Mayne Group Limited v Mikhail

[2006] NSWWCCPD 249

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
STATUS: Reconsideration decision: Mayne Group Limited v Mikhail [2006] NSWWCCPD 249R immediately follows this decision.
CITATION:		Mayne Group Limited v Mikhail [2006] NSWWCCPD 249
APPELLANT:		Mayne Group Limited
RESPONDENT:		Magdy Mikhail
INSURER:		Mayne Group Limited Workers Compensation Services
FILE NUMBER:		WCC7905-04
DATE OF ARBITRATOR’S DECISION:		7 June 2005
DATE OF APPEAL DECISION:		29 September 2006
SUBJECT MATTER OF DECISION:		Jurisdiction; weight of evidence; inadequacy of reasons.
PRESIDENTIAL MEMBER:		Dr Gabriel Fleming, Deputy President
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	Lyons & Lyons Solicitors
ORDERS MADE ON APPEAL:		1.       Leave to Appeal is granted.
2.       The decision of the Arbitrator is revoked and the matter is remitted to the Arbitrator for determination in accordance with these reasons.
3.       No order as to the costs of the Appeal.

BACKGROUND TO THE APPEAL

1. On 23 June 2005 Mayne Group Limited (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 7 June 2005.  The Appellant Employer is a self-insurer for workers compensation purposes, the corporate insurer being Mayne Group Limited Workers Compensation Services (‘the Insurer’).  The Insurer acted for and on behalf of the Appellant Employer in the Commission proceedings.

1. The Respondent to the appeal is Magdy Mikhail (‘the Respondent Worker’).  Mr Mikhail claimed to have suffered an injury to his left wrist and left shoulder on 22 January 2003.  At the time he was employed by the Appellant Employer as a security guard.  He sought to recover weekly compensation benefits, lump sum compensation for permanent impairment and for medical expenses related to the injury.  The part of the claim relating to weekly compensation benefits was later discontinued. 

1. The Appellant Employer denies liability for the claim and the parties are therefore in dispute.

1. Mr Mikhail brought the dispute to the Commission on 18 May 2004.  He was referred to an Approved Medical Specialist (‘AMS’) for assessment of the ‘medical dispute’.  The AMS issued a Medical Assessment Certificate (‘MAC’) on 18 February 2005.  He found that Mr Mikhail suffered a 5% whole person impairment as a result of the claimed injury.

THE DECISION UNDER REVIEW

1. A Commission Arbitrator determined the dispute between the parties on 7 June 2005 and the ‘Certificate of Determination’ of the same date records the Arbitrator’s orders as follows:

   The determination of the Commission in this matter is as follows:

   1.That the claim made on 15 April 2004 was duly made.

   2.That the Respondent pay the Applicant as lump-sum compensation under s66 of the Workers Compensation Act 1987 as follows, $6,250.00 in respect of 5% whole person permanent impairment.

   3.That the Respondent pay the Applicant’s section 60 of the Workers Compensation Act 1987 expenses on production of accounts or receipts.

   4.That the Respondent pay the Applicant’s costs as agreed or assessed.

ISSUES IN DISPUTE

1. The Appellant Employer argues that the Arbitrator’s decision demonstrates a number of errors,…