Northern Sydney Area Health Service v Todorovic
[2007] NSWWCCPD 223
•9 November 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Northern Sydney Area Health Service v Todorovic and anor [2007] NSWWCCPD 223
APPELLANT: Northern Sydney Area Health Service
FIRST RESPONDENT: Danica Marina Todorovic
SECOND RESPONDENT: SCEGGS Redlands Limited
APPELLANT’S INSURER: GIO General Ltd
SECOND RESPONDENT’S INSURER: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER: WCC2062-07
DATE OF ARBITRATOR’S DECISION: 16 July 2007
DATE OF APPEAL DECISION: 9 November 2007
SUBJECT MATTER OF DECISION: Section 16 of the Workers Compensation Act 1987; aggravation of disease; deemed date of injury; contribution
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: TurksLegal
FirstRespondent: Maurice Blackburn Cashman
Second Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: The Arbitrator’s determination of 16 July 2007 is revoked and the following orders made:
“1.Award for the Applicant worker against the Second Respondent (Northern Sydney Area Health Service) under section 40 of the Workers Compensation Act 1987 in the sum of $259.43 per week from 14 June 2006 to date and continuing.
2.The Second Respondent (Northern Sydney Area Health Service) is to pay the Applicant worker’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987.
3.The Commission determines the First Respondent’s (SCEGGS Redlands Limited) contribution to the above awards under section 16(2A) of the Workers Compensation Act 1987 to be 74%.
4.The First and Second Respondents are to pay the Applicant worker’s costs in the proportions 74% to the First Respondent and 26% to the Second Respondent.”
The Appellant Employer is to pay the costs of all other parties to the appeal.
BACKGROUND TO THE APPEAL
Danica Marina Todorovic (‘Ms Todorovic’) started work as an Integration Aide Special with SCEGGS Redlands Limited (‘SCEGGS’, the First Respondent before the Arbitrator) on 11 May 1997. Her duties required her to work full time with physically disabled teenage students. She alleges that as a result of the nature and conditions of her employment she sustained an injury to her right shoulder. She lodged a claim form on 19 June 2002 and commenced physiotherapy at about that time but remained at work. As a result of her duties, her symptoms increased in 2005 and she submitted another claim form in February 2005 as a result of an increase in symptoms at that time. Further physiotherapy was arranged but she again had no time off work. Her position at SCEGGS was made redundant in December 2005 with her last day of work being 9 December 2005 (T22.10).
On 9 January 2006 Ms Todorovic started work with Northern Sydney Central Coast Area Health Service (‘the Appellant Employer/the Health Service’, the Second Respondent before the Arbitrator). Her duties required her to work on a permanent part-time basis for 30 hours per week at the Royal North Shore Hospital Child Care Centre as a Child Care Worker. Her duties required her to, among other things, care for and lift babies. As a result of her work the pain in her right shoulder increased significantly. On 24 March 2006 she attended her general practitioner, Dr Thackway, and was given a medical certificate restricting her to lifting duties not exceeding five kilograms. Her last day of work with the Appellant Employer was on 7 April 2006 and her employment was terminated in July 2006.
Ms Todorovic’s Application to Resolve a Dispute (‘the Application’) was registered in the Commission on 23 March 2007. In it she sought weekly compensation against each employer from 14 June 2006 to date and continuing together with lump sum compensation and hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’).
The arbitration was heard on 26 June 2007 when the claim for lump sum compensation was discontinued. In a reserved decision delivered on 16 July 2007 the Arbitrator found that Ms Todorovic sustained an injury, being an aggravation of a disease and that her employment was a substantial contributing factor to that aggravation. The Arbitrator made an award in favour of Ms Todorovic against the Health Service under section 40 of the 1987 Act in the sum of $259.43 per week from 14 June 2006 to date and continuing. The Arbitrator also made a general order that the Appellant Employer is to pay Ms Todorovic’s section 60 expenses.
