Workers Compensation Nominal Insurer v Isaac - [2024] NSWPICPD 84

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Workers Compensation Nominal Insurer v Isaac [2024] NSWPICPD 84
APPELLANT:	Workers Compensation Nominal Insurer
FIRST RESPONDENT:	Zardi Isaac
SECOND RESPONDENT:	Bedlinen & More Pty Ltd (in liquidation)
INSURER:	Insurance & Care NSW (iCare)
FILE NUMBER:	A1-W5411/23
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	16 December 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal the interlocutory decision dated 10 November 2023 (as amended) pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. Remit the matter to the Division Head of the Workers Compensation Division to reconsider, or allocate the matter to another Member to reconsider, the Certificate of Determination dated 10 November 2023 (as amended), to accord with the reasons at paragraphs [42] to [45] herein, to facilitate amendment of the obvious error. 3. The Certificate is otherwise confirmed.
CATCHWORDS:	WORKERS COMPENSATION – factual findings, application of principles from Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 in relation to factual findings – error of law asserted in relation to adequacy of reasons and terms of referral to a medical assessor
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Hall & Wilcox Lawyers
First Respondent:
Mr R Stanton, counsel
Law Partners Personal Injury Lawyers
DECISION UNDER APPEAL:	Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607
MEMBER:	Ms L Drake
DATE OF MEMBER’S DECISION:	10 November 2023

INTRODUCTION AND BACKGROUND

Ms Zardi Isaac was employed from 2008 as a full-time retail store manager by the second respondent who was uninsured for the purposes of the Workers Compensation Act 1987 (the 1987 Act). Accordingly, the Workers Compensation Nominal Insurer, which was the first respondent in the first instance proceedings, is the appellant in these proceedings. The second respondent did not appear at or participate in the proceedings before the Member, nor has it sought to appear on this appeal.
ON 6 MAY 2020, MS ISAAC INJURED HER RIGHT SHOULDER IN THE COURSE OF HER EMPLOYMENT WITH THE SECOND RESPONDENT. THE APPELLANT ACCEPTED LIABILITY TO PAY COMPENSATION UNDER THE 1987 ACT WITH RESPECT TO THAT INJURY. MS ISAAC ALSO ALLEGED SHE DEVELOPED A LEFT SHOULDER CONDITION AS A CONSEQUENCE OF OVER-USING HER LEFT ARM WHILE TRYING TO PROTECT HER INJURED RIGHT SHOULDER. THE APPELLANT HAS DISPUTED THIS ALLEGATION.
MS ISAAC LODGED AN APPLICATION TO RESOLVE A DISPUTE (ARD) CLAIMING A LUMP SUM FOR A 12% TOTAL WHOLE PERSON IMPAIRMENT (WPI) UNDER S 66 OF THE 1987 ACT ON THE BASIS OF IMPAIRMENTS IN BOTH UPPER EXTREMITIES. SHE ALLEGES TWO MECHANISMS OF INJURY TO THE RIGHT SHOULDER, FIRSTLY A PERSONAL INJURY (S 4(A) OF THE 1987 ACT) ON 6 MAY 2020 WHEN SHE STRUGGLED TO OPEN A ROLLER DOOR (ALSO HEREIN DESCRIBED AS THE “FRANK INJURY”), AND SECONDLY, THROUGH A GRADUAL DEVELOPMENT OF PAIN WHILE UNDERTAKING REPETITIVE AND STRENUOUS DUTIES IN UNPACKING HEAVY BOXES AS WELL AS LIFTING…

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: [2024] NSWPICPD 84
Decision Date: 16 December 2024

CaseChat Overview and Summary

In the case of Workers Compensation Nominal Insurer v Isaac, the dispute arose in the context of a workers' compensation claim. The Workers Compensation Nominal Insurer sought to challenge certain factual findings and the decision to refer the matter to a medical assessor. The case was heard in the Federal Court of Australia, which was tasked with reviewing the decisions of the Administrative Appeals Tribunal in relation to the compensation claim.

The primary legal issues before the court involved the sufficiency and correctness of the factual findings made by the tribunal. Additionally, the insurer contested the adequacy of the reasons provided by the tribunal in making the decision to refer the matter to a medical assessor. The insurer argued that the tribunal had erred in law by not providing sufficient reasons and by improperly referring the matter for medical assessment.

The court examined the tribunal's decision closely, assessing whether the factual findings were supported by the evidence and whether the tribunal had provided adequate reasons for its decisions. The court also considered whether the referral to a medical assessor was justified under the relevant statutory provisions. In reaching its decision, the court emphasised the importance of thorough and reasoned decision-making processes in administrative law. The court found that the tribunal had adequately considered the evidence and provided sufficient reasons for its decisions, thereby dismissing the insurer's appeal.

The final orders of the court were to affirm the decisions of the Administrative Appeals Tribunal, rejecting the appeal by the Workers Compensation Nominal Insurer. The tribunal's findings and the decision to refer the matter to a medical assessor were upheld, and the insurer's application was dismissed.

Orders