Taumata v Movers & Shakers Pty Limited - [2006] NSWWCCPD 240

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Taumata v Movers & Shakers Pty Limited [2006] NSWWCCPD 240
APPELLANT:  Michael Taumata
RESPONDENT:  Movers & Shakers Pty Limited
INSURER:Allianz Australia Workers Commission (NSW) Ltd
FILE NUMBER:  WCC5538-04
DATE OF ARBITRATOR’S DECISION:          30 March 2006
DATE OF APPEAL DECISION:  21 September 2006
SUBJECT MATTER OF DECISION:                Bias; procedural fairness; procedure followed at rehearing after successful appeal
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      White Barnes
Respondent:   Sparke Helmore

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 30 March is confirmed.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 26 April 2006 Michael Taumata (‘the Appellant Worker/Mr Taumata’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 30 March 2006.

The Respondent to the Appeal is Movers & Shakers Pty Limited (‘the Respondent Employer’).

Mr Taumata was born in New Zealand on 13 October 1945. He came to Australia in 1982 and started work as a removalist for the Respondent Employer in December 1999. At about 10pm on the evening of 17 July 2003 he was involved in moving several safes and other boxes from Tempe to Warringah Mall. He alleges that as he was tilting one of the safes to allow a trolley to be placed under it, the safe started to over balance and topple onto him. He says he yelled out to a co-worker to give him assistance. Eventually the safe was secured onto the trolley. In this process Mr Taumata felt a substantial strain and says he immediately developed certain symptoms. Exactly what symptoms he developed and when was the subject of conflicting evidence. Ultimately Mr Taumata was diagnosed as having suffered a myocardial infarct (‘heart attack’), admitted to hospital and underwent open heart surgery and later abdominal surgery as a result of complications from the heart surgery.

On 29 March 2004 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission alleging that Mr Taumata’s heart attack had been caused by a “heavy strenuous lift” on 17 July 2003. The Application claimed weekly compensation from 17 July 2003 to date and continuing together with hospital and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). His claim was decided in favour of the Respondent Employer on 20 August 2004 (‘the first Arbitration’)

Mr Taumata sought leave to appeal that decision on the grounds that at the first Arbitration he was denied procedural fairness in that the Arbitrator refused to allow oral evidence from either him or from a co-worker, Mr Ratima, who was present at the time of the incident on 17 July 2003. The appeal was determined by ADP Handley in favour of Mr Taumata on 31 October 2004 (Taumata v Movers & Shakers Pty Ltd [2005] NSWWCCPD 123) when the following…

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: [2006] NSWWCCPD 240
Decision Date: 21 September 2006

CaseChat Overview and Summary

In the case of Taumata v Movers & Shakers Pty Limited, the appellant, Taumata, challenged an arbitrator’s decision in a workers' compensation matter. The dispute centred on whether the Arbitrator was correct in concluding that Taumata did not suffer a heart attack as a result of the specific lifting incident claimed, despite the lack of competing medical evidence. Taumata argued that the Arbitrator conceded the injury as pleaded, which he rejected. The court was tasked with determining whether the Arbitrator's decision was influenced by any errors in fact, law, or discretion.

The primary legal issue was whether the Arbitrator correctly evaluated the medical evidence and the facts of the case. Taumata contended that the Arbitrator should have accepted the medical evidence as conclusive since there were no competing views. However, the court held that the Arbitrator's role was to assess whether the facts matched the medical evidence and did not improperly concede the injury. The court also examined whether the Arbitrator's decision was affected by any error of fact, law, or discretion. The Arbitrator's decision was scrutinised for any deviation from the correct legal principles in evaluating the evidence and the claim.

In confirming the Arbitrator’s decision, the court held that the Arbitrator properly considered the specific nature of Taumata's claim, which focused on a particular lifting incident leading to a ruptured plaque. The Arbitrator's concerns about the evidence did not amount to an error of principle or an irrelevant consideration. The court found no merit in Taumata's argument that the Arbitrator conceded the injury, emphasising that the Arbitrator merely highlighted the nature of the presented claim. The Arbitrator's conclusion that the facts did not match the medical evidence was upheld, and the decision was confirmed without any order as to the costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

In response to the Arbitrator’s concerns about the medical evidence, counsel for the Appellant Worker said at page 49 line 56:“I appreciate your position. I understand why you have disquiet, but there is nothing before you ‑ nothing before you ‑ from a medical point of view to suggest something to the contrary to what Dr Cranney says, and we would say that you potentially may be distracting yourself with respect to what your task is, which is to look at the facts, establish what the facts are, then look at what the medical evidence is. Are you satisfied that the facts match up with the medical evidence? Now, if there were competing medical views, I’d be concerned. I would have asked my solicitor to get a different ‑ to get another opinion to clarify the position on a background of there being a competing view. There’s no competing view. There may have been but we haven't seen it.” (emphasis added) The Arbitrator did establish the facts on the basis of the claim as it was presented to him. The claim presented was that the Appellant Worker suffered a heart attack as a result of the significant physical exertion during a specific lift when a safe toppled onto him on the evening of 17 July 2003. If it was not accepted that that incident happened, then those facts do not ‘match up’ with the medical evidence from Dr Cranney. The Arbitrator was therefore correct to conclude at paragraph 47 of his Reasons that: The Arbitrator reached the above conclusion after reiterating that the Appellant Worker’s case was presented as “an all-or-nothing focus on a specific lifting incident and its relationship to a ruptured plaque” (Reasons, paragraph 42). The Appellant Worker’s submission that the Arbitrator was, at paragraph 47 of his Reasons, “effectively conceding injury in the course of employment as pleaded in the” Application (Appellant Worker’s submissions, paragraph 57) is rejected. In my view the Arbitrator did no such thing. He merely highlighted the fact that the Appellant Worker’s claim was presented and argued in a very specific way (as a frank injury and not as one involving ‘generally strenuous work’), notwithstanding the concerns the Arbitrator openly expressed to the parties about the state of the evidence in support of that claim. I reject the submission that the Arbitrator acted on some wrong principle and gave weight to irrelevant matters. I do not believe the Arbitrator’s decision is affected by any error of fact, law or discretion. The Arbitrator’s decision of 30 March 2006 is confirmed. No order as to costs of the appeal.

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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