Woolstar Pty Ltd v Viapiana

Case [2023] NSWPICPD 74

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER

CITATION:

Woolstar Pty Ltd v Viapiana [2023] NSWPICPD 74

APPELLANT:

Woolstar Pty Ltd

RESPONDENT:

Patricia Viapiana

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-W3895/22

PRESIDENTIAL MEMBER:

Deputy President Michael Snell

DATE OF APPEAL DECISION:

21 November 2023

ORDERS MADE ON APPEAL:

1.     The Certificate of Determination dated 21 November 2022 is confirmed.

CATCHWORDS:

WORKERS COMPENSATION – Duty to give reasons –­ application of Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, Mifsud v Campbell (1991) 21 NSWLR 725, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; causation – application of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, expert evidence – application of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399; alleged constructive failure to exercise jurisdiction – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 77 ALJR 1088, Day v SAS Trustee Corporation [2021] NSWCA 71; Wang v State of New South Wales [2019] NSWCA 263

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr T Grimes, counsel

BBW Lawyers

Respondent:

Ms E Grotte, counsel

John Peisley & Associates

DECISION UNDER APPEAL

MEMBER:

Mr J Isaksen

DATE OF MEMBER’S DECISION:

21 November 2022

INTRODUCTION AND BACKGROUND

  1. Patricia Viapiana (the worker/respondent) was employed by Woolstar Pty Ltd (the employer/appellant) as a storeperson at the Woolworths Wyong Distribution Centre. On 2 June 2006 she was picking product when a package of canned tuna became stuck on some rollers. As she attempted to free the package she suffered right shoulder pain, which she reported. She developed right sided neck symptoms that deteriorated with time. She came to shoulder surgery involving acromioplasty and subacromial decompression in September 2008. On 3 September 2009 the parties entered into a complying agreement providing for lump sum compensation of $15,500 in respect of 12 per cent permanent impairment. The worker worked on, performing lighter duties, with the assistance of medication. The employer withdrew those duties in May 2014 and terminated the worker’s employment. The worker was paid ongoing weekly compensation.

  2. The worker was assessed by Dr Burns, an Approved Medical Specialist (AMS) of the former Workers Compensation Commission (WCC), and a Medical Assessment Certificate (MAC) was issued dated 21 July 2014. The MAC certified 14 per cent whole person impairment, 7 per cent in respect of the cervical spine and 8 per cent in respect of the right upper extremity (shoulder).[1] The worker sought to appeal the decision of the MAC. The appeal did not proceed as a Delegate of the Registrar (of the WCC) was not satisfied that at least one of the grounds specified in s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was made out.[2] A Certificate of Determination was issued on 25 March 2015 providing for a further sum of $3,000…

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Woolstar Pty Ltd v Viapiana [2023] NSWPICPD 74
Case
[2023] NSWPICPD 74
Decision Date

CaseChat Overview and Summary

Woolstar Pty Ltd sought review of a decision of the Workers Compensation Commission in relation to a claim made by Mr Viapiana for compensation under the Workers Compensation Act 1987 (NSW). The primary issue was whether there was a causal link between the worker's injury and the claimed pathology. The employer contested the medical evidence provided by Dr Coughlan, arguing that it was speculative and not based on a fair climate of evidence. The employer also raised issues concerning the adequacy of reasons provided by the Commission, causation, and the weight to be given to expert evidence.

The court examined whether the Commission had constructively failed to exercise its jurisdiction by not considering the employer's arguments on causation and the sufficiency of Dr Coughlan's evidence. The court considered the principles from Pollard v RRR Corporation Pty Ltd, Mifsud v Campbell, and Beale v Government Insurance Office of NSW, which require a decision-maker to consider substantial arguments capable of affecting the outcome. The court also reviewed the application of Kooragang Cement Pty Ltd v Bates and Hancock v East Coast Timber Products Pty Ltd in assessing the sufficiency of expert evidence and the weight to be afforded to it. Finally, the court considered whether the Commission's failure to address the employer's arguments constituted a jurisdictional error.

The court found that the Commission had not constructively failed to exercise its jurisdiction. The arguments raised by the employer were considered by the Commission, and the reasons provided were sufficient to demonstrate that the Commission had performed its function and considered the relevant issues. The employer's reliance on the former rules was noted, but the court found that the equivalent provisions in the Personal Injury Commission Rules 2021 applied equally. The court also determined that Dr Coughlan's evidence, while not perfect, provided a fair climate for his conclusions on causation, and that the Commission was entitled to place weight on his evidence.

The appeal was dismissed, and the decision of the Workers Compensation Commission was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The employer quotes passages from DNA17 v Minister for Immigration and Border Protection[82] and CPE15 v Minister for Immigration and Border Protection.[83] The employer refers to a decision of the President, Phillips J, in Sarheed v C1 Formwork Group Pty Ltd.[84] The employer quotes the following, which is taken from DNA 17 and quoted in Sarheed:[85] “As the above passage makes clear, the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome. As the Full Federal Court recently observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [35]–[37], the ultimate concern is with the identification of jurisdictional error: the review body not performing the function entrusted to it or not performing it in an authorised way. The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.” (emphasis by Phillips P in Sarheed)[82] [2019] FCAFC 146 (DNA 17). [83] [2017] FCA 591.[84] [2021] NSWPICPD 7 (Sarheed).[85] Employer’s submissions, [20]. The employer refers to r 15.2(3) of the Workers Compensation Commission Rules 2011 (the former rules) in support of the principle that “evidence based on speculation or unsubstantiated assumptions is unacceptable”. I note the former rules ceased to have application when they were replaced by the Personal Injury Commission Rules 2021 (the Rules) which commenced from 1 March 2021. The equivalent provision is now found in r 73 of the Rules. The employer refers to Paric v John Holland Constructions Pty Ltd,[86] in respect of which it refers to the citations of Paric in both the Court of Appeal and the High Court. It is cited for the proposition that there must be a ‘fair climate’ on which a doctor’s opinion is based. It also submits that whilst a doctor “does not need to provide elaborate or detailed explanations for his conclusion, more than a mere ‘ipse dixit’ (an assertion without proof) is required”.[87][86] [1984] 2 NSWLR 505, 509–510, [1985] HCA 58.[87] Employer’s submissions, [21]. The employer submits there was not a fair climate for the acceptance of Dr Coughlan’s opinion on causation, based on the following:(a) “Dr Coughlan provided no comment on the lack of pathology at C6/7 in investigations prior to 2014”;(b) “Dr Coughlan has provided [sic, not provided] explanation for the change in the pathology from pre 2014 to when he commenced treating the [worker] in 2017”, and(c) “Dr Coughlan has provided not [sic] explanation as to how the original soft tissue injury has caused or evolved into the current pathology at C6/7 (which is disputed by the appellant)”.

Ratio Decidendi

Legal Principle Established

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