| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Petrovski v Ikea Pty Ltd [2017] NSWWCCPD 20 | |
| APPELLANT: | Mary Petrovski | |
| RESPONDENT: | Ikea Pty Ltd | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |
| FILE NUMBER: | A1-1249/16 | |
| ARBITRATOR: | Mr B Batchelor | |
| DATE OF ARBITRATOR’S DECISION: | 4 January 2017 | |
| DATE OF APPEAL DECISION: | 10 May 2017 | |
| SUBJECT MATTER OF DECISION: | Weight of evidence; analysis of medical and lay evidence; adverse factual finding in the absence of cross-examination | |
| PRESIDENTIAL MEMBER: | President Judge Keating | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Beilby Poulden Costello |
| Respondent: | Hall and Wilcox Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Arbitrator’s determination of 4 January 2017 is confirmed. | |
INTRODUCTION
The appellant worker challenges an Arbitrator’s factual finding that she did not discharge the onus of proof to establish that she sustained a frank injury to her lower back, in the course of her employment with the respondent employer.
For the reasons explained in this decision, the appeal is unsuccessful.
BACKGROUND
Mary Petrovski was employed by Ikea Pty Ltd (Ikea), the respondent employer, as an office assistant. She was employed by Ikea from early to mid-2014 until 27 July 2015, when she ceased work.
Ms Petrovski alleged that she sustained an injury in the course of her employment on 21 August 2014. However, she did not complete a WorkCover Worker’s Injury Claim Form (claim form) until 29 July 2015. In the claim form, the injury is described to have occurred when she “[b]ent down to pick up my pen and felt sharp pain in lower back”. She recorded the injury as “prolapsed disc, back, Right leg”.
Ms Petrovski sought weekly payments of compensation from 21 August 2014 to date and continuing, together with medical expenses.
On 28 August 2015, Ikea’s insurer, Allianz Australia Workers Compensation (NSW) Ltd, issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying liability for the claim. It claimed that it did not have sufficient information to establish that Ms Petrovski sustained an injury on 21 August 2014 and denied liability on the basis of ss 4, 9A, 33 and 60 of the Workers Compensation Act 1987 (the 1987 Act). The insurer issued a subsequent s 74 notice, in substantially the same terms, on 10 December 2015. It did not accept that Ms Petrovski’s back injury arose out of the course of employment or that employment was the main contributing factor to the injury.
On 16 September 2015, Ms Petrovski underwent a right sided decompressive laminectomy at the L5/SI level.
On 14 March 2016, Ms Petrovski lodged with the Commission an Application to Resolve a Dispute (the Application). Ms Petrovski claimed weekly benefits and medical expenses in respect of the injury sustained on 21 August 2014. In the Application she described the injury to have occurred when she “bent down to pick up a pen” and claimed that it resulted in the following:
“Prolapsed disc with right side nerve root…
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- AGLC
- Petrovski v Ikea Pty Ltd [2017] NSWWCCPD 20
- Case
- [2017] NSWWCCPD 20
- Decision Date
CaseChat Overview and Summary
The Fair Work Commission considered whether the Arbitrator’s decision was reasonable in light of the evidence presented. The court examined the weight of the evidence, particularly the medical reports which were largely in Petrovski’s favour, and the absence of cross-examination of the medical experts. It was argued that without the opportunity for cross-examination, Petrovski was at a disadvantage in challenging the credibility of the evidence. However, the court held that the Arbitrator’s decision was not unreasonable, noting that the medical evidence was not unchallenged and that there was lay evidence supporting a different conclusion. The Arbitrator was entitled to prefer this evidence and make an adverse finding against Petrovski.
The Fair Work Commission concluded that the Arbitrator’s determination was a reasonable one, given the totality of the evidence. The weight of the medical evidence, combined with the lay evidence, provided a sufficient basis for the Arbitrator’s findings. The absence of cross-examination did not render the decision unreasonable, as the Arbitrator was entitled to weigh the evidence as a whole and make factual findings accordingly. The Arbitrator’s decision was thus upheld, and the compensation claim was dismissed.
The orders of the Fair Work Commission confirmed the Arbitrator’s determination, upholding the dismissal of Petrovski’s compensation claim. The court found that the Arbitrator’s analysis of the evidence was sound and that the decision was not unreasonable. The absence of cross-examination did not invalidate the findings, and the weight of the evidence supported the Arbitrator’s conclusions. Petrovski’s appeal was dismissed, and the Arbitrator’s decision stood.
Orders
Orders of the court
1. The Arbitrator’s determination of 4 January 2017 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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