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Expertise, Commission

To revisit AMS 22 WCMS 1

Conargo SC [Statecover] v Quor [2007] NSWWCCPD 245. Roche DP. 14.12.07:

On whether the Commission's expertise encompassed inferring injury, Roche DP said [73]: "In Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, McColl JA said at [82] (Mason P and Beazley JA agreeing):

'Members of specialised tribunals such as the Compensation Court are entitled to rely upon general knowledge acquired in that capacity in certain circumstances: see ICI Aust Operations PL v Workcover [2004] NSWCA 55 at [219] - [232]. However in my opinion the primary judge was not entitled to rely upon general knowledge of back impairments derived from his experience in the Compensation Court to infer how, in the absence of any identified factual basis, Dr Selby Brown formed his opinion so as to conclude the Makita test was satisfied.'

Later, infra [78], "... it would be incongruous if it were permissible for a Commission arbitrator to use his or her expertise to conclude, in the absence of expert evidence, that a worker had sustained a work injury in circumstances where it would have been impermissible for an expert witness to support such a claim with a bare ipse dixit."


Unproven noise 18 WCMS 2

Combined Civil PL [CGU] v Rikaloski [2007] NSWWCCPD 181. Roche DP. 20.08.07.

"Whilst the Commission is an expert tribunal and it is taken to be aware of wage rates in the general labour market: Akawa Aust PL v Cassells (1995) 25 NSWCCR 385, at 392, and ICI Aust v Workcover [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232], that expertise does not extend to determining issues of injury and causation in the absence of appropriate expert evidence: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42 at [82]; Wallaby Grip v Macleay AHS (1998) 17 NSWCCR 355 at [20] and Barbour v BHP Steel [2004] NSWWCCPD 42 at [27]."

Also relevant was that expertise required ascertainable criteria: Makita (Aust) PL v Sprowles (2001) 52 NSWLR 705, and citing Paric v John Holland Consts PL [1984] 2 NSWLR 505 at 509-510; Brady v Comm'r Police (2003) 25 NSWCCR 58 at 76.


Locale inexpert 21 WCMS 3

Marcus v Ready Workforce PL [QBE] [2007] NSWWCCPD 199. Roche DP. 19.09.07.

A 42yo Syrian part-time body hired meat packer female process worker with right shoulder and neck injury attracted a weekly award of $35.15 from 12.08.04 and continuing, with finding of ability to earn of $341.40pw.

Her claim in respect of carpal tunnel syndrome was rejected. Her appeal was dismissed.

At [33], Roche DP said: "I do not accept Ms Marcus' submission that the arbitrator should have taken judicial notice of the fact that the Fairfield/Liverpool area has a high unemployment rate.

"Whilst the Commission is an expert tribunal and is taken to have some knowledge of wage rates in general: see Akawa Aust PL v Cassells (2003) 25 NSWCCR 385 at 392 and ICI Aust Ops PL v Workcover [2004] NSWCA 55; (2004) 60 NSWLR 18 at [219] - [232], that does not extend to making assumptions about a specific and limited labour market which may or may not have different levels of employment to the rest of the Sydney metropolitan area."

Award confirmed, no costs of appeal.

A: Galluzzo Andriano. R: Holman Webb


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