Reln (Manufacturing) Pty Ltd v Smith - [2018] NSWWCCPD 51

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51
APPELLANT:	Reln (Manufacturing) Pty Ltd
RESPONDENT:	Jo-Anne Smith
INSURER:	Employers Mutual NSW Limited as agent for Insurance and Care NSW
FILE NUMBER:	A1-1581/18
ARBITRATOR:	Ms E Beilby
DATE OF ARBITRATOR’S DECISION:	5 July 2018
DATE OF APPEAL DECISION:	19 November 2018
SUBJECT MATTER OF DECISION:	Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156, Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28] applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Rankin Ellison Lawyers
Respondent:	LHD Lawyers
ORDERS MADE ON APPEAL:	1. The name of the employer, wherever it appears, is amended to read “Reln (Manufacturing) Pty Ltd”. 2. Paragraphs two, three and four of the Certificate of Determination dated 5 July 2018 are revoked, otherwise the Certificate of Determination is confirmed. 3. The matter is remitted to another Arbitrator for re-determination of the outstanding issues.

INTRODUCTION

Ms Jo-Anne Smith was involved in a motor vehicle accident on 17 April 2012 when her vehicle lost traction with the road because of an oily substance on the road surface. Ms Smith was employed to work permanent night shift with Reln (Manufacturing) Pty Ltd (Reln) and was travelling to work at the time of the accident.
Ms Smith suffered significant injuries in the accident and was hospitalised at Liverpool Hospital until discharge on 23 April 2012. She attempted to return to work but was unable to continue and ceased employment on 6 March 2013.

BACKGROUND

Ms Smith brought a claim for weekly payments from 6 March 2013, as well as lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). When the matter came to arbitration, the only issue with respect to the weekly payment claim was the date upon which the jurisdiction of the Commission to award weekly payments ceased. The Arbitrator determined that weekly payments were payable up to and including 31 August 2015, when Ms Smith was transitioned into the scheme for weekly payments which had been introduced in 2012. That part of the Arbitrator’s determination is not appealed.
The claims pursuant to s 66 were in respect of the whole person impairment of:
(a)    the cervical spine;
(b)    the lumbar spine;
(c)    the pelvis;
(d)    scarring;
(e)    the right upper extremity, and
(f)    the central and peripheral nervous system.
In a notice issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Reln disputed liability in respect of the allegations of injury to the cervical spine, the lumbar spine and central and peripheral nervous system.
The matter proceeded to arbitration on 29 May 2018. The Arbitrator reserved her decision and delivered an…

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.

Continue reading Reln (Manufacturing) Pty Ltd v Smith

Details

AGLC: Reln (Manufacturing) Pty Ltd v Smith [2018] NSWWCCPD 51
Case: [2018] NSWWCCPD 51
Decision Date: 19 November 2018

CaseChat Overview and Summary

Reln (Manufacturing) Pty Ltd sought judicial review of a decision of the Arbitrator who had determined that Ms Smith, an employee, was entitled to compensation. The matter was brought before the Court to determine whether the Arbitrator had overlooked or given insufficient weight to certain material facts in her determination. The primary focus of the case was whether Ms Smith had suffered injuries to her cervical spine, lumbar spine, and central and peripheral nervous system as a result of a work-related accident. This required the court to consider the evidence presented, including medical reports, hospital records, and the Arbitrator's findings.

The court applied the principles from Whiteley Muir & Zwanenberg Ltd v Kerr and other relevant cases to assess whether the Arbitrator had made an error in her factual determinations. The court examined Professor Kiernan's reports, which indicated that there was no evidence of a central and peripheral nervous system injury or a spinal cord lesion in Ms Smith. The court also noted the supplementary report from Professor Kiernan, which confirmed his earlier findings after reviewing additional documents. Despite the Arbitrator's acknowledgment of the seriousness of the accident and her reference to Ms Smith's complaints of pain and the potential cervical injury, the court found that the Arbitrator had not adequately considered the medical evidence that contradicted Ms Smith's claims of significant injury.

In light of the findings, the court concluded that the Arbitrator had overlooked or given insufficient weight to material facts in her determination. Consequently, the court revoked certain paragraphs of the Certificate of Determination and remitted the matter to another Arbitrator for re-determination of the outstanding issues. The court also confirmed the name of the employer in the certificate.

Orders

Orders of the court

1. The name of the employer, wherever it appears, is amended to read “Reln (Manufacturing) Pty Ltd”.

2. Paragraphs two, three and four of the Certificate of Determination dated 5 July 2018 are revoked, otherwise the Certificate of Determination is confirmed.

3. The matter is remitted to another Arbitrator for re-determination of the outstanding issues.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Professor Kiernan formed the view that there was no evidence to suggest Ms Smith suffered a central and peripheral nervous system injury in the accident. Professor Kiernan was also asked whether Ms Smith suffered from a spinal cord lesion. He said that on direct questioning, Ms Smith denied sustaining a spinal cord injury. Further, on examination there was no evidence to suggest a spinal cord injury occurred. Professor Kiernan provided a supplementary report dated 14 May 2018, without a further examination of Ms Smith.[23] He was provided with:(a) a copy of his report dated 10 November 2016;(b) two reports of Dr Bodel dated 19 Janury 2016;(c) two reports of Dr Teychenné dated 24 March 2016 and one dated 9 February 2016;(d) the clinical notes of Liverpool Hospital;(e) reports of Dr Harris, Dr Mathews, Dr Chaitowitz, Dr Rail, and Dr Salmon, and (f) Dr Rail’s clinical notes.[23] Application to Admit Late Documents dated 22 May 2018, pp 1–4. Professor Kiernan advised that there was nothing in the documents that caused him to alter the opinion he expressed in his earlier report. He repeated that there was no objective evidence that Ms Smith suffered a traumatic brain injury, no loss of consciousness and no evidence of structural changes in the brain. He opined that there was no history which would suggest injury to the head or central nervous system. He suggested there was a complicated psychiatric background that would be best addressed by a consultant psychiatrist. The Arbitrator’s oral decision delivered on 22 June 2018 was recorded and a transcript was produced. The Arbitrator identified the undisputed components of Ms Smith’s claims for lump sum compensations pursuant to s 66 of the 1987 Act. Noting that the degree of whole person impairment was in issue in respect of those body parts, she acknowledged that those assessments were to be referred to the Approved Medical Specialist (AMS). The Arbitrator confirmed the issue before her was whether Ms Smith suffered injury to the cervical spine, lumbar spine and central and peripheral nervous system. The Arbitrator noted the circumstances of the injury and admission to Liverpool Hospital. She described the accident as a “most serious event.”[24] The Arbitrator considered that she was firstly required to determine whether Ms Smith lost consciousness in or shortly after the accident, and whether she thereafter suffered from amnesia.[24] Transcript of reasons, 22 June 2018, (T) 2.31. The Arbitrator reviewed the ambulance notes. She noted a cervical collar was observed to be in place, that Ms Smith’s GCS score was fluctuating and she was combative. The Arbitrator further noted that Ms Smith complained of pain in the low back and was placed on a spinal board, with reference to a potential cervical injury. The Arbitrator said that the GCS score on arrival at hospital was recorded as scoring nine, although it seemed other documents did not support that score. The Arbitrator referred to the CT scan of the cervical spine which showed no abnormality.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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