Transfield Pty Limited v Bertinato
[2004] NSWWCCPD 80
•17 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:Transfield Pty Limited v Bertinato [2004] NSW WCC PD 80
APPELLANT: Transfield Pty Limited
FIRST RESPONDENT: Luigi Bertinato
SECOND RESPONDENT: CGU Workers Compensation (NSW) Limited, formerly NRMA Workers Compensation (NSW) (No. 2) Pty Limited
FILE NUMBER: WCC11454-2003
DATE OF ARBITRATOR’S DECISION: 4 December 2003
DATE OF APPEAL DECISION: 17 November 2004
SUBJECT MATTER OF DECISION: Injury ‘arising out of or in the course of employment’, ‘substantial contributing factor’, Sections 4 and 9A of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:15 October 2004
REPRESENTATION: Appellant: Hicksons, Lawyers
First Respondent: Di Lizio & Associates, Solicitors
Second Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
THE APPEAL
This is the second determination in this appeal. The relevant background is set out in the earlier decision, Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57, and is not repeated here. As a result of this earlier decision, the Arbitrator has provided written reasons for her decision. A hearing was held on 15 October 2004 to allow the parties to make further submissions, in the light of the reasons for decision.
The only issue that remains in dispute is ‘causation’. That is, whether the Arbitrator erred in finding that Mr Bertinato’s injury arose ‘out of or in the course of his employment’. A related question is whether the Arbitrator erred in finding that Mr Bertinato’s employment was a ‘substantial contributing factor’ to his injury.
Mr Bertinato and CGU Workers Compensation (NSW) Limited, submit that the Arbitrator’s decision to award Mr Bertinato weekly benefits compensation and medical expenses compensation from 8 July 2000 to date and continuing, should be confirmed.
Transfield argue that the decision should be revoked and a new decision: “that liability to pay weekly benefits and reimburse medical expenses results from injury occurring on or before 1 July 1998” be made in its place. This date of injury is significant because, if accepted, liability would fall to CGU Workers Compensation (NSW) Limited, not Transfield.
Did Mr Bertinato’s Injury Arise ‘out of or in the course of his employment’?
Mr Bertinato worked for Transfield for over twenty years. In 1998 he was working as a dispatch officer. It is not disputed that he injured his back at work on 1 July 1998, when he felt pain in his low back and right leg. He notified his employer of the injury on 24 November 1998. In July 1999 he had hip replacement surgery and returned to work on light duties. He has since settled a claim for permanent impairment compensation. On 25 June 2003, Mr Bertinato made a claim for weekly benefits.
Transfield became a ‘self-insurer’ on 30 June 1999. It submits that there is no logically probative evidence of Mr Bertinato suffering an injury at work, either in a frank incident or related to a disease, on or after this date. If this is correct, then Transfield is not liable to pay Mr Bertinato weekly compensation from 30 June 1999 onwards.
Transfield submits the Arbitrator failed to base her decision upon logically probative evidence. It submits there was no evidence that Mr Bertinato’s duties from 1 July 1999 and 7 July 2000 (when his employment was terminated) contributed to his injury, either by way of a specific, frank incident, or by way of the aggravation, acceleration, exacerbation or deterioration of a disease.
An Arbitrator’s decision must be based on logically probative evidence and supported by adequate written reasons, which apply the relevant law to the facts of the instant case. The Workers Compensation Commission Rules 2003 (the Rules) must be read together with the provisions of the Act. Rule 70 provides that:
“When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,(c)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
Ultimately the issue of causation must be determined according to the facts of each case. It is for the Arbitrator to determine what evidence of the facts is persuasive. Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be made where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully. In my view this is not such a case. The Arbitrator conducted a conciliation and arbitration and heard oral evidence from Mr Bertinato. She briefly set out the relevant documentary evidence in her reasons for decision.
