Appeal to DISTRICT COURT OF WESTERN AUSTRALIA – APP 98 of 2016 from a decision of an Arbitrator at WorkCover WA.
ENGINE PROTECTION EQUIPMENT PTY LTD -v- MILLER  WADC 71
Heard by SCOTT DCJ on 7 APRIL 2017 and judgement delivered 26 MAY 2017
The worker, Mr Miller, sustained a left knee injury on 9 November 2009 in the course of his employment, he claimed workers compensation under the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act) relating to the knee injury and liability was accepted by the employers insurer.
Eventually the worker was paid the prescribed amount for the knee injury on 12 December 2014, however, on around 19 January 2011 (whilst he was still in receipt of weekly payments of workers compensation for the knee injury) the worker started a return to work program under the Act at Bunnings.
On 12 April 2011 his knee “gave way” and he fell and struck a pallet with his right buttock which caused a previously asymptomatic lumbar spine degeneration condition to become symptomatic. There was also compromise of the L5 nerve root which caused sciatica, in short the back injury.
The employers insurer accepted liability for the back injury on about 11 February 2015 and weekly payments were paid but then suspended by a Conciliation Officer on 16 April 2015 on application by the employer for a period of 12 weeks. In those proceedings the employer contended liability was admitted in error and further contended there was a genuine dispute as to the employers liability to pay compensation.
The matter eventually proceeded to the Arbitration service for determination. The application was heard on 21 September 2016 and the learned Arbitrator published his reasons on 23 November 2016.
The back injury was described in the application as “an aggravation of underlying asymptomatic disease in lumbar spine with possible disc protrusion”. The Arbitrator stated that description appeared to be an injury within the definition of ‘injury’ in limb (d) of s 5 of the Act – being an aggravation of a pre-existing disease and that it might also be a personal injury by accident within the definition of ‘injury’ in limb (a) of s 5.
It was common ground in the Arbitration that the return to work program at host employer Bunnings at which the back injury was sustained was a place for treatment or attendance of a kind referred to in cl 17 of sch 1 of the Act.
The employer submitted the back injury and consequent incapacity resulted from the knee injury and it was under that claim that the respondent’s incapacity must fall and as the worker’s claim for weekly payments must fail given that he had already received the prescribed amount for weekly payments for the knee injury.
The employer further submitted that the back injury was an aggravation of a pre-existing injury by reason of which it fell within the definition of ‘injury’ in limb (d) of s 5. Given that it arose during the return to work program and not during the respondent’s employment the provisions of limb (d) could not be satisfied by the respondent.
The worker submitted his back injury was sustained in circumstances to which s 19(1)(b) apply and it constitutes a ‘fresh’ injury with a new prescribed amount and that is it was a personal injury by accident to which limb (a) of s 5 referred.
The learned Arbitrator considered the provisions of the Act and the evidence including the medical evidence and was satisfied that the degeneration remained asymptomatic until 12 April 2011 and he accepted the that medical evidence that when the respondent’s knee gave way and he fell and hit a pallet with his right buttock, that caused his previously asymptomatic lumbar spine degeneration to become symptomatic, causing a compromise of his L5 nerve root resulting in him suffering from sciatica.
The Arbitrator was satisfied the respondent suffered a personal injury by accident on 12 April 2011 and observed it was common ground that if it were not for the knee injury, the respondent’s knee would not have given way and he would not have injured his back and as such in that sense the causal chain remained unbroken and any incapacity resulting from the back injury, in effect resulted from the knee injury.
The Arbitrator also said that had the respondent suffered his back injury when he was at home (and therefore otherwise non-compensable) there would be little doubt that his weekly payments for total incapacity would have continued as the continuing incapacity resulted from his knee injury.
The Arbitrator stated that provided the worker’s back injury was a material contributing cause of his incapacity he was entitled to compensation for that injury relying on the decision in Rosmini (215) (Bray CJ); Cole v P & O Ports Ltd  WASCA 157 .
The Arbitrator decided the respondent’s back injury was a compensable injury in its own right and materially contributed to his ongoing incapacity albeit in company with the ongoing knee injury. He then cited the medical evidence which he said demonstrated that after 12 April 2011 the respondent’s knee injury continued to contribute to his incapacity as did his back injury. He was satisfied that from 12 April 2011 the respondent was totally incapacitated as a result of both compensable injuries and after 12 December 2014 (when his entitlement to compensation for the knee injury ceased), he continued to be totally incapacitated as a result of the back injury.
The District Court Appeal
The employer appealed the decision of the Arbitrator, in short the grounds of appeal were –
- The Arbitrator erred in law in finding that the respondent suffered a personal injury by accident in the course of his employment on 12 April 2011.
- The Arbitrator erred in law in finding that the respondent was entitled to a new prescribed amount pursuant to the Act for weekly payments having been paid the prescribed amount for a knee injury he sustained in the course of his employment with the appellant on 9 November 2009.
- The Arbitrator erred in law in making a finding which was not supported by the evidence.
The worker was not represented at the hearing of the appeal, but he had filed written submissions which he said had been settled by his former lawyer.
His Honour Scott DCJ observed an Arbitrator is not bound by the rules of evidence (s 188(2)(a)) and is entitled to inform himself on any matter as he sees fit (s 188(3)) and is required to act according to good conscious and the substantial merits of the case (s 188(2)(b)) and that nothing in the Act detracts from the general duty of Arbitrators to act judicially: McNair v Press Offshore Ltd (1997) 17 WAR 191, 198. An Arbitrator is required to consider the rules of evidence and apply them in accordance with the merits and issues in the case.
His Honour also stated “an appeal involving a question of law extends to questions of mixed fact and law. So, if some question of law is involved the whole of the decision under appeal is open to review and not just the question of law: Pacific Industrial Co v Jakovljevic  WASCA 60.
At paragraphs 49 and 50 of his reasons for decision His Honour wrote –
“In my view the Arbitrator was correct in his analysis in his findings that an injury in respect to which limb (d) of s 5 was sought to be enlivened was not covered by s 19(1)(b) of the Act and that the appellant would need to prove that his back injury was a personal injury by accident to result in s 19(1)(b) being applicable.
50 There is no reason why an injury suffered by a worker could not fall within more than one statutory definition in s 5.”
As to the second ground of appeal His Honour said at 62 –
“This is a case where, as the Arbitrator correctly found, there are two work-related injuries.” And at paragraph 67 of his reasons for decision – “Whilst this was perhaps an extreme example, it does demonstrate the need to take a common sense view. In this case the Arbitrator correctly found that the respondent’s back injury was, itself, a personal injury by accident. Whilst it might be said that the respondent’s knee injury predisposed him to subsequent injury, the Arbitrator was correct in his finding that the respondent’s back injury resulted in the current incapacity.”
And at paragraphs 68 and 69 –
“It would defy common sense to find that because the respondent would not have fallen but for his knee injury, it was that injury and not the back injury which materially contributed to his current incapacity. That reasoning in the circumstances of this case would, in addition, not accord with the policy underpinning the compensatory provisions of the Act.
69 The Arbitrator was not in error in finding that the back injury was a material cause of the respondent’s incapacity and that the respondent was entitled to weekly payments to a new prescribed amount with respect to the extent of the incapacity from his back injury after 12 December 2014.”
His Honour then stated that ground 3 of the appeal was “but a manifestation of grounds 1 and 2 and has been dealt with by me in my earlier findings”.
His Honour went on to dismiss the appeal of the employer.
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