Drar v EDS Business Services Pty Ltd - [2010] NSWWCCPD 63

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Drar v EDS Business Services Pty Ltd [2010] NSWWCCPD 63
APPELLANT:		Kebra Drar
RESPONDENT:		EDS Business Services Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-8784/09
ARBITRATOR:	Mr R Bell
DATE OF ARBITRATOR’S DECISION:		3 March 2010
DATE OF APPEAL DECISION:		7 June 2010
SUBJECT MATTER OF DECISION:		Injury; aggravation of disease; credit issues; failure to consider relevant evidence; failure to consider and determine claim pleaded; relevance of failure to cross-examine; application of principles in Browne v Dunn (1894) 6 R 67 to proceedings in the Commission
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Steve Masselos & Co
Respondent:		TurksLegal
ORDERS MADE ON APPEAL:		Paragraphs four and five of the Arbitrator’s determination of 3 March 2010 are revoked and the following orders made in their place: “4. The applicant worker suffered an injury to her lumbar spine and right upper extremity (right shoulder) in the nature of an aggravation of a disease and a secondary psychological injury as a result of bending and lifting in the course of her employment with the respondent employer between 1 May 2006 and 15 May 2007. 4A.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of injury to the worker’s lumbar spine and right upper extremity (right shoulder). The deemed date of injury is 15 May 2007. 5. Pursuant to section 60 of the Workers Compensation Act 1987, the respondent employer is to pay the applicant worker’s hospital and medical expenses for her physical and psychological injuries upon production of accounts or receipts. 5A. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.” Paragraphs one, two, three and six of the Arbitrator’s determination are confirmed. The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST.

BACKGROUND

The appellant worker, Kebra Drar, started work with the respondent employer, EDS Business Services Pty Ltd (‘EDS’), as a material handler in May 2006. EDS is an outsourcing company that assists other companies with distribution and logistics. Ms Drar’s duties required her to pick and pack various products in preparation for distribution.
She alleged in her statement that she began to feel pain in her lower back and right shoulder in June 2006. She had three or four days off work in late July 2006, but did not produce a WorkCover certificate. Between 2 October and 11 November 2006, Ms Drar travelled to Africa for her daughter’s wedding.
Ms Drar alleged that her back and right shoulder pain increased when she lifted 111 boxes on a particular day in April 2007. She was certified fit for suitable duties on 14 May 2007 and then certified unfit for work on or about 17 May 2007.
She submitted a claim form on 6 June 2007. The respondent’s workers…

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: [2010] NSWWCCPD 63
Decision Date: 7 June 2010

CaseChat Overview and Summary

The matter of Drar v EDS Business Services Pty Ltd was heard in the Workers Compensation Appeals Commission, where the applicant, Drar, sought review of an Arbitrator's determination regarding her claim for compensation for injuries sustained during her employment with the respondent, EDS Business Services Pty Ltd. The primary dispute centred around the nature and extent of the injuries, the aggravation of pre-existing conditions, and the failure of the Arbitrator to properly consider certain evidence and legal principles in reaching their decision.

The key legal issues the court had to address were whether the Arbitrator correctly identified the nature and extent of the injuries sustained by Drar, whether there was a failure to consider relevant evidence, and whether the Arbitrator's determination was flawed by not applying the principles outlined in Browne v Dunn (1894) 6 R 67. Specifically, the court examined whether the Arbitrator's failure to cross-examine certain witnesses and consider all relevant evidence led to an incorrect conclusion about the aggravation of Drar's pre-existing conditions.

In reviewing the Arbitrator's determination, the court found that the Arbitrator did not properly consider the evidence regarding the nature and extent of Drar's injuries, particularly the aggravation of her pre-existing conditions. The court held that the Arbitrator failed to apply the principles in Browne v Dunn, which require a tribunal to consider all relevant evidence and not to ignore evidence that could impact the outcome of the case. Consequently, the court concluded that the Arbitrator's determination was flawed and remitted the matter to the Registrar for further assessment by an Approved Medical Specialist to determine the whole person impairment. Additionally, the court ordered that the respondent employer was to pay for Drar's hospital and medical expenses and her costs of the appeal.

The court's final orders included revoking certain paragraphs of the Arbitrator's determination and substituting them with new orders that mandated a reassessment of Drar's injuries and the payment of her medical expenses and appeal costs by the respondent employer. The remaining parts of the Arbitrator's determination were upheld.

Orders

Orders of the court

Paragraphs four and five of the Arbitrator’s determination of 3 March 2010 are revoked and the following orders made in their place:

“4. The applicant worker suffered an injury to her lumbar spine and right upper extremity (right shoulder) in the nature of an aggravation of a disease and a secondary psychological injury as a result of bending and lifting in the course of her employment with the respondent employer between 1 May 2006 and 15 May 2007.

4A.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the whole person impairment as a result of injury to the worker’s lumbar spine and right upper extremity (right shoulder). The deemed date of injury is 15 May 2007.

5. Pursuant to section 60 of the Workers Compensation Act 1987, the respondent employer is to pay the applicant worker’s hospital and medical expenses for her physical and psychological injuries upon production of accounts or receipts.

5A. The respondent employer is to pay the applicant worker’s costs, as agreed or assessed.”

Paragraphs one, two, three and six of the Arbitrator’s determination are confirmed.

The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $2,200.00 plus GST.

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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