Miller v State of New South Wales

The case of *Miller v State of New South Wales* concerned a workers compensation claim arising from the death of a worker. The deceased suffered a severe asthma attack, which led to anoxia and fatal cardiac arrest. The central dispute was whether the worker's employment was a substantial contributing factor to the aggravation, acceleration, exacerbation, or deterioration of her pre-existing asthma condition, as contemplated by sections 4(b)(ii) and 9A of the *Workers Compensation Act 1987* (NSW). The matter came before the Court of Appeal of New South Wales following an appeal from a decision of an Arbitrator to the Acting Deputy President, pursuant to section 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW).

The legal issues before the Court of Appeal included whether the Arbitrator had erred in law by failing to make a finding that was not sought at first instance or on appeal. Specifically, the court considered whether the Arbitrator's finding that the cause of the deceased's injury was a pre-existing medical condition, which was not aggravated by her employment, was legally sound. The court also had to determine if the Acting Deputy President had correctly addressed the relevant legal principles in their review of the Arbitrator's decision.

The Court of Appeal dismissed the appeal. The court reasoned that the Arbitrator had made a finding of fact that the employment was not a substantial contributing factor to the aggravation of the deceased's asthma. This finding was open to the Arbitrator on the evidence presented. The court found no error of law in the Arbitrator's determination, nor in the subsequent review by the Acting Deputy President. Consequently, the appeal was dismissed with costs.