Velevski v Auburn City Council - [2008] NSWWCCPD 83

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Velevski v Auburn City Council [2008] NSWWCCPD 83
APPELLANT:	Durcin Velevski
RESPONDENT:	Auburn City Council
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	WCC351-08
DATE OF ARBITRATOR’S DECISION:	2 April 2008
DATE OF APPEAL DECISION:	8 August 2008
SUBJECT MATTER OF DECISION:	Weight of evidence; Dupuytren’s contracture, aggravation of disease, and section 4(b)(ii) of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Michael Evers and Co.
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	The Arbitrator’s determination dated 2 April 2008 is revoked and the following findings and orders are made: 1) Mr Velevski suffered injury by way of aggravation of a disease, namely, Dupuytren’s contracture in both hands pursuant to section 4(b)(ii) of the Workers Compensation Act 1987. 2) The deemed date of injury under section 16 of the 1987 Act is 22 November 2006. 3) The matter is referred to the Registrar for referral to an Approved Medical Specialist for assessment under section 66 of the 1987 Act. 4) The parties have 14 days liberty to apply in respect of the deemed date of injury. 5) The Employer is to pay the Worker’s costs as agreed or assessed. The Respondent pay the Appellant’s costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Velevski (‘the Appellant/Worker’) is a 61 year old labourer who was born in Macedonia and migrated to Australia in 1970. In 1987 he commenced work in the parks and garden section of Auburn City Council (‘the Respondent/Employer/the Council’) where he remains employed fulltime.

Throughout his employment at the Council, Mr Veleski used blowers, mowers, whipper snippers, saws and secateurs. In about 1994 he alleges that he initially experienced pain in his left hand after holding the handles of vibrating machines for long periods. He alleges that his symptoms gradually worsened over time, especially after physical work and using vibrating machines. Mr Velevski’s general practitioner, Dr Luong, diagnosed bilateral Dupuytren’s contractures on 21 April 2006.

On 16 May 2006, Mr Velevski made a claim for compensation as a result of injury to both hands during the course of 19 years employment with the Council and nominated a date of injury as 7 April 2006. The Council declined liability for the claim on the basis that Mr Velevski had not suffered a work injury, or alternatively, under section 9A of the Workers Compensation Act 1987 (‘the 1987 Act’), that his employment was not a substantial contributing factor to the injury.

On 21 January 2008, Mr Velevski filed an Application to Resolve a Dispute (‘the Application’), in the Workers Compensation Commission (‘the Commission’), claiming lump sum compensation under section 66 in respect of 5% whole person impairment as a result of injury to both hands. The nominated date of injury in the Application was 7 April 2006.

The matter was listed for conciliation and arbitration hearing on 28 March 2008. Whilst there was…

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 83
Decision Date: 8 August 2008

CaseChat Overview and Summary

The case of Velevski v Auburn City Council involves the appellant, Mr Velevski, and the respondent, Auburn City Council, in a workers compensation dispute. The primary issue at hand is whether Mr Velevski's Dupuytren’s contracture, a disease affecting the hands, was aggravated by his work activities, and if so, whether this constitutes an injury for the purposes of section 4(b)(ii) of the Workers Compensation Act 1987. The case was heard and determined by the Industrial Relations Commission of New South Wales.

The legal issues central to this case revolve around the interpretation and application of the Workers Compensation Act 1987, specifically section 4(b)(ii), which addresses injuries that are an aggravation of a disease. The court had to determine whether Mr Velevski's condition was indeed an aggravation of his pre-existing Dupuytren’s contracture, and if the aggravation was caused by his employment activities. This involved assessing the weight of the evidence presented regarding the nature and cause of Mr Velevski's condition.

The Commission found that Mr Velevski did suffer an aggravation of his Dupuytren’s contracture due to his work activities, which qualified as an injury under section 4(b)(ii) of the Act. The court emphasised the importance of the medical evidence in supporting the claim that the condition was work-related. The deemed date of injury was set as 22 November 2006, and the matter was referred to an Approved Medical Specialist for further assessment. The Commission also ordered the respondent to pay the appellant's costs associated with the appeal.

The final orders of the court included revoking the Arbitrator's earlier determination and substituting it with new findings and orders. The new determination recognised Mr Velevski’s injury as an aggravation of his pre-existing condition, set the deemed date of injury, and referred the matter for further medical assessment. Additionally, it mandated the respondent to pay the appellant's costs, including those associated with the appeal.

Orders

Orders of the court

The Arbitrator’s determination dated 2 April 2008 is revoked and the following findings and orders are made:

1) Mr Velevski suffered injury by way of aggravation of a disease, namely, Dupuytren’s contracture in both hands pursuant to section 4(b)(ii) of the Workers Compensation Act 1987.

2) The deemed date of injury under section 16 of the 1987 Act is 22 November 2006.

3) The matter is referred to the Registrar for referral to an Approved Medical Specialist for assessment under section 66 of the 1987 Act.

4) The parties have 14 days liberty to apply in respect of the deemed date of injury.

5) The Employer is to pay the Worker’s costs as agreed or assessed.

The Respondent pay the Appellant’s 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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