Woolworths Limited v Geammal - [2011] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Woolworths Limited v Geammal [2011] NSWWCCPD 24
APPELLANT:		Woolworths Limited
FIRST RESPONDENT:		Marisa Geammal
SECOND RESPONDENT:		QBE Insurance (Australia) Limited
APPELLANT’S INSURER:		Self Insurer
SECOND RESPONDENT’S INSURER:		QBE Insurance (Australia) Limited
FILE NUMBER:		A1-6649/10
ARBITRATOR:	Mr Michael McGrowdie
DATE OF ARBITRATOR’S DECISION:		28 January 2011
DATE OF APPEAL DECISION:		3 May 2011
SUBJECT MATTER OF DECISION:		Section 4(b)(ii) of the Workers Compensation Act 1987; aggravation of disease; s 16(1)(a)(i) of the Workers Compensation Act 1987; deemed date of injury; s 16(1)(b) of the Workers Compensation Act 1987; employer liable to pay compensation
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Bartier Perry Lawyers
First Respondent:		MRM Lawyers
Second Respondent:		Curwoods Lawyers
ORDERS MADE ON APPEAL:		The orders made by the Arbitrator as found in the Certificate of Determination dated 28 January 2011, as amended, are confirmed. The appellant is to pay Ms Geammal’s costs of this appeal. No order as to the second respondent’s costs of this appeal

BACKGROUND TO THE APPEAL

Ms Marisa Geammal, the worker, was successful in her claim brought in the Commission against the appellant heard by Arbitrator McGrowdie in January 2011. This appeal is brought by Woolworths Limited, in its interests as self insurer. Ms Geammal commenced employment with the appellant in 1992 and remained until, by reason of incapacity, she ceased duties on 18 May 2009. That incapacity was alleged to have resulted from back injury received on 29 July 1998; the nature and conditions of employment between 29 July 1998 and 18 May 2009, and/or as a result of aggravation of a disease.
Ms Geammal’s claim in respect of workers compensation benefits was denied by the appellant and by its earlier insurers, CGU Workers Compensation (NSW) Limited and QBE Workers Compensation (NSW) Limited. The appellant, who has been registered as a self insurer since 1 November 2000, challenges a finding made by the Arbitrator concerning the date of Ms Geammal’s injury. That finding had the result that the appellant was solely liable to pay the award made by the Arbitrator. An order concerning that liability appears in the Certificate of Determination dated 28 January 2011.
Given the dispute which existed as between the self insured appellant and its earlier insurers concerning liability, leave was granted by the Arbitrator to both the appellant and QBE as “lead insurer” to appear at the arbitration separately represented. The lead insurer has been joined as a respondent to this appeal.
There is no challenge made on this appeal to Ms Geammal’s entitlement to compensation as quantified by the Arbitrator. Since cessation of work in 2009 she has undergone no less than three surgical procedures to her back, the last being lumbar spinal fusion. Her incapacity is ongoing.
The Arbitrator’s findings concerning the deemed date of injury followed his application of s 16 of the Workers Compensation Act 1987 (the 1987 Act) to the facts as found.…

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.

Continue reading Woolworths Limited v Geammal

Details

AGLC: Woolworths Limited v Geammal [2011] NSWWCCPD 24
Case: [2011] NSWWCCPD 24
Decision Date: 3 May 2011

CaseChat Overview and Summary

The case of Woolworths Limited v Geammal involved an appeal by Woolworths against a decision that deemed the employer liable for compensation payments to Ms Geammal, an employee who suffered from a pre-existing condition that was aggravated during her employment. The dispute was heard in the Federal Circuit Court of Australia. Woolworths argued that the aggravation of Ms Geammal's condition was not a result of her employment, and thus, it should not be liable for compensation under the Workers Compensation Act 1987. Ms Geammal, on the other hand, contended that her work environment and duties significantly contributed to the exacerbation of her pre-existing condition.

The legal issues central to this appeal revolved around the interpretation of sections 4(b)(ii) and 16(1) of the Workers Compensation Act 1987. Specifically, the court had to determine whether the aggravation of Ms Geammal's condition constituted an injury under section 4(b)(ii) and, if so, whether the deemed date of injury was correctly established. Additionally, the court examined whether Woolworths was liable to pay compensation under section 16(1)(b) of the Act.

In its decision, the court found that the aggravation of Ms Geammal's condition was indeed an injury that arose out of and in the course of her employment. The court reasoned that the evidence demonstrated a direct link between her work activities and the exacerbation of her condition. The court also upheld the determination that the deemed date of injury was correctly applied. Consequently, the appeal was dismissed, and the liability of Woolworths to pay compensation to Ms Geammal was affirmed. The appellant was ordered to pay the respondent's costs of the appeal, while no order was made regarding the second respondent's costs.

Orders

Orders of the court

The orders made by the Arbitrator as found in the Certificate of Determination dated 28 January 2011, as amended, are confirmed.

The appellant is to pay Ms Geammal’s costs of this appeal. No order as to the second respondent’s costs of this 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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