Patrick Stevedores Holdings Pty Ltd v Viera

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Patrick Stevedores Holdings Pty Ltd v Viera [2019] NSWWCCPD 12
APPELLANT:	Patrick Stevedores Holdings Pty Ltd
RESPONDENT:	Mauro Viera
INSURER:	AAI Ltd t/as GIO as agent for the Workers Compensation Nominal Insurer
FILE NUMBER:	A1-4687/18
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	30 October 2018
DATE OF APPEAL DECISION:	29 March 2019
SUBJECT MATTER OF DECISION:	Whether error in determining the need for surgery resulted from the work-related aggravation of a disease; principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Najdovski v Crnojilovic [2008] NSWCA 175; 72 NSWLR 728 considered and applied; s 50 of the Workers Compensation Act 1987 – sick leave – NSW Police Service v Azimi [2007] NSWWCCPD 125 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	McNally Jones Staff
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 30 October 2018 is confirmed.

INTRODUCTION

1. Mr Mauro Viera suffered an injury to his left foot which was deemed to have occurred on 18 July 2016, described as an aggravation of pre-existing degenerative changes.

2. Patrick Stevedores Holdings Pty Ltd (Patricks) denied liability for the injury and the associated treatment expenses in several notices issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. Mr Viera commenced proceedings in the Commission in respect of a claim for weekly payments pursuant to ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act) from 12 September 2017 to 11 February 2018. He also claimed treatment expenses pursuant to s 60 of the 1987 Act, which included the cost of surgery to his left foot performed on 12 September 2017.

4. The dispute proceeded to arbitration on 23 October 2018.

5. Patricks conceded that Mr Viera had suffered an injury and that employment was the main or substantial contributing factor to the injury. The issues requiring determination were:

   (a)    whether Mr Viera had recovered from his injury;

   (b)    the extent and quantification of Mr Viera’s entitlement to weekly compensation, and

   (c) whether Patricks was liable for medical expenses pursuant to s 60 of the 1987 Act.

BACKGROUND

1. Mr Viera commenced employment with Patricks in October 2006 and worked in various positions. Relevantly, on about 19 June 2015, he began working as a tele-operator for some shifts per week.

2. Mr Viera ceased that work in about February or March 2016, but continued to work for Patrick Stevedores as a team leader and lasher.

3. Mr Viera had a past history of approximately 20 years of occasional left foot pain (about twice a year), for which he had not received treatment other than some anti-inflammatory medication that would relieve the symptoms within a day. Shortly after commencing the work as a tele-operator, Mr Viera began to experience pain and swelling in his…