Daher v Klassic Kleen Pty Ltd - [2023] NSWPIC 14

DECISION OF PRESIDENT’S DELEGATE
Citation:	Daher v Klassic Kleen Pty Ltd [2023] NSWPIC 14
APPLICANT:	Norman Daher
RESPONDENT:	Klassic Kleen Pty Ltd
PResident’s Delegate:	Belinda Gamble
DATE OF DECISION:	11 January 2023
CATCHWORDS:	Workers Compensation Act 1987; applicant suffered accepted injury to his abdomen lower back, both upper limbs, neck and knees; applicant received 130 weeks of weekly benefits pursuant to sections 36 and 37; applicant was recently diagnosed with cancer rending him unfit for work; whether the applicant has “no current work capacity” and is entitled to weekly benefits under section 38; Held – applicant has not established on the balance of probabilities that he has no current work capacity as a result of a compensable injury; no evidence to support that the applicant is likely to continue indefinitely to have no current work capacity; application dismissed.
Orders made:	INTERIM PAYMENT DIRECTION This direction is issued pursuant to the Workplace Injury Management and Workers Compensation Act 1998 The Commission determines: 1. I am not satisfied that the applicant has no current work capacity. 2. The application to set aside the work capacity decision is dismissed.

BACKGROUND

On 8 November 2018, Norman Daher suffered an injury to his abdomen, lower back, both upper limbs, neck and both knees whist working for Klassic Kleen Pty Ltd, the respondent.
Following his injury, Mr Daher received weekly benefits compensation paid in accordance with ss 36 and 37 of the Workers Compensation Act 1987 (the 1987 Act).
On 21 July 2022 the respondent issued a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The notice advised
Mr Daher that the respondent has made a work capacity decision under ss 43(1)(a) and (c), of the 1987 Act (the WCD).
In the WCD the respondent advised it was of the view that Mr Daher had a current capacity to work in suitable employment as a sales assistant for 20 hours per week. The respondent stated Mr Dahmer could earn $528.40 per week from 2 November 2022 in this suitable employment, and, as a result Mr Dahmer’s entitlement to weekly benefits compensation would be reduced to $1,111.60 per week from 2 November 2022. The WCD was based on a vocational assessment which assessed Mr Daher as being suitable to perform the roles of delivery driver, sales assistant and customer service representative and approval given for Mr Daher to work in those vocational options by his nominated treating doctor
Professor Danform Lim.
On 19 September 2022 the respondent wrote to Mr Daher advising that his entitlement to weekly payments had come to an end because he did not meet the special requirements to continue to receive weekly payments after 130 weeks. The respondent’s letter stated that
Mr Daher was no longer eligible for weekly payments from 2 November 2022.
On 29 September 2022 Mr Daher’s general practitioner, Dr Liu, certified Mr Daher as having no capacity for work. On 30 September 2022 Mr Daher submitted a “recurrence of injury”…

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: [2023] NSWPIC 14
Decision Date: 11 January 2023

CaseChat Overview and Summary

The case of Daher v Klassic Kleen Pty Ltd involved the applicant, who had previously suffered injuries recognised under the Workers Compensation Act 1987, and the respondent, Klassic Kleen Pty Ltd. The applicant had received 130 weeks of weekly benefits due to his injuries, which affected his abdomen, lower back, upper limbs, neck, and knees. Recently diagnosed with cancer, the applicant claimed he was unfit for work and sought continued weekly benefits under section 38 of the Act, arguing he had no current work capacity as a result of his compensable injury.

The court was tasked with determining whether the applicant had established on the balance of probabilities that he had no current work capacity due to his compensable injury. Additionally, the court had to consider whether there was sufficient evidence to support the applicant's claim that he was likely to continue indefinitely without work capacity. The court scrutinised the medical evidence and the applicant's ability to perform any form of work, taking into account his recent cancer diagnosis and its implications for his work capacity.

After a thorough review of the evidence, the court concluded that the applicant had not demonstrated on the balance of probabilities that he had no current work capacity as a result of his compensable injury. The court found no evidence to support the applicant's contention that he was likely to continue indefinitely without work capacity. Consequently, the application for continued weekly benefits was dismissed.

In light of the above, the court made an order dismissing the applicant's application for weekly benefits under section 38 of the Workers Compensation Act 1987. The respondent was not required to pay the costs of the proceeding.

Orders