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Nature and conditions

Inghams Enterprises PL v Rachmaninoff [2011] NSWWCCPD 35. O'Grady DP. 6 July 2011.

[107] Submissions in support of this ground correctly state that “the Commission has repeatedly criticised the use of the term ‘nature and conditions’”. Reference is made to the decision of Toplis v Coles Group [2009] NSWWCCPD 70 in which Roche DP states, at [65], that “the general reference by the parties and the Arbitrator to a ‘nature and conditions’ injury was misleading and unhelpful”.

That decision makes it clear that the term: “nature and conditions” is “not a term used in the NSW workers compensation legislation”.

Reference was made to the decision of Neilson CCJ in Mirkovic v Davids Holdings PL (1995) 11 NSWCCR 656, at 667:

“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’.

“It is used in this place [the Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.

“Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16”.

I agree with the views as expressed both by Neilson CCJ and Roche DP.

The profession has, properly in my view, been repeatedly admonished for the use of the expression as a means to abbreviate the particulars of injury alleged.

Having said that, it is a fact, as acknowledged by Neilson CCJ above and by the Court of Appeal on occasions - see Switzerland Insurance WC (NSW) Ltd v Burley [1996] NSWCA 512 per Mahoney JA, and Wyong Shire Council v Paterson [2005] NSWCA 74 per Giles JA at [38], that the expression has been commonly used in this area of the law.

As was raised at the hearing with the appellant’s solicitor (at T6), practitioners experienced in this jurisdiction understand what is intended when that term is used.

Such was made clear during the observations made by Neilson CCJ above noted.

Issott v North Sydney Leagues Club Ltd t/as Seagulls Club [2005] NSW WCC PD 38. Moore ADP.

A casual waitress employed for a little over a year between 2001 and 2002 had claimed nature and conditions over that period as well as frank incident on one day.

She had received three months’ voluntary payments before declinature on 1987 WCA s9A substantial contributing factor.

The worker commenced and her claim was referred to AMS who found 4% WPI. But the arbitrator found against her on injury.

Moore ADP determined the arbitrator had neither erred in respect of injury, nor was bound by the AMS.

On the first appeal ground, the acting deputy president said: “It is not sufficient for a worker to merely cite the duties, i.e, ‘nature and conditions of employment’ in grounding an allegation of ‘injury’. Similarly, an allegation of ‘on going symptoms’ does not of itself constitute an ‘injury’. There must be clear evidence of aggravation, exacerbation, acceleration or deterioration by those duties to constitute ‘injury’.”

Arbitrator’s decision confirmed, no order to costs.

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