McKay v Hyrock Pty Limited - [2011] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		McKay v Hyrock Pty Limited [2011] NSWWCCPD 26
APPELLANT:		Lincoln Carl McKay
RESPONDENT:		Hyrock Pty Limited
INSURER:		Allianz
FILE NUMBER:		A1-7731/10
ARBITRATOR:	Ms Jennifer Scott
DATE OF ARBITRATOR’S DECISION:		7 February 2011
DATE OF APPEAL DECISION:		17 May 2011
SUBJECT MATTER OF DECISION:		Absence of transcript of arbitral proceedings; appeal is not a new hearing: s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Stacks – The Law Firm
Respondent:	DLA Phillips Fox
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 7 February 2011 is revoked and the matter is remitted to another Arbitrator for determination afresh. Costs to follow the final costs order following remitter to and hearing by another Arbitrator.

BACKGROUND TO THE APPEAL

Mr Lincoln Carl McKay commenced employment with Hyrock Pty Ltd (the respondent) in 2004 as a boilermaker. He alleges that he received injury to his neck, left shoulder and left arm in the course of that employment on 6 November 2004. He made no formal report of the injury at that time and continued with his duties without loss of time from work.
Thereafter Mr McKay experienced pain and discomfort in his neck and shoulder and, in January 2005, underwent massage therapy. The pain persisted and it appears that he consulted a general practitioner, Dr El-Roubai. That practitioner arranged x-ray investigations which were conducted by Dr Reeves who reported by letter dated 23 February 2005.
The evidence reveals that Mr McKay consulted a second general practitioner, Dr Al-Aukidy, in March 2005. That practitioner arranged for a cervical CT scan to be conducted by Dr L Narunsky. A report concerning that scan dated 4 March 2005 addressed to Dr Al-Aukidy is in evidence. In May 2005 Mr McKay sought treatment from a chiropractor.
Mr McKay continued working with difficulty and, in April 2006, was referred to Dr Vidyasagar Casikar, consultant neurosurgeon. Initial treatment included nerve root injections which afforded Mr McKay some relief. It seems that Mr McKay did not return to consult Dr Casikar until August 2008. At that time an MRI examination was arranged which demonstrated a significant disc prolapse at C6/C7 and a minimal disc bulge at C5/C6.
On or about 25 August 2008 Mr McKay presented a workers compensation claim form to the respondent. That document is not in evidence however the respondent’s Injury Claim Report, which is before the Commission, records that the date of injury alleged in Mr McKay’s claim form was 12 January 2005.
In October 2008 Mr McKay underwent operative treatment at the hands of Dr Casikar being cervical decompression and fusion. Mr McKay was absent from his employment during convalescence until 24 November 2008.
In November 2008 the respondent’s insurer gave notice in accordance with the provisions of s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998…

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: [2011] NSWWCCPD 26
Decision Date: 17 May 2011

CaseChat Overview and Summary

In McKay v Hyrock Pty Limited, the appellant, Mr McKay, sought to appeal the decision of an arbitrator who had determined a dispute regarding his entitlement to compensation under the Workplace Injury Management and Workers Compensation Act 1998. The central issue was whether the absence of a transcript of the arbitral proceedings should invalidate the arbitrator’s decision. The respondent, Hyrock Pty Limited, argued that the absence of the transcript did not affect the validity of the arbitrator's decision.

The court was required to determine whether the absence of a transcript of the arbitral proceedings rendered the arbitrator's decision invalid under section 352(5) of the Act. The court had to consider the legal framework governing appeals from arbitral awards and whether the absence of a transcript constituted a procedural error that necessitated a new hearing. The court also needed to assess whether the absence of a transcript in itself justified the overturning of the arbitrator’s decision.

The court found that the absence of a transcript did not invalidate the arbitrator's decision. The court emphasised that an appeal under the Act is not a new hearing and that the absence of a transcript did not prevent the court from determining whether the arbitrator had exercised their jurisdiction correctly. The court highlighted that the essence of the appeal was to review the legality and rationality of the arbitrator’s decision, not to re-evaluate the evidence. The court concluded that the absence of a transcript did not prejudice the appellant’s right to a fair appeal and that the appeal should be remitted to another arbitrator for a fresh determination.

The court revoked the decision of the arbitrator dated 7 February 2011 and ordered that the matter be remitted to another arbitrator for a new determination. The court also directed that costs were to follow the final costs order after the matter had been heard by the new arbitrator.

Orders

Orders of the court

The decision of the Arbitrator dated 7 February 2011 is revoked and the matter is remitted to another Arbitrator for determination afresh.

Costs to follow the final costs order following remitter to and hearing by another Arbitrator.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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