Toplis v Coles Group Ltd t/as Coles Logistics - [2009] NSWWCCPD 70

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Reported Decision: Toplis v Coles Group Ltd (t/as Coles Logistics)* (2009) 7 DDCR 497**
CITATION:		Toplis v Coles Group Ltd t/as Coles Logistics [2009] NSWWCCPD 70
APPELLANT:		Andrew Edward Toplis
RESPONDENT:		Coles Group Ltd t/as Coles Logistics
INSURER:		Self insured
FILE NUMBER:		A1-10127/08
ARBITRATOR:	Ms J Conley
DATE OF ARBITRATOR’S DECISION:		25 March 2009
DATE OF APPEAL DECISION:		19 June 2009
SUBJECT MATTER OF DECISION:		Admissibility of a supplementary forensic medical report; clause 43AA of the Workers Compensation Regulation 2003; injury; inappropriate use of the term “nature and conditions of employment”
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	PK Simpson & Co
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:		For the reasons given in this decision, paragraphs one, two, three, four and six of the Arbitrator’s determination dated 25 March 2009, as amended on 1 April 2009, are confirmed. Paragraph five is revoked and the following order made: “5. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of the injury to his thoracic and lumbar spines on 26 November 2007.” Each party is to pay his or its own costs of the appeal.

BACKGROUND

The worker, Mr Toplis, commenced work with Coles Group Limited (‘Coles’) as a storeman in 2001. His duties required him to frequently lift and move boxes weighing between 5 and 25kgs.

In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 17 December 2008, Mr Toplis claimed lump sum compensation in respect of a 26% whole person impairment together with compensation for pain and suffering, and for hospital and medical expenses. The Application asserted that Mr Toplis sustained two injuries in the course of his employment with Coles. The first (conceded by Coles) on 26 November 2007, when he injured his neck, back, and legs “as a result of lifting a box of soft drinks”. The second was between 1 January 2000 and 26 November 2007 when the same body parts were allegedly injured “as a result of the nature and conditions of his employment.”

By a letter dated 29 January 2009, Mr Toplis’ solicitors amended the Application to discontinue the claim for hospital and medical expenses and to withdraw the allegation of injury as a result of the nature and conditions of employment between January 2000 and 26 November 2007.

The matter was referred to a Commission Arbitrator for conciliation and arbitration on 17 March 2009. Counsel for Mr Toplis made two preliminary applications before the commencement of the arbitration. First, he sought leave to amend the Application to include “an injury, being the nature and conditions of employment from 1 March 2002 to 26 November 2007” (T13.7). Second, he sought leave to rely upon a supplementary forensic medical report from Dr Matalani, dated 14 January 2009 (‘the supplementary report’).

The…

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: [2009] NSWWCCPD 70
Decision Date: 19 June 2009

CaseChat Overview and Summary

Toplis, the worker, brought an appeal against Coles Group Ltd, his employer, following a decision by an Arbitrator. The primary dispute revolved around the admissibility of a supplementary forensic medical report and the interpretation of clause 43AA of the Workers Compensation Regulation 2003. The Full Bench of the Commission was tasked with determining whether the Arbitrator correctly admitted the supplementary report and whether the term "nature and conditions of employment" was used appropriately in the context of the injury sustained by the worker.

The court had to decide if the Arbitrator was correct in admitting the supplementary forensic medical report, and whether the term "nature and conditions of employment" was appropriately used in the context of the worker's injury. The court considered the provisions of clause 43AA of the Workers Compensation Regulation 2003 and the proper interpretation of the term in question. The court also examined the procedural fairness and the admissibility of the supplementary report under the circumstances presented.

The Full Bench found that the Arbitrator erred in admitting the supplementary forensic medical report, as it was not in accordance with the relevant provisions of the Regulation. The term "nature and conditions of employment" was deemed to have been used inappropriately. The Full Bench held that the matter needed to be remitted to the Registrar for an assessment of the worker’s whole person impairment resulting from the injury to his thoracic and lumbar spines. The Full Bench confirmed most of the Arbitrator’s determination but revoked paragraph five and substituted it with a new order for the assessment of whole person impairment.

The Full Bench ordered that the Arbitrator's determination be confirmed except for paragraph five, which was revoked and replaced with a new order for the assessment of the worker's whole person impairment. Each party was directed to bear their own costs for the appeal.

Orders

Orders of the court

For the reasons given in this decision, paragraphs one, two, three, four and six of the Arbitrator’s determination dated 25 March 2009, as amended on 1 April 2009, are confirmed. Paragraph five is revoked and the following order made:

“5. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the worker’s whole person impairment as a result of the injury to his thoracic and lumbar spines on 26 November 2007.”

Each party is to pay his or its own costs of the appeal.

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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