Rinker Group Limited v Mackell (No.2)

[2009] NSWWCCPD 97

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rinker Group Limited v Mackell (No.2) [2009] NSWWCCPD 97
APPELLANT:		Rinker Group Limited
RESPONDENT:		Kathleen Ellen Mackell
INSURER:		Self insured
FILE NUMBER:		A2-2717-07
ARBITRATOR:	Ms S Duncombe
DATE OF ARBITRATOR’S DECISION:		23 March 2009
DATE OF APPEAL DECISION:		12 August 2009
SUBJECT MATTER OF DECISION:		Evidence; leave to call oral evidence from expert witness; late evidence; restricting cross-examination; refusal to grant an adjournment; restrictions on the number of forensic medical reports.
PRESIDENTIAL MEMBER:		His Hon. Judge Keating, President
HEARING:		On the papers
REPRESENTATION:		Appellant:		Leigh Virtue & Associates
Respondent:		Somerville Laundry Lomax
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 23 March 2009 is confirmed.
The Appellant to pay the Respondent’s cost of the appeal.

INTRODUCTION

1. This matter concerns a claim for lump sum compensation for 7% Whole Person Impairment ($8,750.00) as a result of tendonitis in the right shoulder and arm caused by the nature and conditions of Ms Mackell’s work with Rinker Group Ltd (‘Rinker’) in which she alleges that she performed data entry duties including prolonged periods of typing and operating a mouse.

BACKGROUND

1. Ms Mackell, commenced proceedings in the Commission on 19 April 2007.

1. The Commission arranged assessment by an Approved Medical Specialist (‘AMS’) and a Medical Assessment Certificate (‘MAC’) issued in June 2007.

1. Rinker appealed the MAC to a Medical Appeal Panel (‘the Panel’).  The Panel revoked the MAC and issued a new MAC in substantially the same terms on 15 November 2007.

1. On 16 April 2008 an arbitration hearing was conducted and the decision reserved. On 8 May 2008 a Certificate of Determination issued. The Arbitrator found in favour of Ms Mackell on all issues.  As a consequence of the Arbitrator’s finding for the worker on ‘injury’, he referred the matter to the Registrar for referral for a further assessment by an AMS.

1. Rinker appealed the Arbitrator’s decision on 2 June 2008, on a number of grounds including that it was denied procedural fairness, on issues in respect of notice of the claim, estoppel, failure by the Arbitrator to give reasons, errors in respect of injury, section 9A, deemed date of injury and in determining that Rinker was the last employer in respect of the finding of disease.

1. On 19 September 2008, Deputy President Roche issued Rinker Group Limited v Mackell [2008] NSWWCCPD 100 (‘Mackell (No. 1)’).  The Deputy President upheld the appeal on one ground only, on the basis that the Arbitrator had erred in admitting two reports from Drs Wallace and Fuller, both orthopaedic surgeons, in contravention of clause 43 of the Workers Compensation Commission Regulation 2003 (‘the Regulation’).  The Deputy President rejected the other grounds of appeal, with the exception of the estoppel and reasons grounds. He declined to consider the ground of appeal that the Arbitrator’s reasons were inadequate, on the basis that it was not necessary, having found that the matter required re-determination. In respect of the Arbitrator’s…