Mayne Group Ltd v Bright - [2007] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mayne Group Ltd v Bright [2007] NSWWCCPD 19
APPELLANT:  Mayne Group Ltd
RESPONDENT:  Jennifer Bright
INSURER:Mayne Group Ltd
FILE NUMBER:  WCC6275-05
DATE OF ARBITRATOR’S DECISION:          25 November 2005
DATE OF APPEAL DECISION:  19 January 2007
SUBJECT MATTER OF DECISION:                Procedural fairness; treatment of evidence; adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:16 January 2007
REPRESENTATION:  Appellant: P Macken, Solicitor; Leigh Virtue & Associates, Solicitors
Respondent: L Goodman, Counsel; Slater & Gordon, Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 25 November 2005 is confirmed.

The Appellant, Mayne Group Ltd, is to pay the costs of the Respondent, Ms Bright, in this appeal.

BACKGROUND TO THE APPEAL

On 12 December 2005, Mayne Group Ltd (‘Mayne Group’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 25 November 2005. The Respondent to the appeal is Jennifer Bright (also referred to as ‘the Applicant’). Mayne Group is a workers compensation self-insurer.

Ms Bright was born on 14 May 1952 and is aged 54. She is separated from her husband and has no dependants. Ms Bright was employed by Mayne Group as an assembler from October 1997 and was previously employed in the same position by API Ltd for approximately 13 years. She worked five hours a day on five days a week. In about May 2004, she began to experience stiffness and pain in her thumbs, the right being worse than the left. She also began to experience pins and needles in her fingers and pain travelling to her right wrist. Ms Bright consulted her family doctor, Dr P Sarian, who referred her to a specialist, Dr Vijay Maniam, Orthopaedic Surgeon. Dr Maniam recommended carpal tunnel surgery but Ms Bright has not had this because Mayne Group has denied liability. Dr Sarian placed her on light duties and, in about December 2004, Ms Bright was transferred to an office job dealing with stock control. She finds this more manageable but states her thumbs have not improved.

Ms Bright gave notice of her injury to her employer on 8 June 2004 when she also lodged a claim for workers compensation. On 2 May 2005, the Commission registered Ms Bright’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation and for medical, hospital or related expenses. In the Application, her injury was described as (1) tenosynovitis in both thumbs, (2) trigger finger in the right thumb, and (3) bilateral carpal tunnel syndrome.

On 11 July 2005, the Arbitrator conducted a teleconference with the parties. On 18 July 2005, Mayne Group filed a ‘Reply’. On 7 September 2005, the Arbitrator conducted a conciliation conference with the parties and, this having proved unsuccessful, commenced an arbitration hearing, which continued on 19 October 2005 and concluded on 25 October 2005. (There is no recording of the proceedings on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWWCCPD 19
Decision Date: 19 January 2007

CaseChat Overview and Summary

Mayne Group Ltd, a workers compensation self-insurer, appealed against the decision of an arbitrator in the Workers Compensation Commission, seeking to overturn the decision that awarded Jennifer Bright weekly benefits and medical expenses. The Arbitrator found Bright had suffered an injury related to her employment, which was a substantial contributing factor. The appeal was lodged within the required timeframe and the compensation at issue exceeded $5,000, constituting 100% of the amount awarded. The appeal was therefore allowed.

Mayne Group's primary grounds of appeal were that the Arbitrator breached procedural fairness, made errors in handling evidence, provided inadequate reasons, and erred in law and fact. The court found that the Arbitrator had not breached procedural fairness or made any errors in handling evidence. The Arbitrator's reasons were deemed adequate, and there was no evidence of legal or factual errors in his findings. The Arbitrator had considered the evidence and applied the relevant law to come to his decision, and the court was not satisfied that the Arbitrator's decision was affected by any legal, factual, or discretionary error.

The appeal was dismissed, and Mayne Group was ordered to pay Bright's costs in the appeal. The court confirmed the Arbitrator's decision dated 25 November 2005, which awarded Bright weekly benefits and medical expenses.

Orders