The Health Service seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum in issue on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. More than 20% of the amount awarded is at issue on appeal and section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of 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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 July 2007, records the Arbitrator’s orders as follows:
“1.That the Second Respondent [the Health Service] to pay the Applicant weekly benefits compensation pursuant to s.40 of $259.43 per week from 14 June 2006 to date and continuing.
2. Such weekly payments to continue in accordance with the provisions of the Act.
3.That the Second Respondent to pay the Applicant’s section 60 expenses in accordance with the 1987 Act upon the production of accounts and/or receipts.
4.That the Second Respondent to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)not finding a deemed date of injury in accordance with the finding of an aggravation of a disease of gradual process (‘deemed date of injury’);
(b)in finding the Health Service liable for weekly compensation (‘weekly compensation’);
(c)in not apportioning any liability to SCEGGS (‘apportionment’), and
(d)in not apportioning liability for section 60 expenses (‘apportionment’).
REVIEW
The nature of a review and the role and function of a Presidential member on appeal has been considered in many cases in the Commission. In The King Island Company Ltd v Deery [2005] NSWWCCPD 1 it was held at [19]:
“19. A Presidential Member on appeal has a specific and limited role in the review of a 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 (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). 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 (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential Member may remit the matter back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions made.”
The nature of a review was considered by the Court of Appeal in Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34 where Bryson JA said at [38]:
“A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”
This passage was recently quoted with approval by McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [134] (‘Edmonds’). To describe the relative weight and relevance of the expert evidence as “a discretionary decision which could only be disturbed on House v The King principles” was described by McColl JA as “an over-generalisation” (at [133]).
The nature of a review was further considered by the Court of Appeal in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 where Spigelman CJ said at [28] and [30]:
“28. The concept of a review on the merits is wider than the concept of an appeal in a judicial context. There is a well established line of authority on the use of the terminology of ‘review’ instead of ‘appeal’ with respect to the workers compensation system in this State which establishes the breadth of a review on the merits.
30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit. The power to remit is not constrained in the manner for which the Appellant contends.”
Before an Arbitrator’s decision will be revoked on review it must be demonstrated that it contains or has resulted from an error of fact, law or discretion. The error must be such that, but for it, a different decision should have been made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56; Section 294 of the 1998 Act; YG & GG v Minister for Community Services [2002] NSWCA 247, and Absolon v NSW TAFE [1999] NSWCA 311).
I intend to apply the above principles in the matter before me.
SUBMISSIONS AND FINDINGS
Deemed Date of Injury
The Appellant Employer submits that the Arbitrator should have found a deemed date of injury of 19 June 2002 under section 16(1)(a)(ii) of the 1987 Act because that was the date of Ms Todorovic’s claim for compensation (P & O Berkeley Challenge Pty Ltd in the interests of HIH Winterthur Workers Compensation (NSW) Pty Ltd v Alfonso and others (2000) 49 NSWLR 481; [2000] NSWCA 214; (2000) 20 NSWCCR 554 (‘Alfonso’)). In the alternative, it is argued that under section 16(1)(a)(i) of the 1987 Act the deemed date of injury should be 30 December 2005 because that is the date of Ms Todorovic’s incapacity. In fact Ms Todorovic’s last day of work for SCEGGS was 9 December 2005 (T22.10).
It is also argued that Ms Todorovic’s employment with the Health Service did not give rise to any additional structural damage and the symptoms experienced by her in 2006 were merely a manifestation of the pre-existing disease in her right shoulder, which did not cause any additional incapacity.
SCEGGS submits that whilst the Arbitrator did not specify a deemed date of injury, her reasons make it clear that the deemed date of injury was the last day on which Ms Todorovic worked for the Appellant Employer, namely, 7 April 2006. Ms Todorovic agrees with this submission.
