Smith v Reln (Manufacturing) Pty Limited

[2020] NSWWCCPD 29

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

CITATION:

Smith v Reln (Manufacturing) Pty Limited [2020] NSWWCCPD 29

APPELLANT:

Jo-Anne Smith

RESPONDENT:

Reln (Manufacturing) Pty Ltd

INSURER:

Employers Mutual NSW Limited

FILE NUMBER:

A1-3475/19

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

17 October 2019

DATE OF APPEAL DECISION:

19 May 2020

SUBJECT MATTER OF DECISION:

Whether arbitrator correct to find that the appellant had not made out a case upon the evidence of having suffered cervical spinal cord injury or traumatic brain injury, and thus no injury to the central and peripheral nervous system of the cervical spine in the motor vehicle accident/journey injury which gave rise to her claim

PRESIDENTIAL MEMBER:

Acting Deputy President Larry King SC

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr F Bellissimo, solicitor

Bellissimo Lawyers

Respondent:

Ms E Blackman, solicitor

Rankin Ellison Lawyers

ORDERS MADE ON APPEAL:

1.    The name of the respondent, wherever it appears, is amended to read ‘Reln (Manufacturing­) Pty Ltd’.

2.    The Arbitrator’s Certificate of Determination of 17 October 2019 is confirmed.

INTRODUCTION AND BACKGROUND

1. This matter has a longer than usual history. The decision of Arbitrator Wynyard (the Arbitrator) against which the appellant worker presently appeals is the second decision of an arbitrator upon her claim. It follows the outcome of an appeal in an earlier proceeding (Matter No 1581/18) from Arbitrator Beilby’s (the first Arbitrator) decision to the Presidential level of the Commission.[1] The appeal was decided by Deputy President Wood.  The matter was remitted for redetermination before Arbitrator Toohey, then discontinued by consent orders issued on 15 March 2019. Fresh proceedings were consequently brought in the present matter.

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

2. It was common ground that whilst employed by the respondent employer, the appellant on 17 April 2012 was involved in a serious motor vehicle accident in compensable circumstances: she was travelling to work at the time.

3. No other vehicle was involved. The appellant lost control of her vehicle and crashed at high speed into a tree.

4. She was conveyed by ambulance to Liverpool Hospital and admitted by reason of multiple injuries.

5. Certain compensation benefits were voluntarily paid but subsequently a dispute arose between the parties in relation to a claim by the appellant for weekly payments of compensation for a period and lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of alleged whole person impairment as a result of the injury to the appellant’s:

   (a)    cervical spine;

   (b)    lumbar spine;

   (c)    pelvis;

   (d)    scarring;

   (e)    right upper extremity, and

   (f)    central and peripheral nervous system.

6. These claims were heard by the first Arbitrator on 29 May 2018. After a short period of reservation of decision, the first Arbitrator delivered oral reasons on 22 June 2018. The decision was dispository of the claim for weekly payments in a fashion accepted by the parties and of no further concern.

7. In relation to the s…