Tizzone v F & K Electrics Pty Limited - [2008] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Tizzone v F & K Electrics Pty Limited [2008] NSWWCCPD 14
APPELLANT:  Ross Tizzone
RESPONDENT:  F & K Electrics Pty Limited
INSURER:GIO General Limited
FILE NUMBER:  WCC4925-07
DATE OF ARBITRATOR’S DECISION:          12 October 2007
DATE OF APPEAL DECISION:  6 February 2008
SUBJECT MATTER OF DECISION: Error of law; presumption of continuance of aggravation of disease; section 60 of the Workers Compensation Act 1987; weight of evidence.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      Walker Legal
Respondent:   Hicksons

ORDERS MADE ON APPEAL: Paragraph 1 of the decision of the Arbitrator dated 12 October 2007 is revoked, and the following order is made in its place:

1. The Respondent Employer is to pay the Applicant Worker’s reasonable and necessarily incurred section 60 of the Workers Compensation Act 1987 expenses upon production of accounts and/or receipts.
Paragraph 2 of the decision of the Arbitrator dated 12 October 2007 is confirmed.
The Respondent Employer is to pay the costs of Appeal of the Appellant Worker.

BACKGROUND

On 9 November 2007 Mr Ross Tizzone, the Appellant worker, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision dated 12 October 2007.

The Respondent Employer in this Appeal is F & K Electrics Pty Limited.

The Insurer is GIO General Limited.

Mr Tizzone was delivering a brick saw to a building site as part of his usual daily duties as a driver and tool repair technician, in the employ of F & K Electrics. The saw was said to weigh between 40 and 50 kgs. As he unloaded the saw, pulling it towards himself, Mr Tizzone states that he felt a sharp pain in his lower back and left hip. He notified his employer of the injury on that day. On the following day Dr Rekha Jayaram Rao, Mr Tizzone’s treating doctor, certified him unfit for work for about four weeks. There were no suitable duties available to him upon his return to work and he was dismissed from his employment on 24 February 2005.

The injury in dispute is the injury to his left hip. Liability is not disputed in relation to his back.

On 14 September 2005 Mr Tizzone was compensated for 4% whole person impairment for his back.

On 6 March 2007 the Insurer wrote to Dr Allen Turnbull, Orthopaedic Surgeon, to whom Mr Tizzone was referred by his treating doctor, and declined to give approval for a left hip replacement. On 3 May 2007 Mr Tizzone lodged a formal claim with the Insurer because of further impairment of his back and his left hip. He also made a claim for medical expenses incurred for hip replacement surgery.

The Insurer formally declined liability in respect of the left hip treatment, including the left hip replacement on 6 March 2007, relying upon the provisions of sections 4 and 9A of the Workers Compensation…

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: [2008] NSWWCCPD 14
Decision Date: 6 February 2008

CaseChat Overview and Summary

The appeal in Tizzone v F & K Electrics Pty Limited was heard by Deputy President Gary Byron in the Workers Compensation Commission of New South Wales. The Appellant, Mr Ross Tizzone, appealed against a decision of the Arbitrator that rejected his claim for ongoing treatment of his left hip injury. The Respondent Employer was F & K Electrics Pty Limited and the Insurer was GIO General Limited. The dispute centered on the injury Mr Tizzone sustained to his left hip on 16 August 2004 and the consequential medical treatment he sought thereafter. The major legal issues in the appeal were whether the Arbitrator misstated a question of law regarding the injury and whether she erred in concluding that the aggravation of Mr Tizzone’s left hip arthritis ceased before July 2005.

The court found that the Arbitrator did not misstate a question of law concerning the injury, despite some inaccuracies in her observations. The Arbitrator correctly found that Mr Tizzone sustained an injury to his left hip on 16 August 2004 and that his employment was a substantial contributing factor to the aggravation of his underlying arthritic condition. However, the court did find that the Arbitrator erred in concluding that the aggravation of Mr Tizzone’s left hip arthritis ceased prior to July 2005. The presumption of continuance, which states that the contribution of a work-related injury continues until rebutted, was not effectively considered by the Arbitrator. The evidence showed that Mr Tizzone continuously complained of left hip pain from the date of the injury up to and beyond 5 July 2005. The worsening of his hip symptoms was not inconsistent with ongoing symptoms arising from the injury on 16 August 2004. Therefore, the Arbitrator's finding that the aggravation caused by the incident on 16 August 2004 had ceased was not supported by the evidence and the weight to be attached to it.

The appeal was successful, and the Arbitrator's decision was revoked in part. The Respondent Employer was ordered to pay Mr Tizzone's reasonable and necessarily incurred section 60 of the Workers Compensation Act 1987 expenses upon production of accounts and/or receipts. The Respondent Employer was also ordered to pay the costs of the appeal.

Orders