Ali v Form Group NSW Pty Limited

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Ali v Form Group NSW Pty Limited [2020] NSWWCCPD 64
APPELLANT:	Ali Ali
RESPONDENT:	Form Group NSW Pty Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-2074/20
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	29 June 2020
DATE OF APPEAL DECISION:	3 November 2020
SUBJECT MATTER OF DECISION:	Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 discussed and applied; failure to cross examine – rejection of evidence which is not the subject of cross-examination; Ali v Nationwide News Pty Ltd [2008] NSWCA 183 applied; application of common knowledge and experience – Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Schipp, counsel
Prominent Lawyers

Respondent:
Mr H Halligan, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination dated 29 June 2020 is confirmed.

INTRODUCTION AND BACKGROUND

1. Mr Ali Ali (the appellant) was employed by Form Group NSW Pty Limited (the respondent) as a formworker. On 21 June 2017, the appellant was preparing a timber cast in which concrete was to be poured. While performing that task, the appellant was standing on timber suspended between steel frames about 1.8 metres above the 15^th floor of the building. It was a very windy day, and the appellant lost his footing and fell to the floor of that level of the building. The appellant was rescued by NSW Fire and Rescue and taken to St George Hospital by ambulance. The appellant was treated for a fractured right tibia, which included surgical insertion of an intramedullary nail, and he was discharged into the care of his general practitioner, Dr Khalid El Skafi on 24 June 2017. The respondent accepted liability for the injury.

2. On 5 March 2019, the appellant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 28% whole person impairment (WPI), which comprised of assessments of the appellant’s cervical spine, lumbar spine, right upper extremity, right knee and right foot. The respondent rejected the offer and made a counter offer based on 14% WPI. The respondent issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for the lumbar spine. The respondent asserted that the lumbar spine was not injured in the incident on 21 June 2017.

3. The appellant commenced proceedings in the Commission, alleging that in the incident on 21 June 2017, he injured his cervical spine, lumbar spine, right upper extremity and right lower extremity. He claimed $52,250 as lump sum compensation pursuant to s 66 in respect of 28% WPI, which included right leg scarring. The…