Al Keffai v Famicorp Pty Limited - [2006] NSWWCCPD 92

WORKERS COMPENSATION COMMISSION

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

CITATION:Al Keffai v Famicorp Pty Ltd [2006] NSW WCCPD 92
APPELLANT: Riad Al Keffai
RESPONDENT: Famicorp Pty Ltd

INSURER:Vero Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC16957-03
DATE OF ARBITRATOR’S DECISION:          22 November 2004
DATE OF APPEAL DECISION:  18 May 2006
SUBJECT MATTER OF DECISION:                Leave to appeal; error of law and fact; denial of natural justice/procedural fairness; additional weekly compensation pursuant to section 37(1)(b) and/or section 37(1)(c) of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:     Adams Leyland, Solicitors
Respondent: Vandervords, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 22 November 2004, is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order is made as to costs of this appeal

BACKGROUND TO THE APPEAL

Mr Riad Al Keffai, the Appellant Worker, was employed as an electrical technician by Famicorp Pty Ltd (‘Famicorp’), the Respondent, from 7 January 2002. The Respondent’s workers compensation insurer at all relevant times was Vero Workers Compensation (NSW) Ltd (‘Vero/the Insurer’).

Mr Al Keffai claims to have suffered an injury to his hands. The injury occurred on 11 June 2002 as he was draining oil from an intercooler tank, when ammonia escaped from a valve. His hands came into contact with the ammonia and were burnt. Mr Al Keffai has not returned to work since the accident occurred and claims that he suffered an incapacity for work as a result of the injury that arose out of and in the course of his employment with Famicorp.

On 11 June 2002 Mr Al Keffai notified Famicorp of the injury.

On 14 April 2003 Mr Al Keffai lodged a claim with the Insurer for weekly benefits. The Insurer made payments of weekly benefits, however Mr Al Keffai alleges that the rate of the weekly benefits is incorrect.

On 14 August 2003 Mr Al Keffai lodged a claim with the Insurer for non-economic loss compensation.

Mr Al Keffai submits that the Insurer has failed to make a decision in relation to the claim for non-economic loss compensation.

On 29 October 2003 Mr Al Keffai lodged an ‘Application to Resolve a Dispute’ (‘Application’) with the Workers Compensation Commission (‘Commission’). The Application was registered with the Commission on the same day. The basis of his claim is that he suffered injury to both left and right hands as a result of an injury sustained on 11 June 2002, which arose out of and in the course of his employment with Famicorp. The claim was for increased weekly compensation payments and for compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Arbitrator determined the matter and a ‘Certificate of Determination’ dated 22 November 2004, was issued.

On 18 January 2005 Mr Al Keffai lodged an ‘Appeal Against Decision of Arbitrator’ (‘Appeal’) in the Commission, against the…

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 92
Decision Date: 18 May 2006

CaseChat Overview and Summary

In the case of Al Keffai v Famicorp Pty Limited, the court dealt with an appeal against a decision made by an arbitrator in the Workers Compensation Commission. The appellant, Riad Al Keffai, claimed he was owed additional weekly compensation after suffering an injury to his hands at work. The arbitrator had decided against his claim, and Al Keffai appealed this decision. The court considered whether it should grant leave to appeal, if the arbitrator had denied procedural fairness, and if there were any errors in the arbitrator's findings. The court found that the appeal was lodged late but granted leave because of exceptional circumstances, including the appellant's language difficulties and financial hardship. The court concluded that the arbitrator had inadvertently made an error of law by not allowing the appellant to present all his evidence. The decision of the arbitrator was revoked, and the matter was sent back to another arbitrator for a fresh determination. The court did not order any costs for the appeal.

Orders