Freedom Group Limited v Ferizovic-

Case [2008] NSWWCCPD 27

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION

CONSTITUTED BY AN ARBITRATOR

CITATION:Freedom Group Limited v Ferizovic [2008] NSWWCCPD 27

APPELLANT:  Freedom Group Limited

RESPONDENT:  Midho Ferizovic

INSURER:Allianz Australia Workers Compensation (NSW) Limited

FILE NUMBER:  WCC6826-07

DATE OF ARBITRATOR’S DECISION:          8 November 2007

DATE OF APPEAL DECISION:  29 February 2008

SUBJECT MATTER OF DECISION: Error of law; sections 4 and 9A of the Workers Compensation Act 1987; combing the Arbitrator’s reasons for error; decision available to the Arbitrator on the evidence; exercise of function fairly and according to law; evidence and weight of evidence; adequacy of reasons for decision; whether statement of worker improperly taken; credit.

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:Determined on the papers

REPRESENTATION:  Appellant:      Bartier Perry

Respondent:   Conomos & Spinak

ORDERS MADE ON APPEAL:  The decision of the Arbitrator dated 8 November 2007 is confirmed.

The Appellant Employer is ordered to pay the Respondent Worker’s costs of this appeal.

BACKGROUND

  1. On 6 December 2007 Freedom Group Limited (‘Freedom’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision, dated 8 November 2007.

  1. The Respondent Worker to the Appeal is Mr Midho Ferizovic.

  1. The Insurer is Allianz Australia Workers Compensation (NSW) Limited.

  1. Mr Ferizovic was born in Bosnia and arrived in Australia on 5 December 2001.  Before coming to Australia he was employed as a public servant and as a police officer.  He was unable to obtain employment in Australia until 7 August 2003 when he was employed by Freedom in its Doonside/Marayong factory as a storeman.

  1. Mr Ferizovic says that he injured his back at work on “a Friday in August 2004 just before 10 am”.  He claims in his statement dated 8 August 2007 that he was moving a huge glass top from a table that was about 2 metres long and half a metre wide.  He said that the glass was “really heavy, maybe about 20-30 kgs”.  As he lifted the glass on his own, he twisted to put the glass onto a mattress.  He says that he felt a twinge of pain in his back.  He then pushed the wooden table over onto its side and “felt immediate pain”.

  1. The Arbitrator states at [3] of his ‘Statement of Reasons for Decision’:

“The Applicant claims to have suffered an injury to his lumbar spine, with pain radiating to his right leg.  The injury is claimed to have occurred on or about 13 August 2004 for a frank injury to the back, and later until 4 November 2004 for a nature and conditions claim when the Applicant worker continued to work in his usual duties.

  1. The Arbitrator goes on to say at [4]:

“The Applicant notified the Respondent of the injury on a date which is in dispute, however the issue of notice of injury itself is not in dispute.”

  1. On 12 October 2006 the Insurer informed Mr Ferizovic that it denied liability for the continuing entitlement to…

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Freedom Group Limited v Ferizovic- [2008] NSWWCCPD 27
Case
[2008] NSWWCCPD 27
Decision Date

CaseChat Overview and Summary

The case of Freedom Group Limited v Ferizovic involves an appeal by Freedom Group Limited against a decision of an arbitrator, who found that Mr Ferizovic had sustained a lumbar back injury in the course of his employment with Freedom Group Limited and that employment was a substantial contributing factor to the injury. The dispute is being heard in the Commission, which has jurisdiction over workers’ compensation matters in New South Wales. The appeal raises five grounds, focusing on the correctness of the arbitrator's findings regarding the nature of the injury and its relation to Mr Ferizovic’s employment.

The primary legal issue before the Commission was whether the arbitrator’s findings were correct in determining that Mr Ferizovic’s lumbar back injury arose out of and in the course of his employment with Freedom Group Limited, and that employment was a substantial contributing factor to the injury. The appeal grounds challenge the validity of these findings, and the Commission had to assess the evidence and arguments presented by both parties to determine the merits of the appeal. The Commission examined the submissions, the transcript of the proceedings before the arbitrator, and other relevant documents to make an informed decision.

In reaching its decision, the Commission considered the extensive written submissions from both parties, the transcript of the proceedings before the arbitrator, and other relevant documents. The Commission found that it had sufficient information to decide the appeal on the papers without the need for a formal hearing, in accordance with the Practice Directions. The Commission thoroughly reviewed the evidence and arguments to ensure that it had a comprehensive understanding of the case before making its determination.

The Commission upheld the appeal, finding that the arbitrator’s determination that Mr Ferizovic sustained an injury to his lumbar back arising out of or in the course of his employment with Freedom Group Limited, and that employment was a substantial contributing factor to the injury, was incorrect. The Commission's decision was based on its review of the evidence and the arguments presented by both parties. The final order of the Commission was that the appeal be allowed, and the findings of the arbitrator were set aside.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I will therefore proceed on the basis that Freedom is appealing the Arbitrator’s decision, as set out in the ‘Certificate of Determination’ dated 8 November 2007, by reason that his findings that (i) Mr Ferizovic sustained an injury to his lumbar back arising out of or in the course of his employment with Freedom, and that (ii) employment was a substantial contributing factor to the injury, are incorrect. The issues in dispute in the appeal are set out in Freedom’s five grounds of appeal, and may be summarised as follows: Section 354(6) of the 1998 Act provides: Freedom’s legal representatives filed its initial submissions on appeal with its Appeal Application, on 6 December 2007. Mr Ferizovic’s legal representatives filed his submissions on appeal with his ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 22 January 2008. The Notice of Opposition was filed late (see below under “PRELIMINARY MATTERS”). On 17 December 2007, the Commission wrote to both parties in the following terms: On 6 February 2008, Freedom’s legal representatives filed detailed supplementary submissions, and served a copy on Mr Ferizovic’s legal representatives. On 14 February 2008, Mr Ferizovic’s legal representatives filed brief supplementary submissions, consisting of two paragraphs, but raising no new matters or issues. On 19 February 2008 more fulsome, written supplementary submissions in reply to Freedom’s detailed supplementary submissions were filed in the Commission, as part of Mr Ferizovic’s second or supplementary submissions. I note that these submissions raised no new issues, but the attention of the Commission was invited to the Commission’s decision in Mateus v Zodune Pty Ltd [2007] NSWWCCPD 227, should the Commission wish to consider it. Otherwise, the submissions of 18 February 2008 (filed on 19 February 2008) were confined to responding to Freedom’s supplementary submissions. All supplementary submissions filed by each party have been served on the other party. Freedom’s legal representatives submit that the Appeal may be determined on the papers. Mr Ferizovic’s legal representatives make the following submission, in support of a face-to-face hearing: Mr Ferizovic’s legal representatives have now had the opportunity to respond in writing to the further submissions made by Freedom’s legal representatives, as outlined above. I have closely read all of the submissions of both parties, the transcript of proceedings before the Arbitrator, and all other relevant documents in this matter. In the determination of this Appeal, I take into account the reservations and concerns expressed by Mr Ferizovic’s legal representatives. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the extensive submissions by the parties, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

Ratio Decidendi

Legal Principle Established

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