation at issue on appeal in this matter exceeds $5,000.00 such that section 352(2)(a) of the 1998 Act is satisfied. Section 352(2)(b) does not apply because the determination appealed from does not involve a monetary amount of compensation.
The appeal application was signed by the solicitor for the Appellant on 8 July 2002. The document bears two date stamps from the Commission, one being 8 July 2002 and the other 9 July 2002. If the latter date is correct, then the appeal was not made in time in accordance with section 352(4) of the 1998 Act. I am unable to determine the correct date, and no submissions have been made by any party on this issue. Given the document was also date stamped 8 July 2004, the last day for filing an appeal, and the other criteria having been satisfied, in the circumstances I grant leave to appeal.
SUBMISSIONS, EVIDENCE AND FINDINGS
The Respondent’s Submissions
Berkeley Challenge Pty Ltd in the interests of Allianz’ and Stonefed Pty Limited’s submissions are brief and essentially state that the Arbitrator’s determination was consistent with evidence that was available. In summary, they said:
“The Arbitrator effectively reached the decision that the injury was in the nature of
a disease. There was material available to her to enable her to come to that result. The fact that there may be alternative explanations or views as to what was the cause of the Worker’s problem, does not mean that there has been an error. The Arbitrator has discretion and a duty to decide on the evidence before her. That is what has occurred in this case.”
Berkeley Challenge Pty Ltd in the interests of CGU provided extensive submissions responding to many of the matters raised by the Appellant, to which I will refer below. In essence, it submits that the Arbitrator was entitled to follow the reasoning in Colliar v Bulley [2000] NSWCA1 (‘Colliar’) and that the evidence in the present case was “ample” to support the finding of disease.
Its submissions are summarised as follows:
“The Appellant has not made out a case that the Arbitrator:
(a) Did not adequately consider her reasons;
(b) Did not re-read her draft Statement of Reasons;
(c) Reasoned from a pre-determined position;
(d) Chose a simplified version of the history of injury resulting in a lesser benefit to the Appellant;
(e)Misunderstood the consequences of the various incidents;
(f)Failed to exercise a proper jurisdiction over the issue of apportionment.
The Arbitrator’s findings were consistent with the medical evidence indicating spinal disease… and consistent with a proper application of section 16 of the 1987 Act as interpreted by the Court of Appeal in Colliar v Bulley”.
The Appellant’s Submissions
The Appellant’s submissions before the Arbitrator were that the relevant date of injury should be 9 November 1993. The Appellant in his statement said, “On about 9 November 1993 I was trying to lift a 44 gallon drum with rubbish in it to empty it into the compactor, when I seriously injured my back and right leg”. He went on to describe subsequent injuries occurring “on or about 4 September 1995” and “on or about 20 February 2002”. He then said, “the nature of my heavy cleaning work from my first injury on about 9 November 1993 up until I left made my back and right leg injuries worse”.
The Appellant’s submission to the Arbitrator was that the incident on 9 November 1993 was an injury simpliciter within the meaning of section 4(a) of the 1987 Act, and that thereafter, “… you have a progression or a deterioration of a disease …” started off by the injury in 1993.
The Appellant submits that the Arbitrator made a number of errors of fact. Firstly, that the Arbitrator failed to state clearly the deemed date of injury having described it as “August 2002”.
After carefully reading all the evidence before the Arbitrator, no specific date was ever nominated by any party. The evidence suggested that the Appellant may have physically ceased working sometime prior, but no particular date was mentioned. The Arbitrator’s determination was as precise as the available evidence permitted. For practical purposes, the absence of a specifically nominated date in August 2002 makes no difference to the ultimate determination that the Appellant suffered an injury by way of a “disease”.
Another claimed error of fact was that the Arbitrator wrongly categorised the condition of spondylolisthesis as a disease. Such a determination was open to the Arbitrator on the medical evidence before her, to which I will refer later.
The Appellant also complains that the Arbitrator’s statement that (paragraph 4 of the Statement of Reasons) “it is agreed that there are three alternate approaches as follows:
·The impairment arose as a result of a ‘frank injury’ in 1993 with flare-ups from time to time.
·The impairment is a result of the nature and conditions of employment caused by ‘micro-traumata’ over a period of time.
·The impairment arose as the onset of a disease or the aggravation, acceleration etc of a disease”
excludes other “approaches” such as an “apportionment” between insurers for multiple injuries, pursuant to section 22 of the 1987 Act, and that the Arbitrator “… thereby misconceived her task.”
