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Ooi v NEC Business Solutions Limited

Ooi v NEC Business Solutions Limited

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Case Copied 26 June 2006 46 min read

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WORKERS COMPENSATION COMMISSION

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

REPORTED DECISION: Ooi v NEC Business Solutions Limited (2006) 5 DDCR 461

CITATION:Ooi v NEC Business Solutions Limited [2006] NSWWCCPD 131
APPELLANT:  Leay Ceng Ooi
RESPONDENT:  NEC Business Solutions Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC5574-05
DATE OF ARBITRATOR’S DECISION:          10 May 2005
DATE OF APPEAL DECISION:  26 June 2006
SUBJECT MATTER OF DECISION:                Medical Assessment Certificates; credit findings; procedural fairness
PRESIDENTIAL MEMBER:  Acting Deputy President Michael Snell
HEARING:On the papers
REPRESENTATION:  Appellant:      Beilby Poulden Costello
Respondent:   Blake Dawson Waldron

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 May 2005 is revoked and the following order made:
Award for the Respondent.
No order is made as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 7 June 2005 Leay Ceng Ooi (‘the appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 10 May 2005.

The Respondent to the Appeal is NEC Business Solutions Limited (‘the respondent’).

The appellant was employed by the respondent from 23 April 1990 as a senior administrative officer, working full time.

The appellant’s claim form is dated 8 October 2003, a copy is annexed to the respondent’s Reply. It described the date of injury as 26 September 2003, and said that was the date from which she “began medical leave”. It said “The injury has occurred over a long period of data entry and typing. The injury also relates to the anxiety of trying to continue this work”. The parts of body injured are described as “Right hand, neck, nerves, Rt shoulder”. A section of the document is headed “Other similar injuries” and says “Please provide details of work and non-work related injuries to the same part of the body including date, employer, insurer, etc.” That question has been responded to with an entry “N/A”. The respondent denied liability as from 24 November 2003.

The appellant’s claim as pleaded in her Application to Resolve a Dispute (registered 2 April 2004) (‘the Application’) was for weekly benefits from 26 September 2003 on a continuing basis, a general order pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’), and lump sums pursuant to section 66 (based upon 25% whole person impairment) and 67 (alleged as 50% of a most extreme case) of that Act. The allegation of injury was based upon the nature and conditions of the appellant’s employment from 1990 to 2003, involving “repetitive keyboard application”. By way of “Injury Description” the Application referred to the report of Dr Champion annexed. In fact there were three reports of Dr Champion annexed to the Application, dated 4 February 2004, 13 March 2004 and 22 March 2004. The symptoms described in the most comprehensive of those reports (13 March 2004) involved the neck, upper back, right shoulder and right upper limb. That doctor described the appellant’s symptoms as…

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: [2006] NSWWCCPD 131
Decision Date: 26 June 2006

CaseChat Overview and Summary

In the matter of Ooi v NEC Business Solutions Limited, Leay Ceng Ooi (the appellant) sought to appeal the decision of an arbitrator who had found against her in a workers compensation claim. The appellant's claim for weekly benefits, medical and related expenses, and non-economic loss was rejected. The appeal to the Workers Compensation Commission was heard by Acting Deputy President Michael Snell. The central issue in dispute was whether the appellant's condition resulted from her work activities with the respondent, NEC Business Solutions Limited. The appellant argued that the arbitrator erred in several respects, including in not presuming the facts as found by the Approved Medical Specialist (AMS) to be correct and in failing to consider certain medical reports.

Acting Deputy President Snell examined the evidence, including medical reports and statements from the appellant and witnesses. The AMS, Dr. Bodel, had issued a Medical Assessment Certificate (MAC) that certified certain impairments resulting from the appellant's employment. However, the Acting Deputy President noted that the AMS cannot decide issues of credibility or questions of fact, only clinical findings and opinions. The Acting Deputy President concluded that the arbitrator was correct in finding that the appellant's histories and mechanisms of injury were not credible and that the impairments found by Dr. Bodel did not result from her employment with the respondent.

The Acting Deputy President found that the arbitrator's decision on the issue of 'injury' was well open to him based on the evidence. The appellant's inconsistent statements and the conflicting medical histories undermined her credibility, leading to the conclusion that she had not discharged her onus of proving 'injury'. The appeal was dismissed, and the decision of the arbitrator was upheld, awarding the respondent. The Acting Deputy President revoked the formal orders made by the Arbitrator and made the order: "Award for the respondent." No order as to costs of the appeal was made.

Orders