Basit v Haden FM Pty Ltd trading as Resolve FM - [2008] NSWWCCPD 24

WORKERS COMPENSATION COMMISSION

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

CITATION:Basit v Haden FM Pty Ltd t/as Resolve FM [2008] NSWWCCPD 24
APPELLANT:  Abdul Basit
RESPONDENT:  Haden FM Pty Ltd t/as Resolve FM
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC6024-05
DATE OF ARBITRATOR’S DECISION:          23 October 2007
DATE OF APPEAL HEARING:  19 February 2008
DATE OF APPEAL DECISION:  22 February 2008
SUBJECT MATTER OF DECISION: Reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; relevance of a Medical Assessment Certificate to an application for reconsideration; inconsistent findings between Medical Assessment Certificate and Arbitrator’s original decision
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:Oral
REPRESENTATION:  Appellant:      McDonnell Schroder
Respondent:   Ellison Tillyard Callanan

ORDERS MADE ON APPEAL: Paragraph one of the Arbitrator’s determination of 23 October 2007 is revoked and the following order made:

“The matter is remitted to a different Arbitrator to re-determine the Appellant Worker’s reconsideration application in accordance with the reasons and principles in this decision, and, if appropriate, to re-determine any entitlement/s he may have consequent upon that reconsideration.”
Paragraphs two, three and four of the Arbitrator’s determination of 23 October 2007 are confirmed.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.

BACKGROUND TO THE APPEAL

Abdul Basit (‘the Appellant Worker/Mr Basit’) was born in Afghanistan in 1968 and came to Australia in 1999. He started work with Haden FM Pty Ltd t/as Resolve FM (‘the Respondent Employer/Haden’) as a property officer on 2 February 2004. He injured his back in the course of his employment with Haden on 8 March 2004 as a result of lifting a laundry basket containing household goods. He saw his general practitioner, Dr Chanda, on 9 March 2004 and was prescribed analgesics and advised to rest. He attempted to return to work on light duties on 12 March 2004 but was unable to continue. His claim was initially accepted, but liability was declined from 17 September 2004.

The Commission registered Mr Basit’s Application to Resolve a Dispute (‘the Application’) on 26 April 2005. In it he claimed weekly compensation from 17 September 2004 to date and continuing, hospital and medical expenses, and compensation for permanent impairment.

The matter proceeded to arbitration on 3 August 2005 (‘the first arbitration’) when Mr Eistis, a solicitor, represented Mr Basit and Mr Egan, of counsel, represented Haden. After hearing lengthy submissions from the parties representatives the Arbitrator delivered an ex tempore decision which resulted in a Certificate of Determination dated 9 August 2005 (‘the first determination’) in the following terms:

“1.There is an award for the Respondent in respect of the Applicant’s claim of permanent impairment as a result of the incident on 8 March 2004.

2.There is an award for the Respondent in respect of the Applicant’s claim for weekly compensation pursuant to s.40 of the Workers Compensation Act 1987, for the period from 17/9/2004.

3.There is an award for the Respondent, in relation to 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: [2008] NSWWCCPD 24
Decision Date: 22 February 2008

CaseChat Overview and Summary

Abdul Basit sought to appeal a decision of an Arbitrator who had dismissed his application for reconsideration. The application for reconsideration related to a decision of the Workers Compensation Commission in which the Arbitrator had found that Mr Basit had suffered only a minor aggravation of his pre-existing back condition, that the effects of his work injury had ceased by 17 September 2004 and that he had no entitlement to compensation beyond that date. The appeal related to the Arbitrator's refusal to reconsider the claim for weekly compensation on the basis of fresh evidence in the form of a Medical Assessment Certificate and the report of a Medical Appeal Panel. The appeal was allowed and the matter was remitted to another Arbitrator for re-determination. The matter had dragged on for over three years and it was time for it to be determined "according to its substantial merits" without inappropriate and unnecessary technical objections being taken.

Orders