XCI Pty Ltd (in liq) v Thompson

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	XCI Pty Ltd (in liq) v Thompson [2016] NSWWCCPD 58
APPELLANT:	XCI Pty Ltd
RESPONDENT:	Jamie Thompson
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-1321/16
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	7 July 2016 (amended 14 July 2016)
DATE OF APPEAL DECISION:	6 December 2016
SUBJECT MATTER OF DECISION:	Challenges to the reliability of evidence; parties bound by the conduct of their counsel; Smits v Roach [2006] HCA 36; 227 CLR 423; appellants are bound by the forensic decisions made during the conduct of a hearing; Delaney v Winn [2015] NSWCA 124
PRESIDENTIAL MEMBER:	President Judge Keating
HEARING:	On the papers
REPRESENTATION:	Appellant:	Gillis Delaney Lawyers
Respondent:	Beilby Poulden Costello
ORDERS MADE ON APPEAL:	1. Pursuant to s 162 of the Workers Compensation Act 1987 a declaration is made that XCI Pty Ltd (in liq) has entered into a contract with QBE Workers Compensation (NSW) Ltd in respect of liability under that Act, and has commenced to be wound up after entering into that contract. 2.       The Arbitrator’s Amended Certificate of Determination of 14 July 2016 is confirmed.

INTRODUCTION

1. The worker claimed lump sum compensation in respect of a primary psychological injury arising from an accepted injury on 7 September 2010.

2. Apart from some minor complaints at the time of injury, a substantial period of time elapsed before the worker reported symptoms which were subsequently diagnosed as post-traumatic stress disorder. The claim was disputed in the s 74 notice for a number of reasons including the worker’s reliability in terms of having failed to report symptoms for over two years and upon feigning results during the course of neuro-psychological testing.

3. The reliability of the worker was not pressed during the hearing before the Arbitrator. The appellant’s counsel eschewed the opportunity to raise a credit issue in relation to the delayed reporting of symptoms. In the circumstances the Arbitrator concluded that he could not determine the matter on the basis of an adverse credit finding.

4. For the reasons explained in this decision, the appeal is unsuccessful primarily on the ground that parties are bound by the conduct of their case at arbitration.

BACKGROUND

1. The respondent worker, Jamie Thompson, was employed by the appellant employer, XCI Pty Ltd (formerly Eire Contractors Pty Ltd), as a pipe layer/labourer.

2. On 7 September 2010, Mr Thompson had been working in a deep trench for the purpose of repositioning a sling around pipes that were being manoeuvred into position. Whilst undertaking this activity Mr Thompson was crushed between two pipes and was injured.

3. On 11 October 2010, Mr Thompson resigned from his role with the employer. Thereafter he was self-employed as a maintenance worker until 2013.

4. The appellant’s insurer QBE Workers Compensation (NSW) Ltd (QBE) paid Mr Thompson weekly benefits in respect of the injury of 7 September 2010 for a short closed period; the precise dates are unclear.

5. On 13 October 2014, Mr…