El-Chami v DME Engineering Services Pty Limited

[2019] NSWWCCPD 35

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	El-Chami v DME Engineering Services Pty Limited [2019] NSWWCCPD 35
APPELLANT:	Omar El-Chami
RESPONDENT:	DME Engineering Services Pty Limited
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-5145/18
ARBITRATOR:	Mr J Isaksen
DATE OF ARBITRATOR’S DECISION:	29 November 2018
DATE OF APPEAL DECISION:	18 July 2019
SUBJECT MATTER OF DECISION:	Whether Arbitrator was correct to find that the applicant had not made out any case of incapacity as a result of injury between date of cessation of payments of compensation on 24 August 2015 and 26 June 2017 when period of claim closed
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Sanford Legal
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1.    The Arbitrator’s Certificate of Determination of 29 November 2018 is confirmed.

INTRODUCTION

1. The appellant worker appeals from a decision of an Arbitrator finding that he had not made out a case of  total or partial incapacity for work between 24 August 2015 and 26 June 2017 as a result of an injury it was common ground he suffered in the course of his employment with the respondent on 15 May 2015. The respondent conceded that incapacity existed up until its cessation of payments pursuant to a s 74 Notice on 24 August 2015, and the appellant did not press his claim beyond 26 June 2017. On 27 June 2017 the appellant suffered serious injuries in a motor vehicle accident unrelated to his employment with the respondent or to the conceded injury of 15 May 2015 and was thereafter unable to work in any event.

2. The Arbitrator held that the claim for weekly benefits during the period just mentioned failed. However the Arbitrator was satisfied that the medical treatment the appellant had undergone, for which the respondent had also denied liability, was reasonably necessary as a consequence of the injury, as was the need for medication he was prescribed and took.

3. As can readily be appreciated, the Arbitrator’s decision thus amounted to one that the appellant had some acceptable level of continuing difficulty flowing from his injury such as to create a need for some medical expense, but not sufficient to produce any relevant incapacity for work.

BACKGROUND

1. The appellant’s case was that on 15 May 2015 he sustained injury to his neck, right shoulder, right arm, upper and lower back and consequential depression as a result of the injury he suffered in the course of his employment with the respondent.

2. It was not in dispute that on the afternoon of 15 May 2015, in the course of his employment with the respondent as a rigger, which employment he had held on a casual basis since early February 2015 subject to a three week honeymoon in late April and early May, he was struck by a heavy steel beam which was suspended from a crane whilst he was standing in a cherry picker. However, the particular parts of his…