Spotless Services Australia Limited v Evans - [2013] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Spotless Services Australia Limited v Evans [2013] NSWWCCPD 62
APPELLANT:	Spotless Services Australia Limited
RESPONDENT:	Anne Evans
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-6866/12
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:	30 June 2013
DATE OF APPEAL DECISION:	15 November 2013
SUBJECT MATTER OF DECISION:	Obligation upon arbitrator to provide adequate and sufficient reasons for his determination of the dispute; s 9A of the Workers Compensation Act 1987; reversal of onus of proof; referral of dispute as to whole person impairment to an Approved Medical Specialist by Registrar; relevance of expert medical evidence concerning corticospinal tract damage to terms of referral
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Astridge & Murray Lawyers
Respondent:	Paramount Lawyers
ORDERS MADE ON APPEAL:	1. The appellant is granted leave to appeal in respect of interlocutory orders made on 30 June 2013. 2. The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 30 June 2013 are revoked. 3. The matter is remitted for hearing afresh by another Arbitrator. 4. No order as to costs of the appeal. 5. The costs of the proceedings before Arbitrator Tanner are to abide the outcome of the determination following remitter.

BACKGROUND

Ms Anne Evans was employed by Spotless Services Australia Limited (the appellant) as a casual catering assistant between November 2007 and May 2008. Ms Evans alleged that she had received injury to her neck and back in the course of that employment. Three separate incidents allegedly caused the subject injuries. The occurrence of injury was disputed by the appellant.
It should, at the outset, be noted that the history of injury as stated by Ms Evans from time to time demonstrates that she is a particularly poor historian. That fact has given rise to considerable confusion, and difficulty has been encountered when attempts have been made to elucidate the history of injury and when the question of the appellant’s liability has been considered.
Ms Evans alleged injury to her neck on 20 January 2008 when setting up “bain maries”; injury to her back on 9 April 2008 as she lifted a milk crate, and injury to her neck and back on 7 May 2008 as she placed milk into a refrigerator. Claims for compensation made in June and July 2008 by Ms Evans against the appellant were declined by its insurer.
The dispute concerning Ms Evans’s entitlement to compensation benefits came before the Commission for determination by Arbitrator Craig Tanner on 15 February 2013. The matter proceeded to arbitration on that day at which time the Arbitrator reserved his decision. A Certificate of Determination, accompanied by a Statement of Reasons, was issued on 30 June 2013 in which findings of injury were made and the following orders were recorded:
“(1) The dispute as to whether the applicant has whole person impairment that results from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Spotless Services Australia Limited v Evans [2013] NSWWCCPD 62
Case: [2013] NSWWCCPD 62
Decision Date: 15 November 2013

CaseChat Overview and Summary

In the case of Spotless Services Australia Limited v Evans, the appellant challenged the determination made by an arbitrator, arguing that the reasons provided for the decision were inadequate and insufficient. The dispute involved the interpretation and application of the Workers Compensation Act 1987, specifically section 9A, which deals with the reversal of the onus of proof in workers' compensation claims. Additionally, the referral of a dispute regarding whole person impairment to an Approved Medical Specialist by a Registrar was contested. The appellant also questioned the relevance of expert medical evidence concerning corticospinal tract damage to the terms of the referral.

The court was required to decide whether the arbitrator's determination was legally sound and whether the reasons provided were adequate and sufficient. The central issue was whether the arbitrator had properly exercised the discretion given under section 9A of the Workers Compensation Act 1987 and whether the referral process was correctly implemented. Furthermore, the court had to consider the relevance and weight of expert medical evidence in the context of the referral terms.

The court found that the arbitrator had not provided adequate and sufficient reasons for the determination, leading to the conclusion that the decision was flawed. The court held that the arbitrator's failure to properly exercise the discretion given under section 9A rendered the decision invalid. Additionally, the court determined that the referral process was not correctly implemented, and the relevance of the expert medical evidence was not properly assessed. Consequently, the findings made by the Arbitrator and the orders made in the Certificate of Determination dated 30 June 2013 were revoked. The matter was remitted for hearing afresh by another Arbitrator. No order was made regarding the costs of the appeal, and the costs of the proceedings before the original arbitrator were to abide the outcome of the determination following remitter.

Orders

Orders of the court

1. The appellant is granted leave to appeal in respect of interlocutory orders made on 30 June 2013.

2. The findings made by the Arbitrator and the orders made as found in the Certificate of Determination dated 30 June 2013 are revoked.

3. The matter is remitted for hearing afresh by another Arbitrator.

4. No order as to costs of the appeal.

5. The costs of the proceedings before Arbitrator Tanner are to abide the outcome of the determination following remitter.

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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