Ahmed v Transfield Constructions Pty Ltd - [2006] NSWWCCPD 318

WORKERS COMPENSATION COMMISSION

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

CITATION:Ahmed v Transfield Constructions Pty Ltd [2006] NSWWCCPD 318
APPELLANT:  Gulfam Ahmed
RESPONDENT:  Transfield Constructions Pty Ltd
INSURER:Transfield Constructions Pty Ltd
FILE NUMBER:  WCC7122-03
DATE OF ARBITRATOR’S DECISION:          27 April 2006
DATE OF APPEAL DECISION:  23 November 2006
SUBJECT MATTER OF DECISION:                Treatment of the evidence; certification of a matter as ‘complex’ for the assessment of costs
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant: Buttar Caldwell & Co
Respondent: Hicksons Lawyers

ORDERS MADE ON APPEAL: The Arbitrator’s decision dated 27 April 2006 is confirmed.

There is no order as to the costs of this appeal.

BACKGROUND TO THE APPEAL

On 19 May 2006, Gulfam Ahmed sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an Arbitrator dated 27 April 2006. The Respondent to the appeal is Transfield Constructions Pty Ltd (‘Transfield’), which is a workers compensation self-insurer.

On 17 August 2005, I revoked part of the decision of an Arbitrator dated 12 August 2004 dealing with the payment of weekly compensation to Mr Ahmed and remitted that part of the decision to an Arbitrator to be redetermined in accordance with the law, but otherwise confirmed the remainder of the decision dealing with the payment of reasonable medical expenses, compensation for permanent impairment, and costs: Transfield Constructions Pty Ltd v Ahmed [2005] NSWWCCPD 88. At paragraphs 2 to 5, I stated:

“2. ... Mr Ahmed was born in Pakistan on 28 March 1971 and migrated to Australia arriving on 19 May 2000. He is married with four dependent children. Mr Ahmed commenced employment with Transfield as a process worker in its Corrosion Protection Division in October 2000. His duties involved hanging pieces of iron on a jig. He stated that in early November 2001, he began experiencing pain in the lower side of his back whenever lifting “excessive weights”. While working on 26 November 2001, he experienced severe pain that he reported to his safety officer on 28 November 2001 before going home due to the pain. When he returned to work on 29 November 2001, he was unable to “even stand for a few hours”. As a consequence, he was put on light duties until 21 December 2001, when he was made redundant as a result of the closure of the Corrosion Protection Division.
3. On 21 February 2003, Mr Ahmed’s ‘Application to Resolve a Dispute’ was received by the Commission in respect of the injury to his back on 26 November 2001 and Mr Ahmed’s claim for weekly compensation since 26 November 2001 to date and continuing, and his claim for compensation for permanent impairment and pain and suffering ...
4. An Arbitrator conducted a teleconference with the parties on 5 June 2003 and directed Mr Ahmed to submit to a medical assessment by an Approved Medical Specialist for the purpose of assessing the percentage permanent…

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 318
Decision Date: 23 November 2006

CaseChat Overview and Summary

The appeal in Ahmed v Transfield Constructions Pty Ltd [2006] NSWWCCPD 318 was brought by Gulfam Ahmed against Transfield Constructions Pty Ltd, a workers compensation self-insurer, regarding a dispute over the treatment of the evidence and the certification of a matter as 'complex' for the assessment of costs. The case was heard by Acting Deputy President Robin Handley, who confirmed the decision of the Arbitrator dated 27 April 2006. The appeal was lodged within the required 28-day period and met the $5,000 compensation threshold, allowing the appeal to proceed. The primary ground of appeal was that the Arbitrator erred in his decision by failing to take into account Mr Ahmed's medical history when determining the period of incapacity. Mr Ahmed's solicitors argued that the Arbitrator should have placed greater weight on the report of Dr Adler, Specialist in Rehabilitation Medicine, over Dr Bodel's assessment.

Upon reviewing the evidence, the court found that the Arbitrator provided a detailed analysis of the medical evidence, including that of Mr Ahmed. The Arbitrator gave proper consideration to the weight to be given to Dr Bodel’s assessment and ultimately made a finding based on the evidence before him. The court was not satisfied that the Arbitrator made any legal, factual, or discretionary error in finding that Mr Ahmed was able to return to pre-injury duties by the end of March 2002. Consequently, the Arbitrator’s decision was confirmed. The court also rejected the argument that the matter should have been certified as 'complex' for the assessment of costs, as the proceedings had undergone conciliation prior to arbitration, and thus it was not open to the Arbitrator to certify the matter as 'complex'. Therefore, costs should be assessed under Items 4.09 and 4.11 of the Compensation Costs Table. There was no order as to the costs of this appeal.

Orders