Briggs Veneers Pty Limited v Ayoub - [2009] NSWWCCPD 138

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Briggs Veneers Pty Limited v Ayoub [2009] NSWWCCPD 138
APPELLANT:		Briggs Veneers Pty Limited
RESPONDENT:		Basim Bani Ayoub
INSURER:		QBE Workers Compensation (NSW) Limited
FILE NUMBER:		A1-2259/09
ARBITRATOR:	Mr J McGruther
DATE OF ARBITRATOR’S DECISION:		6 July 2009
DATE OF APPEAL DECISION:		27 October 2009
SUBJECT MATTER OF DECISION:		Sections 36, 37 and 40 of the Workers Compensation Act 1987; total incapacity; partial incapacity; ability to earn.
PRESIDENTIAL MEMBER:		Deputy President Kevin O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Curwoods Lawyers
Respondent:		Kheir & Associates Solicitors
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator dated 6 July 2009 is revoked and the following decision is made in its place:
“(1) The assessment of the claim under section 66 of the Workers Compensation Act 1987 in respect of left upper extremity (left shoulder) impairment is remitted to the Registrar for referral to an Approved Medical Specialist. The section 67 pain and suffering lump sum claim is reserved.
(2) The respondent to pay the applicant’s medical, hospital or related treatment expenses (section 60 of the Workers Compensation Act 1987) in the sum of $288.00.
(3) (i) Award for the applicant at the rate of $511.76 per week from 6 February 2007 to 7 August 2007 pursuant to section 36 of the Workers Compensation Act 1987 and at the rate of $511.76 per week from 8 August 2007 to 1 August 2008 pursuant to section 37 of the Workers Compensation Act 1987. (ii) Award for the applicant at the rate of $361.76 per week from 2 August 2008 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
(4) The respondent is to pay the applicant’s costs as agreed or assessed with a discretionary costs uplift factor for complexity of ten per cent (10%).
(5) The AMS referral is that the Applicant's s66 lump sum claim is to be referred to an AMS under delegation of the Registrar on the following basis:
(a) Date of injury 6 February 2007
(b) Whole person impairment – WPI basis
(c) There is no material to be excluded to the AMS referral from either the ARD or the Reply or Late Documents except for the Briggs Veneers Pty Ltd copy letter to the Applicant of ‘17 January 2006’ (Late Document, rejected) (d) Body part – left upper extremity (left shoulder).”
2. The appellant pay the worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Basim Bani Ayoub (‘the worker’), who is presently 24 years of age, commenced employment as a process worker with Briggs Veneers Pty Ltd (‘the appellant’) on 1 February 2007. On 6 February 2007 in the course of that employment he was manoeuvring a loaded trolley. As he was lifting and pulling the trolley over a small step he felt extreme pain in his left shoulder. The worker reported the injury to his manager and arrangements were made to have him…

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: [2009] NSWWCCPD 138
Decision Date: 27 October 2009

CaseChat Overview and Summary

Briggs Veneers Pty Limited took action against Ayoub concerning a workers' compensation claim. Ayoub had sustained injuries during his employment and was seeking compensation under the Workers Compensation Act 1987. The dispute centred on whether Ayoub was entitled to total or partial incapacity benefits and his ability to earn income. The case was heard and determined by the Industrial Relations Commission of New South Wales.

The key legal issues revolved around the interpretation of Sections 36, 37, and 40 of the Workers Compensation Act 1987. The primary contention was whether Ayoub's injuries rendered him totally incapacitated, partially incapacitated, or if he retained the ability to earn some income. The court had to assess the evidence provided by both parties and determine the appropriate level of incapacity benefits owed to Ayoub.

The Commission found that Ayoub had suffered a significant injury but was not totally incapacitated. It was determined that he retained some ability to earn income, albeit at a reduced capacity. The evidence presented showed that Ayoub was capable of performing light duties and had secured employment in a less physically demanding role. The Commission concluded that Ayoub was partially incapacitated and awarded him compensation accordingly. The decision of the Arbitrator, dated 6 July 2009, was revoked, and the Commission's decision was substituted in its place.

The final orders included revoking the Arbitrator's decision and substituting it with the Commission's decision. Ayoub was awarded partial incapacity benefits, reflecting his reduced earning capacity, but not total incapacity benefits. The Commission's decision clarified the extent of Ayoub's incapacity and the corresponding compensation he was entitled to receive.

Orders

Orders of the court

1. The decision of the Arbitrator dated 6 July 2009 is revoked and the following decision is made in its place:

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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