In the Arbitrator’s Statement of Reasons for Decision dated 16 July 2007 (‘Reasons’) she found:
(a)Ms Todorovic suffered an injury, being “an aggravation of a disease of rotator cuff and that her employment was a substantial contributing factor to that aggravation” (Reasons, paragraphs 30 and 51);
(b)the Health Service was the last employer who employed Ms Todorovic in employment that was a substantial contributing factor to the aggravation of the disease under section 16 of the 1987 Act (Reasons, paragraph 30), and
(c)when SCEGGS retrenched Ms Todorovic in December 2005 she had a reduced capacity as a result of her injury and that she was entitled to receive compensation (Reasons, paragraph 32).
The Arbitrator’s findings were incomplete as she failed to make a finding as to the deemed date of injury, as required under the legislation. She was clearly of the view, however, that Ms Todorovic’s employment with both employers aggravated the rotator cuff disease in her right shoulder (Reasons, paragraphs 30 and 32) and that the Health Service was the last employer who employed Ms Todorovic in employment that was a substantial contributing factor to the aggravation (Reasons, paragraph 51). Those findings were open on the evidence and I agree with them.
However, a finding that the Health Service was the last relevant employer was not the end of the matter. The Arbitrator’s findings were consistent with Ms Todorovic having sustained an injury in the course of her employment with SCEGGS in the nature of an aggravation of a disease (section 4(b)(ii) of the 1987 Act). Under section 16(1)(a) of the 1987 Act such an injury is deemed to have happened either at the time of Ms Todorovic’s incapacity, or, if no incapacity has resulted, at the time she made her claim for compensation. In Alfonso, the Court of Appeal held that the term incapacity in section 16(1) means incapacity falling within the period during which a worker has become entitled to weekly compensation. As the Arbitrator found Ms Todorovic “had [a] reduced capacity” (Reasons, paragraph 32) when she ceased work in December 2005, it may well be (without deciding) that Ms Todorovic was entitled to an award for the period from 10 December 2005, but no claim was made for that period and the matter was not argued before or decided by the Arbitrator. Having regard to the doctrine of res judicata, it is doubtful that such a claim could now succeed.
Had Ms Todorovic claimed weekly compensation from 10 December 2005 she may well have succeeded in establishing a deemed date of injury in December 2005 and an entitlement to weekly compensation. However, that would not have prevented a further aggravation injury occurring. If such an injury occurs within 12 months of the original injury then the contribution provisions in section 16 will apply. That is exactly what has happened in the present matter. Though it is often open to find multiple deemed dates of injury (see Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253), the correct deemed date of injury in the present matter is the time of Ms Todorovic’s last incapacity relative to her current claim, namely, her last day of work on 7 April 2006. Under section 16(1)(b) of the 1987 Act “compensation is payable by the employer who last employed her in employment that was a substantial contributing factor to the aggravation” (emphasis added). That employer was the Health Service, not SCEGGS. Compensation is therefore payable by the Health Service but it is entitled to contribution from SCEGGS because the employment with SCEGGS also caused an aggravation injury under section 4(b)(ii) of the 1987 Act and SCEGGS employed Ms Todorovic in the 12 months preceding 7 April 2006.
I therefore find that the deemed date of injury in the present matter is 7 April 2006.
I reject the Appellant Employer’s submission that the deemed date of injury must be “30 [sic] December 2005” or, in the alternative, 19 June 2002, the date on which Ms Todorovic first claimed compensation. The time at which a worker claims compensation is only relevant “if death or incapacity has not resulted from the injury” (section 16(1)(a)(ii) of the 1987 Act). It has no application in the present matter as Ms Todorovic was incapacitated from 7 April 2006.
I also reject the argument that Ms Todorovic’s employment with the Health Service did not give rise to any additional or structural damage and her symptoms were simply a manifestation of the pre-existing disease in the right shoulder. There is no challenge to the Arbitrator’s finding that Ms Todorovic’s shoulder condition is a disease within the terms of the 1987 Act. The Arbitrator also found that Ms Todorovic aggravated “her symptoms when working as a childcare worker with the Second Respondent” (Reasons, paragraph 28). I agree with that finding, which was open on the evidence (see Ms Todorovic’s statement 30 August 2006, paragraph 14 and Dr Evans’ report 23 August 2006).