The transcript records the Arbitrator noting the various injuries referred to in paragraph 13 above on page 1, and then she states, “It is agreed that there are three alternate constructions …”. She then goes on to describe them as listed in the preceding paragraph. No issue was taken by the Appellant or any party to this approach in the early stages of the arbitration hearing. In any event, even if the Arbitrator had determined that ‘apportionment’ between the various Respondents was the proper conclusion, which is not inconsistent either with the law or the “approaches” to which she referred. I can see no error in this aspect of the determination, nor in the other alleged “errors of fact” referred to in the Appellant’s submissions.
The Appellant has cited 12 alleged errors of law made by the Arbitrator. Many of these either overlap or cannot be properly construed as grounds of appeal.
It is important to note at this point that a Presidential Member on appeal has a specific and limited role in the review of the decision of an Arbitrator. The review is not a rehearing. The Presidential Member is not dealing with the matter de novo and is not arriving at a fresh decision based on all of the evidence available at a later time. The powers of the Presidential Member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error (see Allesch v Maunz [2000] 203CLR 172).
This is important in light of the supplementary submissions filed by the Appellant on 22 November 2004. Those submissions essentially reiterate the grounds referred to in the earlier submissions, but also include allegations of a “failure to give reasons” and a “failure to consider” certain aspects of the evidence. They also include references to a number of authorities not previously relied upon, although it is noted that the decision of the Court of Appeal in Rail Services Australia v Dimovski & Anor [2004] NSWCA 267, dated 11 August 2004, post dates the original appeal. Many of these submissions are in essence a plea to the Presidential Member to interpret the evidence and determine the matter in accordance with the Appellant’s submissions, rather than a statement of any particular errors made by the Arbitrator in her determination.
As an example, the Appellant submits that the Arbitrator “… has failed to recognise that the injury may properly be characterised in more than one way…” and cites the decision of Zickar v MGH Plastic Industries Pty Limited [1996] 140ALR 156 in support of this proposition. However, the Arbitrator’s extensive reasons, running to 17 pages, canvass the various possibilities under the headings “Applicant’s Medical Reports”, “Respondent’s Medical Reports”, “Oral Evidence”, “Applicant’s Submissions” and “Respondent’s Submissions” before reaching a conclusion. It is evident from those reasons that the Arbitrator was well aware of the various interpretations of “injury” within the meaning of section 4 of the 1987 Act and indeed the provisions of sections 15 and 16 of the same Act.
The Appellant further submits that the Arbitrator :
“Misunderstood the difference between symptoms (exacerbation of pain) and the condition of the Worker (aggravation of the pathology) as a result of various injuries. When stating [in paragraph 59] that ‘what is clear… is that the condition deteriorated as a result of aggravation from work injuries’ the Arbitrator failed to appreciate the test to be applied as there is no evidence of aggravation of pathology only of increased pain”.
This is true to the extent that there was simply no radiological evidence of the Applicant’s condition following the 1993 injury. However, in the Applicant’s supplementary statement made after the teleconference when he had been appraised of the issues raised said that he had an x-ray in 1993 and “the doctor said: ‘the x-ray of your back does not show anything’”, he had previously said “the nature of my heavy cleaning work from … November 1993 … made my back and right leg injuries worse”. The CT Scan of the lumbar spine dated 1 May 2002 referred to “Grade 1 spondylolisthesis at L4/5 … also hypertrophic degenerative changes at this level resulting in mild to moderate central canal stenosis.”
Whilst clearly there was no explicit reference to any earlier pathology, it was open to the Arbitrator to infer from the pathology described in the CT Scan report that implicit in that report was that damage had occurred to the Appellant’s lumbar spine over a period of time, which may have resulted from work injuries and/or activities. That proposition was also accepted by some of the medical practitioners whose reports were before the Arbitrator, in particular the Appellant’s treating doctor, Dr Van De Water, who stated in his report dated 12 December 2002, “Mr McNamara has significant degenerative changes to his lumbar spine with central canal stenosis which is a long term condition. .” Again, the Arbitrator was obliged to determine the matter on the basis of all the evidence before her, and her determination was not inconsistent with some of the medical evidence. Accordingly, I can see no error in this aspect of the determination.