Transfield correctly asserts that the Arbitrator, in her written reasons, has expressed reliance upon the ‘submissions’ of Mr Bertinato, rather than reviewing the evidence. Unfortunately, the Arbitrator has not clearly and logically set out the evidence that she preferred in coming to her decision. She does not state what reliance, if any, she placed upon Mr Bertinato’s own evidence. In my view the reasons are not clearly expressed. However, even if the Arbitrator could be said to have erred in relation to the adequacy of reasons (which I note Transfield no longer asserts as a ground of review), the error is not one that would have resulted in a different decision being made (YG & GG v Minister for Community Services [2002] NSWCA 247; Absolon v NSW TAFE [1999] NSWCA 311).
It is evident from reading the decision as a whole, that the Arbitrator accepted and gave much weight to the medical reports of Drs’ Millons, Wallace and Chowdhury. In doing so, she clearly accepted Mr Bertinato’s account of the injury and its relationship to his employment. She found that his injury during the period of the claim, was an “aggravation, acceleration, exacerbation or deterioration of a disease”, albeit that she did not distinguish between these alternatives.
The Arbitrator accepted the evidence that Mr Bertinato’s condition deteriorated over 1999 and 2000 prior to leaving his employment. The evidence of Mr Bertinato and Mr Maggio (filed by Transfield) attests to the fact that Mr Bertinato’s duties as a ‘Dispatch Officer’ did not significantly change after his hip operation in 1999, except for the fact that he did not do heavy lifting. He remained on normal hours “continued to do his paperwork, co-ordinate transport and walk to and from the steel yard, once or twice a day” (Maggio statement). Dr Millons reports that Mr Bertinato stated “his work entailed him walking around three yards. There was a lot of galvanised steel in various piles for orders. Cranes were available to move the steel. He would pick the orders and supervise the cleaning and filing of the steel prior to its dispatch. There was some lifting involved. He also spent time in the office putting orders together”. Dr Millons went on to opine that Mr Bertinato was “doing the same job for 25 years and it would be hard to deny that there would be some input on that degenerate change [to his back] from the nature and conditions of his work”.
The Arbitrator was entitled to rely upon the evidence of Drs Millons, Wallace and Chowdhury, which clearly opined that Mr Bertinato’s work as a Dispatch Officer aggravated his back condition. Dr Wallace, on 13 May 2003, reported that he was not fit for his pre-injury work as a Dispatch Officer as this would aggravate his condition. Dr Chowdhury reported on 23 July 2002, that Mr Bertinato had been “complaining of lower back pain since July 1991 which was related to his work activities like metal filing, lifting and packing in a galvanizing shop”.
I am not satisfied that the Arbitrator has erred in finding that Mr Bertinato’s injury arose out of or in the course of his employment with Transfield. There is logically probative evidence to support her findings. The ‘injury’ was the aggravation of a disease of the lumbar spine. Mr Bertinato continued to report symptoms of back pain and difficulty at work throughout 1999 and 2000. His work as a Dispatch Officer, aggravated his pre-existing back condition. This work, although modified for heavy lifting, was the same work he had performed for many years. It is artificial to suggest that Mr Bertinato’s work significantly changed at the time that Transfield became a self-insurer for the purpose of workers compensation.
Was Mr Bertinato’s Employment a ‘substantial contributing factor’ to his Injury?
Transfield argues that there is no evidence to support the Arbitrator’s finding that Mr Bertinato’s work between 1 July 1999 and 7 July 2000 was a “substantial contributing factor” to his injury.
As stated above, the relative weight to be given to the evidence is a matter for the discretion of the Arbitrator. This is not a case where there was no evidence at all on this issue. The Arbitrator found Mr Bertinato’s medical evidence persuasive on this issue. These reports recorded the history of Mr Bertinato’s work duties and concluded that his employment contributed to the aggravation of his symptoms, in particular to back pain. Given the temporal connection between the work and the injury it is difficult to argue that this was not the case.
I am not satisfied that the Arbitrator has erred in finding that Mr Bertinato’s employment was a substantial contributing factor to his injury.
DECISION
The decision of the Arbitrator is confirmed.
Dr Gabriel Fleming
Deputy President
17 November 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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