Welcome to the September 2015 Edition of the Edwards Michael Powell eBulletin.

Reforms Bite Table of Disabilities Claims

The treatment of permanent impairment claims resulting from injuries prior to 1 January 2002 was initially the subject of a favourable outcome for workers in BP Australia Limited v Greene [2013] NSW WCC PD 60.  In that case, it was decided that Clause 3 of Part 18C of Schedule 6 (providing that 2001 lump sum amendments did not apply to injuries received before the commencement of the amendments), protected such claims from the 2012 reforms.

However, in BHP Billiton Limited v Lyle Bailey [2015] NSW WCC PD 48, O’Grady DP revisited the issue and determined that the only effect of Clause 3 of Part 18C of Schedule 6 was to preserve Section 66 entitlement in accordance with the pre-2001 form of that Section (ie. Table of Disabilities rather than Whole Person Impairment).  Consequently, Mr Bailey was not entitled to compensation pursuant to Section 67 as that Section was abolished by the 2012 reforms.

In the Course of Employment

In Pioneer Studios Pty Limited v Hills [2015] NSW CA 222 the Court of Appeal determined that Roche DP adopted an incorrect test when determining whether injury was sustained in the course of a worker’s employment.

The worker was a photographer who suffered injuries when she fell whilst leaving a party held at her employer’s premises.  The party was stated to be a combined birthday party for a number of individuals and a farewell for a departing employee.  The worker stated that she has felt obliged to attend the party by virtue of her employment, despite evidence that attendance was purely voluntary.

The Court of Appeal concluded that it was not open to Roche DP to find that the employer’s conduct, in terms of an enquiry as to whether the worker would attend the party, was sufficient to turn to the party into part of the worker’s employment.

The Court determined that “the course of employment depends on an objective characterisation of the employer’s requirements and expectations, though with no precise limitation to the contract of employment.  It is not sufficient that this particular employee held a particular view which, on the evidence, was not shared by either the Director of the company, by her immediate supervisor, nor by the only other employee who provided a statement”. 

The Decision of DP Roche was set aside and substituted with an award for the employer.

No Employer Negligence

In Hawkins v Ross Human Directions Limited [2015] NSW CA 265 the Court of Appeal refused an appeal from a District Court Judgment in favour of an employer on the basis that negligence was not established.

The claim arose from injuries sustained whilst the Plaintiff was lifting two archive boxes weighing up to 9.8kg each, which due to a lack of space she had to lift using a twisting motion.

The Court did not accept that the expert evidence established that the system of work gave rise to a risk that required the employer to take precautions.  Beech–Jones J stated:-

“….even if the potential for her to occasionally lift boxes heavier than 7kg and less than 9.8kg gave rise to responsibility on her employer to take precautions, there was nothing to demonstrate that those precautions would have been such as to prevent her accident happening.  Factual causation is assessed retrospectively.  The only system that could have prevented Ms Hawkins’ accident from happening was one in which she was precluded from lifting any box because of the potential for her to lift a particularly heavy one.  It is difficult to accept that an office environment could function if employees in Ms Hawkins’ position were precluded from lifting any box of documents.  Of course the position might be different if her injuries were occasioned by repeated lifting but they were not”.

The Decision of the primary Judge was confirmed.

MAP Section 323 Deduction

In Ispirto v Woolworths Pty Limited [2015] NSW WCC MA 39 a Medical Appeal Panel decided that an Approved Medical Specialist had failed to provide adequate reasons for a 50% deduction from assessments for bilateral carpal tunnel syndrome which had been aggravated as a result of employment.

The Medical Appeal Panel followed the recent Supreme Court Decision in Moy v Emoleum Services Pty Limited [2015] NSW SC 1062 to find that the absence of reasons constitutes a demonstrable error.

On re-assessing the medical dispute the MAP concluded that the constitutional disease was contributing to the impairment – “without the disease, there is simply no impairment”. 

However, the MAP ultimately decided that that the evidence was insufficient to assess a proportion of the impairment due to the pre-existing abnormality or condition and that the extent of the deduction would be difficult or costly to determine.  The Panel therefore simply adopted the Section 323(2) 10% deduction.