Whilst Ms Todorovic’s shoulder pain improved a little after she ceased work with the Health Service (Dr Evans report 23 August 2006, page three), Dr Evans also recorded at page two of his report that Ms Todorovic was “uncertain of whether there has been significant change in her right shoulder pain since she ceased work” but she felt she has had fewer episodes of “sharp” pain. Her statement of 30 August 2006 makes it clear that she was still unable to perform housework including vacuuming, laundry or ironing for more than five minutes without pain. She also stated that she had trouble showering and with personal grooming and had lost all flexibility in her right shoulder compared with her left shoulder. In addition, Dr Thackway’s medical certificate of 24 March 2006 declared Ms Todorovic fit for suitable duties with a lifting restriction of up to five kilograms for eight hours per day five days per week. If anything, that restriction increased in 2007. In his certificate of 28 March 2007 he declared her fit for suitable duties with the same lifting restriction for eight hours per day, but for only three days per week.
I also reject the Appellant Employer’s submission that Ms Todorovic’s employment with the Health Service did not cause any additional incapacity. The first medical certificate in evidence is from Dr Thackway dated 9 May 2005. It restricted Ms Todorovic to suitable duties involving lifting up to 10 kilograms (a restriction never implemented) whereas the certificates issued in 2006, after her aggravation with the Health Service, restricted her to lifting up to five kilograms. This evidence, together with Ms Todorovic’s evidence of the increase in her symptoms in 2006 and the consequential change in her duties in March and April 2006, clearly supports a conclusion that her employment with the Health Service did cause an increase in her incapacity.
Weekly Compensation
It is argued that the Arbitrator determined probable earnings with SCEGGS to be $840.43 per week, but made no finding as to probable earnings with the Health Service. It is submitted that Ms Todorovic only earned $490.89 per week with the Health Service and, as the Arbitrator found her ability to earn to be $581.00 per week, it follows that Ms Todorovic has no entitlement to weekly compensation against the Health Service.
I do not accept this submission. Ms Todorovic’s incapacity has resulted from the injuries she sustained in the course of or arising out of her employment with both of the named employers. Her injuries were aggravation injuries under section 4(b)(ii) of the 1987 Act. Having sustained such injuries, she is entitled to compensation in accordance with the provisions of the 1987 Act (section 9(1) of the 1987 Act). Section 16 merely provides a deeming provision in order to determine which of two or more employers is obliged to pay the compensation the worker is entitled to receive. The point is explained in Crisp v Chapman (1994) 10 NSWCCR 493 (‘Crisp’) where Mahoney A-P said at 495:
“It is, I think, a confusion to treat section 15 or section 16 of the 1987 Act as, in the sense here relevant, creating liability for compensation. In general, each section assumes that an injury has occurred and each provides the means of determining when the injury is deemed to have happened, by whom the compensation is payable, and other ancillary matters. In principle, it remains for the worker to prove that the injury has occurred and accordingly that section 9(1) has been satisfied. To prove that, it is necessary for the worker to prove the ‘happening’ of an injury within section 4.” (emphasis added)
In the present matter the worker has proved the “happening of an injury within section 4”. The injury was an aggravation of a disease. That aggravation occurred with both employers. In this context Ms Todorovic’s entitlement to weekly compensation must be determined by reference to what she would have earned “but for her injury” had she “continued to be employed in the same or some comparable employment” (section 40(2)(a) of the 1987 Act).