A further submission by the Appellant on this issue is that the Arbitrator failed:
“… to explain the effect of other injuries, aggravations, deterioration, exacerbation of the ‘hurts’ and other pains which were accepted and the Arbitrator failed to consider whether the pathology of the spine had been accelerated as a result of the original injury in 1993”,
is again not supported by the evidence. There simply was no evidence that the 1993 injury alone accelerated the pathology of the spine. Dr Endrey-Walder, qualified by the Appellant, provided a report dated 24 October 2002. He concluded:
“I believe that it would be reasonable to suggest that the nature and conditions of his work accompanied by the specified injuries reported have had a very significant contribution to his current condition which is in turn due to the work related damage to his L4/5 level and the associated disc degeneration and facet joint changes”.
Dr McMahon, qualified by the solicitors for Berkeley Challenge Pty Ltd in the interests of Allianz, Tempo Services Ltd and Stonefed Pty Limited, reported on 15 July 2002, “I would consider the incident of 22 February 2002 as an aggravation of a pre-existing work related condition which originated in 1993 and was further aggravated by another incident in 1995”. Neither of these conclusions support the proposition advanced by the Appellant.
The Appellant further submits that “the Arbitrator failed to refer or deal with any of the considerations referred to in section 9A(2)(a) – (f) as required by the Act.” I do not understand this submission. Section 9A of the 1987 Act was not put in issue by any party. Implicit in the Arbitrator’s determination that “… what is clear … is that the condition deteriorated as a result of aggravation from work injuries” is a finding that the Appellant’s employment was a substantial contributing factor to his condition.
The Appellant submits that the Arbitrator failed to properly consider the “nature and conditions” allegation against each Respondent claiming that she appeared to accept it in relation to Stonefed Pty Limited, but not the earlier Respondents, despite the Appellant having performed the same duties.
Nothing in the Arbitrator’s reasons supports this proposition. The Appellant’s incapacity arose in 2002. He had told a number of doctors that the impact of the injury in February 2002 was significant in that it both altered and increased the pain. The nature and conditions of his employment with the Fourth Respondent was considered by Dr Van De Water. In any event, the Arbitrator referred to the nature and conditions of all the periods of employment and the possibility of assessing the injury as “multiple micro-traumata” from the nature and conditions of employment, which she acknowledged was a possible approach to the determination of the matter.
The Appellant cited the decision of Colliar v Bulley [2000] NSWCA 1 (“Colliar”) in its submissions before the Arbitrator as to the importance of the incident in 1993 to the determination of “injury”. However, in Colliar, the Court of Appeal essentially found that where a worker’s employment has contributed to the aggravation of a disease either by a frank injury or the nature and conditions of employment, section 16 applies notwithstanding that the claim could have been framed in terms of an allegation of a frank injury or injuries or the nature and conditions of employment or a combination of both.
It follows then that even if the nature and conditions of employment with the earlier Respondents caused a similar or greater level of aggravation or deterioration of the spinal disease than employment with the Fourth Respondent, section 16 of the 1987 Act and the decision in Colliar makes it clear that the deemed date of injury should be the date upon which the incapacity commenced. This of course was the Arbitrator’s ultimate conclusion.
The Appellant further submits that the Arbitrator has failed to give any reasons to justify her finding of a “disease”. After referring to all the evidence before her, and reviewing the various authorities to which the parties had referred, the Arbitrator clearly stated her reasons [paragraphs 59 – 66] before concluding that the Appellant’s injury [paragraph 67] “… falls within the provisions of section 16 of the Workers Compensation Act, 1987. He suffers a degenerative back condition. His injuries consist in [sic] the aggravation, acceleration, exacerbation or deterioration of that condition.”
There was certainly evidence to support a finding of disease or aggravation of disease, for example, Dr Van De Water and Dr Christie.
The Appellant’s submission that:
“… There was no evidence which was accepted that the Worker had experienced any relief of any relevant pain during nine years after the 1993 injury of doing the same job such as to cast liability at the end of the claim rather than at the beginning …”
is again inconsistent with the evidence.
The Appellant had resumed normal duties after the injuries in 1993 and 1995. He initially told Dr Endrey-Walder that after the injury in 1993 “… he returned to full duties and managed with such [sic] ‘no trouble. After that it was fine until 1995’”. He then said, after the 1995 injury, “he lost a week from work without any specific treatment, and then returned to his duties ‘no ongoing problems’ he added”. The Appellant had told a number of doctors that after the injury in February 2002, his back pain was more severe with increased leg pain. Whilst he tried to minimise the impact of that injury in his supplementary statement and in cross-examination, he nonetheless said this [page 18 transcript]:
“Q.Did you tell Dr Christie that the pain was a completely different type of pain to the pain you had previously?
