Parmalat Australia Ltd v Cheadle - [2008] NSWWCCPD 39

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Parmalat Australia Limited v Cheadle [2008] NSWWCCPD 39
APPELLANT:  Parmalat Australia Limited
RESPONDENT:  Jason Christopher Cheadle
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC6677-07
DATE OF ARBITRATOR’S DECISION:          13 November 2007
DATE OF APPEAL DECISION:  28 March 2008
SUBJECT MATTER OF DECISION:                Causation; application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; whether the consequences of a second non work-related incident can be said to have ‘resulted from’ the first work-related injury
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Vardanega Roberts
Respondent:   Bussoletti Lawyers

ORDERS MADE ON APPEAL: For the reasons given in this decision, the Arbitrator’s findings and determination dated 13 November 2007 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND

Jason Cheadle (‘the Respondent Worker/Mr Cheadle’) is currently 22 years old. He started work for Parmalat Australia Limited (‘the Appellant Employer/Parmalat’) as a packer at their St Paul’s depot at Corrimal in June 2003. On 19 August 2003 he dislocated his right shoulder when he lifted a crate in the course of his employment. Parmalat accepted liability for this injury and paid voluntary weekly compensation and medical expenses.

After a period of treatment, his doctor declared him fit for work on 3 October 2003. Parmalat terminated his employment three days later. His work and medical history between then and 9 December 2006 is set out in detail below. On 9 December 2006 Mr Cheadle was involved in a physical altercation in which he again dislocated he right shoulder and was put off work.

Parmalat denied liability for the further treatment and Mr Cheadle filed an Application to Resolve a Dispute (‘the Application’) in the Commission on 31 August 2007 claiming weekly compensation in the sum of $600.00 per week from 9 December 2006 to date and continuing, plus hospital and medical expenses. The matter could not resolve and proceeded to arbitration on 29 October 2007 when counsel appeared for each of the parties. It was agreed that the claim for weekly compensation would not proceed, but the Arbitrator heard and determined the claim for medical expenses.

The Arbitrator identified the issue to be whether the injury on 9 December 2006 had resulted from the original injury on 3 October 2003 or from the assault, which the Appellant Employer argued was a novus actus interveniens (T45.5). In an ex tempore decision the Arbitrator found in favour of Mr Cheadle. The Certificate of Determination issued on 13 November 2007 records the Arbitrator’s findings and orders as follows:

“Findings:
1.On 9 December 2006 the applicant, Jason Cheadle, dislocated his right shoulder when attempting to defend himself by throwing a punch at an unnamed assailant on that night.

2.The applicant sustained injury to his right shoulder on 19 August 2003 arising out of and in the course of his employment with the respondent.

3.The employment of…

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: [2008] NSWWCCPD 39
Decision Date: 28 March 2008

CaseChat Overview and Summary

In this case, Parmalat Australia Limited sought to appeal an arbitrator's decision that it was liable for Mr. Jason Christopher Cheadle's medical expenses resulting from a shoulder injury sustained during an altercation on 9 December 2006. The Arbitrator had found that the incident on 9 December 2006 resulted from the injury sustained on 19 August 2003, which was acknowledged to be work-related. Parmalat contended that the Arbitrator erred in finding that the need for medical treatment after 9 December 2006 resulted from the original injury on 19 August 2003. The Arbitrator had accepted the opinion of Dr. Haber, who had opined that the December 2006 injury was an exacerbation of an underlying problem resulting from the initial injury.

The Deputy President found that the Arbitrator's decision was not affected by legal, factual, or discretionary error. The Deputy President held that the injury in 2003 did not merely predispose Mr. Cheadle to a subsequent injury, but caused damage to his shoulder in the form of an extensive labral tear and a large Hill-Sachs defect. That damage resulted in right shoulder instability and the need for surgery, which Allianz accepted liability for. The instability was not a 'subsequent injury', but was a manifestation of the damage ('injury') caused in the initial incident in 2003. Therefore, the injury on 9 December 2006 did not break the chain of causation and the Appellant Employer remained liable for the consequences of the 2003 injury. The Deputy President confirmed the Arbitrator's findings and determination dated 13 November 2007, and ordered that the Appellant Employer pay the Respondent Worker's costs of the appeal.

Orders