Arbitrators entitled to consider risk factors particularly to the worker when determining whether there was an injury
Sami v Victory Lodge Pty Limited [2020] NSWWCCPD 34
The Appellant worker suffered a heart attack whilst working on the premises of the Respondent employer.
Material Facts
He was performing work as a stable hand and he alleged that his heart attack was caused by lifting a heavy water container. He brought a claim for lump sum compensation and in the first instance the Arbitrator determined in favour of the Respondent. The matter came before Acting Deputy President Geoffrey Parker on Appeal.
Grounds of Appeal
The Appellant asserted that the Arbitral decision should be overturned for a number of reasons, however; the critical issue was whether there had been an error in fact, law or discretion in respect of the Arbitrator’s finding that the Appellant had failed to establish that his heart attack constituted an injury within the meaning of Section 4(b)(ii) of the Workers Compensation Act 1987.
That Section provides that an injury for the purposes of the Act includes a disease injury, which means “the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease…”
The Appellant asserted that the Arbitrator had identified the wrong test for injury. The Appellant argued that the Arbitrator had correctly identified the nature of the injury as one of aggravation, etc, of a disease, and had then determined the issue by treating as relevant to an aggravation those factors related to the disease itself. Those were a very strong family history of premature coronary disease, poorly controlled diabetes and smoking. The Appellant asserted that it was an error of law to take those factors into account when determining whether the Appellant’s employment was the main contributing factor to the aggravation, etc, of the disease.
Presidential Decision
Acting Deputy President Geoffrey Parker upheld the Arbitrator’s decision, rejecting the Appellant’s submission that that the Arbitrator had applied the wrong test in respect of injury. He found that “the Arbitrator was required to consider whether the work was the “main contributing” factor to the myocardial infarction. He determined that it was a “minor contributor”.
He thereby necessarily determined that the work was not the “main contributing” factor.” A/Deputy President Parker described this as a “negative conclusion” and found that the correct test had been applied, so there was no error.
Implications
When determining whether employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease, an Arbitrator may consider other factors which were likely to have contributed to the aggravation etc. In this case, the Arbitrator considered that employment activities were a minor contributing factor to the aggravation of heart disease on the basis that there were a number of significant risk factors for the disease present in the worker, which were unrelated to his employment.
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