Target Australia Pty Ltd v Mansour - [2006] NSWWCCPD 286

WORKERS COMPENSATION COMMISSION

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

Reported Decision: Target Australia Pty Ltd v Mansour (2006) 6 DDCR 440

CITATION:Target Australia Pty Ltd v Mansour [2006] NSWWCCPD 286
APPELLANT:  Target Australia Pty Ltd
RESPONDENT:  Moussa Mansour
INSURER:Self Insured
FILE NUMBER:  WCC17412-04
DATE OF ARBITRATOR’S DECISION:          8 June 2006
DATE OF APPEAL DECISION:  27 October 2006
SUBJECT MATTER OF DECISION: Material to be sent to Medical Appeal Panel; procedural fairness; jurisdiction; section 329(1)(b) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Leitch Hasson Dent
Respondent:   Milicevic

ORDERS MADE ON APPEAL: Paragraphs one and two of the Arbitrator’s decision dated 8 June 2006 are revoked and the following order made:

“1.The matter is remitted to the Arbitrator for determination of the material to be referred to a fresh Approved Medical Specialist pursuant to section 329(1)(b) and for the matter to then be referred to the Registrar for that referral to be effected.”
Paragraphs 3, 4, 5, and 6 of the Arbitrator’s decision dated 8 June 2006 are confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs.

BACKGROUND TO THE APPEAL

On 6 July 2006 Target Australia Pty Ltd (‘the Appellant Employer/Target’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 June 2006.

The Respondent to the Appeal is Moussa Mansour (‘the Respondent Worker/Mr Mansour’).

On 29 March 2003 Mr Mansour was working as a customer service assistant for the Appellant Employer when a heavy box fell onto his right shoulder. As he stood up another box fell onto the right side of his neck and right shoulder. These incidents resulted in him sustaining injury to his neck, right shoulder and lower back and caused him to be away from work for about three months. Ultimately he underwent surgery to his right shoulder at the hands of Dr Kuo in July 2003.

Mr Mansour was able to return to work on selected duties in November 2003 and by June 2004 he had returned to his pre injury hours though with a significant lifting restriction. As at October 2005 Mr Mansour remained at work with the Appellant Employer performing selected duties.

On 26 October 2004 an Application to Resolve a Dispute (‘the Application’) was registered with the Commission seeking weekly compensation, medical expenses and lump sum compensation as a result of injuries to Mr Mansour’s right shoulder, right arm, neck and back as a result of the March 2003 incidents and as a result of the nature and conditions of Mr Mansour’s employment from 29 March 2003 to date. In its Reply filed on 16 November 2004 the Appellant Employer attached copy of a surveillance report from Milne & Associates Pty Ltd dated 16 January 2004 (‘the surveillance report’). This document refers to 14 minutes and 25 seconds of video of a person…

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 286
Decision Date: 27 October 2006

CaseChat Overview and Summary

Target Australia Pty Ltd (the Appellant Employer) appeals against a decision of the Workers Compensation Commission (the Commission) relating to a workers' compensation claim brought by Moussa Mansour (the Respondent Worker). The appeal concerns the referral of the claim for a further medical assessment by an approved medical specialist (AMS) and whether the Respondent Worker was afforded procedural fairness in the assessment process. The appeal also raises questions about the proper interpretation of section 329 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) and whether the surveillance video relied upon by the Appellant Employer was properly classified as fresh evidence. The Appellant Employer challenges the Arbitrator’s jurisdiction to refer the matter for a fresh assessment and to exclude certain material from the assessment. The appeal is allowed in part, and the matter is remitted to the Arbitrator for further determination.

The appeal was decided on the papers without a hearing, as the Acting Deputy President was satisfied that sufficient information had been supplied to determine the issues. The appeal raises issues about whether the Arbitrator and the Commission had jurisdiction to review or overturn decisions made by the Registrar and an Appeal Panel, whether the surveillance video was fresh evidence, and whether the Arbitrator misdirected himself as to the meaning of section 329 of the 1998 Act. The Acting Deputy President held that the Commission had jurisdiction to review the Appeal Panel’s decision and that section 329 permitted the Commission to refer the matter to the Registrar for a fresh assessment by an AMS. The Acting Deputy President found that the surveillance video was not fresh evidence and that it was necessary for the Arbitrator to determine the identity of the person in the video before deciding what material should be sent to the AMS.

The Acting Deputy President found that the Commission had jurisdiction to review the Appeal Panel’s decision because the Commission has exclusive jurisdiction to determine disputes under the Workers Compensation Acts. The Commission must consider all relevant evidence and ensure that the parties are given procedural fairness. The Acting Deputy President held that the Appeal Panel had an implied statutory obligation to comply with the rules of procedural fairness, and the Commission had a duty to ensure that its decisions were based on relevant, logical, and probative evidence. The Acting Deputy President found that the Appeal Panel had breached the rules of procedural fairness by not examining the Respondent Worker to determine whether he was the person in the video. The Acting Deputy President also held that section 329 of the 1998 Act permitted the Commission to refer the matter to the Registrar for a fresh assessment by an AMS.

The Acting Deputy President found that the surveillance video was not fresh evidence because it had been listed in the Application to Resolve a Dispute and the Request for Medical Assessment by AMS. The Acting Deputy President held that the Arbitrator had the power to determine what material should be sent to the AMS and that relevant evidence should be admitted to determine the identity of the person in the video. The Acting Deputy President held that section 329 did not dictate that a further assessment must be conducted by the same AMS and that the parties should agree on an AMS or the Registrar should select one.

The appeal was allowed in part, and the matter was remitted to the Arbitrator for determination of the material to be referred to a fresh AMS and for the matter to then be referred to the Registrar for that referral to be effected. The Appellant Employer was ordered to pay the Respondent Worker’s costs of the appeal.

Orders