Patrick Stevedores Holdings Pty Ltd v Viera

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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…

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Details
Case
[2019] NSWWCCPD 12
Decision Date

CaseChat Overview and Summary

The case of Patrick Stevedores Holdings Pty Ltd v Viera was heard in the New South Wales Supreme Court. The dispute involved an employee, Viera, who claimed entitlement to compensation for sick leave and surgery. Patrick Stevedores, the employer, contested the claim, arguing that the employee's need for surgery was not work-related. The court was required to determine whether the error in determining the need for surgery resulted from the aggravation of a pre-existing condition due to work-related factors. The case hinged on the principles applicable to disturbing a primary decision-maker's factual determination, as established in Raulston v Toll Pty Ltd and Najdovski v Crnojilovic. The court also had to consider the interpretation of section 50 of the Workers Compensation Act 1987, as well as the case of NSW Police Service v Azimi.

The legal issues before the court were whether the error in determining the necessity for surgery arose from the aggravation of a pre-existing condition due to work-related factors and the principles governing the disturbing of a primary decision-maker's factual determination. The court had to examine the evidence presented and the reasoning of the primary decision-maker in light of the relevant statutory provisions and precedents. It needed to determine if the primary decision-maker had correctly applied the law and if there were grounds to disturb the decision.

The court held that the error in determining the need for surgery was due to the aggravation of a pre-existing condition through work-related factors. It considered the principles established in the cited cases, particularly regarding the disturbing of a primary decision-maker's factual determination. The court found that the primary decision-maker had adequately considered the evidence and had applied the correct legal principles. The court confirmed the Certificate of Determination, upholding the primary decision and rejecting the employer's challenge.

The final orders of the court confirmed the Certificate of Determination dated 30 October 2018. This decision upheld the entitlement of the employee to compensation for sick leave and surgery, rejecting the employer's claim that the need for surgery was not work-related. The court's reasoning was grounded in the applicable legal principles and the evidence presented, ensuring that the primary decision-maker's factual determination was correctly applied.

Orders

Orders of the court

1. The Certificate of Determination dated 30 October 2018 is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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