A.Insofar as it went further down the back of my leg and it was more intense into the right hip area between the spine and the right hip area. It was more intense there”.
Dr Van De Water in his report of 12 December 2002 recorded the Appellant as saying, in May 2002, “… in the preceding four months the pain had been more constant and more severe. He also complained of pain in the right knee and both ankles. Mr McNamara was finding it increasingly difficult to manage his duties as a school cleaner due to the pain.”
The Appellant’s evidence was contradictory both in his statement and the information he provided to several doctors. As mentioned earlier, the Appellant provided histories to Dr Endrey-Walder and Dr Christie that he recovered from the 1993 incident and that the incident on 20 February 2002 was the main cause of his problems. Contrary to the Appellant’s submission, it is clear that the Arbitrator did not accept the reliability of his oral evidence that he was in pain since 1993. The inconsistencies she explained as follows [paragraph 59 of the Statement of Reasons] “I accept that he could have presented a history in such a way as to be open to either interpretation presented in the different reports”.
Whilst it could be said that there was some evidence of continuing symptoms since 1993, it is noted that no ongoing incapacity arose until 2002.
The Appellant submits that “the Arbitrator has failed to provide any satisfactory reasoning whatsoever when referring in paragraphs 64 to relevant case law as to why she did not accept the reasoning as stated in those cases as appropriate in this case, or alternatively why she rejected that reasoning in this case.”
In this context, I think it important to quote paragraphs 64 – 66 of the Arbitrator’s Reasons in full.
“64.In the decisions of Australia Conveyor Engineering Pty Limited v Mech Engineering Pty Limited [1998] and also Lyons v Master Builders Association of NSW Pty Limited the circumstances were such that a frank injury initiated a degenerative disease process. In those circumstances, the court found an injury simpliciter within section 4 and that there was no need to have recourse to sections 15 or 16 of the Act.
65.The circumstances of this matter are somewhat different to the facts of those decisions. The evidence does lead to a finding that the Applicant was asymptomatic prior to the injury in 1993 and thereafter developed degenerative spondylolisthesis. I must have regard to the fact that … the evidence discloses that the Applicant suffered further injuries arising out of the course of his employment in 1995 and 2002. The evidence discloses that the incident in February 2002 led to a significant and permanent aggravation of the Applicant’s condition ultimately leading to him ceasing work as a cleaner.
66.While [sic] the Applicant’s evidence is that his condition had never resolved, the incident in February 2002 caused a more intense pain in the hip and further down the leg. The evidence is that up until this injury, the Applicant had been able to manage but following this injury, he could no longer manage his duties.”
In earlier paragraphs in particular, dealing with the Appellant’s submissions before her [paragraphs 36 – 41] the Arbitrator had dealt with the various authorities to which she had been referred by the Appellant, which are quoted above.
As the Arbitrator pointed out, her obligation was to look at the facts of the particular case before her whilst seeking guidance from various authorities in similar factual circumstances. In my opinion, the Arbitrator has clearly referred to the evidence before her and enunciated her reasons for concluding that the Appellant suffered an injury by way of disease within the meaning of section 16 of the 1987 Act and I can see no error either of fact, law or discretion in her determination.
The Appellant has also submitted that the Arbitrator made a number of errors of jurisdiction. I do not understand the ‘jurisdictional’ nature of many of the matters raised. I suspect that the Appellant intended to raise alleged errors of ‘discretion’, not ‘jurisdiction’. For example, the Appellant says this:
“(a)It is apparent on the face of the Statement of Reasons that the Arbitrator first considered the law and only after that did she consider the facts of the case on its merits. In other words, the Arbitrator has appeared to reason from a pre-determined position”.
I see no ground of appeal on a jurisdictional basis in this submission. In any event, on my reading of the Statement of Reasons, this assertion is not born out.
Similarly, the Appellant’s submission that, “The Arbitrator failed to exercise her power fairly towards the Applicant by choosing a ‘simplified’ version of his history of injury resulting in the lesser benefit available from a WPI Assessment” is not born out by the evidence nor is it apparent in the Statement of Reasons. The “lesser benefit” is doubtless not what the Appellant wanted, but the Arbitrator’s determination was open to her on the evidence.