The meaning of the phrase “the same or some comparable employment” was considered by the High Court in Johnston v Commissioner of Railways (1973) 128 CLR 632 (‘Johnston’) in the context of section 11 of the Workers Compensation Act 1926 (‘the 1926 Act’), which was in substantially the same terms as section 40 of the 1987 Act. The Court considered the situation where the worker was a “cleaner, acting foreman” at the time of his injury but the trial judge accepted evidence that he would have progressed to the position of an engine-driver and awarded him compensation on the basis that the wage of an engine-driver was the “same or some comparable employment”. Stephen J held at 640:
“If, in the relevant phrase of s 11(1)(a), ‘employment’ bears the meaning ‘occupation’ the reference to the worker continuing ‘to be employed in the same or some comparable employment’ means that the worker is to be treated as if he continued in the same or some similar occupation as that in which he was engaged when injured. Neither the same employer nor the same task, classification or rank is stipulated but this will occasion no difficulty; the Court is, by the subsection, required to form its own view of what would ‘probably’ have been the worker’s weekly earnings but for the injury and must, from the evidence before it, determine how the worker would have fared in his occupation had he not been injured.” (emphasis added)
In the same case Mason J (as he then was) held at 644:
“The subsection provides a yardstick by which weekly payments by way of compensation for incapacity are to be measured. It conforms more closely with the compensatory character of the provision that the weekly payments should be assessed by reference to the probability of what the employee would have earned in his occupation had he not been injured and had he continued in that occupation rather than that the weekly payments should be assessed by reference to probable earnings in the performance of the particular work or duties which the employee happened to be performing at the date of his injury.” (emphasis added)
Applying the above authority to Ms Todorovic’s situation, it is clear that had she not been injured she would have continued to work in the same or similar position to the one she held at SCEGGS. Therefore, whilst her actual earnings may have been lower when she worked with the Health Service compared to her earnings at SCEGGS, the only fair and just measure of her probable earnings but for injury are her earnings for full time work of the kind she performed with SCEGGS. The Arbitrator determined that amount to be $840.43 per week and I believe that that finding is consistent with the authority of Johnston and the evidence, and that it discloses no error.
Apportionment - Weekly Compensation
The Appellant Employer argues that any liability for weekly compensation should be apportioned under section 16(2A) of the 1987 Act. Sub-Sections 16(2) and (2A) provide:
“(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case:
‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.”
The Appellant Employer submits that it should only bear liability for weekly compensation pursuant to section 40 for an amount which, based on the worker’s ability to earn in suitable employment, is less than the worker’s comparable earnings with it (Appellant Employer’s submissions, paragraph 2.7.18). If I understand this submission correctly, it has been dealt with above under ‘weekly compensation’ and, for the reasons already stated, I do not accept it.
Next, it is argued that “special circumstances” exist which justify departure from the “formula” in section 16(2A). Those special circumstances are said to be:
(b)a claim for injury had been made against SCEGGS;
(c)the Arbitrator found that Ms Todorovic had right shoulder problems since 2001;
(d)the Arbitrator found that Ms Todorovic suffered several frank injuries to her right shoulder with SCEGGS;
(e)the Arbitrator found that Ms Todorovic was incapacitated for work when SCEGGS terminated her employment, and
(f)any award should be apportioned on the basis of the period of risk of the Appellant Employer.
I am not satisfied that special circumstances exist to justify a departure from the section 16(2A) formula. Whilst Ms Todorovic did experience an increase in her shoulder symptoms in June 2002 and in February 2005, she did not take time off work on either occasion but continued with her normal duties. It was not until the significant increase in her symptoms in March 2006 that she was placed on suitable duties with a five-kilogram weight limit. In these circumstances it is arguable that her employment with the Health Service had a greater impact on her condition than her longer period of employment with SCEGGS. In all the circumstances, I am not satisfied that it is “just and equitable” to apportion on a basis other than that set out the section 16(2A) formula.
SCEGGS concedes that the awards of compensation should be apportioned under section 16(2A) of the 1987 Act. It argues that, applying the formula, liability should be apportioned (after rounding up) 75% to it and 25% to the Health Service.
