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Waite v Alcoa of Australia Ltd [2020] WASCA 1
 

This decision was following an appeal from the District Court decision of Waite v Alcoa of Australia Ltd [2018] WADC 147, in which it was held Mr Waite had not established that he had suffered an injury and was unable to establish total incapacity, nor had made out partial incapacity. Mr Waite failed his appeal pursuant to s 79 of the District Court of Western Australia Act 1969 (WA) and s 254 of the Workers’ Compensation and Injury Management Act 1981 (WA) (the Act) as he did not raise any question of law, other than that the primary Judge erred by mixing fact and law about the worker being denied procedural fairness in relation to counsel’s cross-examination of a witness.

This case demonstrates the importance of specifically defining an injury and highlights that a worker needs to demonstrate both an injury and an incapacity, and that if the worker does not adduce evidence of a partial incapacity (and their total incapacity evidence is insufficient), the worker’s claim for weekly payments will fail in its entirety.

Background

On 7 February 2016, Mr Waite was at work operating a truck, and as the truck was being loaded by an excavator, the bucket of the excavator hit Mr Waite’s truck. Mr Waite continued to work, reporting mild back symptoms at the time of the accident, but obtained a First Medical Certificate and claimed compensation for a left shoulder injury (adhesive capsulitis/subacromial bursitis) one month later. Mr Waite claimed he had been totally incapacitated for work since 26 March 2016 and sought weekly payments of compensation and payment of statutory expenses under s 58 and sch 1, cl 17 of the Act.

Arbitrator’s decision

The Arbitrator at first instance found the evidence was insufficient to demonstrate the worker had sustained a “personal injury by accident” in accordance with the definition in s 5(1)(c) of the Act, and further that if he had sustained an injury that he was not totally or partially incapacitated by virtue of it. The worker did obtain Progress Medical Certificates certifying him “unfit” for work, there were no comments about the worker’s capacity to work in other roles. Mr Waite therefore had not discharged his duty to show his residual earning capacity (Mitchell v Canal Rocks Beach). The Arbitrator found claim was not compensable on two grounds – that there was no injury, or in the alternative that there was no incapacity arising from that injury. Mr Waite sought to challenge what was required for the definition of injury, the Arbitrator said that what was required was precise identification of the internal physiological change said to have occurred on 7 February 2016. Without identifying the particular soft tissue injury, the Arbitrator considered that this merely referred to a broad description of class and was insufficient to identify the physiological change required to be identified by the term “personal injury by accident”.

Appeal to the District Court – definition of “injury”

The worker initially appealed the Arbitrator’s decision to the District Court, relying on 17 grounds of appeal, mostly relating to the findings of his credibility and the medical evidence as to whether there was an injury. He appealed the finding that there was insufficient evidence as to a physiological change in his shoulder on 7 February 2016 and maintained that he suffered a personal injury by accident.  Mr Waite had also appealed that he was not totally incapacitated for work from 26 March 2016, however he had not initially pursued an entitlement to weekly payments of compensation based on partial incapacity.

Ultimately no question of law was found, and the Judge refused leave to appeal.

Appeal to the Supreme Court

The worker subsequently appealed to the Supreme Court. He was self-represented. Leave was again refused both because no question of law was found.

The Court agreed with the Arbitrator’s conclusion that there had not been a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state and that conclusion did not constitute an error of law. The Court also agreed that the Arbitrator’s decision not to set aside the report of one medical expert did not constitute an error of law. The Court accepted that the Arbitrator had not prevented cross-examination of a document and questioning about relevance of the cross-examination and Mr Waite’s decision not to press the point further did not constitute an error of law. The Court found that the dismissal of the appeal, if left unreversed, would cause no substantial injustice to the Appellant as he had not made or established an alternative claim for partial incapacity.

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