Blackley v Warehousing & Distribution (Australia) Pty Ltd and Sembcorp Logistics (Australia) Pty Ltd

[2005] NSWWCCPD 83

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Blackley v Warehousing & Distribution (Australia) Pty Ltd and Sembcorp Logistics (Australia) Pty Ltd [2005] NSW WCC PD 83

APPELLANT:  Barbara Blackley

RESPONDENT 1:  Warehousing & Distribution (Australia) Pty Ltd

RESPONDENT 2  Sembcorp Logistics (Australia) Pty Ltd

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC6525-2005

DATE OF ARBITRATOR’S DECISION:          14 July 2005

DATE OF APPEAL DECISION:  10 August 2005

SUBJECT MATTER OF DECISION:                Interlocutory Appeal; Refusal to Allow Late Reply; Nomination of Approved Medical Specialist; Referral to Approved Medical Specialist; Threshold Determination of Liability.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:10 August 2005

REPRESENTATION:  Appellant:    Ron Kramer & Associates

Respondent: Goldbergs Lawyers

ORDERS MADE ON APPEAL

The following orders were made orally at the telephone hearing of this application on 10 August 2005.  The reasons for decision were also given orally and are incorporated by reference into this determination.  A transcript record of the reasons may be obtained by application of the parties.

1. Leave to appeal is granted pursuant to section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).

2. The decision of the Arbitrator dated 14 July 2005, is revoked and the following decision is made in its place;

Leave is granted to the Respondent to file the ‘Reply to the Application to Resolve a Dispute’ dated 2 June 2005 and attached documents.

3. The matter is remitted to the Arbitrator who made the original orders for determination in accordance with the following directions:

i.The matter is to be listed before the Arbitrator for determination of the threshold issue of ‘injury’ pursuant to section 4 of the Workers Compensation Act 1987.

ii.The Arbitrator is to determine the application to file late evidence made by the Respondent on 13 July 2005.

iii.Pending the determination of liability and any other threshold issues, both parties are to be given the opportunity, if necessary, to agree on the nomination of an Approved Medical Specialist, pursuant to section 321 of the 1998 Act.

The effect of this decision is to revoke the referral to Dr Ellis, Approved Medical Specialist.  The appointment made for the worker to see him on 29 August 2005 must now be cancelled.

Dr Gabriel Fleming

Deputy President  

10 August 2005

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE