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Insufficient aggravation 19 WCMS 2

[Further CA appeal dismissed with costs 27.06.08]

Midpart PL t/as McDonalds Forster [QBE] v Great Lakes Aggregates PL [Allianz] & Anor [2007] NSWWCCPD 203. Handley ADP. 02.10.07.

The second respondent worker, a 60yo cleaner with carpal tunnel syndrome surgically relieved, had consent Court award July 2002 including 10% bilateral hand losses and weeklies $200 from the first respondent.

He later worked for the appellant until 2004 when worsening symptoms brought him to total incapacity. He sought review of the earlier weeklies award, and claimed additionally against the later employer, the appellant.

After hearing in late April this year, an arbitrator found injury as aggravated disease under 1987 WCA s16 against the appellant, awarding weeklies from that employer to the full extent of the ongoing loss of $330pw, his wages with the appellant.


Handley ADP upheld the appeal, substituting an award for the employers, for error on 1987 WCA s9A substantial contributing factor. The acting deputy president canvassed medical evidence.


From infra [29]: "There is disagreement about whether the development of bilateral carpal tunnel syndrome and bilateral Dupuytren's contracture can be related to a person's employment.


"Dr Murray Stapleton, hand, plastic & reconstructive surgeon, in a report dated 16.12.05, expressed the view that they are unrelated to 'occupation', a view also expressed by Dr FJ Harvey, orthopaedic surgeon, in a report dated 11.02.05.


"By contrast, Dr John Davis, injury management consultant, in a report dated 12.06.06, accepted there is, in certain cases, a clear correlation between the nature of a person's work and the appearance of Dupuytren's contracture.

"Dr John Graham, occupational physician, in a report dated 31.01.06, expressed the opinion that the nature and conditions of Mr Cook's employment as a fitter 'would have made a contribution to the osteoarthritis of the hands and consequently the carpal tunnel syndrome'.


"Dr Alan Hopcroft, surgeon, in a report dated 04.01.01, prepared for the original Compensation Court proceedings, expressed the view that Mr Cook's carpal tunnel syndrome was 'the result of the heavy manual work' performed by Mr Cook, aggravated by the fact that he had been developing bilateral Dupuytren's contracture for many years.


"Dr Bruce White, orthopaedic surgeon, in a report dated 14.12.00, said Mr Cook's developing carpal tunnel syndrome was directly related to his work."

Handley ADP noted the worker's evidence of increasing hand symptoms.

After citing Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 and Dayton v Coles Supermarkets PL [2001] NSWCCR 26, the acting deputy president said [46]: "In my view, it is clear that a finding of fact as to whether a worker's employment is a substantial contributing factor to an injury is a matter of judgment.


"There may be other substantial contributing factors, but employment must be a 'serious, weighty, important, sizeable or large' factor and not something that is a minor factor".


Then, at [48]: "As to whether his employment with Midpart was a substantial contributing factor to his injury, it was certainly the case that Mr Cook retained a capacity for part-time work at the time he commenced employment with Midpart in about July 2003, and that by September 2004 he was totally incapacitated for work. Clearly, as the arbitrator recognised, that total incapacity was 'partially due to his employment with Great Lakes Aggregates and also due to constitutional factors'.


"So the question is whether the contribution to the aggravation of Mr Cook's condition by his employment with Midpart was 'substantial'. Bearing in mind the above discussion of the meaning of 'substantial', I am not satisfied on the basis of the evidence discussed above and, in particular, in the light of there being other substantial contributing factors, that Mr Cook's employment with Midpart could be considered a 'weighty' factor, sufficient to be considered â'substantial'.


"Thus, in my view, the Arbitrator made an error of fact by giving inappropriate weight to the evidence, and the decision must be revoked."


Arbitrator's award substituted with award for the respondents, no order to costs.


A: Moray & Agnew. 1R: Goldbergs. 2R: Stacks Forster.


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