Duncan v Miyay Youth Service Incorporated

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Duncan v Miyay Birray Youth Service Incorporated [2006] NSWWCCPD 354
APPELLANT:  Patricia Rose Duncan
RESPONDENT:  Miyay Birray Youth Service Incorporated
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC11158-05
DATE OF REGISTRAR’S DECISION:             17 January 2006
DATE OF APPEAL DECISION:  19 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s assessment of costs; fees for an investigation report; Items 2.04, 2.05 and 9.01 of Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER:  Acting Deputy President Elizabeth Tydd
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Moray & Agnew Solicitors

ORDERS MADE ON APPEAL: 1. The decision of the Registrar dated 17 January 2006 is confirmed.
2. No order as to costs of the appeal.

BACKGROUND

On 16 December 2002 Patricia Rose Duncan (‘Ms Duncan’) lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’), (WCC5295-02). Ms Duncan named Miyay Birray Youth Service Incorporated (‘Miyay Birray’) as the Respondent employer and claimed that as a result of the nature and conditions of her employment as a secretary/book keeper from 22 July 1992 to 6 August 2002 she suffered an injury to her right arm; neck; back, and left arm. Ms Duncan claimed $40,000.00 pursuant to section 66 and $30.000 pursuant to section 67 of the Workers CompensationAct 1987 (‘the 1987 Act’).

Miyay Birray lodged a Late Reply to the application on 4 March 2003 in which it disputed all aspects of the claim. A Commission Arbitrator (‘the Arbitrator’) made orders on 2 April 2003 which noted the filing of the Application and the Late Reply and granted the parties leave to provide additional submissions regarding the admission of the Later Reply and determination of admission of the Late Reply on the papers. The Arbitrator also ordered that the matter be referred to an Arbitrator for determination. Ms Duncan’s solicitor made submissions dated 20 March 2003 in which he confirmed that the Application had been served on 18 December 2002. The submissions were silent in respect of a determination on the papers. On 7 April 2003 Miyay Birray’s solicitor filed submissions in which it confirmed that the matter was capable of being determined on the papers. The matter was determined on the papers and the Reply was admitted into proceedings by order of the Arbitrator dated 24 April 2003.

In correspondence dated 7 March 2003 the Registrar invited the parties to agree upon an Approved Medical Specialist (‘the AMS’). Ms Duncan’s solicitor nominated three AMSs in his submissions dated 20 March 2003. However an agreement was not reached and the Registrar referred the dispute for assessment of Whole Person Impairment (‘WPI’) in accordance with section 321 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The AMS issued a Medical Assessment Certificate (‘MAC’) which was forwarded to the parties on 16 December 2003.

On 29 January 2004 a teleconference was conducted…

CaseChat Overview and Summary

In the matter of Duncan v Miyay Birray Youth Service Incorporated, the appeal was brought by the appellant, Patricia Rose Duncan, against the decision of the Registrar regarding the assessment of costs in her workers compensation claim. The dispute centered on the costs associated with an investigation report, as well as specific items listed in Schedule 6 of the Workers Compensation Regulation 2003. The legal issues before the court included whether the delegate had erred in determining the costs related to items 2.04, 2.05, and 9.01 of the compensation costs table and the disbursements claimed.

The court reviewed the submissions and found no error in the delegate's determination. The delegate had allowed $330.00 for the costs of obtaining and reviewing medical reports, which was deemed reasonable given the evidence presented. The court found that the delegate's decision to disallow the claim for the costs of briefing a factual investigator was justified, as the report was neither necessary nor used in the proceedings. Additionally, the delegate's disallowance of the claim for professional costs pursuant to item 9.01 was upheld as there was insufficient evidence to show that substantial legal issues were involved. The court also confirmed the disallowance of the claim for the costs of the investigation report, as it was not deemed necessary for the straightforward nature of the claim.

The court concluded that the decision of the delegate dated 17 January 2006 should be confirmed, and no order was made as to the costs of the appeal, considering the appellant's lack of success. The Acting Deputy President, Elizabeth Tydd, delivered the decision on 19 December 2006, affirming the Registrar's assessment of costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established