Endeavour Energy v Ohmsen

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Endeavour Energy v Ohmsen [2014] NSWWCCPD 6
APPELLANT:	Endeavour Energy
RESPONDENT:	Barbara Ohmsen
INSURER:	Self-insured
FILE NUMBER:	A1-5488/12
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	19 November 2013
DATE OF APPEAL DECISION:	4 February 2014
SUBJECT MATTER OF DECISION:	Absence of transcript; failure to provide reasons for decision; need for revocation of order and remitter for hearing afresh
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea Lawyers
ORDERS MADE ON APPEAL:	1.       Compliance by the parties with the timetable concerning conduct of this appeal fixed by the Registrar pursuant to the Workers Compensation Commission Rules 2011 is dispensed with in accordance with the provisions of r 1.6 of those Rules. 2.       Paragraphs 1 and 2 of the Certificate of Determination dated 19 November 2013 are revoked. 3.       The matter is remitted back to the Arbitrator for hearing afresh. 4.       The costs of the original hearing and of this appeal are to follow the final costs order following the remitter.

INTRODUCTION

1. Ms Barbara Ohmsen received an injury on 23 February 1990 when she was involved in a motor vehicle accident which occurred in the course of her employment with Endeavour Energy, formerly known as Integral Energy (the appellant). In 2012 a dispute arose between Ms Ohmsen and the appellant concerning her entitlement to weekly compensation and reimbursement of medical and associated expenses which she had claimed pursuant to s 60 of the Workers Compensation Act 1987. The appellant also disputed Ms Ohmsen’s claim that proposed medical treatment, being a trial of sub-occipital nerve stimulation, was, as a result of the subject injury, reasonably necessary medical treatment within the meaning of s 60.

2. Proceedings seeking orders in respect of those claims were commenced in June 2012. An order, as was required by the provisions of s 60(5), was made that the questions raised concerning the proposed medical treatment be referred to an Approved Medical Specialist for an assessment under Pt 7 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).

3. The Approved Medical Specialist, Dr Robert Adler, provided a Medical Assessment Certificate dated 11 January 2013. That Certificate included a recommendation that Ms Ohmsen undergo a trial relating to occipital nerve stimulation. It seems that the matter was again referred by the Registrar to Dr Adler seeking clarification of those matters raised under s 60. A further Certificate, which was undated, was subsequently provided by Dr Adler.

4. The matter came on for conciliation/arbitration before Arbitrator Beilby on 10 May 2013 at which time each party was represented by counsel. The matter, which at that time concerned the claim in respect of weekly compensation as well as the s 60 disputes, proceeded to hearing. The appellant, later on that day, was granted an adjournment and the matter was set down for further hearing before the Arbitrator on 11 September…