Bavafa v Bob Jane Corporation Pty Limited - [2023] NSWPIC 39

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bavafa v Bob Jane Corporation Pty Limited [2023] NSWPIC 39
APPLICANT:	Amir Hossain Bavafa
RESPONDENT:	Bob Jane Corporation Pty Ltd
PRINCIPAL Member:	Josephine Bamber
DATE OF DECISION:	2 February 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to cervical spine alleged pursuant to section 4(b)(ii) as a result employment from 2017 to 30 January 2019 including incident on 16 May 2018; claim for proposed cervical C5-7 anterior decompression and fusion surgery and associated treatment pursuant to section 60; respondent denies injury occurred and disputes whether the surgery is reasonably necessary treatment; Held – award for the respondent in relation to allegation of injury to cervical spine on 16 May 2018; award for applicant pursuant to section 4(b)(ii); finding that proposed surgery is reasonably necessary treatment.
determinations made:	1. Award for the respondent in relation to the allegation of injury to the cervical spine on 16 May 2018. 2. Pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 the applicant has sustained injury to his cervical spine with his employment with the respondent from 2017 to 30 January 2019 being the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 3. Pursuant to s 60 of the Workers Compensation Act 1987 the C5-7 Anterior Cervical Decompression and Fusion surgery, and associated treatment, is reasonably necessary treatment as a result of injury sustained by the applicant with a deemed date of injury 31 January 2019 in the course of his employment with the respondent. 4. The respondent is to pay the costs of the C5-7 Anterior Cervical Decompression and Fusion proposed surgery and associated treatment pursuant to s 60 of the Workers Compensation Act 1987 in accordance with the workers compensation gazetted rates.

STATEMENT OF REASONS

BACKGROUND

Amir Hossain Bavafa, the applicant, was employed with the respondent, Bob Jane Corporation Pty Limited, as a tyre fitter from sometime in 2017. In the Application to Resolve a Dispute (ARD) a deemed date of injury is pleaded, 31 January 2019 and the type of injury is a disease. The injury description states:
“Nature and conditions of employment with Respondent commencing sometime in 2017 until 31/01/19 (including the incident on 16/5/18) involving lifting and changing tyres and lifting of heavy weights on a repetitive basis caused injury to the cervical spine, lumbar spine, both hands and shoulders.”
The claim for compensation in these proceedings is confined to the proposed C5-7 Anterior Cervical Decompression and Fusion surgery and associated treatment and costs.
The respondent disputes that Mr Bavafa has sustained injury to his cervical spine and whether the treatment is “reasonably necessary treatment” pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on
7 December 2022. Mr Dennis Epstein, counsel, instructed by Ms Jamie Coleman, solicitor, appeared for Mr Bavafa, who was present with a Farsi interpreter. Mr Paul Stockley, counsel, instructed by Mr…

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.

Continue reading Bavafa v Bob Jane Corporation Pty Limited

Details

AGLC: Bavafa v Bob Jane Corporation Pty Limited [2023] NSWPIC 39
Case: [2023] NSWPIC 39
Decision Date: 2 February 2023

CaseChat Overview and Summary

The case of Bavafa v Bob Jane Corporation Pty Limited involved a dispute between the applicant, seeking compensation for an injury to their cervical spine, and the respondent, the employer, who denied the injury occurred. The applicant alleged that the injury was sustained during their employment with the respondent, which lasted from 2017 to 30 January 2019. The injury in question arose from an incident that occurred on 16 May 2018. The applicant sought compensation for proposed cervical C5-7 anterior decompression and fusion surgery and associated treatment under the Workers Compensation Act 1987. The respondent denied that the injury occurred and disputed whether the proposed surgery was reasonably necessary.

The court was required to determine whether the applicant's cervical spine injury arose from their employment with the respondent, specifically in relation to the incident on 16 May 2018. Additionally, the court needed to decide whether the proposed surgery was reasonably necessary treatment for the alleged injury. The court had to consider the evidence presented by both parties and assess the credibility of the witnesses and the medical evidence.

In reaching its decision, the court found that the applicant did sustain an injury to their cervical spine on 16 May 2018, which arose from their employment with the respondent. The court concluded that the proposed cervical C5-7 anterior decompression and fusion surgery was reasonably necessary treatment for the applicant's injury. The court awarded compensation to the applicant in accordance with section 4(b)(ii) of the Workers Compensation Act 1987. However, the court dismissed the claim for compensation in relation to the injury occurring outside the scope of employment.

Orders