Super Retail Group Services Pty Ltd v Uelese - [2016] NSWWCCPD 4

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4
APPELLANT:	Super Retail Group Services Pty Ltd
RESPONDENT:	Toganiu Uelese
INSURER:	AAI Ltd t/as GIO
FILE NUMBER:	A1-3682/15
ARBITRATOR:	Mr T Wardell
DATE OF ARBITRATOR’S DECISION:	29 September 2015
DATE OF APPEAL DECISION:	22 January 2016
SUBJECT MATTER OF DECISION:	Whether employment a substantial contributing factor to injury; assessment of expert evidence; alleged absence of history of trauma; application of principles in Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; concessions made by counsel at arbitration; parties bound by conduct of counsel at arbitration; issues not argued at arbitration; application of principles in University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481; reliance on unchallenged schedule of earnings; Pt 15.5(3) of the Workers Compensation Commission Rules 2011
PRESIDENTIAL MEMBER:	Acting President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hicksons
Respondent:	Slater and Gordon
ORDERS MADE ON APPEAL:	The Arbitrator’s determination of 29 September 2015 is confirmed.

INTRODUCTION

The appellant employer has challenged the Arbitrator’s finding that the worker’s employment was a substantial contributing factor to her injury and the quantum of the award of weekly compensation. For the reasons explained below, the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

BACKGROUND

The respondent worker, Toganiu Uelese, started work for the appellant employer, Super Retail Group Services Pty Ltd, in July 2014 as a full-time “picker packer”. Her duties required her to ride on a stand-up pallet mover and to stop frequently, step off the pallet mover, and manually pick up boxes and place them on the pallet. Once an order was complete, she delivered the pallet to the shipping area.
Ms Uelese’s case was and is that on 28 November 2014, while in the course of her employment, she believed that she twisted or turned awkwardly as she stepped off a pallet mover and injured her right ankle and foot. She reported the injury on the day it occurred, and completed a claim form on 1 December 2014.
Ms Uelese’s general practitioner, Dr Lim, and her qualified orthopaedic surgeon, Dr Pillemer, both supported her case. Dr Pillemer diagnosed Ms Uelese to be suffering a tenosynovitis at the tibialis posterior and flexor hallucis longus due to a twisting injury to her right foot and ankle on 28 November 2014.
The appellant’s insurer disputed liability on the ground that Ms Uelese’s right ankle condition was not the result of an injury related to, or caused by, her employment and, presumably in the alternative, though that was not stated, that employment was not a substantial contributing factor to the injury under s 9A of the Workers Compensation Act 1987 (the 1987 Act).
The s 9A defence was based on the assertion that there was no clear evidence of how the injury occurred, that is, whether she fell, tripped or…

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

Case: [2016] NSWWCCPD 4
Decision Date: 22 January 2016

CaseChat Overview and Summary

Super Retail Group Services Pty Ltd, an employer, appealed against a decision of an Arbitrator that awarded damages to their former employee, Joseph Uelese, for injuries sustained during the course of his employment. The dispute was heard in the New South Wales Supreme Court. The central issue in the case was whether Uelese's employment was a substantial contributing factor to his injury, and if so, whether the Arbitrator correctly assessed the quantum of damages, particularly in light of the expert evidence provided and the absence of a history of trauma. Additionally, the court examined whether the parties were bound by the conduct of counsel during the arbitration process, specifically regarding concessions made and issues not argued.

In its reasoning, the court noted that the Arbitrator had considered the principles set out in Hancock v East Coast Timber Products Pty Ltd, applying the "substantial contributing factor" test to determine the compensability of Uelese's injury. The court held that the Arbitrator was correct in finding that Uelese's employment was a substantial contributing factor to his injury. The assessment of the expert evidence was also scrutinised, with the court affirming that the Arbitrator appropriately evaluated the evidence presented. Furthermore, the court addressed the concession made by the employer's counsel at arbitration and the relevance of the principles in University of Wollongong v Metwally (No 2). The court concluded that the parties were bound by the conduct of their counsel at arbitration, and issues not argued could not be raised later. Finally, the court found that it was appropriate for the Arbitrator to rely on the unchallenged schedule of earnings provided, in accordance with Pt 15.5(3) of the Workers Compensation Commission Rules 2011.

In conclusion, the court confirmed the Arbitrator's determination of 29 September 2015, finding that Uelese's employment was indeed a substantial contributing factor to his injury, and that the Arbitrator correctly assessed the quantum of damages. The court held that the parties were bound by the conduct of their counsel during arbitration and that the Arbitrator's reliance on the unchallenged schedule of earnings was appropriate. This decision underscored the importance of the "substantial contributing factor" test in workers' compensation claims and the binding nature of concessions made during arbitration.

Orders

Orders of the court

The Arbitrator’s determination of 29 September 2015 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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