Other alleged “errors of jurisdiction” include allegations that “the Arbitrator … failed to take into account the true effect of the Applicant’s oral evidence…” and “… the Arbitrator has been swayed by procedural factors and has acted without proper regard to the proper merits of the case …” and “the Arbitrator failed to describe which of the Documentary Evidence … she regarded as relevant and how she took that evidence into account when making her deliberations” are not supported by the evidence and/or the Statement of Reasons, and in my opinion amount to no more than comment on the Arbitrator’s determination.
The Appellant submits, both in the appeal application and in the supplementary submissions referred to earlier, that the Arbitrator has failed to provide reasons as to the medical evidence she accepted and to her finding of “disease”.
A failure to give adequate reasons constitutes an error of law. However, as Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Limited [1987] 10NSWLR 247:
“A Judge is not required to make a finding in respect of every fact leading to the final conclusion of fact… nevertheless, a Judge must distinguish between the essentials and the peripherals… reasons are necessary as an incident to a judicial decision to provide a sufficient explanation of why an order is made. The Judge is to apprise the parties of the broad outline and constituent facts of the reasoning upon which he or she has acted… It is necessary that the essential grounds upon which the decision rests should be articulated”.
In M & S Shipman Pty Limited v Mathers [2003] NSW WCCPD19, Deputy President Fleming said at paragraph 81:
“The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits. This approach is equally applicable to the preparation of Statement of Reasons. At the same time, the reasons must be capable of adequately conveying to the parties the basis upon which the Arbitrator came to his or her decision”.
Further in paragraph 84 she said:
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the Appellant to demonstrate not only that the reasons are inadequate, but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
In the supplementary submissions filed 22 November 2004, the Appellant again provided a number of authorities for consideration. I do not propose to reiterate these in detail, but it is important to note that each case must be determined on its merits and in accordance with the evidence available. As Judge Burke as he then was said in MLC Insurance v Pinto [1994] 10NSW CCR 101:
“The … circumstances may from one perspective be conceived as injury in the primary sense and from another as the contraction or aggravation of a disease… it seems to me that the factual situation may well be that, in given circumstances, it is open in law to find that a particular event is both injury simpliciter and a relevant disease or an aggravation etc thereof. These provisions are directed to achieving certainty rather than any concept of abstract justice. The fundamental question seems to be from what injury or injuries does the found incapacity result? The purpose for which this is deemed to be so, is to establish an employer liable to pay compensation where employment by multiple employers has been a contributing factor to the incapacity”.
In the present case, in determining the fundamental question as to what injury or injuries led to the incapacity, there was clear evidence that the Appellant’s incapacity arose in 2002 such that the Arbitrator’s determination as to the nature of the “injury” was consistent with the available evidence. Accordingly, I can see no error in her conclusion.
Most of the Appellant’s submissions are essentially submissions as to a possible interpretation of the evidence. It is clear from the tone and content of the lengthy submissions provided by the Appellant that he was aggrieved by the Arbitrator’s determination. His submission that:
“… the reader is left with the impression that the Arbitrator did not adequately consider her reasons, think twice about the fairness of the decision made or did not re-read her draft Statement of Reasons…”
is, as the Second Respondent in the interests of CGU submits “… speculative, unwarranted and an irrelevant assertion” and in my opinion is merely a statement of dissatisfaction with the result.
In the present case, in my opinion, the Arbitrator has adequately apprised the parties of the broad outline and constituent facts of the reasoning upon which she acted and has adequately articulated the essential grounds upon which the decision rests. The reasons in my view adequately conveyed to the parties the basis of the Arbitrator’s determination, such that I do not consider that she has failed to exercise her statutory duty fairly and lawfully.
CONCLUSION
The determination by the Arbitrator that the Appellant suffered a disease was supported by evidence available to her. Consistent with that determination was the consequence finding that the deemed date of injury was August 2002. In my opinion, the Arbitrator’s reasons were adequate, and the Appellant has failed to demonstrate that the Arbitrator erred in fact, law, jurisdiction or discretion.
DECISION
(i) The citation on the Certificate of Determination is amended to read as follows:
“First Respondent: Government Cleaning Service of NSW
Second Respondent: Berkeley Challenge Pty Limited
Third Respondent: Tempo Services Limited
Fourth Respondent: Stonefed Pty Limited”(ii) The appeal is dismissed.
(iii)The decision of the Arbitrator is confirmed.
COSTS
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
23 September 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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