Southern Meats Pty Ltd v Tucker

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Southern Meats Pty Ltd v Tucker [2021] NSWWCCPD 2
APPELLANT:	Southern Meats Pty Ltd
RESPONDENT:	Robert Tucker
INSURER:	Self-insured
FILE NUMBER:	A1-2954/20
SENIOR ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	8 September 2020
DATE OF APPEAL DECISION:	14 January 2021
SUBJECT MATTER OF DECISION:	Rejection of uncontradicted expert evidence, acceptance of expert evidence – Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218 applied; whether error to prefer the evidence of a treating surgeon over the evidence of a medico-legal expert – Shellharbour City Council v Rigby [2006] NSWCA 308 applied; lack of complaints of symptoms prior to cessation of employment – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 discussed
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Kemp & Co Lawyers

Respondent:
Mr J Wilson, counsel
Stacks Law Firm
ORDERS MADE ON APPEAL:	1.    The Senior Arbitrator’s Certificate of Determination dated 8 September 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Mr Robert Tucker (the respondent) was employed by Southern Meats Pty Ltd (the appellant) as a labourer in the appellant’s abattoir. He commenced in that employment in January 2006.

2. The respondent suffered injuries to his left shoulder in 2012, on 5 February 2015 and in late May 2015. He ceased work in September 2015. The respondent developed symptoms in his right shoulder, which were first recorded by his physiotherapist on 26 July 2016. The respondent asserted that the right shoulder symptoms arose as a result of the heavy nature of his work with the appellant. He also attributed the symptoms to having to use the right arm more because of the left shoulder injury. The respondent made a claim for the cost of surgery to the right shoulder in the form of a reverse total shoulder replacement.

3. The appellant accepted liability for the respondent’s left shoulder condition, but disputed liability in relation to the right shoulder on the basis that the right shoulder was not injured as alleged, was not rendered symptomatic as a consequence of the left shoulder injury and the surgery was not reasonably necessary.

4. The respondent brought proceedings in the Commission, seeking an order that the proposed surgery to the right shoulder was reasonably necessary and for the respondent to pay the cost of the surgery. The matter proceeded to arbitration before Senior Arbitrator Bamber, who found in favour of the respondent and made orders accordingly.

5. The appellant appeals that decision.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:

   “(6)    If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

2. Both parties have indicated that they are content to have the matter determined on the…