Abou-Sleiman v P & v Masonry Pty Ltd - [2011] NSWWCCPD 21

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Abou-Sleiman v P & V Masonry Pty Ltd [2011] NSWWCCPD 21
APPELLANT:		Paul Abou-Sleiman
RESPONDENT:		P & V Masonry Pty Ltd
INSURER:		GIO General Limited
FILE NUMBER:		A1-5962/10
ARBITRATOR:	Mr Grahame Edwards
DATE OF ARBITRATOR’S DECISION: DATE OF APPEAL HEARING:		2 November 2010 10 March 2011
DATE OF APPEAL DECISION:		1 April 2011
SUBJECT MATTER OF DECISION:		Personal injury; s 10 of the Workers Compensation Act 1987; late evidence on appeal
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		Oral
REPRESENTATION:		Appellant:	Mr A Campbell, instructed by Buttar Caldwell & Co
Respondent:	Mr M Batten, instructed by TurksLegal
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 3 November 2010 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

The appellant, Mr Abou-Sleiman, is a stonemason. He is a working director of P & V Masonry Pty Ltd, the respondent to the appeal. On 4 March 2009, the Mr Abou-Sleiman was involved in a motor vehicle collision during the course of a journey between his place of abode and place of employment.
He was driving a utility-type vehicle which was stationary at a set of traffic lights behind a truck in Frederick Street, Ashfield, when his vehicle was hit from behind by a truck. The impact pushed Mr Abou-Sleiman’s utility into the rear of the truck in front. The impact from the collision was substantial and resulted in Mr Abou-Sleiman’s utility being towed from the scene. Mr Abou-Sleiman alleged that he sustained an injury to his lumbar spine. He has not resumed work since the accident.
On 16 March 2009, Mr Abou-Sleiman completed a “worker’s injury claim form”, in which he stated that he sustained injuries to his back and neck as a result of the motor vehicle accident, and a hernia as a result of the “nature and conditions” of his employment.
Liability was initially accepted for weekly payments and medical expenses.
On 28 April 2010, Buttar Caldwell & Co, solicitors acting on behalf of Mr Abou-Sleiman, made a claim on GIO Workers Compensation (the scheme agents for P & V Masonry Pty Ltd), for $24,337.50 under s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 16 per cent whole person impairment, and $33,000, being compensation for pain and suffering pursuant to s 67. The worker alleged injuries occurring on 4 March 2009, in March 2006 and arising from the “nature and conditions of employment” from April 2000 to date. He alleged he suffered “[i]njury to the neck, back, anxiety and depression, loss of activities of daily living”.
On 14 July 2010, following an assessment by Dr Maxwell (on behalf of the respondent), GIO notified Mr Abou-Sleiman that liability for the lump sum compensation was declined on the basis that he did not suffer from any permanent impairment as a result of the injuries alleged.
On 25 July 2010, an…

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: [2011] NSWWCCPD 21
Decision Date: 1 April 2011

CaseChat Overview and Summary

In this matter, the appellant, Abou-Sleiman, sought review of an Arbitrator’s decision concerning a workers compensation claim. Abou-Sleiman, an employee of P & V Masonry Pty Ltd, claimed compensation for injuries sustained in the course of his employment. The dispute centred on the admissibility of late evidence submitted by Abou-Sleiman on appeal. The case was heard in the Industrial Relations Commission of New South Wales.

The central legal issues revolved around the interpretation and application of section 10 of the Workers Compensation Act 1987, which governs the admissibility of evidence in workers compensation proceedings. Specifically, the court had to determine whether the Arbitrator was correct in rejecting the late evidence submitted by Abou-Sleiman. The court also had to consider the principles governing the admission of evidence in appellate proceedings within the context of workers compensation claims.

The court considered the statutory framework and relevant case law concerning the admissibility of late evidence in workers compensation cases. It held that the Arbitrator was correct in rejecting the late evidence as it did not meet the criteria for admission under section 10 of the Act. The court emphasised that the primary jurisdiction of the Arbitrator in workers compensation matters is broad but subject to statutory constraints. The Arbitrator’s decision to exclude the late evidence was consistent with these constraints, and the court found no error in the Arbitrator’s determination. Consequently, the appeal was dismissed, and the Arbitrator’s decision was upheld.

The final orders of the court confirmed the Arbitrator’s determination dated 3 November 2010, and each party was ordered to bear their own costs of the appeal.

Orders

Orders of the court

The Arbitrator’s determination of 3 November 2010 is confirmed.

Each party is to pay his or its own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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