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Datta 29 WCMS

Universal Consultancy Services PL (Allianz) v Mrinal Datta [2008] NSWWCCPD 87. Roche DP. 19.08.08.

A computer engineer was savagely beaten about his face, repaired with remnant impairment, and psychological consequences.

He obtained total incapacity award in 2002, as well as s 66 losses power of speech and severe facial disfigurement, and $10,000 s67.

Shortly afterwards, he returned to India.

The insurer notified declinature in September 2007, proving medical dispute in contending absence of medical incapacity evidence, want of AMS certification, and absent WCC determination of likelihood of permanency of incapacity, per 1987 WCA s53 'Weekly payments - residence outside the Commonwealth'.

An arbitrator had found s 53 satisfied.

The deputy president detailed medical expertise, noting ENT treater in India had provided 18 reports to the insurer, detailing continuing incapacity and cause.

Among many submissions, the worker put "... the decisions of Harvey v Fliway-AFA International Pty Ltd (1994) 10 NSWCCR 51 and Singh v Taj (Sydney) Pty Ltd [2007] NSWWCCPD 152 support the proposition that where he has received an earlier award for permanent impairment under s 66 of the 1987 Act, the Arbitrator was entitled, if not obliged, to consider this evidence as evidence of incapacity of a permanent nature".

Referring to Harvey, Roche DP said [45]: "Whilst I agree that the reference to incapacity in section 53 is probably a reference to incapacity in a medical sense, the incapacity must be an incapacity for work and I do not understand his Honour to have found otherwise.

"Thus, it is not sufficient for a worker to establish only that he or she has a medical condition, or loss, that is likely to be of a permanent nature.

"The medical condition or impairment must be one that has caused an incapacity for work, though it may not result in an entitlement to an award of weekly compensation at the time the claim is heard because, at that time, there is no economic loss."

Then, "At the arbitration, counsel for Universal submitted that 'likely' in s 53 means, 'on the balance of probabilities 51 per cent'.

"I note that several authorities have considered the meaning of the word 'likely' in a different context: Australian Telecommunications Commission v Krieg Enterprises Pty Ltd (1976) 27 FLR 400 at 410; Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 339; Boughey v R (1986) 161 CLR 10 at 14 per Gibbs CJ, at 18-22 per Mason, Wilson, Deane JJ, at 42-4 per Brennan J, and held that 'likely' means 'probable'.

"Whether there is any difference between 'probable' and 'on the balance of probabilities' has not been argued and I express no concluded view. For the purpose of the present appeal, I accept that 'likely' in section 53 means 'on the balance of probabilities', as submitted by Universal's counsel at the arbitration." [infra 46]

On 'permanent', noted were Henrikson v Grafton Hotel [1942] 2 KB 184 at 196; Rolfe v Metropolitan Meat Industry Board [1958] 32 WCR 135, per Wall J at 138; and McDonald v Director-General of Social Security (1984) FCR 345.

At [50], "In State of NSW t/as NSW Department of Agriculture v Allen (2000) 20 NSWCCR 314 Powell JA considered the word 'permanent' in the context of a claim for lump sum compensation under section 66 of the 1987 Act and assumed - at [133] - that it 'postulates an impairment which will, at least, remain constant and may even deteriorate and which will be of an indefinite duration'. Davies A-JA, Ipp JA agreeing, quoted this passage, with apparent approval, at [41] in Ansett Australia Ltd v Dale (2001) 22 NSWCCR 527.

Mr Roche said: "In section 53, the word 'permanent' is qualified by the word 'nature'. I interpret the qualification to mean, 'having the qualities of' (Macquarie Dictionary, 1st ed), though I doubt the qualification makes any practical difference to the meaning of 'permanent'."

At [52]: "Applying the above authorities, it is my view that an incapacity is 'likely to be of a permanent nature' within the meaning of section 53, if it is an incapacity that is lasting and likely on the balance of probabilities to be of an indefinite duration. It does not mean a perpetual state of affairs that will continue for all time."

Later, "Dr Mishra's evidence reinforces the conclusion that Mr Datta's incapacity for work, resulting from the injury, is likely to be of a permanent nature."

The fund agent raised Jones v Dunkel [1959] HCA 8 on the absence of report from the treating psychiatrist.

After quoting Cross on Evidence (7th ed, 1215), the DP said [60]: "Jones v Dunkel 'licences, but does not compel, the drawing of inferences when a witness is not called': per Campbell JA in Howell v Macquarie University [2008] NSWCA 26 at [98].

"In the present case, I am not satisfied that it is appropriate to draw an adverse inference because of the failure to obtain a report from Dr Dash. On the available evidence, I have no reason to infer that no report was obtained from Dr Dash because Mr Datta feared that such a report would be unfavourable. The evidence from Dr Mishra strongly implies that Dr Dash supports the continuation of Mr Datta’s treatment regime. Further, given Dr Nasser’s unchallenged evidence on the issue of permanence, it was not essential for Mr Datta to have a report from Dr Dash. I decline to draw the inference urged by Universal."

A finding of permanent loss did not necessarily implicate incapacity: Ric Developments t/as Lane Cove Poolmart v Muir [2008] NSWCA 155.

Infra [64], "The evidence must establish that incapacity, though not necessarily incapacity resulting in an economic loss at the time of the hearing, has resulted from the loss or impairment and/or any other compensable injuries, and that the incapacity is likely to be of a permanent nature."

Award confirmed, worker's costs.

A: Hicksons. R: Goldrick Farrell Mullan.

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