Bakshi v Wilson Security Pty Limited

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Bakshi v Wilson Security Pty Limited [2010] NSWWCCPD 28
APPELLANT:		Joginder Singh Bakshi
RESPONDENT:		Wilson Security Pty Limited
INSURER:		GIO General Limited
FILE NUMBER:		A1-6483/09
ARBITRATOR:	Mr C Tanner
DATE OF ARBITRATOR’S DECISION:		27 November 2009
DATE OF APPEAL DECISION:		22 March 2010
SUBJECT MATTER OF DECISION:		Injury; evidence not considered
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:	Hicksons
ORDERS MADE ON APPEAL:		The Arbitrator’s determination of 27 November 2009 is revoked and the following order made: “1.   The matter is remitted to a different Arbitrator for re-determination. 2.     Costs of the second arbitration, and of the first arbitration, are to follow the event of the second arbitration.”
The respondent employer is to pay the appellant worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

1. The appellant worker, Mr Bakshi, is a security guard.  He started work with the respondent employer, Wilson Security Pty Limited (‘Wilson Security’) on 23 August 2006.

1. Mr Bakshi alleges that at about 11.30pm on Saturday 23 May 2009, he was performing his usual duties at Chullora Market Place when he slipped on a wet floor whilst walking just outside the cash registers at the Woolworths supermarket.  He did not fall to the ground, but felt pain in his left leg.  He claims to have reported his injury to Woolworths’ duty manager, Mr Shameem Khan, at about 11.55pm on the evening of 23 May 2009.  He also claims to have recorded the incident in an activity log on the same evening.

1. Wilson Security denies that any injury occurred and called evidence from Mr Khan that he ceased work at 7.30pm on 23 May 2009.

1. Mr Bakshi submitted a claim form on 28 May 2009.  Wilson Security’s insurer, GIO General Limited (‘GIO’), denied liability in a section 74 notice dated 1 July 2009.  The insurer disputed injury, whether employment was a substantial contributing factor to any injury, incapacity, and whether the claimed medical treatment was reasonably necessary as a result of any injury. 

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 14 August 2009, Mr Bakshi claimed weekly compensation from 23 May 2009 to date and continuing together with hospital and medical expenses.  It alleged that he injured his back and left leg on 23 May 2009 in the following circumstances:

“Client was walking when he slipped on his left foot.  The sole of his left shoe slid a distance of 2 feet in a forward direction.  The floor was wet as it was just cleaned by the cleaner of the Centre Management.”

1. In a Reply filed on 4 September 2009, Wilson Security disputed liability on the grounds set out in the section 74 notice dated 1 July 2009.

1. The Commission listed the matter for conciliation and arbitration on 5 October 2009.  On that day the parties’ legal representatives made lengthy submissions, but called no…