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Short Shots - August 2019

  • Newsletter Article
  • Published 28.08.2019

El-Chami v DME Engineering Services Pty Ltd
18 July 2019
Workers Compensation Commission

Worker suffered injury when struck by a heavy steel beam at work. Insurer’s decision to decline further liability for weekly payments determined by arbitrator finding injury not sufficient to produce any relevant incapacity for work although medical treatment reasonably necessary as a result of work injury.

On appeal, DP King was not satisfied that the arbitrator’s decision displayed any error, observing that although it was possible to discern in the evidence, a contrary view which might have been arrived at, the arbitrator had taken the opposite view and the conclusion would otherwise have been much more fragile and open to complaint than the one he came to.

In terms of any internal inconsistency in the arbitrator’s reasoning, ADP King stated that ‘it is by no means uncommon for people to be fit enough to work or go about particular activities whilst at the same time are reasonably requiring a level of treatment and medication. The argument does not distract from the correctness of the arbitrator’s decision.’

Death due to assault at home arising out of or in the course of employment
SL Hill and Associate (de-registered) v Hill
22 July 2019
Workers Compensation Commission
DP Wood

The worker’s death was caused by injuries inflicted by her defacto while at home where she conducted her employment duties for the employer (in a support role for the defacto’s business providing financial advice). The defacto was found not guilty of the worker’s death by reason of mental illness.

A claim for the lump sum death benefit (brought on behalf of the dependent children of the deceased) was declined on the basis that her injuries were not sustained in the course of her employment – crime scene photographs showed the worker died in her bed in her pyjamas. The arbitrator found the evidence was insufficient to make any findings as to when the worker died or that she died in the course of her employment in the absence of any temporal connection between employment and injury. Police found work papers and equipment in the bedroom and the arbitrator found that her work day ‘had not begun’.

On appeal, President Keating concluded that the arbitrator had failed to properly consider all of the evidence and had focussed on the time of death. He remitted the matter to another arbitrator for re-determination.

The next arbitrator found that the worker’s death arose out of or in the course of employment (either performing her work related duties at the time of her assault or was on call) and that her employment was a substantial contributing factor.

On appeal, DP Wood considered that the motive behind the assault was attributable to the defacto spouse’s delusions that problems in the business were due to the worker’s conduct notwithstanding that his beliefs were irrational.

The course of employment was said to cover not only the actual work but what the person was employed to do as well as the general nature and circumstances of that employment.

DP Wood found that the arbitrator had considered other factors that played a part in the assault before ultimately deciding that employment was a substantial contributing factor to her injuries and death.

Appellant failed to establish error on the part of the Arbitrator – appeal fails.

Fresh or additional evidence will only be allowed on appeal in exceptional circumstances
Sutherland v DE Maintenance Pty Ltd
26 July 2019
Worker Compensation Commission
DP Snell

The appellant (worker) sought to rely on fresh evidence comprising a statement by a solicitor identifying a medical report – leave of the Commission is required to rely on fresh evidence that will not be granted unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case – s352(6) WIM Act 1998.

DP Snell refused to admit the fresh evidence on the basis that a further medical report could have been obtained before the arbitration hearing.

DP Snell nevertheless held there was an appealable error by the manner in which the arbitrator dealt with the interpretation of an MRI scan and failed to give the findings appropriate weight, and therefore allowed the appeal and remitted the matter to another arbitrator for re-determination.

Claim made materially different from claim pleaded
Petreski v Ors Group Pty Ltd
9 August 2019
District Court of NSW
Abadee DCJ

Claim made materially different to draft pleading attached to the Pre-Filing Statement in the worker’s claim for work injury damages for psychological injury allegedly due to persistent bullying and harassment.

Defendant brought an application to strike out proceedings pursuant to s318(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998.

Worker had initially particularised a direct claim of negligence against the employer but then altered the pleadings to allege that the employer was vicariously liable for the conduct of its servants or agents, considered an alternative case.

The cause of action initially made was materially different to the action pleaded and the statement of claim was ordered to be struck out.