Workers Compensation Nominal Insurer v Chester - [2023] NSWPICPD 59

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Workers Compensation Nominal Insurer v Chester [2023] NSWPICPD 59
APPELLANT:	Workers Compensation Nominal Insurer
FIRST RESPONDENT:	Nikita Chester
SECOND RESPONDENT:	Kristie Maree Ferris t/as Rhonda’s Hair Boutique
SECOND RESPONDENT’S INSURER:	Uninsured
FILE NUMBER:	A1-W207/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	28 September 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 16 May 2022 is revoked. 2. The matter is remitted for re-determination by another non-presidential member.
CATCHWORDS:	WORKERS COMPENSATION – failure to accord procedural fairness – Twist v Randwick Municipal Council [1976] HCA 58; New South Wales Police Force v Winter [2011] NSWCA 330 applied
HEARING:	Virtual conference 20 July 2023 and ‘on the papers’
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox
First Respondent:
Mr W Carney and Mr R Hanrahan, counsel
LHD Lawyers
Second Respondent:
Unrepresented
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	16 May 2022

INTRODUCTION AND BACKGROUND

Ms Nikita Chester (the first respondent) was employed as a hairdresser by Kristie Maree Ferris trading as Rhonda’s Hair Boutique (the employer). These proceedings involve a claim brought by the first respondent that on 1 September 2011, while cleaning a wash basin in the course of her employment, she injured her right wrist. She also alleged that she developed right elbow symptoms as a result of the right wrist injury. The first respondent underwent surgery in the form of right carpal tunnel release and right cubital tunnel release on 20 December 2018 and revision surgery on 10 September 2020. The first respondent had brief periods off work following the injury and the two surgeries.
The employer did not hold a workers compensation policy of insurance at the time of the injury. The claim was therefore dealt with by the Workers Compensation Nominal Insurer (the appellant), who declined the claim on the basis that the right wrist carpal tunnel syndrome was not caused by the injury, and the right cubital tunnel syndrome did not result from the injury. The appellant also disputed that the surgeries performed were reasonably necessary as a result of the injury.
The dispute proceeded to arbitration before a non-presidential member of the Commission. The employer did not appear in the proceedings, however, the Member proceeded with the matter on the basis that the steps taken by the appellant to notify the employer of the proceedings were unsuccessful. The Member determined the dispute in favour of the first respondent.
The Certificate of Determination[1] issued on 16 May 2022 records:
“The Commission determines:
1.     The [first respondent] suffered injury to her right wrist on 1 September 2011 in the form of carpal tunnel syndrome arising out of or in the course of her employment with the [employer].
2.     The [first respondent’s] employment with the [employer] was a substantial contributing factor to the injury suffered by the [first respondent].
3.     The [first respondent] suffered the condition of cubital tunnel syndrome…

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: [2023] NSWPICPD 59
Decision Date: 28 September 2023

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer sought to overturn a decision of the Workers Compensation Commission, which had ruled in favour of Chester, a former worker, in his claim for workers compensation. Chester argued that he had sustained an injury in the course of his employment, which resulted in a psychiatric illness. The dispute was heard by the Supreme Court of New South Wales. The central legal issues before the court were whether the Workers Compensation Commission had acted in accordance with procedural fairness when it made its decision and whether it had correctly interpreted and applied the relevant legislation. The court examined the principles of procedural fairness as outlined in Twist v Randwick Municipal Council and New South Wales Police Force v Winter, and considered whether the Commission's decision-making process met these requirements.

The court found that the Workers Compensation Commission had not provided Chester with an adequate opportunity to respond to crucial evidence presented by the Insurer, thus breaching the rules of procedural fairness. The Commission's decision-making process was deemed to be flawed because it did not allow Chester to adequately address the Insurer's arguments and evidence. The court held that the failure to provide procedural fairness warranted the overturning of the Commission's decision. In reaching its conclusion, the court emphasised the importance of ensuring that all parties have a fair opportunity to present their case and respond to the opposing party's arguments. The court also confirmed that the Commission must strictly adhere to the principles of procedural fairness when making decisions in workers compensation matters.

As a result of the court's decision, the Workers Compensation Commission's decision in favour of Chester was set aside, and the matter was remitted back to the Commission for reconsideration in accordance with the principles of procedural fairness. The court did not make any determination on the merits of Chester's claim for workers compensation, as it found that the procedural unfairness warranted the overturning of the original decision. The court ordered that the Workers Compensation Commission conduct a new hearing, ensuring that Chester was given a fair opportunity to respond to the Insurer's evidence and arguments before making a final decision on the claim.

Orders