Welcome to the December 2015 Edition of the Edwards Michael Powell eBulletin

Beneficial Approach to PIAWE

In Dick’s Diesel Pty Limited v Caddaye [2015] NSWWCC PD 68, Acting President Roche was required to consider the application of section 44C(2) of the Workers Compensation Act 1987 in circumstances where a worker had only been employed for a brief period of approximately two weeks, and there was evidence that his job would have been terminated approximately two weeks after the date of injury for operational reasons even if the injury had not occurred.

Section 44C (2) provides:-

“(2)    If a worker has been continuously employed by the same employer for less than 4 weeks before the injury, pre-injury average weekly earnings, in relation to that worker, may be calculated having regard to:

(a)       the average of the worker’s ordinary earnings that the worker could reasonably have been expected to have earned in that employment, but for the injury, during the period of 52 weeks after the injury expressed as a weekly sum, and

(b)       any overtime and shift allowance payment that is permitted to be included under this section (but only for the purposes of the calculation of weekly payments payable in the first 52 weeks for which weekly payments are payable)”.

The Appellant argued that because the worker had been employed for less than four weeks, and because his employment would have been terminated approximately two weeks following the injury, the amount he “could reasonably have expected to have earned” during the period of 52 weeks after the injury was either nil or minimal.

The Acting President disagreed with this approach.  He relied on a decision of Lachlan v H P Mercantile Pty Limited [2015] NSWCA 130 where the Court of Appeal stated:-

“…where a discretion is conferred on the Court in general terms, the Court is required to exercise that discretion so as to “prevent injustice” or in accordance with the Judge’s view of the justness of the case”.

The Acting President considered that the approach contended by the Appellant would result in the worker obtaining minimal weekly compensation even if he succeeded on all issues remaining in dispute.  He concluded:-

“…assuming that Mr Caddaye’s claim is otherwise successful, that would be a gross injustice.  In beneficial legislation, such as the workers’ compensation legislation, such a result should not be allowed if an alternative approach is reasonably available on a fair reading of the legislation.  An alternative approach is reasonably available in the present case.  Namely, the usual approach to determining pre-injury average weekly earnings in ss. 44C(1), 44D and 44E”.

The Acting President ultimately found that the correct approach would be to assess pre-injury average weekly earnings by reference to actual earnings during the brief two week period of employment prior to the injury.

WCC Expert Evidence

In Dick’s Diesel Pty Limited v Caddaye (above) Acting President Roche also considered the issue of expert evidence in the Commission and application of the principles in Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305.

The Appellant argued that the Arbitrator was wrong to accept evidence from a medical expert who did not have a complete and accurate history of pre-existing bowel and bladder complaints and who did not provide a proper medical explanation in relation to the nature and cause of those complaints.

The Acting President rejected the Appellant’s submission, stating:-

“…the Appellant’s submission has ignored  the correct approach to expert evidence in the Commission, as explained in Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43 (Hancock).  As Beazley JA (as Her Honour then was) stated at [83] in non-evidence based jurisdictions (such as the Commission), the question of “acceptability of expert evidence will not be one of admissibility but of weight”.  What was required for satisfactory compliance with the principles governing expert evidence is for the expert’s evidence to set out the “facts observed, the assumed facts including those garnered from other sources such as the history provided by the Appellant, and information from x-rays and other tests”.

The Acting President decided that the expert’s conclusion that the worker had “corticospinal tract damage with occasional bladder and bowel incontinence” was adequate and that there was no requirement to provide any further explanation.  He considered it was sufficient for the expert to rely on the history of urinary incontinence, examination of radiological reports and the expert’s experience and expertise as a General Surgeon.

Court of Appeal Costs

In Grills v Leighton Contractors Pty Limited (No 2) [2015] NSWCA 348 the Court of Appeal accepted that it made an error in ordering an employer to pay a proportion of a worker’s costs in relation to an appeal from a Work Injury Damages decision.    The Court held that the Workers’ Compensation Act and Regulations apply to Orders made by the Court of Appeal in determining an appeal from a Work Injury Damages determination.

On that basis, Regulation 106 applied:-

106 Costs in other cases   Except as provided by this Subdivision, the parties to court proceedings for Work Injury Damages are to bear their own costs”.

The Court therefore set aside the Order and ordered that as between the employer and the worker each party was to bear its own costs of the appeal.

Medical Appeal Panel: No Modifier for DRE V

In Scott v Woodgate & Partners Pty Ltd [2015] NSWWCC MA 67 the Appellant sought to argue that an Approved Medical Specialist erred by failing to allow a Table 4.2 modifier for persisting radiculopathy after surgery.

The Panel addressed this argument as follows:-

The Panel considered that as radiculopathy is taken into account in assigning the Appellant to a higher DRE lumbar category, it is not appropriate to add an additional 3% under Table 4.2.  Applying such a modifier would in effect provide the Appellant with a double amount for the presence of radiculopathy.  The Panel noted that the modifiers in Table 4.2 are commonly used when workers are assessed in DRE Lumbar Category IV where no provision is made for the presence of persisting radiculopathy following surgery and if the AMS had assessed the Appellant as DRE Lumbar Category IV it would have been appropriate to add an additional 3% under Table 4.2 for persisting radiculopathy following surgery”.   

The Medical Assessment Certificate was confirmed.

Christmas Closure

Edwards Michael Powell will close for the Christmas break from 5.00 pm on 22 December 2015 until 9.00 am on 4 January 2016.

We take this opportunity to wish our clients and colleagues best wishes for the festive season.