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Borja v Kolder Pty Ltd

Borja v Kolder Pty Ltd

Case [2024] NSWPIC 90 27 February 2024

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CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Borja v Kolder Pty Ltd [2024] NSWPIC 90
APPLICANT:	Reynaldo Borja
RESPONDENT:	Kolder Pty Limited
MEMBER:	John Turner
DATE OF DECISION:	27 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Injury to left shoulder disputed including a dispute as to substantial contributing factor; dispute as to the giving of notice of injury pursuant to section 254 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act); claim for weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act); sections 254, 255 of the 1998 Act, sections 4, 9A,36, 37, 60 of the 1987 Act, and section 43(2) of the Personal Injury Commission Act 2020 referred to; Onesteel Reinforcing Pty Ltd v Sutton, Kooragang Cement Pty Ltd v Bates, Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Military Rehabilitation and Compensation Commission v May, Taylor v J & D Stephens Pty Ltd, Perry v Tanine Pty Ltd t/as Ermington Hotel , Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd, Federal Broom Co Pty Ltd v Semlitch , Cant v Catholic Schools Office, AV v AW, Ariton Mitic v Rail Corporation of NSW, and Mason v Demasi referred to; Held – that the applicant sustained injury to his left shoulder in the course of his employment with the respondent on 26 November 2020; that the applicant’s employment was a substantial contributing factor to the injury sustained on 26 November 2020; that the applicant gave notice of his injury on 26 November 2020 in accordance with section 254 of the 1998 Act; that the applicant was totally incapacitated for work from 23 February 2021 for a period of 130 weeks as a result of the injury sustained to his left shoulder in the course of his employment with the respondent on 26 November 2020.
DETERMINATIONS MADE:	The Commission determines: 1. That the applicant sustained injury to his left shoulder in the course of his employment with the respondent on 26 November 2020. 2. That the applicant’s employment was a substantial contributing factor to the injury sustained on 26 November 2020. 3. That the applicant gave notice of his injury on 26 November 2020 in accordance with s 254 of the Workplace Injury Management and Workers Compensation Act 1998. 4. That the applicant was totally incapacitated for work from 23 February 2021 for a period of 130 weeks as a result of the injury sustained to his left shoulder in the course of his employment with the respondent on 26 November 2020. The Commission orders: 5. The respondent to pay the applicant: a. Pursuant to s 36 of the Workers Compensation Act 1987 (the 1987 Act): i. $871.01 per week from 23 February 2021 to 31 March 2021, and ii. $895.85 per week from 1 April 2021 to 25 May…

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 Borja v Kolder Pty Ltd

Details

AGLC: Borja v Kolder Pty Ltd [2024] NSWPIC 90
Case: [2024] NSWPIC 90
Decision Date: 27 February 2024

CaseChat Overview and Summary

The case of Borja v Kolder Pty Ltd involved a claim for workers' compensation by Borja against his employer, Kolder Pty Ltd. The dispute centered on the injury to Borja's left shoulder, the adequacy of notice of the injury, and the entitlement to weekly compensation. The case was heard in the Workers Compensation Court of New South Wales. The key legal issues were whether Borja had sustained an injury to his left shoulder during his employment, if his employment was a substantial contributing factor to the injury, and if he had complied with the notice requirements under the Workplace Injury Management and Workers Compensation Act 1998.

The court examined the evidence and found that Borja did indeed sustain an injury to his left shoulder on 26 November 2020, in the course of his employment with Kolder Pty Ltd. The court was also satisfied that Borja's employment was a substantial contributing factor to the injury. Furthermore, the court determined that Borja had given proper notice of his injury on the same day, as required by section 254 of the 1998 Act. The court concluded that Borja was totally incapacitated for work from 23 February 2021 for a period of 130 weeks, a direct consequence of the injury sustained.

Based on the findings, the court ruled in favor of Borja. It found that he was entitled to weekly compensation pursuant to sections 36 and 37 of the Workers Compensation Act 1987. The court's decision was influenced by several precedents, including Onesteel Reinforcing Pty Ltd v Sutton, Kooragang Cement Pty Ltd v Bates, and others. The court's decision provided clarity on the notice requirements and the assessment of substantial contributing factors in workers' compensation claims.

Orders