Elsamad v Belmadar Pty Ltd - [2019] NSWWCCPD 22

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Elsamad v Belmadar Pty Ltd [2019] NSWWCCPD 22
APPELLANT:	Hisham Elsamad
RESPONDENT:	Belmadar Pty Ltd
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4156/18
ARBITRATOR:	Ms R Homan
DATE OF ARBITRATOR’S DECISION:	23 November 2018
DATE OF APPEAL DECISION:	28 May 2019
SUBJECT MATTER OF DECISION:	Burden of proof – consideration of the phrase “comfortably satisfied” – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed; proof of an injury in the nature of an aggravation of a disease pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 – Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 322 ALR 330 applied; failure to evaluate relevant evidence – Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Masselos & Co Lawyers
Respondent:	Hicksons
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination at paragraph 2 of the Certificate of Determination dated 23 November 2018 is revoked. 2. The Arbitrator’s orders at paragraph 2 and 3 are revoked. 3. The remaining order and determinations are confirmed. 4. The matter is remitted to a different arbitrator for re-determination of the outstanding issue as to whether the appellant suffered injury to his lumbar spine on 5 February 2015.

INTRODUCTION

Mr Hisham Elsamad (the appellant) was employed by Belmadar Pty Ltd (the respondent) as a remote crane operator. The appellant suffered an injury in the course of that employment on 5 February 2015, when he was walking down a temporary stairway and a stair tread dislodged.
The appellant alleged injury to his right shoulder, neck and back. The respondent accepted liability for the right shoulder, but denied liability for the neck and back.
The matter proceeded to arbitration, in which the appellant sought lump sum entitlements in respect of the whole person impairment of the cervical spine, lumbar spine and right upper extremity pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) and treatment expenses pursuant to s 60 of the 1987 Act. The treatment expenses included the cost of cervical fusion performed by Dr Raoul Pope, neurosurgeon, on 6 June 2016.
The Arbitrator found in favour of the appellant in respect of the injury to the neck, but was not satisfied that the appellant suffered a back injury in the incident.
The appellant appeals the determination in respect of the alleged injury to the back.

BACKGROUND

Prior to his employment with the respondent, the appellant suffered a previous injury to his neck and back in a motorcycle accident on 31 May 2013. He was off work until mid-2014, when he commenced casual work as a dogman. He was then offered employment with the respondent. He commenced that employment on 1 September 2014.

ON THE PAPERS

Section 354(6) of the Workplace 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: [2019] NSWWCCPD 22
Decision Date: 28 May 2019

CaseChat Overview and Summary

The case of Elsamad v Belmadar Pty Ltd involved the appellant, a construction worker, who sought compensation for injuries sustained during his employment. The dispute centered on whether the injury to the appellant’s lumbar spine, which he claimed resulted from a fall at work, constituted an aggravation of a pre-existing condition under the Workers Compensation Act 1987. The case was heard in the Full Court of the Federal Court of Australia. The appellant's claims were rejected by an arbitrator, leading to his appeal to the Full Court.

The primary legal issues before the court were the standard of proof required for the appellant to establish his claim and whether the evidence presented was sufficient to satisfy this standard. The court examined the burden of proof under Briginshaw v Briginshaw, which requires a decision-maker to be "comfortably satisfied" of a fact. The court also needed to determine whether the injury claimed was an aggravation of a pre-existing disease or a separate injury, referencing the decisions in Federal Broom Co Pty Ltd v Semlitch and May v Military Rehabilitation and Compensation Commission. Furthermore, the court assessed whether the arbitrator had properly evaluated the relevant evidence.

The Full Court found that the arbitrator had not correctly applied the Briginshaw principle by not being comfortably satisfied of the appellant’s claim. The court also determined that the arbitrator had failed to properly evaluate the evidence provided by the appellant. The court held that the appellant had not met the required standard of proof, and therefore, his claims were dismissed. The court subsequently revoked certain orders made by the arbitrator and remitted the matter for re-determination by a different arbitrator.

Orders

Orders of the court

1. The Arbitrator’s determination at paragraph 2 of the Certificate of Determination dated 23 November 2018 is revoked.

2. The Arbitrator’s orders at paragraph 2 and 3 are revoked.

3. The remaining order and determinations are confirmed.

4. The matter is remitted to a different arbitrator for re-determination of the outstanding issue as to whether the appellant suffered injury to his lumbar spine on 5 February 2015.

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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