Nguyen v Force One Security Services Pty Limited - [2008] NSWWCCPD 19

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Nguyen v Force One Security Services Pty Limited NSWWCCPD 19
APPELLANT: Le Xuan Ninh Nguyen
RESPONDENT: Force One Security Services Pty Limited

INSURER:CGU Insurance Limited.

FILE NUMBER:  WCC5348-07
DATE OF ARBITRATOR’S DECISION:          21 September 2007
DATE OF APPEAL DECISION:  14 February 2008
SUBJECT MATTER OF DECISION:                Injury; incapacity; whether psychological injury proved; whether the evidence supported a finding of continuing incapacity.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Self represented
Respondent: TurksLegal

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 21 September 2007 is revoked and the following orders are made in substitution:

(1)There is an award for the Applicant with respect to his claim for section 66 of the Workers Compensation Act 1987 whole person impairment with reference to the cervical spine.
(2)The claim of the Applicant for section 66 of the Workers Compensation Act 1987 whole person impairment from date of injury of 16 March 2006 is referable by the Registrar to an ‘Approved Medical Specialist’. The body part referred is the cervical spine for the purposes of that assessment.
(3)There is an award for the Applicant with respect to his claim for section 60 of the Workers Compensation Act 1987 medical and treatment expenses upon production of accounts and/or receipts.
(4)The Respondent to pay the Applicant’s costs as agreed or assessed.

2.The matter is remitted to another
Arbitrator for redetermination of all outstanding issues in accordance with these reasons noting the following findings:
(a) Mr Nguyen is entitled to
weekly compensation for the period 16 March 2006 to 23 March 2006 pursuant to section 36 of the Workers Compensation Act 1987 Act (with credit to the Respondent if payment has already been made).

(b) Mr Nguyen has suffered a
psychological injury as a consequence of the incident on 16 March 2006, and any claim for whole person impairment consequent upon that finding should be referred by the Registrar to an ‘Approved Medical Specialist’.

(c) The Arbitrator’s findings on
the issue of incapacity during the period 23 March 2006 to 20 June 2006 are confirmed.

(d) The question of incapacity
subsequent to 20 June 2006 to be determined in accordance with these reasons.

3.The Respondent is to pay the costs of the appeal.

BACKGROUND TO THE APPEAL
1.On 19 October 2007 Le Xuan Ninh Nguyen (‘the Appellant/Mr Nguyen’) sought leave to bring an ‘Appeal Against Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 21 September 2007.
2.The Respondent to the Appeal is Force One Security Services Pty Limited (‘the Respondent).
3.Mr Nguyen is 27 years old. He commenced employment with the Respondent on 19 January 2006 as a Static Security Guard and was deployed to various commercial locations around Sydney.

4.Mr Nguyen claimed that on 16 March 2006 whilst travelling to the Respondent’s premises at Chipping Norton he was assaulted by…

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: [2008] NSWWCCPD 19
Decision Date: 14 February 2008

CaseChat Overview and Summary

The matter before the Court was an appeal against the decision of an arbitrator in a workers compensation claim. The appellant, Le Xuan Ninh Nguyen, sought compensation for physical and psychological injuries he claimed to have sustained when he was assaulted while travelling to work. The respondent, Force One Security Services Pty Limited, opposed the claim. The primary issues before the Court were whether the appellant had suffered a psychological injury as a result of the assault and, if so, whether he had established a claim for weekly benefits of compensation. The Court found that the arbitrator had erred in concluding that the appellant had not suffered a psychological injury as a consequence of the incident on 16 March 2006. The Court also found that the appellant was entitled to weekly benefits of compensation for the period 16 March 2006 to 23 March 2006. The matter was remitted to another arbitrator for redetermination of all outstanding issues. The respondent was ordered to pay the costs of the appeal.

Orders