Ross v Zurich Workers Compensation Insurance

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Ross v Zurich Workers Compensation Insurance [2002] NSWWCCPD 7
APPELLANT:	Darrin Charles Ross
RESPONDENT:	Zurich Workers Compensation Insurance
EMPLOYER:	McKean and Son Pty Ltd
FILE NO:	WCC 106-2002
DATE OF DECISION:	18 November 2002
PRESIDENTIAL MEMBER:	Dr Gabriel Fleming Deputy President
DECISION UNDER APPEAL:	Award for the Respondent
DATE OF DECISION UNDER APPEAL:	7 August 2002
HEARING:	Leave Granted 29 October 2002
Appeal Determined ‘On the Papers’
REPRESENTATION:	Appellant:
Gerard Egan, Solicitor
Respondent:
Mark Schreuder, Solicitor
ORDERS MADE ON APPEAL:	The appeal is not allowed.  The decision appealed against is confirmed.

THE APPEAL

1. On 30 April 2002 Darrin Charles Ross (‘the Applicant / the Appellant’) lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘the Commission’).  The Applicant claimed to have suffered an injury to his neck, back and shoulders when at work for McKean and Son Pty. Ltd. on 30 April 2001.  A claim for compensation was made on 3 May 2001.  The relevant worker’s compensation insurer is Zurich Australia Workers Compensation (‘the Respondent’).  Weekly payments of compensation were made from 10 May 2001 until 16 April 2002 and all medical expenses in that period were met.  On 12 April 2002 the Respondent wrote to Mr. Ross declining liability for the claim on the ground that his employment with McKean and Son Pty. Ltd. was not a substantial contributing factor to his injury.  The application to the Commission sought an order that Mr. Ross continue to be paid weekly compensation by way of income support plus medical expenses in the sum of $2581.15.

2. The parties attended a telephone conference on 1 July 2002 and 9 July 2002, and a conciliation conference and arbitration hearing on 15 July 2002.  All parties were legally represented throughout the proceedings.  The parties were unable to come to a settlement of the dispute acceptable to all of them.  The Arbitrator proceeded to obtain their agreement as to the facts and issues in dispute and to hear oral submissions.  On 7 August 2002 a Certificate of Determination was issued which recorded the decision in the matter as follows: ‘Award for the Respondent’.  The Applicant lodged an appeal against this decision on 4 September 2002.  This is the determination of the appeal.

THE ISSUES IN DISPUTE

1. The primary issue for determination by the Arbitrator was whether Mr. Ross’s employment was a substantial contributing factor to his injury (Section 9A of the Workers CompensationAct 1987). On this issue the Arbitrator found for the employer. The grounds of the appeal as stated in the appeal document are:

   . . . that the Arbitrator’s decision was:

   a.Against the weight of the evidence

   b.Specifically referring to the silence of treating medical practitioner (paragraph 29 and 38) on a medical certificate should not have been taken into consideration as it was a subsequent certificate

   c.Was silent as to the Applicant’s Psychological and Fibromyalagia as referred to by Dr Hayter (sic)