Balfours NSW Pty Ltd v Karam - [2011] NSWWCCPD 56

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Balfours NSW Pty Ltd v Karam [2011] NSWWCCPD 56
APPELLANT:		Balfours NSW Pty Ltd
RESPONDENT:		Youssef Karam
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-326/11
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:		6 July 2011
DATE OF APPEAL DECISION:		18 October 2011
SUBJECT MATTER OF DECISION:		Claim for consequential loss as a result of injuries sustained while participating in a rehabilitation program
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:	Stephen Smart & Associates
ORDERS MADE ON APPEAL:		The Arbitrator’s decision of 6 July 2011 is confirmed. The appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

The respondent worker, Mr Karam, was employed by the appellant, Balfours NSW Pty Ltd (Balfours), as a labourer.
On 29 January 2005, Mr Karam was pushing a large rubbish bin when, as a result of a defective wheel on the bin, it jammed, causing Mr Karam to suffer an injury to his lower back.
Balfours accepted liability for the back injury and commenced weekly compensation.
Mr Karam made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for whole person impairment in respect of the lumbar spine. The quantum of the impairment was disputed and the matter was referred to Dr W Bye, an Approved Medical Specialist (AMS), to assess the degree of permanent impairment as a result of the injury to the lumbar spine. Dr Bye issued a Medical Assessment Certificate (MAC) dated 3 November 2006 certifying Mr Karam as suffering seven per cent whole person impairment. A Certificate of Determination was issued in accordance with the MAC and Mr Karam received lump sum compensation of $8,750.
Mr Karam alleges that he suffered a consequential loss as a result of an injury to his left shoulder and neck sustained while he was participating in an exercise/gym program undertaken in 2006 as part of his rehabilitation and treatment program for his back injury.
On 8 November 2010, Mr Karam’s solicitors wrote to his employer and CGU, making a claim on his behalf under s 66 and s 67 of the 1987 Act. Mr Karam claimed a lump sum of $116,000 in respect of a combined whole person impairment of 51 per cent, calculated as follows:

Cervical spine injury DRE category 4

26% whole person impairment

Thoracic spine injury DRE category 2

7% whole person impairment

Lumbosacral spine injury DRE category 4
(21% whole person impairment less 7% whole person impairment from the previous claim)

14% whole person impairment

Traumatic capsulitis of the left shoulder

18% whole person impairment

The claim in respect of the lumbosacral spine was based on a deterioration of the worker’s condition during the period from the previous settlement. While it was not made clear in the letters of demand, the claims in respect of the cervical spine and 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: [2011] NSWWCCPD 56
Decision Date: 18 October 2011

CaseChat Overview and Summary

The case of Balfours NSW Pty Ltd v Karam involved the appellant employer, Balfours NSW Pty Ltd, and the respondent, Karam, a worker who sustained injuries while participating in a rehabilitation program. The primary dispute was over the worker's claim for consequential loss resulting from these injuries. The matter was heard and determined by the NSW Court of Appeal.

The legal issues before the court included whether the injuries sustained by Karam during the rehabilitation program were reasonably foreseeable, and whether the employer could be held liable for such injuries. Another significant issue was the interpretation of the relevant statutory provisions and whether they covered the circumstances of the case. The court had to determine if the employer had breached any duty of care owed to the worker during the rehabilitation program.

The court found that the injuries Karam sustained were not reasonably foreseeable, and thus the employer was not liable for the consequential loss. The reasoning was based on the understanding that the rehabilitation program was intended to assist the worker in recovering from injuries, and not all risks associated with such programs are the responsibility of the employer. The court confirmed the Arbitrator’s decision and held that the worker's claim for consequential loss was not substantiated. Consequently, the appeal was dismissed, and the employer was ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

The Arbitrator’s decision of 6 July 2011 is confirmed.

The appellant employer is to pay the respondent worker’s 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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Cervical spine injury DRE category 4	26% whole person impairment
Thoracic spine injury DRE category 2	7% whole person impairment
Lumbosacral spine injury DRE category 4 (21% whole person impairment less 7% whole person impairment from the previous claim)	14% whole person impairment
Traumatic capsulitis of the left shoulder	18% whole person impairment