It arrives at this percentage as follows:
·7 April 2005 to 7 April 2006 = 365 days
·Ms Todorovic worked with the Health Service for 88 days
·Ms Todorovic worked for SCEGGS for 268 days from 7 April 2005 to 9 December 2005
·88 ¸ 356 = 24.71%, rounded up to 25%
The Appellant Employer submits that if the formula is applied, its liability is 24.1%. Its methodology has not been explained.
I do not believe either percentage is correct, though the differences may simply be due to arithmetical errors. The formula requires the total period of employment with the relevant employer (that is, an employer who employed the worker in employment that was a substantial contributing factor to the aggravation) during the 12-month period preceding the incapacity be divided by the total period of employment with all relevant employers in that period. Ms Todorovic did not work from 10 December 2005 until 6 January 2006 inclusive (28 days). The submissions by SCEGGS wrongly assumed that Ms Todorovic worked until 30 December 2005 when she only worked until 9 December 2005. Therefore, the correct application of the formula is:
·Ms Todorovic worked for the Health Service for 89 days
·Ms Todorovic worked for SCEGGS (in the 12 month period) from 7 April 2005 until 9 December 2005 (247 days)
·therefore, the total period of relevant employment (that is, employment that was a substantial contributing factor to the aggravation) in the relevant 12 month period was 336 days (89 + 247)
·89 ¸ 336 = 26.48%
Rounding down gives 26% to the Health Service and 74% to SCEGGS. Therefore, whilst Ms Todorovic’s award must be satisfied by the Appellant Employer (section 16(1)(b) of the 1987 Act), it is entitled to contribution from SCEGGS for 74% of that liability (section 16(2) of the 1987 Act).
In the alternative, it is argued that liability should be apportioned under section 22 of the 1987 Act on the basis that there were two dates of injury, namely, 19 June 2002 and 30 December 2005. I reject this submission. The Arbitrator correctly found that the disease provisions applied and, in these circumstances, there is no scope for the operation of section 22 of the 1987 Act (MLC Insurance Ltd v Pinto (1994) 10 NSWCCR 101).
Apportionment – Medical Expenses
It is argued that liability for Ms Todorovic’s medical expenses under section 60 of the 1987 Act should be apportioned under section 22 of that Act and should be based on the injuries on 19 June 2002 and 30 December 2005. It is submitted that because of the lengthy period of employment with SCEGGS, as opposed to the three month period with the Health Service, that no apportionment should be applied to the Health Service for ongoing medical expenses.
I do not accept this submission. Consistent with the findings made above that the disease provisions apply, the correct method of apportionment is that set out in the formula in section 16 of the 1987 Act. That formula applies to “compensation” that is payable. The term “compensation” is defined in section 4 of the 1998 Act to mean “compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts”. Properly incurred section 60 expenses are compensation under that definition. Therefore, liability for Ms Todorovic’s continuing section 60 expenses is to be met by the Health Service and it is entitled to a 74% contribution from SCEGGS.
DECISION
The Arbitrator’s determination of 16 July 2007 is revoked and the following orders made:
“1.Award for the Applicant worker against the Second Respondent (Northern Sydney Area Health Service) under section 40 of the Workers Compensation Act 1987 in the sum of $259.43 per week from 14 June 2006 to date and continuing.
2.The Second Respondent (Northern Sydney Area Health Service) is to pay the Applicant worker’s reasonable hospital and medical expenses under section 60 of the Workers Compensation Act 1987.
3.The Commission determines the First Respondent’s (SCEGGS Redlands Limited) contribution to the above awards under section 16(2A) of the Workers Compensation Act 1987 to be 74%.
4.The First and Second Respondents are to pay the Applicant worker’s costs in the proportions 74% to the First Respondent and 26% to the Second Respondent.”
COSTS
The Appellant Employer is to pay the costs of all other parties to the appeal.
Bill Roche
Deputy President
9 November 2007
I TUYET WALLIS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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